The Constitution and Smoking and Marriage

September 14, 2008

On September 11th the Washington Supreme Court published a decision dealing with an attack on another citadel of American enterprise: the tobacco industry.  In this case, American Legion Post 149 vs. Department of Health, the vehicle of attack was legislation first adopted in 1985 by the State’s rather timid legislature, then amended by initiative from Washington’s impatient  citizenry in 2006.

The case involved the American Legion Post in Bremerton, which boasts 542 members, but which like so many cases seems to be weighted with more symbolic significance than practical effect.

The issue in the case was the fruit of an imperfect grafting of the initiative to the existing legislation.  The 1985 act exempted “private facilities” and the citizen’s amendment included “any place of employment.”  The vehemence of the smoking advocates was such that the case took on constitutional proportions. The Court in a split decision upheld the smoking ban because in the private lodge employees were affected by smoking.

This is the second recent case involving constitutional issues that seems to have attracted some measure of general interest.  The first case decided two years ago was Anderson v. King County in which it was decided that gay marriage was not constitutionally protected.  The Court upheld a ban on gay marriages.  That case was decided by Justices Madsen, Alexander,  Sanders, Charles Johnson and James M. Johnson.  Four Justices thought there were applicable constitutional protections for gays: Fairhurst, Bridge, Owens and Chambers.

On the question of whether smokers are constitutionally protected in this case  Sanders and James Johnson, and Charles Johnson seemed to have little problem finding fundamental protections to smokers being violated.   In the worst light these three see a Constitution solicitous of the fundamental right to smoke, but not marry.  In a more generous view these justices have warmed to the rights of gay smokers.  An ember of hope.

One justice saw the constitution protecting both groups, voting to reject both the ban on gay marriage and the smoking ban.  That was Justice Chambers, who deserves recognition for consistency.

The majority in the smoking ban case consisted of three justices who would have overturned the gay marriage ban: Fairhurst, Owens and Bridges (sitting pro tem on the smoking case).  These people discern a qualitative difference between the rights of marriage and smoking.  They were joined by two justices who would not overturn the gay marriage ban.  Alexander and Madsen, see the Constitution protecting neither smokers nor gays, again an apparently consistent view.  They voted to uphold the ban on gay marriage and could see no constitutional infirmity in the smoking ban.

What is most interesting to me is the three Justices, Sanders, C. Johnson and J.M. Johnson, who see in the privacy expectation of smoking in a private club as worthy of constitutional invocation and more compelling than the rights of the people who work there, but see no linkage between the right to marry and the Constitution.

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Wife’s Liability for Husband’s Sex Crimes

August 30, 2008

Should a wife be liable to a child for sexual abuse suffered at the hands of the husband? The Washington Court of Appeals just handed down a fascinating case which discusses a spouse’s liability under Washington law for the tortious conduct of the other spouse. The rule is that the wife’s separate property is immune but community property is vulnerable if the wrongful conduct

“either (1) results or is intended to result in a benefit to the community or (2) is committed in the prosecution of the business of the community.”

In this case the fact that the boy did lawn work for the couple before the assaults was critical to finding community liability. The standard is awfully vague, which makes liability something that can often be argued.

But what if the community was in no way involved? The husband just went off on his own and sexually abused someone (or committed some other tort) far from home? The victim could go after the husband’s separate property but typically there is none. Most couples own community property without much separate property. Is the victim left empty handed? The rule is Washington is that, if there is no separate property, then the victim can get half the community property.

What if the wife files for divorce and enters into a property agreement that gives her the property? This will not work unless the division between the husband and wife is deemed fair.

This is certainly a messy area of law but I agree with the notion, particularly with respect to sexual predators, that there is some duty on the part of the wife, or non-offending spouse, to share some of the financial responsibility, rather than depriving the victim entirely.

This is a very tough call as both the non-offending spouse and the victim are innocent in a very important sense and both suffer mightily in the situation. All things being equal my scales tip a little more toward the victim.


How the Tort System Really Works

August 27, 2008

I thought that I’d briefly discuss a case that shows how the legal system really works with tort claims. As the November elections approach we are no doubt going to hear quite a bit about run away jury awards and the poor, long suffering businesses and insurance companies.

In truth only about 4% of the cases filed ever make it to trial (according to King County records), as plaintiffs are subjected to withering pretrial procedures that drag out their cases for years.

Rivas v. Overlake Medical Center has been pending for nine years and Susan Rivas, the plaintiff, has yet to get her day in court. She went to Overlake Hospital for a procedure after which she was placed in intensive care for four days, then told that she would lose her kidney. With all hope of saving the kidney was lost she filed suit three years and two days after the operation. Overlake and Dr. Muraki, her doctor, replied saying the suit was too late. The three year statute of limitations passed two days before the suit was commenced.

Nine years later her case got to the State Supreme Court, which held on August 7 that the stature of limitations had been tolled for the four day period in which she was in intensive care. This gave her four extra days, so she is not barred by the statute of limitations from suing. She can now have a trial. (Justices Fairhurst and Alexander dissented saying that the statute of limitations should be strictly enforced.)

Most plaintiffs by this point would have given up and it remains to be seen whether Susan Rivas will have the resources (spiritual, mental and financial) to actually have a trial.

If say she has a trial in the next year or two and wins, then the defendants’ insurance companies can appeal the decision. So it is quite possible that even if she wins at every stage from here on out, it could be five or more years before she recovers any money whatsoever, assuming her health holds out.

Washington has no punitive damages that are available to her, so she will be entitled to receive only the damages that she can prove that she suffered directly due to her injury. You can see that insurance companies benefit by delaying payment 15 or more years.

Tort reform would further reduce Susan’s recovery by imposing an arbitrary limit on the amount she could receive. The effect of such a law would not only be to deprive people like Susan Rivas from receiving full compensation, but even more important to the insurance companies it would discourage people from filing suit and no doubt reduce the 4% of cases that survive pretrial procedures to say 3% or 2%.


FISA: After Retroactive Immunity

August 25, 2008

I heard a lot of talk about how the FISA bill would not absolutely block court cases for unconstitutional wiretaps. That of course was largely untrue and most of the pending cases will be dismissed because of the retroactive immunity granted by Congress. The Electronic Frontier Foundation intends to expand its lawsuit instead of dismissing it. It will now include the government as a defendant, a risky tactic, as sovereign immunity defenses have served in previous cases for the government to avoid responsibility.  Wired reports that the EFF may have documentation sufficient to get around the tactics the government has used to avoid disclosing what it did.  Once again our ability to find out what our government has been doing will depend on the integrity of the people involved in the clandestine activity.  If enough information is brought forward we yet be able learn through the courts what has been done to us.


Washington’s Attorney General Takes Both Sides of Tort Reform Issues (Part 1)

June 26, 2008

Washington State’s Attorney General Rob McKenna recently campaigned for tort reform, claiming that the legislature needed to step in and reduce the awards that were being entered against the state. He indicated that the courts were out of control and the legislaure needed to do something about it:

“But the courts have moved so far away from what the Legislature intended back in the early 1960s that the law removing sovereign immunity is no longer recognizable, and at the same time the Legislature has failed to act at a policy level where the limits ought to be.”

Mr. McKenna got into office advocating tort reform for everyone, saying that judgments were getting too big.

That sounds to me like just expedient court bashing. He says lawsuits are preventing the state from taking corrective action? That sounds like baloney.

Well, what did he do when the Exxon Valdez case got to the Supreme Court and the Court was asked to review the biggest punitive damages award in American history, $5 billion? This award was being attacked on two grounds. First, Exxon said that it was excessive. The plaintiffs were awarded all their proven damages, plus $5 billion. Second the spill was a violation of the federal Clean Water Act which does not award punitive damages at all. This omission from the law was fought for by Republicans, who generally are beyond cautious with respect to environmental laws. The $5 billion punitive damages award was granted under court created doctrine that the trial judge held applied in spite of the Clean Water Act.

The arguments of Exxon are exactly the same positions that Mr. McKenna campaigned on and which he has been advocating recently.

Mr. McKenna participated in this case by helping prepare a brief on behalf of Washington and 33 other states which argued that the punitive damages award should not be reduced and that the court created doctrine that allows punitive damages ought to be respected in spite of contrary language in the Clean Water Act. This is exactly the opposite of what he is saying in public.

Lawyers are sometimes required to advance positions they do not believe in but this does not appear to be the case in this instance. Mr. McKenna is crowing about the result and how he helped preserve punitive damages under court created doctrine!

The statement he issued on June 25 says this:

“We are pleased the court upheld an award of punitive damages, since Exxon had argued that no punitive damages can be awarded in a maritime case under federal law, no matter how egregious the circumstances,” McKenna said. “We are disappointed, however, that the Court did not award the full punitive damages authorized by the Court of Appeals. The reduced award is brutally disappointing for the Washington and Alaska fishermen and their families who were counting on this money to help make them whole.”

Don’t get me wrong; I don’t disagree with this sentiment. It is just that because I agree with him, I cannot in good conscience claim to support tort reform, particularly the two points championed by Exxon and Mr. McKenna in public statements.

I have puzzled over this for some time trying to render Mr. McKenna’s divergent positions rational. The only thing I can come up with is that Mr. McKenna thinks that punitive damages are fine for injured people in other states but not for people in Washington, except for fishermen. That still does not make sense to me.


Ladenburg’s Statistics Counter Tort Reform Argument

June 20, 2008

I attended a seminar at which John Ladenburg, the Pierce County Executive and candidate for Washington Attorney General, spoke and gleaned some statistics that I thought I’d share. We often hear about the crippling burden of litigation and the extravagant liability that businesses and government are exposed to.

Most governmental entities insure against litigation expenses and awards but Pierce County decided to cancel its policy and self-insure. In the course of doing this Pierce county kept careful track of its litigation and related expenses. The results are surprising.

From 2001 through 2007 Pierce County was involved in a total of seven trials and binding arbitrations. One each year on average. The County won all the trials and lost two of the three arbtrations. That’s two adverse results in seven years.

To sue the government a person must first file a claim. These claims are investigated and the County reports its decision on the claim to the claimant. About half of the claims are paid because they are meritorious, although usually payment is for less than the amount asked.

The half which are not paid, after receiving the explanation from the County, usually drop their claims. Only about roughly three to six percent of the claims result in lawsuits in Pierce County. Once filed, the vast majority the lawsuits against Pierce County are dismissed or settled.

This procedure in which the people’s claims are treated respectfully and a fair settlement is sought from the beginning has resulted in cutting amounts paid in the settlement of claims almost in half over the seven year period. This approach has saved the County a great deal of money.

Mr. Ladenburg’s impression is that high jury awards and huge litigation expenses are not the result of frivolous claims by litigation-crazed citizens, but a result of the aggressively adversarial treatment of people with claims. By refusing reasonable claims and settlement offers, governmental (and other) entities add to the burden on the courts and increase their own risks.

If you have ever been in a lawsuit with a big corporation or governmental entity, chances are that you perceived a refusal to entertain a settlement offer you thought was reasonable and a strategy that drove up the cost of the litigation. The strategy of some “deep pocket defendants” and their insurance companies is to make the litigation prohibitively burdensome and expensive, so people cannot see it to conclusion.

Mr. Ladenburg’s statistics suggest that plaintiffs are generally reasonable and those who are not reasonable meet with an appropriate fate in court. Corporations (governmental and private) that are aggressively litigious must bear a significant share of the responsibility for the caseload imposed on our courts.


Illegal Immigrants’ Rights in Court

February 28, 2008

How do you feel about the question of whether an illegal immigrant should have the right to sue? Suits after all cost the county a lot of money. Not only that but the suit would presumably involve seeking an award against a lawful citizen, who would have to bear the expense of defense. We have been informed that the state budget for the courts is already critically low and this would create a further burden on the system. Thankfully, the answer to this question is “yes, they do have this right.” In this country there is not a class of residents who can be harmed or abused by others with impunity. To deny a class of people access to the courts is to render members of that class something akin to slaves.

Washington among all the states is very conservative in jury awards. The amount of damages juries parcel out is lower here than many other jurisdictions. Many states have punitive damages for egregious behavior but there is no such thing is Washington. (There is a limited right under the Consumer Protection Act (triple the amount of actual damages up to $10,000) and finally insurance companies that act in bad faith can now be penalized, but nothing is available in the usual lawsuit.) You combine low jury awards with the absence of punitive damages and you have to put Washington on the other end of the spectrum from say California (the land of milk and honey for plaintiffs).

There is another factor at play here. After 9/11 juries, at least in King County, shifted strongly toward the defense in lawsuits. They more frequently found against plaintiffs and tended to award lower amounts. Geography and current events play a large role in jury results.

Right now national security and immigration policy are hot topics and the two overlap. Mention of a party’s status as an illegal immigrant is potentially incendiary in the minds of a jury. With many juries this would create a strong bias against the person.

So the legal issue of the day is whether a person’s immigration status should be admitted in evidence. This is mainly resolved by determining whether it is relevant and relevance is determined by weighing probative value against prejudicial effect. A person’s immigration status is not a necessary element of any normal defense. (You can’t get off by saying “Sure I ran over the guy but he didn’t have his papers.”) All things being equal then a defendant does not have a right to inform the jury that the plaintiff is an illegal immigrant.

But it gets into evidence in other ways. An illegal immigrant in court must be careful about what he asks for. Monday the Washington Court of Appeals, Division I, held in Salas v. Hi-Tech Erectors, that if the plaintiff asks for lost future wages, the defendant can explain that he is an illegal immigrant, even though the admission of this evidence reduces his chance to win anything at all. This is an issue that various states courts are dealing with and one the Washington courts are likely to need to refine.

This decision affects the lives of similarly situated people. The case involved the construction industry which employs a disproportionately large portion of the illegal alien community in part because many will work for less than scale, many will take cash under the table and Mexican illegals are famous in the industry for working in inhospitable conditions and working extremely hard; they are highly valued workers.

Mr. Salas was working under illegally dangerous conditions (the construction company was cited) and was seriously injured. Serious injury to most illegal aliens means they will not be able to earn a living, either here or anywhere else. If they can no longer work and cannot recover for this lost income, courts do not offer a great deal of help to them.

This creates potential for abuse by employers. Many employers are already giving these people less money than they would have to pay for someone else’s work and many are already asking them to work in unsafe conditions. An employer’s knowledge that as a practical matter his employees cannot recover lost wages in the event of serious injury may serve as a disincentive to improve those conditions.