Posts Tagged ‘Oregon’

Joyce v. Washington Department of Corrections

Early one morning in 1997, Vernon Valdez Stewart, under the influence of marijuana, hot-wired a Chevy Suburban in Seattle, ran a red light in Tacoma at 60 mph, and collided with Paula Joyce’s pickup, killing her. Because Stewart was on supervised parole at the time, Joyce’s family believed that taxpayers should be held responsible, and a jury agreed, awarding $22 million in damages. Stewart had bipolar disorder, and thus, the theory went, the parole office should have taken special care to revoke his parole as soon as they could, and failed the opportunity to do so, thus making the state vicariously liable for the crimes he committed. That the state had pending notices of parole violation at the time of the accident to take Stewart into custody was apparently irrelevant; after all, in hindsight, the state could have done so sooner or asked for a bench warrant. Headlines indicate that the Washington Supreme Court overturned the judgment, which had grown to $33 million with interest. But the Court did so on a technicality of jury instructions; it reaffirmed that “the State has a duty to take reasonable precautions to protect against reasonably foreseeable dangers posed by the dangerous propensities of parolees.” The Court also held it irrelevant that a judge was not obligated to lock up Stewart for the parole violations, and might have chosen not to (just as the judge didn’t for the original crime that left Stewart on parole).

Because it’s reasonably foreseeable that a previously convicted criminal might injure someone in the course of a crime, and it’s always possible to prevent that by locking up the parolee, the decision effectively makes taxpayers liable for any crimes committed by the 29,000 parolees in the state. Here, the plaintiffs complain that the state should have been monitoring Stewart’s driving and mental health, but were given no requirement by the court to do so, effectively creating a huge expansion in the Corrections Department’s responsibility without the concomitant power to do anything about it. As the Supreme Court’s dissent notes, “How can specific conditions of release and the authority created therein give rise to a take charge relationship and a corresponding duty, but the duty created be in no way limited by the supervision conditions and authority through which the duty was enabled?” (Jonathan Martin, “Court rules state can be held liable if supervised felons commit crimes”, Seattle Times, Sep. 16; Rachel La Corte, AP, Sep. 15; Joyce v. Washington Dept. of Corrections; dissent; Morelaw trial digest; related Washington v. Stewart decision).

Stewart’s punishment for his original crime given his juvenile criminal history and his subsequent parole violations was absurdly weak; it shouldn’t have taken a felony-murder to get him jail for more than 86 days. But that’s at least as much fault of the state’s laws and the judge as of the prosecutors, perhaps more so. And even if taxpayers should be required to compensate the victim of this crime, as opposed to other crimes, $22 million is also an absurd amount. It’s also worth noting that Stewart’s criminal jury did not find him insane, but the plaintiffs in the civil case were allowed to argue that he was psychotic.

It’s a regular complaint of the criminal defense bar and law professors that parole is poorly designed and can cause recidivism in convicted criminals. If future parole conditions seem especially strict in Washington state, you can thank the plaintiffs’ bar’s regulation through litigation. Then again, the Department of Corrections said that they would not change their policy in response to the decision; why should they, when they’re not paying the bill?

Michael Zwebner gets a prior restraint injunction

Michael Zwebner regularly sues critics and people remotely related to critics of his penny-stock corporation, UCSY, which has a track record easy to criticize (Feb. 17). He claims in a press release to have persuaded a Florida state court to enter a constitutionally suspect order:

Defendants, Dembovich and Villasenor … are forever barred from making, stating, mentioning, posting on the Internet anything which included the words “UNIVERSAL COMMUNICATIONS SYSTEMS, INC.” and “Airwater Corp.” “UCSY” or “Michael Zwebner” or any derivations thereof.

The defendants are further ordered to remove and cause to be removed from all web sites and any all references caused to be posted by them under the above and any other alias all postings which reference either Plaintiff and/or Plaintiffs’s President Michael Zwebner.

The purported order (which, in the press release, misspells “tortious”) also purports to bar third parties from “publishing” these posts (and arguably extends to linking to the posts) so it will probably be struck down as soon as Zwebner goes after a deep-pockets defendant (like, say, Google) that defends itself. (Universal Communications Sys. Inc. v. Dembovich, No. 2004-27383-CA-01 (Miami-Dade Cty., Fla.)). Where’s the SEC in all of this?

Amazingly, I see that the federal District of Oregon has agreed to enter a stipulated injunction barring another Internet poster from ever mentioning Zwebner in any context, true or otherwise. Related story: Polly Sprenger, “Dirty Laundry Airs on Stock Site”, Wired.com, Dec. 11, 1998.

Rasheed Wallace sued

Portland, Oregon, tattooist Matthew Reed doesn’t quite want an arm and a leg in his lawsuit against Rasheed Wallace, but he’s close. Reed is upset that the large Egyptian tattoo he gave Wallace in 1998 for $450 is being used in Nike advertising, and wants an injunction and damages for alleged copyright infringement. (Ashbel S. Green, “Ink is dry on tattoo but fresh on lawsuit”, The Oregonian, Feb. 15; AP/Det. News, Feb. 16 (with photo)).

My law firm has represented Nike in other litigation.

Workers get $211K, lawyers bag $2.57 M?

Speaking of class actions against Wal-Mart: “Six lawyers who represented Oregon workers in their fight for overtime pay from Wal-Mart say that the world’s largest retailer should pay them $2.57 million for the time and money they spent trying the case. Wal-Mart opposes the request, saying that it would be an exorbitant payday for a case that had a relatively small judgment. In September, a U.S. District Court judge in Portland awarded 83 Wal-Mart workers back wages, penalties and interest totaling $211,000, an average of $2,542 each.” (“Lawyers want $2.57 million from Wal-Mart”, Salem Statesman-Journal, Dec. 9)

Ballot measure results

As I documented through the night at PointOfLaw.com, voters gave doctors and the business community some major victories in yesterday’s ballot measures. Limits on malpractice lawyers’ fees passed resoundingly in Florida, in a stinging rebuke to the trial bar. Among three other states considering med-mal ballot measures, doctors won decisively in Nevada and lost in Wyoming, while Oregon’s measure was slightly trailing but too close to call. (Update Nov. 9: late returns show one of the two Wyoming measures apparently passing after all.)

In California, in a convincing victory for the business community and good sense, voters approved Proposition 64 by a wide margin, requiring lawyers to demonstrate actual injury before invoking the state’s broad unfair-practices statute in private cases. (Thank you, Arnold.) Colorado voters lopsidedly defeated a trial-lawyer-sponsored measure to expand litigation over alleged construction defects. And in the two hot judicial contests, for seats on the Illinois and West Virginia Supreme Courts, trial-lawyer-backed candidates lost in both. Details on all these races can be found on PointOfLaw.com. Also, voters ignored this site’s advice and passed all eleven state marriage amendments on the ballot.

Finally, some politicians whose ambitions this website has followed were locked in too-close-to-call races: Washington state AG Christine Gregoire (see Oct. 28) was slightly trailing a GOP opponent in her bid for governor, while former trial lawyer lobbyist and Bush HUD secretary Mel Martinez (see Sept. 3) was leading by 80,000 votes in his Florida Senate race against Democrat Betty Castor. (Update: Martinez wins). John Edwards’s vice-presidential ambitions seem at the moment to depend on an unlikely reversal of Ohio results in late vote counting, while his home state of North Carolina went Republican both in the presidential race and in filling Edwards’s old seat. (Update: Kerry and Edwards concede).

Liveblogging the ballot measures tonight (at Point of Law)

As readers of this site know, voters in six states are considering legal-reform initiatives on today’s ballot. At my other website, the Manhattan Institute’s PointOfLaw.com, I’m planning to post regularly updated live coverage tonight of election returns on the measures, with special attention to any instances where the vote totals prove to be close. (I might also post the odd comment on other races of interest.)

The ballot measures are: Florida’s Amendment 3 (limiting lawyers’ med-mal fees), lawyer-sponsored Amendment 7 (removes confidentiality of medical peer review) and Amendment 8 (strips licenses of doctors who lose three malpractice verdicts); Wyoming’s Amendments C and D (authorizes legislative limits on med-mal awards); Oregon’s Measure 35 (limits med-mal awards); Nevada’s Question Three (limits med-mal awards) and lawyer-sponsored Questions Four (undercuts med-mal reform) and Five (forbids legislative reductions of liability); Colorado’s lawyer-sponsored Amendment 34 (expands right to sue over alleged construction defects), and California’s Proposition 64 (narrows scope of s. 17200 “unfair competition” law).

The timing: Florida polls close at 8 pm EST, Colorado and Wyoming at 9 pm, Nevada at 10 pm, and California and Oregon at 11 pm. I’m in the Eastern time zone, and intend to stay up until 2 am (11 pm Pacific) if that’s needed to follow any still-unresolved contests.

How readers can help: I’ll have access to standard online sources that cover these sorts of votes (big-city papers, Secretary of State websites) but in the past those sources have sometimes been slow to post totals, especially on “down-ballot” issues. I won’t have much access to local broadcast sources, for the most part. If you’ve got fresh news on your state to report, such as a local news organization’s calling a ballot contest one way or the other, email me at editor (at) pointoflaw – dotcom.

Once again, the liveblogging tonight will be going on at Point of Law, not here. [cross-posted from Point of Law, with slight changes][bumped 2:30 pm]

Election roundup: down the ticket…

Won’t we all be glad when it’s over:

* At Point of Law, I’ve got a post up tracking the current status of the propositions on four states’ ballots that would limit medical malpractice litigation or fees. The situation in Florida looks grim for doctors who’ve pushed such curbs (they’ve been outspent by their lawyer opponents, $22 million to $7 million). Voters in Nevada, Oregon and Wyoming may be better disposed toward their states’ ballot measures.

* On Friday, Ted posted about how critics of trial lawyers are getting sued for running an ad commenting on the Illinois Supreme Court race. Unfortunately, that’s just one of numerous instances in which criticizing the Litigation Lobby in paid advertisements is itself getting to be legally hazardous. In a new post at Point of Law, I list two other recent instances.

* Both the New York Times and the National Law Journal are out with stories on the very nasty and expensive battles between business interests and trial lawyers in state supreme court races, especially those in West Virginia (see May 13, etc.) and Illinois (Adam Liptak, “Judicial Races in Several States Become Partisan Battlegrounds”, Oct. 24; Emily Heller, “Judicial Races Get Meaner”, National Law Journal, Oct. 25).

* “Voters may run a gantlet of lawyers before reaching the ballot box on Nov. 2.” The two major parties are deploying lawyers by the thousand to challenge state procedures and individual votes (Miles Benson, “Voting in a Battleground State? Prepare to Meet a Lawyer at the Polls”, syndicated/Newhouse, Oct. 23).

Update: Supreme Court ducks ADA stadium-seating issue

Despite a split between circuits on the issue, the U.S. Supreme Court has declined to resolve “whether disabled moviegoers must be given better seats than the front-row accommodations they’re provided in many new stadium-seating theaters. … Instead, at the urging of the Bush administration, they left undisturbed rulings against two theater companies while the government reviews its guidelines for movie theater owners.” (Gina Holland, “Court Dodges Fight Over Disabled Seating”, AP/WTOP, Jun. 28; “Supreme Court decision lets disabled sit away from the picture”, KATU, Jul. 1; “Beyond the letter of the ADA” (editorial), The Oregonian, Jul. 3; Christine M. Garton, “Disabled Moviegoers Fight Stadium Seating”, Legal Times, Jun. 24). For more on the controversy, see Nov. 11 and links from there.

News of diocesan bankruptcies

Sign of the times: Bankruptcy Creditors’ Service, Inc., has launched a new publication entitled Catholic Church Bankruptcy News, its mission being to keep track of legal proceedings in the case of the insolvency of the Diocese of Portland, Oregon, and whatever other dioceses or church institutions follow the same path into Chapter 11 under pressure from abuse claims. Subscribers will have to pay $45 for each issue, expected to appear approximately every 10 to 20 days, but a sample issue can be perused for free. (via Amy Welborn). One of the claimants suing the Portland diocese over abuse, whose trial had been set for Jul. 6 until stayed by the bankruptcy filing, is demanding $135 million; another wants $36.5 million. For more, see Ashbel S. Green, “Church bankruptcy and the courts”, Religion News Service/Salt Lake Tribune, Jul. 10.

“Parents sue rescue crews in son’s death after fall”

Sue those rescuers: “The parents of a 15-year-old Redmond boy who died after a fall in the Crooked River Gorge [in Oregon] have filed a $9.5 million suit in U.S. District Court against the fire district and rescue workers who responded to the accident. Patricia and Michael Keller allege that their son [Elijah Keller] did not receive proper medical care from rescuers. …According to the suit, the teenager wasn’t strapped down properly when rescuers hauled him up on a stretcher, and ‘his head fell sharply down to his chest during the lift up the side of the cliff.’ … Attorney Robert Lowry, who is representing the Crooked River Ranch Rural Fire Protection District and the rescue workers named in the suit, said Keller wasn’t walking along the precipice’s edge, but leaping from rock to rock when one rock broke loose. He said those who responded did everything they could to save the teenager.” (“Briefly”, The Oregonian, Jun. 20). Commenting on the case: “Rural communities depend on the no-questions-asked courage and compassion of thousands of men and women serving without pay as firefighters, EMTs and search and rescue volunteers. … these volunteers and professional first responders keep getting signals that mistakes, no matter how they happen, carry a punishing multimillion-dollar liability”. (“A delicate balance: We sue rural volunteer rescuers at our peril” (editorial), Eugene Register-Guard, Jun. 22).