Update on Schwarzenegger and Tort Reform
February 5, 2010
As I reported earlier, California Governor Arnold Schwarzenegger has pledged to push for tort reform in this, his final year in the governor’s office.
Veteran California political columnist Dan Walters gives a brief history of the tort wars in the Golden State and reports on the reform package’s chances for success - not great. In Walters words,
Don’t hold your breath. The Legislature’s Democratic majority is symbiotically welded to the trial bar.
CA Supreme Court On Recusal: “Mere Appearance of Bias” Not Enough
January 26, 2010
“Merit selection” supporters, treading water in many states in their attempt to eliminate democratic judicial elections, are looking to open a new front in the fight for America’s courthouse. Their latest strategy is to target judicial recusal standards — turning recusal into a back door way for special interest groups to limit the influence of citizens over judicial selection and shape the court to their own ideological ends.
Two weeks ago, the Wisconsin Supreme Court stopped such an effort in its tracks when it refused to adopt a rule that proposed automatic recusal in any case in which a litigant had made a $1,000 campaign contribution. The Wisconsin court wrote:
“[campaign] donations, endorsements or independent spending around elections are not enough to force judges off cases.”
And last week the California Supreme Court added its voice to Wisconsin’s. Law.com has the specifics of the case - here’s the money quote from the article:
“…Following an ‘exhaustive review’ of ‘a delicate realm of constitutional law,’ the justices said that ‘while a showing of actual bias is not required for judicial disqualification under the due process clause, neither is the mere appearance of bias sufficient…”
When fuzzy “appearance of bias” standards are used for recusal decisions it’s an invitation for unscrupulous trial lawyers to do whatever it takes to remove judges they fear might be unsympathetic to their cases.
Want proof? Look to Michigan. The supreme court there recently abandoned century-old recusal standards in favor of vague disqualification rules based on “appearances,” not facts. Just weeks later, trial lawyer Geoffrey Fieger demanded the state supreme court kick off three justices from the appeal of a case.
Kudos to California and Wisconsin for standing firm.
Schwarzenegger to Fight for Legal Reform
January 8, 2010
As even casual political observers know, California Governor Arnold Schwarzenneger has had a turbulent tenure as the state’s executive-in-chief. That promises to continue, based on a bold pledge he made in his final State of the State address this week.
In a tribute to his previous body-building career, Ahh-nold has vowed to take on nothing short of a Herculean task: enacting legal reform in the Golden State.
With Democrats in charge of the state legislature — all backed by powerful trial bar interests — is the Gov. simply looking to go down as the action hero he once was, guns firing in a blaze of glory?
Nope - Gov. Schwarzenegger gets the same thing that Gov. Haley Barbour in Mississippi (still fighting to protect legal reforms), Gov. Rick Perry in Texas, and many other governors get: legal reform powers job creation.
California voters get it, too. A recent poll reported that 71% believe lawsuits are a job killer and more than six in ten say lawsuit reforms would bring new jobs to the state. Tom Scott, executive director of the California Citizens Against Lawsuit Abuse, puts it succinctly:
“One lawsuit can be the difference between being in business and being out of business.”
And jobs, jobs, jobs, are what the state needs — more than 2.2 million Californians are out of work and state unemployment is above 12%.
Unfortunately, recent surveys don’t paint a pretty picture for boosting employment anytime soon. Chief Executive magazine recently delivered more grim news when it comes to attracting the capital investment necessary to fuel job growth. Its readers ranked California as the worst state in the nation in which to do business.
The best state? Texas, where common-sense legal reforms enacted several years ago continue to constrain medical costs and to attract new corporate headquarters to the state.
Taking a page from the Texas playbook, Schwarzenegger issued the following statement, outlining his intended reforms:
“Unfair and frivolous suits impact where companies locate or expand. California’s current litigation laws lead to large settlements with little value to consumers but become worth millions to lawyers at the expense of California businesses. Current statutes also impede growth by holding businesspersons liable for defective products - even if the seller had no knowledge or control over the defect - and allowing for punitive damage awards that are wildly unpredictable among similar cases.
“The Governor will propose a set of statutory changes that will set forth clear guidelines for class action lawsuits improve California’s litigation climate by allowing defendants to appeal class action certifications and by requiring the plaintiff rather than the defendant to pay for notification to other potential class members.
“In addition, these reforms will provide for limitations on the scope of damages assessed against business persons for defective products and eliminate unreasonable and excessive noneconomic and punitive damages awards.”
Nearly 1.4 million lawsuits are filed each year in the state of California. And for many years our friend John Sullivan, head of the Civil Justice Association of California, has chronicled and fought against job-crushing, trial lawyer tactics including ADA lawsuit mills, high-dollar asbestos claims, employment lawsuits, and on and on. To say the governor is facing an uphill battle would be kind.
But the need could hardly be more clear. The CJAC blog recently reported that fully 91% of California businesses were sued in 2009 and nearly one-third (32%) faced more than 20 lawsuits.
Rather than sending their governor back to Washington to beg for federal bailouts, California’s Democratic legislators ought to ally with Schwarzenegger, enact serious legal reform and jumpstart job-creation.
Lawyers Get Greenbacks, People Get Pinkslips
November 23, 2009
A new report out of California Citizens Against Lawsuit Abuse found that California’s eight largest city and county governments have forked over more than $500 million in the past two years to pay verdicts, settlements and legal fees. As the head of one county taxpayer advocacy group put it in the Bakersfield Californian:
“It is outrageous that people are losing their jobs and government services are being severely cut at the same time that nearly half a billion dollars of our tax money is going toward litigation costs….Every dollar that taxpayers have to spend defending lawsuits is money lost for critical services such as public safety and infrastructure improvements.”
If it’s costing $500 million to feed the litigation beast in just eight California cities and counties, can anyone imagine what the bill for taxpayers nationwide?
Keeping An Eye On The Secretary Of State Project
October 1, 2009
The Secretary of State Project is rattling the tin cup for Minnesota Secretary of State Mark Ritchie and SOS challengers Debra Bowen in California and Jocelyn Benson in Michigan. The hope is that Bowen and Benson can do what Ritchie did in Minnesota: tip close elections, such as the Franken-Coleman race, in favor of their preferred candidate.
Ritchie, of course, was elected with SOS Project funding and quickly abandoned any pretense of running fair elections. According to Jeff Davis, president of the legislative watchdog group Minnesota Majority, Ritchie blocked an investigation of ACORN, which had endorsed him, despite evidence of “a number of irregularities” in Minnesota voter records - little things like dead people and convicted felons registering from prison. I guess the 2008 election was a two-fer for Ritchie as far as the SOS Project was concerned: He kept ACORN in the game and played a major role in tilting the election to Al Franken.
Like other groups funded by hedge fund billionaire George Soros - such as Justice at Stake - the SOS Project poses as a non-partisan, good government organization whose only ambition is to ensure clean elections. And, as with other Soros-bankrolled groups, this pose is used to shield the deeply partisan nature of the organization. I wonder if Bowen and Benson know that sweeping ACORN’s fraudulent activities under the rug is part of the job description for candidates taking $$ from the SOS Project.
How Many Purses Can You Buy For $125,000?
February 6, 2009
What do you call $125,000 in gift cards to a women’s clothing store? An attorneys’ fee!
It seems the clerks at Windsor Fashion in California were requesting email addresses and telephone numbers for customers paying by credit card. A minor inconvenience or a modest intrusion – but also a violation of Civil Code § 1747.08 (a) (2). (Metropolitan News-Enterprise through Walter Olson)
Attorney Neil Fineman rushed forward to reverse this travesty of justice, slapping Windsor Fashion with a class action lawsuit. As part of a settlement OK’d last month by a California judge, each class member who can be found will receive a $10 gift card to Windsor.
Rather than walking away with a fat check for his legal services, Fineman himself will soon become a regular at the store as he tries to work off the 12,500 $10 gift cards he received as compensation for filing the action.
The New York Times Gets It Right
January 7, 2009
A few weeks back, I wrote a post about a California Supreme Court ruling that puts Good Samaritans on the hook for legal damages when they try to help someone in distress. Now, the New York Times has joined the chorus, with a strong editorial criticizing the decision. Money graph:
The implications of the ruling are disturbing. When people see an accident, the law should not discourage them from offering the best help they can. Now, however, Californians will have reason to hesitate. If they offer non-medical help – like pulling someone out of a burning house, or rescuing a drowning person – they may be putting their life savings at risk.
Good Samaritans On The Hook In California
December 22, 2008
Good Samaritans who try to rescue victims of car crashes or other emergencies can be sued for damages,
Update From California
July 16, 2008
California’s Statewide Commission for Impartial Courts held its first public hearing this week and the results were predictable. Legal elites from the Golden State and beyond paraded before the Commission to bemoan the “threats” to judicial independence because of “special interests” and called for action to take “politics” out of the courtroom.
Former California Governor Pete Wilson actually proposed a constitutional amendment that would “urge judicial candidates in California not to answer political questions and that would require all questionnaires to include that advice.” Wilson once called on California voters to dump a sitting state Supreme Court Justice who didn’t agree with his political views on crime. Apparently public officials berating judges doesn’t qualify as “politics,” but the horrors of filling out questionnaires have become so severe that a full-blown amendment to the constitution is required to ensure judicial impartiality.
Instead of berating judges, one august participant, Ohio Chief Justice Thomas Moyer, likes to beat up on voters. Earlier this week, Moyer went so far as to say voters are too unsophisticated to understand the importance of judicial independence. (He ought to know – voters elected him).
The Commission’s Chair, California Supreme Court Justice Ming W. Chin, repeated his assertion that courts are accountable to codes of conduct, the law, and the Constitution,” but evidently not to the people. The Commission’s interim report isn’t due until next month, but when lawyers start talking like this, it’s usually a good sign they want to push voters out of the judicial selection process.
Time to Put California On Your Radar
July 8, 2008
California’s Commission for Impartial Courts will hold its first public “fact-finding” hearing next week reports Legal Newsline. The commissioners will hear from Ohio Chief Justice Thomas Moyer – a well-known opponent of democratic judicial elections – and view “horrifying” ads from judicial races around the country. Sounds like the “facts” have already been “found” and all that’s left is to figure out how better to insulate California judges from California citizens.
“The commission,” says commissioner and California Supreme Court Justice Ming Chin, “believes that courts should be accountable … to well-established codes of conduct that require them to follow the law and the Constitution.” Of course everyone wants judges to follow appropriate codes of judicial conduct and uphold state constitutions. But let’s hope the commissioners remember that quaint old democratic notion that judges – like all other public servants – must also be accountable to the people.