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Did That Really Just Happen? Print E-mail
by John Browning    Sun, Oct 26, 2014, 06:28 PM

The bizarre twists and turns that the legal world take would make a great Formula One race course. If you don’t believe me, then just consider the following strange offerings from the justice system.


This Case Has a Ghost of a Chance


Just in time for Halloween comes this lawsuit from Vancouver, British Columbia. Jian Liang Hu claims in a breach of contract lawsuit that he bought a 35 percent stake in two Buddhist relic stores owned by Han Xiao, after Xiao demanded $90,000 from him. Jian maintains that Han’s business sells amulets from Thailand blessed by monks and purportedly containing hair, finger nail clippings, or other relics from dead babies, along with ghosts from the dead babies’ souls. Jian’s suit states that Han demanded that he provide the money under the threat of “the defendant using the souls of the baby ghosts in the possession or of the defendant to curse the plaintiff if he did not provide the funds.” Who ya gonna call? Ghostbusters!


Now That’s What I Call Method Acting


How far would you go to avoid a lawsuit? Well, if you’re Alan Knight of Swansea, South Wales, you fake being in a coma for two years. Facing theft and forgery charges for allegedly scamming a neighbor out of nearly $100,000, Knight claimed to be a quadriplegic and even feigned being in a vegetative state. Knight was ultimately caught by police going on shopping trips and vacations with his family, as closed circuit camera footage at local Tesco supermarkets showed him walking around. What tipped off law enforcement? The frequent use of Knight’s customer loyalty card at the grocery chain. Knight now can’t get out of going to court and he’s pled guilty to 19 charges of forgery, fraud, and theft spanning more than a year.


These Boots Were Made For Walking


Maybe Alan Knight should have adopted the approach taken recently by one New Zealand woman—if you don’t like what you hear in court, just walk away. In October, a West Auckland woman who learned in court that she would be sentenced to jail time simply walked out of the sentencing box and out the front door of the courtroom. No police or court security staff were in the courtroom at the time. According to an eyewitness, the judge said “Someone stop that woman,” but she “just kept on going. It’s quite embarrassing for them really.” The woman, described as a “low risk offender,” had not been recaptured as of press time.


When Smoke Gets In Your Eyes-and Your Court Documents


Appellate judges have been known to fuss over all kinds of things related to the documents they must review, from the length of the brief to the margins and spacing to the color of the paper. But in a recent Indiana Court of Appeals decision, Judge Edward Najam, Jr. took exception to a different feature—the “unpleasant odor” of certain documents in the record that reeked of smoke. In a footnote, Judge Najam wrote that the odor was “consistent with that of cigarette or pipe smoke that is apparent, offensive, and consistent. We kindly remind all those who handle the record on appeal to avoid such contamination.” And it’s not the first time the judge has made note of a smoky odor to the record; he made a similar objection in a 2012 opinion. Courthouse sleuths says that the two cases also share one other feature in common—being handled by the same deputy attorney general. Perhaps it’s time for someone to kick the habit.


At Least That Was Just Smoke


Smoky appellate briefs are one thing, but what about the other kind of briefs—as in, underwear? One court in York County, Pennsylvania has actually posted a sign indicating that, with respect to the payment of fines and court fees, “Money from undergarments will not be accepted in this office.” Really? Do people really do that? Apparently, in Judge Ronald J. Haskell’s court in York, it has been a problem—and perhaps there have been other issues as well, since another sign near the court reads “Pajamas are not appropriate attire for district court.” I’ve got to admit that courthouse staff are asked to do a lot of things, but handling the damp dollar bills that someone pulls out from God knows where shouldn’t be one of them.


Will He Run Over the Competition?


Partisan elections in judicial races are usually pretty dry, even boring fare. But not this one in Washington state. There, a disbarred lawyer and former driver of a Zamboni ice-smoothing machine at Seattle-area hockey games is making a dark horse bid for the state Supreme Court seat of the very justice who stripped him of his law license. John “Zamboni” Scannell, a long-bearded, ponytail-wearing former lawyer, faces Justice Debra Stephens on the November ballot. Stephens authored the court’s 2010 opinion disbarring Scannell for obstructing a multiyear Washington State Bar investigation into his alleged ethical violations, saying that Scannell’s conduct “poses a serious threat to lawyer self-regulation.” If Scannell were to win the election, state officials would face a quandary (and not just over who drives the Zamboni), since justices are required under the state’s constitution to be admitted to practice law.


I’ll Sue Myself, and Win


Finally, we come to a story that shows where the NBC sitcom “Parks and Recreation” must have gotten its comedic inspiration—the Parks and Recreation Department of St. Paul, Minnesota. On August 4, 2014, Parks and Recreation employee Megan Campbell was driving back to her office in a city vehicle when she struck and damaged a parked car—her own 2001 Nissan Pathfinder. So now Ms. Campbell is making a claim against the city for the damages caused to her car by—her. She rationalizes that “Because I was working for the city and driving the city vehicle, I feel they are responsible for paying the damage done to my car.” The city calls the situation “unusual.” Suing the city that employs you for your own negligence? Yes, I’d call that unusual.

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"Chicago" Republicans Print E-mail
by Mike Giere    Tue, Sep 23, 2014, 01:49 PM

"America is on fire and it is in desperate need of leaders and thinkers and doers - not political pyromaniacs."

At first it seems a parochial issue; a handful of old cranks desperately trying to find a way to hold onto "power" (whatever exactly that is) in Fauquier Republican politics.

Realizing that they couldn't win an intra-party election outright if only Republicans and conservatives voted, they import Democrats and "green" environmental activists to push them over the goal line - not dissimilar to the slating fights of the past summer in the 5st and 7th Congressional districts where the "old guard" attempted to manipulate convention delegations.

The difference is that in Fauquier County when the old guard was caught breaking the Republican Party of Virginia (RPV) rules, they actually filed suit against their own Party for enforcing those rules!

However, when you do a little spade work, the more you realize that the recent brouhaha in Fauquier County is emblematic of the problems in the statewide GOP organization, and in the national Party structure as well. Intra-party fights have been very brutal, and there are a number of state elections that could turn on the organized effort of the "establishment" Republicans to purge the party of Reagan-style or Tea Party backed candidates.

It's the attack of the "Chicago Republicans," (think Obama and Rahm Emanuel here).

They are party "careerists" or apparatchiks who like their Democrat cohorts, could care less about ideas and principles, but concern themselves with accumulating and using "power," in whatever form they can, by whatever means possible, for its own sake.

These Republicans would rather lose elections than see elected offices go to strong conservatives, and they have done so frequently.

We are seeing the national consequences of this right now as discredited GOP Establishment-supported Senate incumbents or candidates stumble in the polls jeopardizing the hope of retaking that chamber; made worse by the old guard's public attacks demeaning the conservative base.

It's not really a new phenomenon; it's just more critical now because America is on fire and it is in desperate need of leaders and thinkers and doers - not political pyromaniacs.

In a nutshell what happened in Fauquier County is that a canvass was held that elected Scott Russell as chairman over conservative Cameron Jones. The only problem was that the "establishment" in Fauquier cheated and failed to follow the rules set forth by the RPV and the Party Plan. In August, the State Central Committee (the elected leaders of the RPV) upheld a decision by the district committee, and overturned the results and called for a new election.

In a bizarre move, Russell joined long time liberal Republican activist Jim Rich to file suit against the RPV claiming that its rules are&well, rules, and they don't like them.

At the first Fauquier County Republican Committee (FCRC) meeting after the RPV ruling, in early September, Russell supporters held a meeting and replaced some of the existing committee members with Russell's own supporters. The meeting was railroaded Chicago-style by Rich, a former 10th Congressional District Chairman. No questions, no arguments, no shame. Once the parliamentary jujitsu ended, the pre-canvass slothfulness and irrelevancy of the FCRC leadership was reinstated.

(Russell is the new executive director for Mike Farris' Convention of States Project - an ironic twist if there ever was one.)

Jim Rich remains as a festering rash in this whole affair. He has a long history in Republican politics as a hugely destructive, divisive force, with a bad habit of publically trashing Republican candidates.

Now, Rich, along with Russell, takes his contentious and destructive brand of Chicago politics into the courts, distracting from the effort of getting Republicans elected in November.

The drama in Fauquier, the Commonwealth, and the nation this year reveals a lamentable moral:

The Republican Party has become a dysfunctional anachronism that is essentially irrelevant to the outcome of modern political campaigns. It now exists to cheerlead from the sidelines and make sure the consultants are well paid; but unlike its Democratic opposition, the Republicans as a serious political organization have not learned how to use the media, social platforms, protests, micro-targeting and organization to back up candidates. Worse still, while the radical Democrats have perfected messaging in the broader culture, the "establishment" Republicans treat serious ideas and principles like Superman does Kryptonite.

This fall's elections for better or worse are already largely baked, but 2016 is still being put together.

After two "moderate" candidates in a row have failed to win the White House because they have gotten successively fewer working class and middle income voters, the ongoing battle for the soul of the conservative movement could not be more important; in Fauquier County, in Virginia and all across the nation.


Mike Giere has written extensively on politics, foreign policy, and issues of faith. He is a former candidate for the US House; worked for Ronald Reagan in 76 & 80; and served in both the Reagan and Bush (41) Administrations.


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More Wacky Warning Labels, and Other Legal Weirdness Print E-mail
by John Browning    Sat, Aug 16, 2014, 04:14 PM

It’s that time of year again when the Center for America releases the winners of its Wacky Warning Label contest.  Yes, nothing demonstrates how ridiculous and overlawyered our society has gotten quite like the warning labels chosen by the Center and its senior fellow Bob Dorigo Jones.  How far in absurd extremes will companies go in an attempt to avoid lawsuits?  Consider these finalists:


  • A sheet of decals (intended for bikes, bike helmets, skateboards, and scooters) given as a promotion by the NFL’s Buffalo Bills, which includes the warning “Decals are for decoration only and will not prevent you from any bodily harm or injury.”  If you think a decal doubles as a protective device, clearly your brain is no longer worth protecting; leave the helmet at home.


  • Speaking of helmets, another finalist is the warning label used by a football helmet manufacturer that reads “No helmet system can protect you from serious brain and/or neck injuries including paralysis or death.  To avoid these risks, do not engage in the sport of football.”  Let me see if I’ve got this straight: you’re in the business of making football helmets, and your advice is to not play the sport.  Good luck with that business model, folks.


  • The ink cartridge for a printer features a warning label on its packaging that reads “Do not drink.”  Seriously, if you need to be told not to drink printer ink, I not only don’t want you working in the office pool, I don’t want you reproducing in the gene pool.  It’s just too much of a risk.


  • The Mickey Mouse 4-in-1 Ride On toy, which bears a label that says: “Do not push vehicle while child is riding on it.”  I guess that leaves the sillier of two alternatives—push the vehicle when no one is on it and look stupid, or allow your child to experience the fun and play value in remaining absolutely still.


  • And maybe they’re onto something with that “no kids” theme.  Another finalist is the warning label on a cellphone battery charger which reads “Get rid of children.”  It’s either a really bad translation from the original language, or a cruel statement—take your pick.


Of course, wacky warning labels aren’t the only source of entertainment in the law.  There’s also the wit and wisdom of federal judges, like Judge Barry Ted Moscowitz of the Southern District of California.  Judge Moscowitz didn’t take kindly to the 495 total objections lodged by the defendants in Mills v. Buffalo Pumps, Inc. et al., particularly their objection on the grounds that one witness, a Mr. Willis, had not been shown to be unavailable to testify.  Judge Moscowitz pointed out that “The Court is confident that Mr. Willis is unavailable; he is deceased.  While federal subpoena power is broad, Mr. Willis is now beyond this Court’s jurisdiction.”  As both federal judges and pirates can agree, dead men tell no tales.


And speaking of the dead—“The Walking Dead”—another likely lawsuit may answer the question “If I run over a zombie, will my insurance rates go up?”  At San Diego’s annual Comic-Con recently, the driver of a car traveling past the annual mecca of all that is sci fi/fantasy/horror had a run-in with zombies.  Not the real kind, mind you, but a crowd of costumed people dressed as the flesh-craving undead taking part in the convention’s “zombie walk.”  The 48 year-old driver and his family in the car—who clearly do not watch much television—became “scared” of the slow-moving zombies as they lurched through the intersection and pawed at the car.  The driver sped up and then “plowed through” the crowd, injuring one woman who was taken to a nearby hospital.  Here’s a quick bit of legal advice: plowing through a crowd of zombies during a zombie apocalypse may save your life, but plowing through a crowd of people dressed as zombies as part of a science fiction convention will get you sued and possibly thrown in jail.


And just to show you that some people really do have problems distinguishing reality from fiction, I leave you with Ms. Ajanaffy Njewadda and her lawsuit against New York’s Metropolitan Transit Authority (MTA) and the cable network Showtime.  According to her lawsuit filed in late June, Ms. Njewadda fell down a Grand Central Terminal stairwell and broke her ankle on June 20, 2013 because she was “startled” by a disturbing ad for the Showtime series “Dexter” (which is about a serial killer who kills other serial killers).  The poster in question covered the side of every step in a stairwell leading to a shuttle train and depicted the face of “Dexter” star Michael C. Hall.  Njewadda claims that the “shocking and menacing” face frightened her and caused her to lose her balance, and has given her nightmares as well.  Both the MTA and Showtime have denied liability.


Maybe we need a warning label to place on people who can’t separate fact from fiction.

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Can’t We All Just Get Along? Print E-mail
by James Browning    Thu, Jul 31, 2014, 10:19 AM

The courtroom is not supposed to be a violent place. After all, our modern system of justice where parties resolve their disputes before an impartial third party (the judge) and/or a jury of their peers was intended to replace trial by combat-in which parties settled their differences by fighting it out (usually to the death).  For most of us, the closest we’ve come to seeing trial by combat is our television sets, watching “Game of Thrones” as Tyrion Lannister faces accusations against him by having a champion face off on his behalf in mortal combat (twice, with mixed results).


          As civilized as we may think ourselves to be now, that’s not to say that parties haven’t at least tried to evoke the concept of trial by combat.  In a 1983 case before Delaware’s Court of Chancery, the defendant Freedom Church of Revelation responded to a motion for judgment on the pleadings with a motion for trial by combat to the death.[1]  Not surprisingly, the court was not amused and admonished the defendant that “challenge of trial by combat to death is not a form of relief this Court, or any court in this country, would or could authorize.  Dueling is a crime and defendant is therefore cautioned against such further requests for unlawful relief.”[2]  Even merry old England doesn’t care much for the ancient right to trial by combat anymore.  In 2002, 60 year-old mechanic Leon Humphreys tried to contest a 25 pound fine for a minor traffic offense by invoking trial by combat.  Humphreys pled not guilty and then challenged the Driver and Vehicle Licensing Agency (DVLA) to select a champion for a fight to the death with “samurai swords, Ghurka knives, or heavy hammers.”  The court magistrates spared the DVLA the hassle of choosing a champion, opting instead to deny the motion, find Humphreys guilty, and fine him 200 pounds with 100 pounds court costs.


          Of course, there are those who try to bring combat back to the courtroom itself.  I’m not talking about litigant-on-litigant battling in a kind of “Thunderdome” match up (“Two men enter-one man leaves”).  No, I’m talking about lawyer-on-judge or judge-on-lawyer violence.  For example, Brevard County (Florida) Judge John C. Murphy mixed it up in June 2014 just outside his courtroom with assistant public defender Andrew J. Weinstock.  In a courtroom video that went viral, Weinstock can be seen at the podium refusing to waive his client’s right to a speedy trial, and Judge Murphy is heard saying “If you want to fight, let’s go out back, and I’ll just beat your ass.”  The two then exit the courtroom into a hallway off-camera, at which point a scuffle can be heard.  According to Weinstock, Judge Murphy did strike him in the head.  Not surprisingly, following the incident Judge Murphy (a retired, decorated Army Reserve colonel who served in Afghanistan) went into anger management counseling.  He took a four-week leave of absence, and Chief Judge John Harris of Florida’s 18th Judicial Circuit Court issued a statement condemning the incident, saying “People come to court seeking justice and a peaceful resolution to their conflicts and they have a right to expect a much higher standard of behavior from our judges than was exhibited in court yesterday.”  The fallout from the incident, however, is not over; the matter is being investigated by the Florida Judicial Qualifications Commission, the disciplinary body that investigates judicial misconduct.  In addition, Mr. Weinstock resigned from the public defender’s office in protest after Judge Murphy was allowed to return to the bench.  Maybe it’s time for a rematch, this time on pay-per-view.


At least in the U.S., we don’t have lawyers going after judges with flyswatters.  That was the case recently in Kazakhstan, where 35 year-old lawyer Evgeniy Tankov didn’t take too kindly to one judge’s ruling.  In yet another video gone viral, Tankov is seen approaching the judge with a flyswatter and slapping the judge with it three times.  The opposing attorney, 39 year-old Artem Ibragilov, then goes over and punches Tankov.  Seconds later, the judge is off the bench and physically grappling with Tankov as well.  Not surprisingly, Tankov has been barred from the practice of law and faces up to 10 years in prison for his unusual attack on the judge.


          Yes, the courtroom can be a violent place, even long after “trial by combat.”

[1] McNatt v. Richards, Court of Chancery of Delaware, Civ. Action No. 6987 (decided Mar. 28, 1983).  Hardly shocking, the pro se defendant’s motion for trial by combat followed pleadings that the court described as a “rambling tirade which asserts various preposterous allegations and claims.”

[2] Id.

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Lawyers Doing Good (Part II) Print E-mail
by mary williams    Wed, Jun 11, 2014, 06:46 PM

Some of the ways in which lawyers do good for the community are geared toward hope for a better future—such as raising money for charity, mentoring others, or building houses with Habitat for Humanity.  But for some lawyers, building a better future means righting some of the wrongs of the past.  For these attorneys, this entails not just reminding others of some historically-overlooked injustices, but also taking steps to remedy (albeit belatedly) those injustices.  While the legal profession itself has made great strides toward inclusiveness, its past is marked by racial injustice and discriminatory policies that are shocking to today’s lawyers.

One of these efforts to right a 124 year-old wrong is being led by University of California-Davis law professor Gabriel “Jack” Chin and a group of his students, who have submitted an application to practice law to the State Bar of California on behalf of Hong Yeng Chang, who was denied a law license back in 1890 solely on racial grounds.  Chang graduated from Yale University and Columbia Law School in 1886.  Although he was initially denied the chance to sit for the New York bar exam, a special act of the state legislature gave him that opportunity.  He passed, becoming the first Chinese immigrant to become an American lawyer.  In 1890, Chang moved to California with the intention of starting a law practice that would represent the booming Chinese immigrant community in San Francisco.  But the California Supreme Court denied his application, pointing to a federal law—the Chinese Exclusion Act—that barred Chinese from becoming U.S. citizens, as well as a California law banning noncitizens from practicing law. The court’s decision in Chang’s case is still studied today in law schools as an example of 19th century bigotry.  In 1943, Congress finally repealed the Chinese Exclusion Act, and in recent years both the Senate and the House of Representatives have issued apologies for the discriminating effects of that act and similar laws.  In 1972, the California Supreme Court allowed noncitizens to earn licenses to practice in the state.  Chang himself, though denied admission to the California bar, went on to a distinguished career in banking and diplomacy.

While there is no precedent in California for granting a posthumous law license, there have been similar efforts at redressing past discrimination.  In March 2001, the Washington State Supreme Court posthumously admitted Takuji Yamashita, who graduated from the University of Washington School of Law in 1902, and passed the bar exam, but was denied admission to the bar.  Like California, Washington’s supreme court and attorney general at the time relied on federal law excluding Asians from becoming citizens, and on the prerequisite of citizenship to be a member of the bar.  Yamashita appealed to the state’s highest court, arguing that this denial was an affront to the values of “the most enlightened and liberty-loving nation of them all,” but the state’s attorneys derided Yamashita’s “worn out Star Spangled Banner orations.”

After the state won, Yamashita faded for a time into obscurity, becoming a hotel owner and strawberry farmer in Kitsap County, Washington.  But he came roaring back in 1922 with a new crusade, this time against the state’s Alien Land Law, which prohibited “ineligible aliens” (primarily Asians) from owning land.  Yamashita took his fight all the way to the U.S. Supreme Court, but unfortunately fared no better than he had with the Washington Supreme Court in 1902.  Not until 1952 would Congress permit Japanese immigrants to become U.S. citizens, and it wasn’t until 1965 that Congress treated Asian immigrants on an equal footing with their European counterparts.  Washington state finally repealed the Alien Land Law in 1966 (on the fourth try), and it took until 1973 for the U.S. Supreme Court to grant legal aliens the right to practice law in all states.  Yamashita’s failed quests, first for a law license and then for the right to own land, became little more than dusty legal footnotes.  Like other Japanese-Americans, he was confined to internment camps during World War II.  He returned to Japan for what would be the last two years of his life, dying there in 1959 at the age of 84.

In the mid-1990s, several historians and descendants of Yamashita began to piece together his incredible story and to lobby the state of Washington to address the injustices of the past.  The ceremony marking his posthumous admission was a focal point of the University of Washington Law School’s centennial, and Yamashita was belatedly honored by then-Governor Gary Locke, Attorney General Christine Gregoire, and other dignitaries with 17 of Yamashita’s descendants from Japan in attendance.  Washington Supreme Court Chief Justice Gerry Alexander observed that “It’s impossible to undo what happened to Mr. Yamashita, but it’s important for us to make a statement that these things were wrong.  It’s a step toward healing.”

Another precedent for admitting Chang comes from Pennsylvania.  In 2010, the Pennsylvania Bar set right its own historical injustice 163 years after denying African-American George B. Vashon admission to the bar.  Vashon, born a free man in Pennsylvania in 1824, became the first African-American to receive bachelor’s and master’s degrees from Oberlin College.  He then “read the law” under the tutelage of Judge Walter Forward (who would later become U.S. Secretary of the Treasury), and made application to practice law in Allegheny County in 1847.  But Vashon was denied admittance on the basis of his “Negro descent.”  Vashon then moved to New York, where he became the first African-American lawyer in that state.  While he would go on to practice law in Syracuse and become best known as a professor (Vashon was Howard University’s first professor), Vashon never forgot being snubbed in Pennsylvania.  After being admitted to practice before the U.S. Supreme Court in 1867, Vashon again sought admission from Allegheny County the next year, only to be denied yet again.

After reading an article about Vashon’s life, Pittsburgh attorney Wendell Freeland was struck by the injustice.  In January 2010, along with several of Vashon’s descendants, Freeland and his co-counsel Leslie Carter filed a petition to the Pennsylvania Supreme Court, seeking a declaration that Vashon was qualified to be admitted to the bar.  The court agreed, and in a ceremony on October 20, 2010, George B. Vashon was at last admitted to the Pennsylvania bar.  His great-grandson Nolan N. Atkinson, Jr., who himself is a lawyer with a large national firm, said of the belated recognition, “[It] both acknowledges Mr. Vashon’s many accomplishments in law, scholarship, education, and justice—often in the face of great resistance—and finally redresses an historical injustice.”

In the case of Hong Yeng Chang, California’s Committee of Bar Examiners is scheduled to make its decisions in June on recommendations to the state supreme court about whether to admit or deny admission to bar applicants.  Laura Emde, a spokeswoman for the State Bar of California, calls this “a unique situation.”  But clearly precedent exists, in the form of actions by two state supreme courts, for righting such past wrongs, even if it is merely a symbolic gesture.  As Professor Chin points out, “Admitting Mr. Chang would be a powerful symbol of our state’s repudiation of laws that singled out Chinese immigrants for discrimination.”

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