ITEM: Can a city refuse to do business with companies that sue it?
Mayor Don Williamson [of Flint, Michigan] is taking a novel tack in fighting lawsuits - he's withholding city business from anyone who has sued Flint within the past five years.
Williamson said the Jan. 21 policy is in the taxpayers' best interests. In recent years, the city faced a multimillion-dollar deficit that prompted the state to declare a financial emergency. "Who in the world would want to do business if you're sued by 'em?" Williamson said.
But Greg Gibbs, chairman of the Greater Flint branch of the American Civil Liberties Union, said he would go to federal court to have the policy declared unconstitutional. "That's just a reckless, retaliatory action (against) people who exercise their rights to go to court," Gibbs said. "It's reactionary. It's extreme."
Employees who violate the policy face discipline, including a 30-day suspension or firing.
MY TAKE: Understandable at first glance, but more competition means lower prices, which is good for taxpayers. Also, I don't see the constitutional issue -- a city can surely set "reasonable" restrictions on who it does business with -- or is this not "reasonable"? UPDATE: Mayor Williamson has withdrawn the policy in the face of an ACLU lawsuit.
ITEM: What constitutes "hard time" depends of course on the person doing it --
More than a year after he was convicted of violating a federal endangered species law, Smithsonian Institution Secretary Lawrence Small is still negotiating with the Justice Department over what kind of "community service" he must perform as part of his sentence.
The Smithsonian's chief executive wants to use the 100-hour punishment to lobby Congress to change the "outmoded" law he violated, while prosecutors argue that Small's proposal doesn't match the severity of his crime.
Small provided a list of books he would read and lawmakers, environmentalists and private sector officials he would meet with to discuss endangered species issues. The goal, Small said, would be to use his stature to start "the process of modernizing" the Endangered Species Act, which he said is "an outmoded law that doesn't work very well."
Last December, Heredia pleaded guilty in federal court to selling [exotic bird feathers]. With rare exceptions for educational purposes, it is illegal to possess or buy protected animals, or their parts.
MY TAKE: As far as I'm concerned, "community service" should mean picking up trash along the highway in a gauche orange jumpsuit with leg irons. The concept can't just being about doing the most "productive" good deeds; it should always include some element of "gee, this sucks." [SIDEBAR: Bird feathers?]
ITEM: Can a judge order a parent to learn English?
A judge hearing child abuse and neglect cases in Tennessee has given an unusual instruction to some immigrant mothers who have come before him: Learn English, or else.
Most recently, it was an 18-year-old woman from Oaxaca, Mexico, who had been reported to the Department of Children's Services for failing to immunize her toddler and show up for appointments.
At a hearing last month to monitor the mother's custody of the child, Wilson County Judge Barry Tatum instructed the woman to learn English and to use birth control, the Lebanon Democrat newspaper reported. Last October, Tatum gave a similar order to a Mexican woman who had been cited for neglect of her 11-year-old daughter, said a lawyer who is representing the woman in her appeal. Setting a court date six months away, the judge told the woman she should be able to speak English at a fourth-grade level by that meeting. If she failed, he warned, he would begin the process of termination of parental rights.
Tatum, a first-term judge, is becoming known for his unorthodox rulings. Last year, for instance, he sentenced a father to attend high school with his son to address repeated truancy. Bright said the jurist -- a well-liked attorney before he was elected judge -- has been known to pay personal visits to prisoners in jail and to join troubled teens in picking up trash as part of their community service.
MY TAKE: I have blogged previously about my support of making English the official language of the United States. On the other hand, the right to raise one's children as one sees fit is almost totally sacrosanct. On the other other hand, that right does not extend to child abuse or child neglect, and, for whatever reason, some of these "Mextico" families are simply not assimilating, even with respect to the basic standards of living, and are not making any attempt to assimilate their kids into American culture or the English language. That crosses the line in my opinion, and if a judge has to cross a line himself to fix the situation, then perhaps more drastic court action is necessary. Overall, a regrettable fact pattern. (Hat tip to How Appealing.)
ITEM: Some interesting tidbits from the never-ending "McLibel" trial in Europe --
Two British vegetarians convicted of defaming McDonald's Corp. did not receive a fair trial, the European Court of Human Rights ruled on Tuesday.
The court, based in Strasbourg, France, said David Morris and Helen Steel should have received legal aid from the British government and awarded them about $26,000 and $20,000 respectively.
[The McLibel trial] ended with the two activists, who were unemployed or in low-wage jobs, receiving fines of $71,000 and $64,000 for libeling the fast-food restaurant. An appeals court upheld much of the original judgment in 1999 but reduced the damages.
The activists then took their case to the European court, arguing that their human rights had been violated by England's legal system. They argued the trial violated due process because English courts at the time did not provide lawyers for defendants in libel cases.
They also claimed the case infringed on their freedom of expression because English law put the burden on them to justify the allegations in the leaflets, which they did not write.
MY TAKE: I'm almost starting to regret not having taken Comparative Law in law school. Almost. It probably helps to be well aware of just how superior the American system is.
Seriously, though, not to fisk "international law," but it seems that the U.K. system in this case pretty much parallels the American system (no surprise there -- it is, after all, generally referred to as "Anglo-American jurisprudence"). One big parallel that emerges from the "McLibel" appeal is that there is no constitutional right to a government-provided lawyer in a civil case, in either federal or state court. At the state level, there generally isn't even a right to a jury trial in a civil case (the Seventh Amendment is a rare example of a right at the federal level that has not been "incorporated" by the Fourteenth Amendment and therefore does not apply at the state level).
The idea that civil defendants are entitled to free lawyers is a bizarre notion -- if you're too poor to afford a lawyer, then you're likely too poor to warrant being sued in the first place (and, if you're poor, knowing that you'll have to hire a lawyer might actually deter you from committing the tort in the first place -- let's keep in mind that these two schmucks did in fact defame McDonalds).
Similarly, the idea that defamation somehow "reverses" the burden of proof (i.e., the defendant must "prove his innocence") is a common misconception in America, and apparently in Europe too. Of course that's incorrect. Falsehood is not an element of the tort of defamation -- the plaintiff need not prove a statement is false; he need only show it was defamatory. Truth, meanwhile, is an affirmative defense to defamation, and every defense of every tort must be proved by the defendant, whether the defense is privilege, consent, defense of others, or -- for defamation -- truth. There is nothing intrinsically "backwards" about the posture of a defamation lawsuit. The European Court of Human Rights flat-out dropped the ball on this one.