Baseless Lawsuits May Begin and End with California

court gavelCalifornians may not know it, but their courts are creating an unprecedented “super tort” that could be used against anyone that makes and sells a lawful product. Today, it is paint and tomorrow it could be you or your company.

In February, California’s Supreme Court surprised many experts by declining to review a high-profile case against paint and pigment makers that has been in the state’s court system since the early 2000s. In unprecedented rulings, the lower courts are making three companies pay more than a billion dollars to remove lead paint from all private homes built before 1951 across 10 California counties. The only option left for the companies is to take the case to the U.S. Supreme Court.

To some, this may not sound like a case of national importance, but it is. Lawsuits that seek to pursue businesses for money, regardless of wrongdoing, have been tried for four decades. In the past, state courts have stopped this including in Rhode Island, New Jersey and Illinois. This case is the first time a state high court has allowed this type of deep pocket jurisprudence to stand.

The legal theory is a new twist on the centuries-old tort of public nuisance. The lawsuit argues that three companies can be liable for all lead paint remaining in homes today simply because they sold paint containing lead pigment decades ago. The passage of time, the development of knowledge about specific risks and any semblance of actual causation were jettisoned from the case. Incredibly, the lower courts are requiring the companies to remove lead paint from homes even if their paints were never in those homes.

Now, lawyers representing eight California communities are pushing a similar version of public nuisance theory against energy manufacturers. In lawsuits filed last year, they allege the companies are contributing to climate change and, therefore, should be liable for any potential impacts of the global phenomenon. Even though energy products are used by every American and around the world, the lawsuits want to hold a handful of companies responsible. It may be good for politicians seeking headlines or lawyers seeking financial gain, but it won’t solve the problem. It does, however, threaten the jobs of manufacturing workers. U.S. District Court Judge William Alsup agreed that the courts are not the proper venue to address this issue and recently dismissed the complaints brought by San Francisco and Oakland.

With these public nuisance lawsuits in their infancy, along with a similar one brought by New York City, the U.S. Supreme Court should hear the case against the paint manufacturers. The Supreme Court could go a long way in halting the onslaught of baseless lawsuits cropping up across the country.

If the Supreme Court grants review, the plaintiffs may have their work cut out for them. The Court shut down similar lawsuits in the past. In American Electric Power v. Connecticut, a state-led coalition sued six power companies claiming that their emissions were a federal public nuisance. In an 8-0 decision, the Court dismissed the suit, explaining that emissions are not to be regulated by the courts. Similarly, lead paint, once its harms were known, was subject to regulation by the legislative and executive branches— not the courts. If American Electric Power v. Connecticut is any indication, Supreme Court consideration of the lead paint case may help shut the door on these baseless lawsuits.

More than one million Californians work in manufacturing and more than twelve million men and women nationally. These types of lawsuits undermine the fairness of our nation’s legal system, our manufacturing base, and our economy.

Lindsey de la Torre is Executive Director of the National Association of Manufacturers’ Manufacturers Accountability Project.

Harris and Court Acted Correctly In Throwing Out Sodomite Suppression Act

No one should overreact in defense of the initiative process to the court decision allowing the Attorney General to throw out an initiative that is reprehensible and clearly unconstitutional, but we must be sure that the decision is not a step in expanding the power of any official to determine if an initiative is or is not constitutional.

The Sodomite Suppression Act is abominable and it is understandable that Attorney General Kamala Harris wants no part of it. But the initiative process finds itself more and more entangled with politicians’ decisions to perform official acts if the official thinks a proposed or successfully passed measure is unconstitutional. Since the initiative is a tool for the people to bypass politicians this situation is concerning.

Superior Court Judge Raymond M. Cadei relieved the AG of issuing a title and summary on the anti-gay initiative because the proposed initiative was “patently unconstitutional” and defendant, Matthew McLaughlin, defaulted. The Judge wrote, among other concerns, that preparing the title and summary for the measure would be a waste of time and resources. But, the Judge also noted that the initiative could “generate unnecessary divisions among the public.”

That is a curious phrase if allowed to stand alone in some future court challenge because in the rough and tumble world of politics divisions among the public over policy questions are par for the course.

The Sodomite Suppression Act is certainly an extraordinary state of affairs. Perhaps, because this situation is so egregious, this will be the only example that an attorney general will turn to the courts and ask that she or he be excused from performing a duty related to a controversial initiative.

Or just maybe a future attorney general would push the envelope on declaring a proposal unconstitutional. Then the people’s initiative process would be in jeopardy. Let’s hope no precedent has been set in that direction with this action.

It was only a couple of years ago that the attorney general and governor refused to defend an initiative passed by the voters, claiming the measure unconstitutional. In the instance of Proposition 8, which I did not support, I felt at least the proponents should be allowed to defend a measure passed by the voters. If the court determined a measure is unconstitutional then so be it.

As I have said before, courts determining the constitutionality of an initiative always have been the failsafe against initiatives that threaten constitutional rights and protections. We have seen that occur a number of times in California.

The danger lies in letting one or two elected officials declare a measure is unconstitutional and act accordingly. Determining what is constitutional is not always an obvious call. Remember, in many cases five United States Supreme Court justices tell the other four what is or it not constitutional.

In this particular circumstance, however, as long as we have not moved the line on elected officials interfering with the initiative process, the AG and the judge acted wisely.

Originally published by Fox and Hounds Daily

SF Disability Discrimination Case Could Hobble Law Enforcement Nationwide

adaThe Americans with Disabilities Act, passed by Congress in 1990, was the product of good intentions. Its proponents — President George H.W. Bush chief among them — wanted to eliminate arbitrary barriers to the physically disabled. “Let the shameful wall of exclusion finally come tumbling down,” Bush solemnly declared at the legislation’s signing ceremony. The ADA sailed through Congress with little resistance. Unfortunately, as is so often the case with federal do-goodery, those good intentions produced a poorly drafted statute full of vague definitions, ambiguous obligations, and complicated enforcement schemes, made even worse by byzantine enabling regulations and far-fetched judicial interpretations.

Twenty-five years later, the true consequences of the ADA are still unfolding. Hijacked by trial lawyers, government bureaucrats, and activist judges, the noble goals of the ADA have brought instead a host of other absurdities: costly and ubiquitous (and largely unused) curb cuts and ramps in public areas; Braille buttons on drive-through ATMs; alcoholic pilots and truck drivers, deaf lifeguards, and one-legged firefighters; drug-addicted employees who can’t be fired, lest employers “discriminate” against a “protected class”; and serial litigants — some of whom have filed thousands of lawsuits — who make a cottage industry out of fly-specking small businesses’ compliance with arcane and prolix structural requirements for bathrooms and parking lots. Much to the likely chagrin of the ADA’s proponents, the definition of “disabled” is not limited to people in wheelchairs — it includes those suffering from morbid obesity, drug addiction, phobias, allergies, narcolepsy, sleep apnea, and dyslexia. Of the estimated 43 million “disabled” Americans protected by the ADA, fewer than 2 percent are in wheelchairs, the vast majority of whom reside in nursing homes.

Employers must “reasonably accommodate” this thicket of disabilities by restructuring job duties, granting leaves, providing technological support, hiring assistants, granting reassignments, making “individualized determinations,” and entering into “interactive dialogues,” all while ignoring “discriminatory customer preferences” and, of course, “traditional stereotypes” (no matter how well-founded). The ADA essentially requires employers to function as social workers and ignore the economic burden unless it constitutes an “undue hardship.” In short, the ADA has short-circuited common sense.

Alas, critics have railed against the asininity — and astronomical compliance costs — of the ADA, to no avail. Despite their most dire predictions about the law’s nonsensical potential those critics had no inkling of the ridiculous extremes that were yet to come, thanks to an inventive ruling of the San Francisco-based U.S. Ninth Circuit Court of Appeals.

Last year, in Sheehan v. San Francisco, the Ninth Circuit held that the ADA applies to law-enforcement officers, and requires them to “accommodate” armed, violent suspects if they are “mentally ill” (and therefore “disabled”). The case arose from an incident in 2008 involving two female police officers who were responding to a call for assistance by a social worker at a group home for the mentally ill. The social worker had been threatened with a knife by one of the residents under his care, a middle-aged woman with schizophrenia named Teresa Sheehan (whose condition had deteriorated because she refused to take her medication). The social worker wanted to have Sheehan involuntarily committed for 72 hours for evaluation and treatment, and requested that the police transport her to the mental health facility for that purpose. When the officers arrived, Sheehan became violent, grabbed a knife, and threatened to kill the officers. The officers drew their weapons and unsuccessfully attempted to subdue Sheehan with pepper spray. In the course of trying to arrest Sheehan (who was still brandishing the knife), the officers shot her several times. Sheehan survived, and sued the officers (and the City of San Francisco) in federal court for various claims, including violation of the ADA. Sheehan did not dispute that she was armed and violent. She alleged, however, that “the officers should have respected her comfort zone, engaged in non-threatening communications and used the passage of time to defuse the situation.” The federal district judge, Charles Breyer (younger brother of U.S. Supreme Court Justice Stephen Breyer), dismissed the case before trial on summary judgment. Sheehan appealed.

The Ninth Circuit ruled, as a matter of first impression, that the ADA applies to all arrests, even those involving violent confrontations, and that a jury should decide whether the officers “reasonably accommodated” the violent, knife-wielding suspect “by employing generally accepted police practices for peaceably resolving a confrontation with a person with mental illness.” The city appealed to the U.S. Supreme Court, which heard the case on March 23. The city contends that the ADA should not apply to police conduct when public safety is at risk. According to the FBI, about 400 people are killed each year by police—as justifiable homicides in the exercise of deadly force. Sadly, at least half the people killed by the police have mental health problems of some sort, according to a 2013 report from the Treatment Advocacy Center and the National Sheriffs’ Association.

Do we want juries second-guessing hundreds of police encounters each year to determine if armed, violent suspects were mentally ill and if the police “reasonably accommodated” the suspects? Police officers are not psychiatrists. They cannot be expected to diagnose whether a violent suspect is mentally ill or merely mean and aggressive. People who threaten to kill the police are by definition unreasonable and even irrational. Some social scientists believe that all criminals are emotionally disturbed; should this entitle them to special treatment by law enforcement? Hamstringing the police endangers public safety. Split-second decisions made in violent confrontations with armed suspects are not suitable for Monday morning quarterbacking. If the Supreme Court does not reverse the Ninth Circuit’s ludicrous decision in Sheehan v. San Francisco, the errant intentions of the ADA will have succeeded in disabling the police.

Judge Rules CA Inmate Entitled to Sex-Change Operation — With Taxpayer Money

What looked at first like a belated April Fool’s Day joke may turn out to be a landmark ruling in Eighth Amendment jurisprudence. On April 2, a federal district court judge in San Francisco ruled that a convicted murderer serving a 17-years-to-life sentence is entitled to a sex-change operation at taxpayer expense. Judge Jon Tigar, a Barack Obama appointee, determined that Jeffrey Bryan Norsworthy should have the $100,000 procedure “as promptly as possible.”

Though no inmate in a California prison has ever received sex-reassignment surgery while in custody, Judge Tigar found that the Eighth Amendment of the U.S. Constitution requires that Norsworthy receive a vaginoplasty — a procedure that involves removing the patient’s male genitals and creating female genitals. In 38 pages of judicial reasoning, Tigar declared that forcing Norsworthy to keep his male parts while behind bars at the all-male Mule Creek State Prison in Ione amounts to “cruel and unusual punishment.” This is a decision bordering on lunacy.

In 2000, a prison psychiatrist diagnosed Norsworthy with “gender dysphoria,” meaning that he would like to be a woman instead of a man. According to experts, this condition can cause frustration and anxiety for “transsexual” men who are disgusted by their male genitalia. In extreme cases, untreated gender dysphoria can lead to suicide or self-castration. The American Psychiatric Association, which not so long ago treated homosexuality as a mental disorder, now has elaborate and presumably more enlightened views on the subject of gender-identity disorder, which Judge Tigar dutifully adopted. Though prison records list Norsworthy by his given name, Tigar’s opinion refers to him throughout as “Michelle-Lael Norsworthy” and describes him as a “pleasant looking woman.”

At only 16 words, the Eighth Amendment is the most succinct article of the Bill of Rights and has nothing to say about vaginoplasty. It states, in its entirety, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The ban on cruel and unusual punishments was meant to limit gruesome penal methods such as flogging, stoning, and burning at the stake. (Ironically, castration has been held to be cruel and unusual, but in the Norsworthy case, a judge is ruling that significantly more intrusive surgery is constitutionally required.)

To contend that “forcing” a prisoner to continue as a man violates the Constitution is absurd. Norsworthy was born male, and he was male when he committed a murder on April 15, 1987 and when he was sentenced to prison later that year. Though he is allowed to take female hormones, have a pony tail, wear a brassiere, and shower out of the sight of other inmates in prison, he has been a male for all of his 51 years. Manifestly, the state of California did not make Norsworthy a male. His punishmentwhich is what the relevant provisions of the Eighth Amendment address—did not include a specification of his sex or gender. Rather, prison authorities merely decided that Norsworthy is not eligible for an elective cosmetic procedure at government expense while incarcerated. In this regard, vaginoplasty is no different than a facelift, tummy tuck, liposuction, nose job, Botox injections, or lap band surgery. No federal appellate court has recognized a right to sex-reassignment surgery. In the only related case that Tigar cites in his decision, the First U.S. Circuit Court reversed a district court ruling that had ordered the procedure for an inmate in Massachusetts. What Norsworthy chooses to do with his body at his own expense, if and when he is released from prison, is up to him.

Judge Tigar is a Berkeley-educated activist judge and the son of noted radical lawyer Michael Tigar, who once represented Angela Davis. He displays what University of Colorado law school professor Paul Campos terms “jurismania”: the irrational conceit lawyers and judges frequently exhibit that presumes all of society’s problems—no matter how complex or intractable—can and should be solved through litigation, especially if the “solution” is characterized as an interpretation of “constitutional law.” In his 1998 book of the same title, Campos contends that the “obsessive pursuit” of litigation and “irrational worship” of legal rules in contemporary American culture “can come to resemble a form of mental illness.” Resorting excessively to legal procedures comes at the expense of common sense and leads to “tendentious jargon,” self-serving posturing, fraudulent rhetoric, undue deference to “experts,” and overreliance on decision-making by privileged elites such as lawyers and judges—all of which are on display in Judge Tigar’s ruling.

Punishing criminals is a basic state function, and deciding how (and at what expense) to run prisons is a quintessential legislative judgment. As long as prisoners are adequately fed and housed and are not arbitrarily abused, it should be of no concern to a judge—and especially a federal judge—whether prisoners have access to color TV, air-conditioning, recreational facilities, or elective medical procedures. Serving a prison sentence is a punishment; it is not supposed to be enjoyable.

It is nonsensical to grant imprisoned convicted felons health-care “entitlements” that many law-abiding, hardworking taxpayers don’t enjoy. One hopes that the state appeals Judge Tigar’s unprecedented ruling. Unless resisted, jurismania will destroy popular sovereignty. Campos reminds us that judges are “nothing more than an especially politicized subclass of lawyers.” And they rely on the docility of their subjects to impose their baseless edicts. Jeffrey Norsworthy is not Rosa Parks, vaginoplasty is not a civil right, and Tigar’s ridiculous decision is not a credible interpretation of the Constitution. It should not stand.

State prison officials aim to halt prisoner’s sex reassignment

As reported by the San Francisco Chronicle:

California prison officials moved Friday to halt a transgender prison inmate’s court-ordered sex reassignment surgery, arguing that the unprecedented order was medically unnecessary and would subject prison health care to “an inmate’s personal preferences.”

The Department of Corrections and Rehabilitation asked U.S. District JudgeJon Tigar to suspend his April 2 ruling — allowing Michelle Lael-Norsworthyto undergo male-to-female surgery — while the state asks a federal appeals court to overturn the ruling. It was the first such judicial order in California and the second in the nation.

Lael-Norsworthy, 51, was convicted of second-degree murder in 1987. She has identified as a woman since the mid-1990s, has received hormone therapy in prison since 2000 and has the appearance and voice of a woman. She remains housed in men’s prisons.

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Gun Rights Showdown: Sunnyvale Restrictions Upheld By Appeals Court

As reported in the San Jose Mercury News:

Adding fresh ammo to the gun rights debate, a federal appeals court on Wednesday upheld Sunnyvale’s law restricting high-capacity gun magazines, concluding local officials did not run afoul of the Second Amendment by trying to reduce gun violence.

The 9th U.S. Circuit Court of Appeals rejected the arguments of groups such as the National Rifle Association, which contended the restrictions are unconstitutional and undermine gun owners’ right to protect their homes with ample firepower.

“Sunnyvale’s interests in promoting public safety and reducing violent crime were substantial and important government interests,” 9th Circuit Judge Michael Daly Hawkins wrote for a unanimous three-judge panel.

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