A Citizen's Guide to Indiana

Masson's Blog

Where I live, the game to play is compromise solution

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(H/t Indiana Law Blog) I am a decent lawyer, but perhaps not a great businessman. I routinely tell clients and potential clients that they’re probably best off if they can reach an agreement with the other guy they can live with, even if they aren’t entirely happy. Once litigation gets cooking, I and the opposing counsel, are probably the only ones who are going to “win.”

A study reported in the New York Times seems to support this advice. The study looked at pre-trial settlement offers that were not accepted in cases that ultimately went to trial. Plaintiffs made the wrong decision by going to trial in 61% of those cases — the final settlement offer by the defendant was higher than the verdict for the plaintiff. Defendants made the wrong decision by going to trial in 24% of the cases — the final settlement demand by the plaintiff was lower than the verdict against the defendant. In 15% of the cases, both made the right decision — the verdict came in somewhere between the final plaintiff’s demand and the final defendant’s offer.

Plaintiffs getting it wrong were off by an average of $43,000. By contrast, Defendants getting it wrong were off by $1.1 million. That might be why Defendants are more likely to settle — their downside for getting it wrong is potentially a lot greater.

“Most clients think they are completely right,” Michael Shepard, a lawyer at Heller Ehrman in San Francisco. A good lawyer has to be able to tell clients that a judge or jury might see them differently, he continued. “Part of it is judgment and part of it is diplomacy.”

Filed Under: Law

Long, rambling screeds

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Joe Carlson, reporting for the Times of Northwest Indiana, has a story about prisoner suits against Lake County for the conditions of its jail. A nitpick: he states that the suits are against the “Lake County Jail” — if they are, they should be dismissed quickly since the jail is a structure and not an entity subject to a federal lawsuit. I’ve successfully had claims dismissed on this basis.

Carlson notes that the Lake and Porter county jails have been the subject of 39 prisoner lawsuits most of which he describes as “rambling, hand-written screeds that have been dismissed by judges before the jails could file answers.” Under the Prisoner Litigation Relief Act, federal suits filed by prisoners are to be reviewed by the court before being served on the defendant, thereby requiring a response. The standard of review does not require the judge to believe the claim for it to advance, rather the judge is required to determine whether, if all facts alleged in the complaint are taken as true, the plaintiff would be entitled to some sort of relief under the law.

The quality of prisoner lawsuits, unsurprisingly, is as varied as the prison population itself. Some are incomprehensible. Others are surprisingly well written. There is one inmate in particular I get a lawsuit from every two years or so whose obvious abilities cause me to be a little disappointed when he inevitably gets into another scrape with the law. He’s obviously a sharp guy, but he has problems with drugs, a chaotic life, and anger that turn him into a drain on society when he could be much more.

But, I digress. According to the article; in addition to several suits involving staph infections at the Lake County Jail:

Van Bokkelen gave Robert Stanley Cranshaw permission to sue the Lake County Jail under a wide range of claims, including denial of toothpaste, failure to allow inmates to use the bathroom for 10 hours at a time and serving of meals that are not adequate in portion or nutrition.

It’s an almost identical set of claims for which Lake County inmate James Wesley Hunt received permission to sue.

That last line about the “identical set of claims” reminds me of another phenomenon of prisoner lawsuits – the jail house lawyer. Every so often, a guy shows up in jail and helps the other guys with their litigation. (And I use the word “guy” advisedly — I don’t think I’ve ever had a jail lawsuit from a woman.) Sometimes this will result in a flurry of similarly written suits, often advancing the same sorts of claims.

Railroad to pay $102 million for negligently starting a wildfire

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The Union Pacific Railroad has agreed to pay $102 million for the role of its employees in starting a wildfire in 2000.

A fire about 100 miles northeast of Sacramento started in August 2000 and burned more than 52,000 acres in the Plumas and Lassen national forests. It was contained after three weeks at a cost of $22 million. It later was determined that sparks from welders repairing tracks set it off. Railroad employees thought they had extinguished the sparks that were burning alongside the tracks. Union Pacific said a passing train probably blew them back to life. [In another story about this, I read that the Union Pacific workers were accused of neglecting safety precautions, by failing to use spark shields and clearing the area of flammable material.]

U.S. District Judge Frank C. Damrell Jr. had said the federal government could seek damages far beyond the previous legal benchmarks – lost market value of burned trees and the cost of fighting the fire.

He ruled that a jury also could consider the loss of public recreation, scenery and wildlife, as well as wilderness areas with old-growth trees that never would have been logged for sale.

That would allow the government to seek significantly higher damages. In this case, the government estimated that could be as high as $190 million, a figure the railroad was disputing, according to court records.

That’s a tough one. Under our legal scheme, it’s not that hard to find yourself liable for damages that far exceed the culpability of your behavior. In other words, your actions are only a little wrong, but the damages caused by that little wrong are enormous. So, a little carelessness can lead to millions of dollars in liability. In this case, the carelessness was in service of a company with deep pockets and substantial amounts of insurance. So, Union Pacific can pay the damages and get on with its corporate life. Mere mortals, however, can find themselves wiped out.

Filed Under: Law

Supreme Court: You can’t kill a guy just for raping a kid.

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In a 5-4 decision, the Supreme Court held that the death penalty is Constitutionally impermissible for raping children.

The Supreme Court on Wednesday outlawed executions of people convicted of raping a child. In a 5-4 vote, the court said the Louisiana law allowing the death penalty to be imposed in such cases violates the Constitution’s ban on cruel and unusual punishment.

“The death penalty is not a proportional punishment for the rape of a child,” Justice Anthony Kennedy wrote in his majority opinion. His four liberal colleagues joined him, while the four more conservative justices dissented.

I haven’t read the decision, so my initial response may be wrong, but I think I side with the conservative four on this one. My personal problems with the death penalty have nothing to do with the severity of killing a criminal; but rather with the problems of proof leading up to the imposition of the sentence. Our system is imperfect, and the death penalty is irrevocable. Theoretically, some people deserve to die for their actions. In practice, it’s difficult to identify those people with sufficient accuracy.

As far as the proportionality of the punishment to the crime, I can certainly imagine scenarios where the harm to society of raping a child is worse than the harm of a murder.

The War Council

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I’ve mentioned it before, and I will certainly mention it again, the Knight Ridder team, since acquired by McClatchy Newspapers practiced some stand-up journalism with respect to Iraq, asked some tough questions, and did not fall for the ginned up case for war in Iraq as most other news institutions did. (See generally: The Reporting Team That Got Iraq Right).

The tradition continues with Tom Lasseter’s report on the legal team responsible for the framework of detainee imprisonment in Afghanistan and Guantanamo. (A framework that has been rejected recently, at least with respect to the attempted evisceration of habeas corpus rights). This is not policy that comes from military minds who think the detainment framework is a good idea; rather it came from five lawyers high up in the Bush administration: 1) David Addington – Cheney’s chief of staff; 2) Alberto Gonzales – Disgraced, memory-challenged former Attorney General and White House counsel; 3) John “Torture Memo” Yoo – former member of the Office of Legal Counsel; 4) William J. Haynes II – Former Pentagon general counsel; suspected of wanting the military tribunals to operate as kangaroo courts and who abruptly resigned earlier this year; and 5) Timothy Flanigan – former deputy to Gonzales who resigned amidst mounting questions over his role in drafting the administration’s torture policy.

Their attempts to grab power for the President and generally avoid accountability appears to have made a hash of things:

Now it appears that reinterpreting the law to lift legal protections for detainees could backfire. On May 13, the Pentagon announced that it was dropping all charges against Mohammed al Qahtani, a Saudi man held in Guantanamo who’s accused of planning to take part in the 9-11 attacks as the “20th hijacker.”

The official overseeing the case, Susan J. Crawford, gave no reason for the move, which followed the leak of an interrogation log that detailed harsh attempts at Guantanamo to break Qahtani mentally. Among the methods used were forcing him to act like a dog, putting women’s underwear on his head, keeping him in stress positions and accusing him of homosexuality.

Military lawyers attempted to warn the five; dubbed “The War Counsel” but were shut out:

The military legal community complained, to little avail, that the policies hatched with the consent of Bush, Cheney and then-Defense Secretary Donald H. Rumsfeld were replacing decades of U.S. military policy on handling detainees.

When they protested, the War Council shut them out.

“We were absolutely marginalized,” said Donald J. Guter, a rear admiral who served as the Navy’s judge advocate general from 2000 to 2002. “I think it was intentional, because so many military JAGs spoke up about the rule of law.”

And, it goes on and on:

“What they were looking for was the minimum due process that we could get away with,” said Guter, who’s now the dean of Duquesne University’s law school. “I felt like they knew the answer they wanted to hear.”

Romig recalled tense discussions with Yoo in November and December 2001 about setting up military commissions to try detainees.

“John Yoo wanted to use military commissions in the manner they were used in the Indian wars,” Romig said. “I looked at him and said, ‘You know, that was 100-and-something years ago. You’re out of your mind; we’re talking about the law.’ ”

The military commissions that the U.S. used against Native Americans during the mid-19th century were often ad hoc and frequently resulted in natives being hanged or shot.

“As they viewed it, due process is legal mumbo jumbo,” said Romig, who’s now the dean of Washburn University’s law school. “They wanted to get them, get the facts and convict them. … If you’re caught as a terrorist, you’re presumed guilty and you have to prove you’re innocent. It was crazy.”

I just want to quote the whole damned article, which isn’t appropriate, so just go read the whole thing. As I’ve said on numerous occasions, I’m not a religious guy. But, I probably get closest to idolatry with respect to my reverence for the Constitution. When you look at history and look at how miserable societies were generally with a dog-eat-dog sensibility that stemmed in large part from might equaling right, you start to realize how amazing our Constitution and system of justice has been. Sure, you can point to any number of bad results, but over all, the civilizing effect of our respect for the rule of law has been astounding. Then you have guys like Yoo and Addington who are willing to piss it all away for momentary (and largely illusory) gain. If I’m wrong about this religion thing, there’s a special place in hell for people like that.

Supreme Court decides against Bush Admin in Gitmo Habeas Case

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Scotusblogand others are reporting that the Supreme Court issued a 5-4 opinion finding that Gitmo detainees have habeas rights.

The case is Boumediene v. Bush. I have not read the opinion, but Scotusblog summarizes as follows:

[F]oreign nationals held at Guantanamo Bay have a right to pursue habeas challenges to their detention. The Court, dividing 5-4, ruled that Congress had not validly taken away habeas rights. If Congress wishes to suspend habeas, it must do so only as the Constitution allows — when the country faces rebellion or invasion.

Justice Kennedy wrote the majority opinion and was joined by Justices Stevens, Souter, Ginsburg, and Breyer. Justice Souter wrote a concurring opinion in which Justices Ginsburg and Breyer joined. Chief Justice Roberts wrote a dissent in which Justices Scalia, Thomas, and Alito joined. Justice Scalia wrote another dissent in which Roberts, Thomas, and Alito joined.

Update The following is a summary after a cursory review of the majority opinion:

Section 7 of the Military Commissions Act of 2006 operates as an unconstitutional suspension of the writ of habeas corpus. The court specifically does not address whether the President has authority to detain the petitioners nor whether a writ of habeas corpus should issue. These are matters that must be addressed by the District Court.

No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

The court reviews the history of The Great Writ as it’s come to be known. The writ was one of the few safeguards for liberty included in the original, pre-Bill of Rights Constitution. The right to be free from unlawful detention was enshrined in the Magna Carta, but the use of the writ of habeas corpus as the mechanism by which to enforce that right had a more gradual evolution. Originally, it was mostly used as a mechanism by which the King could enquire as to the right of a jailer to detain one of his subjects. But, from an early date it was also recognized as applying to the King himself. “The King must not be under man but under God and the law because law makes the king.”)

Still, use of the Writ was imperfect and often ignored. It wasn’t until after Parliament took up arms and relieved the King of his head that limits on his power were more respectfully recognized. And, it was in this post-Charles I execution (1649) context that the Framers of our Constitution were operating when they wrote into the Constitution that “the privilege of the writ of habeas corpus shall not be suspended, except when in cases of rebellion or invasion the public safety may require it.”

Alexander Hamilton, in Federalist No. 84, wrote:

“[T]he practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious Blackstone . . . are well worthy of recital: ‘To bereave a man of life . . . or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.’ And as a remedy for this fatal evil he is everywhere peculiarly emphatical in his encomiums on the habeas corpus act, which in one place he calls ‘the BULWARK of the British Constitution.’ ”

The U.S. Government argues that Guantanamo is special because it’s not under its sovereign control. The Supreme Court rejects this notion because the terms of of the lease between the U.S. and Cuba specifies that the U.S. exercises “complete jurisdiction and control,” there is no other law than that of the United States that governs Guantanamo, and, in particular, Cuba has no practical control over the area. The necessary implication of the Government’s argument is that it can acquire territory, surrender formal sovereignty to a third party, enter into a lease that grants total control of the territory back to the United States and thereby govern without legal constraint. (My personal view is that there is no government outside the Constitution — that document constitutes the government and acting beyond it, the actors cease acting as the government and begin acting as individuals.)

In the present case, the detainees deny that they are enemy combatants and the Court finds that the procedural safeguards in place to determine whether they are enemy combatants are insufficient to take these individuals beyond the reach of the writ of habeas corpus. In particular, the detainee accused of being an enemy combatant is not entitled to counsel and has only limited ability to rebut the case against him. The Court also cites lack of historical parallel; noting that this involves individuals detained by executive order for duration of a conflict that, if dated from September 11, 2001 to the present, is already among the longest wars in American history. The detainees are being held in territory that, while not technically part of the United States, is under the complete and total control of the United States.

The court holds that Art. I, sec. 9, cl. 2 of the Constitution has full effect at Guantanamo Bay. If the privilege of habeas corpus is to be denied to the detainees currently before the court, Congress must act in accordance with the Suspension Clause. The Court further holds that the procedures put in place by the Military Commissions Act does not provide an adequate substitute for habeas corpus. At a minimum, such a substitute would have to provide a prisoner with a meaningful opportunity to demonstrate that he is being held due to the erroneous application or interpretation of relevant law, and the habeas court must have the power to order the conditional release of an individual unlawfully detained. More may be required depending on the circumstances. As currently constituted the review tribunals come with a considerable risk of erroneous findings of fact even where everybody involved operates in good faith. This is an inherent risk in any process that is closed and accusatorial.

More on ACLU v. FSSA

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Abdul has a post on the latest lawsuit by the ACLU against FSSA claiming that people are being wrongfully denied welfare benefits as a result of FSSA’s automation and privatization efforts. Abdul’s post I believe misses the point of the lawsuit but probably accurately captures a lot of people’s opinions generally.

I hate to sound like the bad guy here, but someone needs to tell people who get government assistance that it is not a right, but a privilege. I cite the recent ACLU lawsuit against the Indiana Family Social Services Agency over the privatization of the agency.

The ACLU maintains the privatization of the eligibility portion of FSSA has resulted in thousands of Hoosiers being denied benefits they are entitled to. No offense, but the last time I checked, government benefits are not a right.

I am all for helping people and think there should be a safety net for the neediest of the needy, but there is nothing that says the state has to do anything. We made a decision as a society to help people out of the kindness of our hearts and the money in our wallets. However someone needs to tell the 1.1 million people who are getting the benefits that as long as someone else is paying the bill and the day is coming where some of us may decide not to do that anymore.

As I posted in his comments, the problem is that FSSA doesn’t get to unilaterally decide who receives benefits and who does not. If FSSA is denying assistance to people who meet the criteria set by the people controlling the money (the Indiana General Assembly and the United States Congress, I believe), FSSA is violating the law.

If no welfare programs had been created at all, I don’t think the ACLU would have a leg to stand on trying to compel that a program be implemented. However, once a program has been implemented there is a duty to implement it in a non-arbitrary fashion and there is an obligation by an administrative agency to administer the program consistently with the dictates of the legislative bodies.

Voter ID challenge rejected

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The United States Supreme Court has rejected a challenge to Indiana’s voter ID law. I wouldn’t, however, go so far as to say the Court upheld the law. It was a plurality decision with 6 justices voting to reject the challenge and 3 justices dissenting. Justice Stephens, Chief Justice Roberts, and Justice Kennedy were of the view that the law was not unconstitutional on its face and, the evidence presented by the Plaintiffs did not establish that the law was unconstitutional as it was applied. They left open the possibility, however, that the law could be applied in an unconstitutional manner. Justices Scalia, Alito, and Thomas were predictably more enthusiastic about the law. They basically characterize the burden imposed by requiring a non-expired, state or federal picture identification card, for in-person voting as being too minimal to present a Constitutional question.

Justices Souter, Ginsberg, and Breyer dissented. I found Breyer’s dissent to be interesting. He essentially agreed with Stephens’ plurality reasoning, but disagreed with his conclusion with respect to the weight to be given to the evidence in the record.

For one thing, an Indiana nondriver, most likely to be poor, elderly, or disabled, will find it difficult and expensive to travel to the Bureau of Motor Vehicles, particularly if he or she resides in one of the many Indiana counties lacking a public transportation system. See ante, at 6–7 (SOUTER, J., dissenting) (noting that out of Indiana’s 92 counties, 21 have no public transportation system at all and 32 others restrict public transportation to regional county service). For another, many of these individuals may be uncertain about how to obtain the underlying documentation, usually a passport or a birth certificate, upon which the statute insists. And some may find the costs associated with these documents unduly burdensome (up to $12 for a copy of a birth certificate; up to $100 for a passport). By way of comparison, this Court previously found unconstitutionally burdensome a poll tax of $1.50 (less than $10 today, inflation-adjusted). See Harper v. Virginia Bd. of Elections, 383 U. S. 663, 664 n. 1, 666 (1966); ante, at 30 (SOUTER, J., dissenting). Further, Indiana’s exception for voters who cannot afford this cost imposes its own burden: a postelection trip to the county clerk or county election board to sign an indigency affidavit after each election. See ante, at 8–10 (same).

He notes Florida’s approach wherein other forms of ID are acceptable – employee ID, credit or debit card, student ID, retirement center ID, neighborhood association ID, or public assistance ID.

The Souter, Ginsberg dissent is stronger. It notes that Indiana’s purported interest in combating voter fraud really doesn’t get beyond the point of an abstract notion. First, the law in question only addresses in-person fraud which hasn’t been documented as a problem. Absentee voter fraud, with which Indiana has had a documented problem, is not addressed. Nor does it address the problem of voters being registered in more than one place, ballot miscounting, or a number of other potential problems. In fact, there is very little evidence that voter impersonation is a problem anywhere. This may be because it’s hard to detect, but it’s more likely because it’s a crime that has to be done in the open and which is unlikely to have an effect because it would be tough to do in an organized fashion. The dissent faults the legislature for lack of a phase in period – recommended in a national report on the subject and recognized by the plurality opinion. That report recommended that the states actively seek out those without identification and actively attempt to provide it. Although the state claims to have relied on this report, “the State conspicuously rejected the Report’s phase-in recommendation aimed at reducing the burdens on the right to vote, and just as conspicuously fails even to try to explain why.” Finally, the dissent critiques the needlessly cumbersome post-election process. “Nothing about the State’s interest in fighting voter fraud justifies this requirement of a post-election trip to the county seat instead of some verification process at the polling places.” The State argued that requiring verification at the polls would cause a back-up at the polling places. But, this undercuts its premise that very, very few people are being disenfranchised by the law.

The State’s requirements here, that people without cars travel to a motor vehicle registry and that the poor who fail to do that get to their county seats within 10 days of every election, likewise translate into unjustified economic burdens uncomfortably close to the outright $1.50 fee we struck down 42 years ago. Like that fee, the onus of the Indiana law is illegitimate just because it correlates with no state interest so well as it does with the object of deterring poorer residents from exercising the franchise.

Insurer’s Conflict of Interest

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Warren Richey, writing for the Christian Science Monitor has an article on an interesting issue being taken up by the U.S. Supreme Court: Do insurers have a conflict of interest where they both evaluate and pay medical disability claims?

Do such companies operate in a conflict of interest between caring for their policyholders and enriching their shareholders? If such a conflict exists, how rigorously should federal judges examine decisions to deny benefits?

. . .

Because of her condition, the woman, Wanda Glenn, was found to be “totally disabled.” She began receiving disability benefits. She also followed her physician’s advice and a treatment program, and her health began to improve. When these improvements were reflected in her doctor’s reports, MetLife cited the reports and withdrew the benefits. The company said Ms. Glenn was not totally disabled and could find sedentary work.

The insurer says that its more efficient to have the tasks under one company and that separating the tasks will cause premiums to rise and benefits to be less generous. But, the woman’s lawyer has the better line: “When an umpire bets on the outcome of a game he is refereeing, he has a conflict of interest.”

Filed Under: Law

Open Thread

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I had intended to write a post on Liberalism and the Rule of Law, but I simply don’t have the time this morning. As a place holder, I’ll simply mention that Lord Bracton, an English jurist writing in the 13th century wrote that “it is only when an expression of the prince’s will is in conformity with this lex regia that his will becomes a binding law.” He wasn’t the first to express such things, but in terms of setting the English-American common law on such a path, he was fairly influential. It’s a pretty extraordinary claim, when you looked at the available evidence. Empirically, it looks like legal authority springs from the force the King can bring to bear. But, here, Bracton is claiming that the king springs from the law; not that the law springs from the king.

That’s one of the things at the heart of liberalism — that authority springs from the law not vice versa.

O.k., so I kind of got the post up. But, otherwise, consider this an open thread.

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