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Free Speech in the Obama/Clinton Age

It’s been a while since I posted here.  Now, I am using it for a more personal purpose than just educating the public on the law. For the last 4 years I have been fighting a rear guard action against censorship on the internet.  My main focus has been on the National Public Radio website as it attracts educated, informed readers and it is partially funded by taxpayer dollars.

This morning, out of the blue, I was banned from posting there. I suspect this was done to censor my critiques of Obama’s upcoming speech on the Dallas shootings.  This is not the first time I have fought NPR censorship.  The last time I succeeded in getting myself and hundreds of other banned posters access to posting again.  My reputation was tarnished by it, but I don’t care.  Here is the link describing my battles:

http://www.cpb.org/ombudsman/asleep-code-switch

I tend to be passionate about injustice.  I also see censorship as the most dangerous tool of government.  I fight it at every turn no matter the consequences.  If you agree with me, please contact me through this blog or through my firm’s email account. vandenberglaw@gmail.com.  I hope that through pressure, NPR will reconsider its opinion on blocking free speech. I hope you will join me.  Stay tuned for more posts on first amendment issues.

 

Sincerely

Chris Vandenberg

Why is it so Hard to Beat City Hall? The Conundrum of Administrative Law – Part I

We have all heard the saying, “you can’t beat city hall” but does anyone ever ask why? Most people probably think it’s because government is corrupt, or that it has so much power that the little guy has no chance. In reality, the problem is that under administrative law, the courts give the government a presumption of being right. In other words, if you want to challenge a law or ordinance or agency decision, you have the burden of proving that the decision was wrong or the law is invalid.

This is because the states are assumed to have “police powers” over all things that the federal government has not reserved for itself. These police powers don’t necessarily mean that the police will be the ones enforcing the rule, it means that the state and local government have the power to regulate that issue. See last week’s post to get a better understanding of burden of proof and police powers. What is relevant here is that “city hall” has an ace up its sleeve.

I will be doing a two-part post on this issue over the next two weeks because I think few people outside of the law understand this and it affects everything we do from what we eat to how our cars are built, to what we do at work. Your house or apartment was built based on a public planning process that is part of the police powers. It controls nearly everything, but the secret is you can challenge it……if you know the law.

So why should you care one way or the other? Well, to apply it to the local Wahkiakum County issues, your interests are probably involved in some sort of litigation right now. Currently the county and the State of Washington’s Department of Ecology are in a fight as to whether cities like Olympia and Vancouver can spread treated sewage sludge (known as bio-solids) on Wahkiakum County fields. If you are a commercial or sport fisherman and are concerned about the increasing numbers of sea lions killing salmon in the Columbia River, your interests are an administrative law case. If you believe that the states should release more hatchery fish, your interests are being argued in court. If you are a Columbia River gill netter being put out of business by new fish and wildlife rules….you’re fighting administrative law. Everything from animal rights to zoning are all admin law and therefore subject to “the presumption.”

So what is this presumption? Well it’s a legal device designed to keep the courts from being inundated by a tsunami of challenges to every administrative decision that someone doesn’t like. It makes it tough to challenge something so that you can’t just do it as delaying or stalling tactic. For agency decisions, you have the requirement of showing that the agency acted arbitrarily and capriciously and was clearly erroneous about their decision based on the record provided to the court. This is why you will see admin law attorneys, meticulously filing documents into the court’s record upon which the judges base their decisions. The judges are only supposed to use what is in the record. They don’t always do that but they are supposed to.

The other interesting thing about administrative law is that there are no juries. In fact, in some cases you may not even get a regular judge, you may get an Administrative Law Judge (ALJ). These ALJ’s only hear administrative cases and usually have years of experience litigating these types of cases. The other thing is you usually don’t have witnesses and testimony made in court. Instead the lawyers prepare briefs and make arguments that apply the facts to the laws and administrative rules. The downside is that you will likely never see an administrative court drama on TV because they just aren’t that exciting. However, they certainly are more important to us all than the most sensational murder case can be because in the murder case, the fate of one person hangs in the balance, but in administrative law, all of our fates are at stake, whether we know it or not.

Next week I will discuss the most famous case in Administrative law, known as the Chevron decision. Trust me, it goes way beyond pumping gas. Until then…..stay tuned.

Gay Marriage Under Scrutiny…..but What Kind?

To my readers who wondered if the authorities had come and dragged me off to Guantanamo Bay after my last post, don’t worry, I still retain my freedom. My wife and I took a well deserved vacation to Arizona and Oklahoma. Sometime in the near future I plan to describe my experience getting pulled over in Oklahoma and getting sniffed by a drug detection dog……but that will be at a later date.

With all the recent news coverage of oral arguments in the Supreme Court of the US (SCOTUS) I thought I could use the event to discuss a little known aspect of SCOTUS review that is perhaps the most important aspect for an attorney going before the court. The most important question for all cases is: what level of scrutiny will the justices use to review this case?

You see, the level of scrutiny determines who has the Burden of Proof. This means one side or the other will be on offense and the other of defense. The one with the burden is on offense and has a greater burden to prove their case than the other side.

So how does a lawyer before the SCOTUS know if they will have the burden? Well that depends on the level of scrutiny. Remember that any case accepted before the SCOTUS has either a fundamental right in question or is a question of federal or state law that is challenged under the umbrella of the US Constitution

The lowest level of scrutiny is Rational Basis review. Under the US Constitution’s tenth amendment, any power not delegated to the United States (federal government) nor prohibited by it to the states, are reserved to the states respectively, or to the people. In other words, if it isn’t listed in the constitution, the state can regulate the issue through its Police powers. This doesn’t mean the state police have the ability to run around and arrest you for anything not in the constitution. Police powers are the inherent right to regulate the things that occur there. Police powers include things like zoning regulations and fish and wildlife rules. These are things that the founding fathers believed were better left to the states than to be regulated by the federal government.

Under rational basis review, the court has a presumption that a regulation created under the police powers is constitutionally valid. The party challenging the regulation has the burden of proving that it does not lead to any discernable or understandable legitimate purpose. In other words, if the court can find any rational basis that a state legislature could make the regulation then they will find it constitutional.

Rational basis is a very difficult standard to overcome. Challenging a state or local regulation by proving the drafters of the law had no rational reason for the law is very difficult. (except for a minor case that I will talk about later in this post that may play a giant role in the decisions on gay Marriage. If you are the type to look up cases on the internet the case is called Romer v. Evans. Stay tuned).

In fact the courts have a presumption that the law is valid. As the old saying goes….it is pretty hard to beat city hall…….unless the rule infringes on a fundamental right protectected by the US Constitution or directly involves a rule based on a protected class of people such as race or gender. In those cases, the SCOTUS uses different review standards.

Those two standards are strict and semi-strict scrutiny. In both cases the proponent (government) of the law has the burden of proving that the law is constitutional.

Semi-strict scrutiny is used for rules based on the gender of a person (among other classifications that we wont discuss here like alienage, and illegitamacy classifications) . A different legal drinking age for alcohol for men and women would be an example. In such a case the government has the burden of proving that the law has a substantial relation to an important government interest. This is a higher standard to prove and the government has the burden of showing that it is related to their interest.

The other standard is strict scrutiny. In cases where a fundamnetal interest is at stake, such as the second amendment right to bear arms or any other constitutional right the 14th amendment applies to the states (which oddly is not all of them but we will discuss that some other time) the courts use Strict Scrutiny.

Strict scutiny is also used for regulations based on suspect classes such as race or ethnicity. That’s not to say that the race of a person is suspect…..it means that a regulation that creates different outcomes based on the race of a person is automatically suspect by the courts. The government has the burden to prove that the regulation is necessary to achieve a compelling government interest (higher than semi strict scrutiny) that can not be achieved through less restrictive means.

One interesting aspect of racial classification, is the case that established the standard for a protected class. The case is called U.S. v Carolene Products. Ironically, this is a case about milk and margerine but it is the defining case on which cases get rational basis review and which case get stricter review. The weirdist thing is the definition of what a protected class. It comes from a footnote to the case but every law student learns Carolene Products footnote four by heart if they want to pass their ConLaw final. Footnote four (not even important enough to go into the main text of the case) lays out that people with immutable characteristics such as race or gender (in other words they are born that way and can’t change them) create protected classes because their circumstances are not of their own actions.

So after all of that, how does this relate to the gay marriage debate? Well, there are currently two cases about gay marriage before the SCOTUS. One involves a challenge to California’s proposition 9, which restricts marriage to a man and a woman. The other case is a challenge to the federal Defense of Marriage Act. Now this may seem simple, but all the above discussions of standard of review come into play here.

Remember how under rational basis review a state law is presumed valid? Well the federal government has always considered the rules a state imposes on it’s citizen’s who wish to marry as part of the police powers. The courts only stepped in with stricter scrutiny when another issue triggered it. For example, bans on interracial marriages triggered the protected class status of race from Carolene Products footnote four and therefore strict scrutiny.

Sexual preference however was never listed as an immutable characteristic so states could enact laws that banned gay marriage so long as the states had a rational basis for doing so. Most of the time the states argued that it had a substantial interest in the raising of any children born into the marriage in a two parent mother/father relationship. This standard held for years despite the fact that many heterosexual parents were divorcing, raising the children as single parents, cohabitating with adults, not necessarily the biological parent of the children….etc. Rational basis review allowed the states to make any “rational” argument and win.

Now here is the wrinkle I discussed above. Back during the 1990’s there was a case called Romer v. Evans. It was a challenge to a Colorado Citizen’s Initiative that prevented the state from enacting laws that would proect citizens based on their sexuality. (in other words no laws that protect homosexuals from discrimination.) Now normally, the courts would review this under rational basis and give it to the state but in Romer v. Evans the Supreme Court took a second look and said allowing the state to actively discriminate against it’s citizens was not rationale.

For the first time the courts said that discriminating against homosexuals was not permitted. The court did not go so far as to create a protected class for homosexuals but it sure created an uproar. At first law professors were all attwiter about what the ruling meant. Some wanted to create a new standard of review (sometimes called rational basis with a bite.) Law review articles were written, professors held their breaths to see the other shoe drop….and nothing more happened, so Romer v. Evans kind of faded…….until now, during the California gay marriage debate. My prediction is you will see a mention of old Romer, no matter how narrow the ruling is.

The other case about gay marriage before the SCOTUS is a challenge to the Defense of Marriage Act. Enacted during Bill Clinton’s presidency, DOMA is a federal law that only recognizes marriage between a man and a woman for federal purposes. The case revolves around a committed lesbian couple that could not get officially married but treated themselves as married and amassed property together. The case occurred because when one of the lesbians died, the other had to pay much more in federal inheritance taxes than a traditionally married couple would have and she decided to sue under the equal protection clause of he US Constitution.

In the DOMA case I think the court has a much greater chance of making a revolutionary ruling. The plaintiffs in this case are arguing that homosexuality is a condition one is born with such as race or gender and therefore deserves to be added to the Carolene Products foonote four protected class status. If the courts agree then the review will be strict scrutiny and DOMA is likely to fail.

If that occurs it will ripple through society. Homosexuals might be able to qualify for affirmative action programs. They would have every right a heterosexual would have. This is apparently what the majority of polled young people believe. I suspect their fundamentalist elders are not so in favor.

However the cases come out (sorry for the pun), now you will better understand how the SCOTUS reviews cases. I suspect I will refer back to this post many times in future posts to use as an example of standard of review. I know it’s long but it is important and knowing is half the battle

By the way….you may be questioning why if gender is an immutable characteristic it only gets semi-strict scrutiny? Well, I have my own theory. I think the courts did it because they knew that pure strict scrutiny would have opened up the US military to suits about letting women participate in combat. Now that women are being integrated into most front line forces, I have to wonder if semi strict scrutiny will still apply. I also wonder if in the interest of equality of the sexes, women will need to register for selective service (the draft) as men now do at the age of 18? Could be the next big SCOTUS case. Stay Tuned!

Sniffing Out Crime- The Supreme Court’s New Take on the 4th Amendment’s Search and Seizure Rules

Last week the Supreme Court of the United States (SCOTUS) ruled that law enforcement officers could not use a drug sniffing dog to randomly walk down streets and sniff out illegal drugs without a valid warrant. The SCOTUS ruling in Florida v. Jardine , found at the following link: http://www.supremecourt.gov/opinions/12pdf/11-564_5426.pdf , upheld a Florida State Supreme Court ruling in a case that suppressed the evidence police used to charge Mr. Jardine.

In this case, a police officer, suspecting Mr. Jardine of being involved in illegal drug production and distribution, approached the front door of Mr. Jardine’s home for the purported excuse of having an informal discussion. Accompanying the officer on his walk to the front porch was the officer’s police dog, trained in drug detection by odor. Even before the officer knocked on the door, the police dog alerted to the smell of drugs. Without knocking the officer left the porch and returned with a valid search warrant for Mr. Jardine’s house based on the evidence of the police dog alert.

At trial in state court the defense argued that the police dog on the porch was an illegal search as a valid search warrant was not issued at the time. The trial court agreed and the state appealed. The battle raged through the state courts and finally was granted certiorari (I discussed this term last week) by SCOTUS. In a 5-4 close decision, the majority ruled that a person has a reasonable right to expect privacy, especially in and directly around the “home”. Here the term used is the “curtilage”, in other words that space around the home which a reasonable person would assume to be private.

Curtilage has hundreds of cases delineating what is and isn’t private. Current rulings allow police to fly over a home at a reasonable height and look into the yard for illegal activity but they can’t climb over a wall to see the same yard. Policed are allowed to look in open windows and observe evidence but they can’t use thermal imaging devices to see through walls without a warrant.

The privacy expectations of the curtilage concept even extend beyond the home. If you are in a hotel room the police need a warrant to search it just like your home or apartment. The same goes for your office space. Even automobiles, never envisioned by the founding fathers who wrote the Constitution, are afforded some privacy rights.

Perhaps the most interesting thing about this case, and the administrative law case I discussed last week, is the way the SCOTUS Justices mix and match on different cases, take this case for example. Conservative Justices Scalia and Thomas agreed with liberal Justices Keegan and Sotomayor that the dog’s search violated the constitutional protections against unreasonable search and seizure. The dissenting opinion was written by conservative Justice Alito with moderate Justice Kennedy and moderate Chief Justice Roberts agreeing and liberal Justice Breyer also joining. This juxtaposition comes on the heels of last week’s Brown v. EPA where nearly all of the liberal and conservative justices joined together in a decision hailed by conservatives. The lone dissenting voice? Conservative Justice Scalia, author of today’s opinion. Weird huh? Forget global climate change as something to be concerned about…….think about judicial opinion swing and the unpredictability accompanied by it. It’s enough to make a constitutional law professor shudder.

So, as of this ruling, the police can not bring a drug sniffing dog onto your porch without a warrant and expect to use the evidence in court to convict you. Ironically, this was not the only drug dog case from Florida heard by the SCOTUS this year. In the case of Florida v. Harris the SCOTUS overturned a Florida Supreme Court ruling which required law enforcement to provide extensive training and effectiveness records for canine drug detecting dogs. Justice Keegan, writing for a unanimous court, allowed a lower standard for certification of the drug detecting dog. The “totality of the circumstances” standard is often used by SCOTUS when they don’t want to lock trial courts into rigid rules. Often what happens is the courts are left confused by such rulings and justice is dealt differently by different judges. Not much of a bright line ruling that sheds confusion here……which is pretty much par for the courts…..err course.

Speaking of confused, I recently read a story where a prosecutor demanded the written statement of the arresting officer in a criminal case he was bringing. The human officers, who had given the credit for the capture of the suspect to their police dog responded that the “officer in question was a dog and unable to give a statement.” Three more times the prosecutor demanded the written statement and finally the police officers sent him what he wanted. On the form in the signature box was a dog’s paw print and the incident description read, “woof woof”. Translation was something to the effect of: stinky bad man run away…..I chase and bite bad man…….bad man surrender. The end.

Who says the police don’t have a sense of humor?

When I was a kid, law enforcement came up with a cute mascot in the same vein as Smokey Bear. The mascot became known as McGruff the Crime Dog. His motto was, “Help take a bite out of crime.” After the Jardine case, perhaps McGruff the crime dog won’t be taking anymore bites out of crime without a warrant….but at least he won’t have to produce his papers upon request.

Administrative Law: Supreme Court hands timber companies a HUGE victory!

The Clean Water Act (CWA) was created during the Nixon presidency after negative public reaction to photographs of the Cuyahoga river in Ohio which caught on fire and burned due to the pollutants in the river. Congress put a provision in the CWA that allowed a private citizen to sue over water pollution. I suspect Congress did this to encourage ordinary citizens to report water quality violations. Later on I will explain the problems this little provision created. For now you should know that Congress passed the CWA and ordered the EPA to make administrative rules to flesh out the framework created by Congress for the CWA.

You need to understand two things about admistrative law:

1) It is boring! Normally reading adminstrative rules out loud is sufficient to strip lead-based paint off of walls. It is unconstitutional to read administative rules to prisoners because it violates the prohibition on cruel and unusual punishment…..you get the picture.

and

2) Administrative rules control most of the things you do in an average day, sometimes in ways you would never believe. The size of a beef steak is actually determined by the Occupational Health and Safety Administration, not because they regulate food, but because they set the limits on the weight of a box of beef steaks that can be lifted by a slaughter plant worker. If the plant wants 100 steaks per box, but the OSHA rules say a worker can lift no more than 80 lbs per box, your steaks are around 0.8 pounds each to meet the regulation. See the effect?

In later posts I will try to jazz up administrative law when I discuss the Chevron case which is seminal in administrative case law history. For now, understand that agencies have incredible power over our lives and are a favorite target of lawyers looking to force some new rule in favor of their clients.

The NEDC sued because the EPA ruled that culverts under logging roads could not be regulated as point source pollution discharges. In other words……the dirty water running out of a culvert after it rains is not like a factory or a sewer treatment plant discharge pipe. The EPA interpreted its rule so that sediment coming from a construction project was pollution but sediment running off a logging road into a culvert was not regulated. If you want to understand why here is a link to the actual case: http://www.supremecourt.gov/opinions/12pdf/11-338_kifl.pdf Be sure to drink some coffee first or you may find yourself nodding off (actually for an attorney this case is more exciting than a roller coaster with more surprises than figuring out what is in my wife’s cooking…..PS if I’m dead tomorrow….it was her tuna piano casserole that got me!)

The Oregon Department of Forestry intervened in the case because they would be harmed by any change in the EPA’s decision. A Federal District Court judge originally ruled against the NEDC who appealed the ruling. The 9th circuit court of appeals (known for its liberal rulings) took the case and reversed in favor of the NEDC. Decker, the head of ODF petitoned to be heard before the SCOTUS and the court granted certiorari (a fancy word meaning the SCOTUS agreed to hear the case).

SCOTUS ruled that the EPA could interpret its regulations as it sees fit. The ruling was a lopsided 7-1 opinion which means that liberal and conservative justices alike were of the same opinion. Oddly enough, the one dissenting voice was conservative justice Antonin Scalia (thus the surprises like my wife’s cooking) I look forward to studying his dissenting opinion to get a better understanding of how he thinks.

This is a huge relief to the timber industry who could have been required to get a National Pollution Discharge Permit and been forced to conduct expensive water quality sampling on every culvert they owned…….which could be in the tens of thousands. The adminstration and testing alone would have cost millions of dollars. Like I said, a huge win for the timber industry and everyone who drives on their logging roads because if I were a timber company who knew that a private citizen could sue over any pollution discharges they observe, I might close my roads to the public to make it harder to sue me……but I like to keep an open mind.

The environmental groups are likely very upset over this ruling because the CWA gives a private right of action to sue over water quality violations. They are then allowed to claim a portion of any settlement recieved by the government for the pollution discharge. Environmental groups have been funding their legal departments for years with these kinds of lawsuits. I’m sure they were only thinking about stopping pollution and not suing over every culvert had the decisions turned in their favor….. but again, I try to keep an open mind about people’s motives.

In future posts I will discuss more adminisrative law cases because many Wahkiakum County residents are involved in natural resource related industries. It seems more and more natural resource decisions such as wildife or forestry management are being decided by lawsuits and not by biologists. That’s why I decided to become an attorney in the first place. To help influence the direction we move by heading off bad court decisions.

I want to end by giving a shout out to the Wahkiakum County Prosecutor, Mr. Dan Bigelow. Last Monday, in his role as county attorney, he made an excellent administrative law argument in King County Superior Court. After the sitting judge had pretty much made clear that Mr. Bigelow only had five minutes to present his brief and that he was not interesed in the economic issues that the brief was predicated upon, Mr. Bigelow gave an impassioned and articulate safe harbor defense that the judge had not ruled out. It was lawyering at its best. When the Audobon Society ruling comes out, I will discuss what safe harbor policies are. For now I will just say…..”Great Job, Dan!”

What Do I Say to Law Enforcement? Miranda and You

If you are like me, law enforcement officers may sometimes seem intimidating even when you know you haven’t done anything wrong. It may be because there are just so many laws out there that you feel you may not know if you violated one. I also think the uniforms just command respect and we are trained from a young age to respect the law.

I think most of us are honest to a fault around police officers. This however may not be the best course of action if there is any chance that you may have violated a law. When I was in law school we watched a video by a law professor who discussed why you should never talk to the police… ever. It opened my eyes and made me reconsider how I interact with law enforcement officers. Here is a link to the you tube video we watched:

 

I think it is truly worth watching for everyone. I’m not sure I agree with it all but it does give you food for thought.

So what is the proper response to police questioning? Well the 5th amendment to the United States Constitution says in part that no person, “…shall be compelled in any criminal case to be a witness against himself,”. In addition, the 6th amendment provides a criminal suspect with a right to counsel on what today would be described as felony charges.

Now knowing the founding father’s original intent here might be historically interesting, but from a practical standpoint we have to deal with what the US Supreme Court has said on the matter.

Prior to the “Miranda” case, the rules regarding confessions were jumbled and confusing. Police were coercing confessions, or lying and tricking suspects into saying things that incriminated them. Courts were all over the place, some ruling the tactics were fair, others not.

In the case of Miranda v. Arizona, decided by the Supreme Court in 1966, the court attempted to create a simplified structure applicable to in custody interrogations. The court decided that suspects taken into custody needed to be given warnings as to what their constitutional rights were. These resulted in the words we so often hear on police procedural TV programs.

” You have the right to remain silent.  Anything you say can be used against you in a court of law. You have the right to the presence of an attorney. If you can not afford an attorney, one will be appointed for you prior to questioning should you so choose.”

So you may think,” well if I’m just talking to he police and I let something slip, it wont be admissible in court because I hadn’t received my  Miranda warning.” Well not so fast partner. Miranda only applies if you are in police custody and are being questioned. If you blurt things out without being asked it may be admissible in court. A prosecutor may argue that you waived your Miranda rights by voluntarily making statements. If you do, you make your defense attorney’s job that much harder.

So what should you do if the police approach you and want to speak to you about a crime you may or may not have had some part in. My best advice is to err on the safe side and tell the police nothing. Refusing to speak to the police is your right. If they really want to question you they can get a warrant and arrest you. (they may be able to arrest you without the warrant if they have probable cause but either way you will be in custody which triggers Miranda.)

If they give you a card o sign which acknowledges that you have been read your Miranda Warnings refuse to sign it. The best thing you can do is say forcefully,” I am invoking my right to counsel. ” At that point the police are supposed to stop questioning you and fetch your lawyer. If they continue questioning you don’t say anything else and report it to your attorney when you see him or her.

The Constitution is designed to protect you from your government whether you are guilty or innocent. The prosecution has to prove your guilt beyond a reasonable doubt. You don’t need to help them do that. Keeping quiet until you have proper legal representation is the best thing you can do to keep from going to jail. Remember that!

Assumption of Risk-Can They Really Limit Their Own Liability?

Last week saw a tragedy at a NASCAR speedway in Daytona, Florida when an accident on the track threw car parts into the stands injuring several people. A friend of mine who is a huge NASCAR fan asked about whether the victims could sue. My first instinct was to say yes. After all, the point of the legal system is to right wrongs and ensure that injured parties are made whole. After thinking about it for a few seconds though, I realized that may be a bit oversimplified because of the legal concept Assumption of Risk.

Normally when an entity, including a business, does anything in the world they carry with them a risk of liability of harming someone. This is why people carry insurance so that when the inevitable mistake occurs, a third-party is there to ensure that the injured party is made whole. Insurance can cost a lot of money and some businesses try to find ways to limit their liability. The most practical way is to implement safety procedures and policies that decreases the likelihood of a claim.

Some businesses have decided that they would rather use the legal concept of assumption of risk. This is especially so when the activity the business promotes is inherently dangerous and safety precautions that would limit the danger are so costly as to be impractical. Examples of this are amateur sport leagues such as Little League or Pee Wee football. Injuries will invariably happen in such contact sports so the contracts the players sign before they can participate explain the risks and limit the liability of the league and other players who may accidentally injure a participant in the course of a game. The player has assumed the risk; he has consented to shifting the risk from the other player and the league to himself.

Assumption of risk doctrine is being used more and more by other areas of industry such as pro sports. When you buy your ticket for a professional sports event (including a NASCAR race) flip the ticket over. Is there a lot of really small text there? If you are the rare person to read it you will probably find that the sport franchise warns you that being a spectator is inherently dangerous and by buying the ticket you assume the risk of injury. Just like the league athlete, the spectator has consented to the danger, and has no recourse against the franchise. Okay, so the injured people at the NASCAR race have no case right? Well, not so fast.

If you ever feel like you have gotten a raw deal and there is nothing that you can do about it……talk to a lawyer. A good lawyer can often come up with an argument that will throw the defense out on its ear. Consider the NASCAR fans. They bought a ticket assuming that the race organizers are doing everything practical to keep them safe (a reasonable assumption). They don’t read the back of the ticket because hey, it’s really small print and they want to go find their seats in the stands. Maybe there are signs at the gates warning the attendees that it’s dangerous to be a spectator but who reads those….the race is about to begin.

The race organizers will likely claim that the spectators were adequately warned of the danger they were putting themselves in and by entering the raceway they basically agreed to a contract shifting the risk from the speedway to themselves. Problem is, how do you consent to a contract when you didn’t know you were entering one? There is no place to sign on the tickets like the athletes in the sports league do, and even if there was, the race organizers don’t have a copy, so how can they reasonably argue that you had informed consent?

On top of that there is such a thing as an adhesion contract which means that the contract contains terms that are inherently unfair to one party who has no choice but to accept them. Normally, courts will void adhesion contracts or at least reform them to disallow the unfair language. So would (unknowingly) consenting to accepting the risk which leaves you suffering from serious injuries be fair? Well, it depends on the jurisdiction. I don’t know what Florida state law says so I can’t give legal advice to folks in Daytona.

What I can tell you though is it is unlikely that NASCAR will let this become a scandal. I bet right now there are lawyers negotiating settlements for the spectators injured in Daytona. NASCAR probably doesn’t want their assumption of risk quasi contract tickets challenged in court and thrown out as adhesion contracts. I also bet they raise and reinforce the barriers around the speedway. In theory they could do nothing and assume the risk that their contract would stand up in court. But why do that? That’s what insurance is for.

Maritime Law: When a houseboat is neither a house nor a boat.

With all the political/constitutional issues that have been in the news lately, I haven’t been able to discuss some interesting U.S. Supreme Court rulings that have some impact on the people here in Wahkiakum County, Washington. Seeing as how we live next to the mighty Columbia River and there are residents that have floating homes here, I think it’s time I discussed one of my favorite topics in law school: maritime law.

First a little background that helps explain why this matters. Article 3 of the U.S. Constitution established the Supreme Court of the United States (SCOTUS). The founding fathers believed that the U.S. Government needed a court where issues could be brought that might not get a fair hearing in a state court. Such situations might occur when one state sued another or citizens from different states sued each other. Because one citizen might have an unfair home court advantage the founders figured they should have an impartial “federal court” to hear their grievances.

Article 3. Section 2 of the U.S. Constitution gives SCOTUS original jurisdiction for several types of cases. One of them is jurisdiction over Admiralty (maritime) law. This means that if a court action arises from something that happened on a boat or ship, the federal courts have jurisdiction over it. Unlike an automobile crash that  would be brought in the Superior Court in the county, a maritime claim can be moved by a party to federal court where different federal rules apply.

Unlike diversity cases (one citizen from one state sues another citizen from another state) where the federal court must apply state law under the Erie Doctrine (I will explain this in a future post), maritime law is unusual because it requires the case to use specific federal civil procedure rules. In fact, in the rare cases that a maritime case is heard in a state court, the state judge is required to use the federal rules (reverse Erie Doctrine.)

I realize this is technical and probably confusing and you are scratching your head and wondering why any of this is important. Bottom line, if you have injuries while on a navigable body of water (like the Columbia River) you are more likely to end up in federal court than your local court. This is the difference between facing a local Wahkiakum County jury versus a federal jury in Tacoma, WA or Portland, OR.

To add another weird wrinkle you may not even be entitled to a jury of your peers in federal maritime court. The seventh amendment of the Bill of Rights guaranties the parties in cases of civil law a right to a jury to hear their case. Maritime court, however, is considered a court of equity so there is no guarantee you won’t have a bench trial where a judge decides your case and not a jury of your peers. Weird huh?

So why else is maritime law interesting? Well, anything that happens with a boat or ship including: contracts for sale of said ship, crewman injured on a U.S. registered ship or fishing vessel (Jones Act), injuries to dock workers unloading a ship (longshore and harbor workers compensation act), merchants insuring cargoes carried by ships, salvage rules, shipwrecks, marine oil spills…….all of these are the original jurisdiction of federal maritime courts.

So now that you have some understanding of maritime law, lets talk about the recent SCOTUS case of Lozman v. City of Riviera Beach, Florida. This case is so recent that it doesn’t even have a citation number selected yet (known as a slip case.)

This case involved Mr. Lozman who lived in a floating home in the Riviera Beach city marina. After upsetting city officials by opposing a marina redevelopment plan, the city apparently retaliated by assessing fines. When Mr. Lozman refused to pay them, the city placed a lien on his floating home and took him to federal maritime court. There, without a jury, the court found for the city and Mr. Lozman’s floating home was auctioned. Here is the really telling part though. The city bid on the home and when they won the bid, they destroyed the floating home so that no one could oppose their redevelopment plan.

So a homeless Mr. Lozman filed an appeal arguing that the case should not have been in maritime court because his floating home did not meet the definition of “vessel”. The case worked its way through to the SCOTUS which rendered its decision just a few weeks ago.

The opinion, written by Justice Breyer, ruled that Mr Lozman’s floating home did not constitute a vessel and therefore the original maritime court erred when it awarded the lien to the city. From a maritime lawyer’s standpoint this case is amazing. There have been decades of settled law on what kinds of “vessels” meet the maritime definition and this makes a dramatic change. (Proves that a clever lawyer can sometimes get a result that no one expected.)

Prior to this case, a vessel in commerce was defined as an artificial contrivance which floats, was able to move under its own power or be towed from place to place, and could incidentally carry objects such as people or cargo.  Mr. Lorenzo’s floating home floated, carried him and his belongings, and had been towed several times before ending up at the Riviera Beach marina. Mr. Lozman’s attorney argued that because the house was moored and connected to utilities such as power and sewer it no longer was a vessel and therefore not covered by maritime law.

Amazingly, the majority of the Supreme Court agreed. The court created a new standard that is very subjective. While agreeing that a log floating in the river isn’t a vessel, (three men in a tub with an oar might be though.) The court adopted a reasonable observer standard where a court would have to ask what a reasonable person would think if presented with the facts. Lawyers love the reasonable observer standard because they get to argue about what is reasonable. I love subjective standards.

So to answer the original question; a houseboat is a boat, a floating boat house is not a boat, and a floating house is not a boat or a house (just ask a bank or insurance company). So do you understand now? No? Good, neither do I, but it gives us attorneys something to argue about in court. Thank you SCOTUS for more billable hours! One thing is obvious. When the SCOTUS sees an injustice caused by how settled law is applied, they are often willing to change the law to avoid future injustice.

Perhaps that is the most important lesson from this case that should be taken to heart by government officials. This case was precipitated by the City of Riviera Beach being spiteful because a citizen was wasn’t letting them have their way. Buying and destroying Mr. Lozman’s home just appears vindictive to most people and a jury under a regular civil trial may see the same thing.

After the SCOTUS ruling Mr. Lozman was quoted as saying he was considering a civil suit for his destroyed home…this time not in maritime court. Perhaps the City of Riviera Beach is going to find out in a very expensive way that you can can be up a creek without a paddle and not be in maritime court.