Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for June, 2006

The High Cost of Petitioning

A radical pro-affirmative action group, By Any Means Necessary (BAMN), joined by Detroit’s mayor, Kwame Kilpatrick, have filed a Voting Rights Act lawsuit against the sponsors of the Michigan Civil Rights Initiative (MCRI) in federal court. MCRI is a ballot initiative would ban racial and gender set-asides and preferences in state contracting, employment, and public education. It is modeled on an earlier measure passed by California voters and upheld by the federal courts. BAMN argues that black voters who signed the petition to put MCRI on the ballot did so only because they did not realize it would restrict affirmative action, because they were confused by MCRI’s title, text, or misleading statements by MCRI signature gatherers. That, it claims, amounts to fraud.

BAMN’s lawsuit is factually groundless. Its fraud claims were considered and rejected by the Michigan Court of Appeals, which ordered MCRI placed on the ballot. MCRI’s text, which was presented to all petition signers, expressly prohibits racial preferences, eliminating any confusion about its effect on affirmative action. Moreover, the Voting Rights Act generally applies to the acts of state election officials, not private parties, and cases such as Delgado v. Smith, 861 F.2d 1489 (11th Cir. 1988), hold that the Voting Rights Act does not apply to initiative petitions.

BAMN’s lawsuit appears to be part of a pattern of intimidation. One BAMN official is accused of threatening MCRI executive director Jennifer Gratz with a knife.

BAMN’s suit is another example of how civil rights lawsuits are increasingly misused as political weapons or tools of censorship. For example, in Affordable Housing Development Corporation v. Fresno, 433 F.3d 1182 (9th Cir. 2006), a developer used the Fair Housing Act to sue citizens who publicly opposed a housing development, arguing that their petitioning of city officials resulted in the city not funding the project. That, the developer argued, had an unlawful “disparate impact” on minority groups destined to live in the development. The trial court initially accepted this argument, holding that the Fair Housing Act overrode the citizens’ right of free speech. Years later, the Ninth Circuit Court of Appeals rejected the lawsuit, holding that the citizens’ opposition to the project was protected by the First Amendment and the Noerr-Pennington doctrine. (The Noerr-Pennington doctrine protects citizens from antitrust and civil rights claims based on their speech and petitioning activity). It ordered the developer to pay the citizens’ crippling legal bills, which had risen to hundreds of thousands of dollars.

BAMN’s lawsuit would raise First Amendment problems even if it were true that voters misunderstood MCRI’s purpose, and even if MCRI’s sponsors knew of any erroneous statements about MCRI by signature gatherers. The courts have generally held that the First Amendment bars liability for speech in ballot initiatives and other political campaigns, even if the speech is knowingly false.

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“…And there’s a thousand more in this state that do it”

One crooked Pennsylvania lawyer disbarred and, by his own account at least, 1,000 more to go:

The Pennsylvania Supreme Court has ordered the disbarment of a Philadelphia attorney who served time in prison after pleading guilty to charges he defrauded a slew of insurers on behalf of personal injury plaintiffs who in reality had not needed medical attention.

During a disciplinary hearing Michael Radbill suggested that the practice of representing clients who are “not really injured” is endemic across the state, according to the report from the Supreme Court’s Disciplinary Board.

He also indicated that over the course of a 30-year career, 80 percent of his practice had been centered on the representation of uninjured personal injury clients. …

The federal investigation also produced evidence that Radbill had employed people to recruit personal injury clients, help stage slip-and-falls for his clients and oversee his clients’ treatment by medical providers willing to falsify records and insurance claims, according to the report….

According to the report, Radbill said at a disciplinary hearing that “I got into personal injury cases and … when I was a young lawyer, [people told me], ‘You’re going to get accident cases of people that aren’t really hurt, you say they’re hurt and you send them to the doctor.’

“That’s not right, OK?” Radbill continued, according to the report. “And I did it for 30 years and there’s a thousand more here in this state that do it, and I told [the investigators] that, and they said, ‘Yeah, but you got caught,’ [for] which I served my time, I didn’t make excuses, so that’s true.”

(Asher Hawkins, “Representation of Uninjured Clients Brings Disbarment for Pa. Lawyer”, The Legal Intelligencer, Jun. 23).

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Nanny-state lawsuits in the New York Times

Tom Zeller, writing on the MySpace lawsuit, quotes observers who unanimously condemn the species of nanny-state lawsuit, and quotes blogger Ken Chan:

“I recognize that there’s a certain part of the population who don’t know a steady fried chicken diet is bad for them. I feel bad for these people,” Mr. Chan wrote. “However, these are probably the same people who don’t put on their seatbelts and who suck down endless coffee during the day and Coors at night. So let’s be honest with ourselves here. You’re not going to save these people. You’re just screwing up the chicken for the rest of us.”

Zeller probably didn’t get the memo from the Times editors about the “benefits” of such lawsuits, but we’ll no doubt see some plaintiffs’ attorney defending the McDonald’s coffee lawsuit in the letters section. (Tom Zeller Jr., “A Lesson for Parents on ‘MySpace Madness'”, New York Times, Jun. 26). Mildly related, and encouraging for what it says about people starting to be annoyed by the food police: Fluffernutter controversy in Massachusetts.

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A Lawsuit Everyone Can Bring

Can you sue over something that you claim will affect everyone in the planet in the distant future, even if that means that everyone on Earth can file a similar lawsuit now? The Supreme Court may address a similar question soon. The Supreme Court agreed today to consider whether the Bush administration must regulate carbon dioxide to combat potential global warming, in Massachusetts v. EPA.

Twelve states had sued the EPA to force it to regulate carbon dioxide emissions from automobiles. Although carbon dioxide is an integral component of the atmosphere, and does not contaminate or cause cancer, the states argued it constitutes air pollution covered by the Clean Air Act, because it may cause global warming over the long run.

A splintered three-judge panel of the D.C. Circuit Court of Appeals voted 2-to-1 to reject the lawsuit, but the judges in the majority didn’t agree on why. Judge Sentelle would have rejected the suit for not complying with the Constitution’s requirement of standing, under which a plaintiff must allege particularized injuries, not a “generalized grievance” shared by much of the public at large (much less the entire planet). Judge Randolph, by contrast, was unsure of whether the plaintiffs had standing, but concluded that even if they did, and the EPA had jurisdiction to regulate carbon dioxide, the lawsuit should still be dismissed. He pointed out that regulating carbon dioxide on a state-by-state basis, as the Clean Air Act would do, made no sense, since global warming is a planet-wide concern. Thus, the EPA’s decision not to regulate carbon dioxide was sensible. By contrast, Judge Tatel’s dissent argued that the plaintiffs did have standing, since although everyone might be affected by global warming, they might be affected by it in different ways, with a coastal state being flooded while an arid state might become more arid.

In another lawsuit, attorney generals from seven states have sued out-of-state utilities under state nuisance laws, alleging that power plants, by generating carbon dioxide, are causing global warming. New York federal judge Loretta Preska dismissed their lawsuit in Connecticut v. American Electric Power Co. She, too, held that the plaintiffs lacked standing, since they complained of a generalized injury that would be better handled by the political process than by the courts.

If state attorney generals can sue power plants in distant states, that may lead to an explosion of interregional litigation, regional conflict, and judicial micromanagement of out-of-state utilities.

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A License To Complain

Last Thursday, the Supreme Court ruled that a worker alleging retaliation for complaining about discrimination may sue even if she has not suffered a tangible loss, like a firing or denial of a promotion. In its decision in Burlington Northern v. White, the Supreme Court ruled that under Title VII of the Civil Rights Act, “retaliation” includes any act that “well might have dissuaded a reasonable worker” worker from complaining. The court upheld a $43,500 judgment in favor of an employee who was reassigned to different tasks and then suspended for a month before being reinstated with full backpay.

The court’s low bar for what constitutes retaliation turns many mistaken complaints of discrimination into future lawsuits. Under federal court rulings, even groundless complaints are often protected against retaliation. Complaints to an employer are protected as long as the complainant reasonably believes that discrimination or harassment occurred, even if it didn’t. And complaints to the EEOC are protected even if they are plainly unreasonable, intemperate, and false. So an employee who has never been discriminated against can sue over deteriorating relationships with co-workers whom the employee has falsely accused of discrimination, claiming that the bad relationships constitute a “hostile environment” in retaliation for claiming discrimination.

In an attempt to forestall some such suits, the Supreme Court added a caveat to its test. It declared that “snubbing by supervisors or co-workers” or “petty slights” in response to a claim of discrimination do not rise to the level of retaliation, since they would not be sufficiently “materially adverse” to dissuade someone from complaining of discrimination. Whether or not that caveat is consistent with the court’s general test, it is welcome from a First Amendment perspective. As Judge Kozinski observed in Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir. 2000), banning all criticism or ostracism in response to a discrimination charge may well violate the First Amendment freedoms of speech and association.

But the Supreme Court’s caveat may not be enough to protect First Amendment rights. For example, in Bain v. City of Springfield, 678 N.E.2d 155 (Mass. 1997), a mayor publicly denounced as unfounded a sexual harassment complaint against him. It is easy to see how such a public denial might dissuade a publicity-shy complainant from bringing an accusation. But as the Massachusetts Supreme Court observed, defining his speech as unlawful retaliation would clash with the First Amendment. Retaliation prohibitions are “subject to constitutional guarantees of freedom of speech. The interest in remedying discrimination is weighty but not so weighty as to justify what amounts to a restriction on core political speech.” Since the Supreme Court has set the bar so low, the courts may need to exempt speech about the merits of discrimination claims to prevent censorship.

But some judges will probably refuse to do so. Judge Myron Thompson held an employer liable for retaliation for publicly criticizing a discrimination complaint, rejecting a First Amendment defense on the ground that since sexual harassment law supposedly trumps the First Amendment, so do laws against retaliation.

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“VA Barred from Publicizing Offer to Vets”

Brook no competition dept.: “A federal judge temporarily has barred the government from publicizing its free credit monitoring offer to veterans whose personal data was stolen and wants to see if they might get a better federal offer. Lawyers who have filed a class-action lawsuit on behalf of the 26.5 million veterans and active-duty troops affected contend that accepting the government’s offer could jeopardize their chance of winning more money in the privacy suit.” (Hope Yen, AP/Washington Post, Jun. 26)(hat tip: Florida Masochist).