"No taxation without representation"

Government derives its just powers from the consent of the governed.  But when the majority of the governed demand other than what government forces upon them, what recourse?

The British Parliament regulated colonial trade and taxed America's imports and exports since roughly 1660.  Then, the English Bill of Rights 1689 recognized a number of natural rights of English subjects.  Among these rights were the rights of representation in Parliament and the protection against taxation by prerogative.  These fundamental rights laid part of the foundation for American revolt against control by Parliament, but the boiling point was not reached until the middle part of the 18th century, nearly 70 years later.

Tolerance of British control without representation in Parliament neared its end with the passage of the Stamp Act of 1765.  The Stamp Act required British America to utilize paper printed in London and marked with an embossed revenue stamp.  Colonists viewed the Stamp Act as a violation of their right to be taxed only with their consent.  Protests intimidated paper distributors into abandoning their commissions.  The tax was effectively nullified in this manner.

Public opposition to taxation with representation culminated, symbolically, in the Boston Tea Party, when protesters elected to destroy tea that the Royal Governor would not return to England.  Better the destruction of that tea than the literal and figurative consumption of that tax.  Parliament retaliated with the Coercive Acts.  Colonists, in turn, escalated their protests and formed the First Continental Congress.  Often overlooked is the fact that the taxes that precipitated revolt were modest; the first protests were about the principle of unrepresented governance.

In 1775, the American Revolutionary War began near Boston.

235 years later, the Colonists are the victims of a new brand of tyranny.  Believing that their duly elected representatives would espouse their will, they now watch helplessly as the the cornerstone of American democracy, the Constitution, is disregarded with a contempt worth of monarchs, not elected officials accountable to the people.

What recourse?  Apparently, none.  The plaintiffs' bar should be the first to raise hue and cry at the infringement of our constitutionally protected rights, by likely unconstitutional processes.  I hear nothing.  Taxation without representation indeed.

My thoughts and prayers go out to our democratic republic.

The cuts continue; L.A. Court loses hundreds of employees

One day after running my Perspective column, entitled "Legislature Using Purse Strings to Bind Judiciary," the Daily Journal has published a story today that chronicles the massive cuts to the Los Angeles County Superior Court system.  Rebecca U. Cho & Catherine Ho, Hundreds Of L.A. Court Workers to Be Laid Off Today (March 16, 2010) www.dailyjournal.com [subscription required]. 

329 employees are scheduled to receive pink slips today.  In addition, it is reported that 12 courtrooms will close, but the specifics have not been announced.    The Los Angeles Superior Court currently plan to lay off an additional 500 employees in September.  Los Angeles court officials are reportedly "facing a $79 million budget deficit in the current fiscal year, which is expected to grow to $120 million next year." Judge Charles McCoy is reported to have asked the Judicial Council for permission to use court construction funds for court operations.

In an article by the Los Angeles Times, Presiding Judge McCoy's missing to communicate the court funding crisis was described:

Los Angeles County Presiding Judge Charles "Tim" McCoy's message is loud and clear: His court system, the largest trial court in the nation, is facing deep fiscal trouble in the years ahead due to drastic cuts in state government funding.

Victoria Kim, L.A. County's top judge faces steep opposition to fund diversion proposal (February 16, 2010).  In that article, the uphill battle in front of Judge McCoy is spelled out.  According to Ann O'Malley. O'Malley, who chairs the state's Trial Court Presiding Judges Advisory Committee, 53 presiding judges of the state's 58 trial courts have told her they oppose Judge McCoy's proposed use of the construction fund to cover operating expenses.

If it is even necessary to consider layoffs of hundreds of employees or utilizing a court construction fund backed by bonds, not budget appropriations, to support basic operations, something is seriously awry in California's budgeting process.  Whether or not you agree with Judge McCoy's specific predictions and approach to the problem, there is no disputing that a problem of colossal magnitude now exists.  Pretty soon we won't need to debate tort reform or amendments to California's class action procedures; nobody will be able to have a civil case heard by a judge before the parties and counsel are all dead of old age.

Daily Journal article on unconstitutionality of underfunding California courts

Today's Daily Journal includes a Perspective column, entitled "Legislature Using Purse Strings to Bind Judiciary," authored by colleague Linh Hua and me.  The column discusses in greater detail the unconstitutionality of underfunding the judicial branch.  The article is posted below with permission of Daily Journal Corp. (2010).

If you have difficulty viewing the flash object, the direct link is here.  I thank the editorial staff of the Daily Journal for quickly providing the posting permission.

Courtroom View Network is streaming a wrongful death trial trial involving a Ford Explorer rollover accident

Courtroom View Network, with over three years of experience Webcasting high-stakes civil litigation, is streaming the trial of Moreno v. Ford.  This trial is part of the statewide coordinated judicial proceeding involving Firestone tire tread separation and Ford Explorer rollover related litigation, currently centralized in Los Angeles.  Judge Anthony Mohr is presiding over the trial.  Access to video and streaming is available here.

Courtroom View Network has covered multiple legal proceedings across the country, including such cases as “Jose Adolfo Tellez et al v. Dole Food Company Inc et al” and “Norman Turner v. Chevron Corporation” in Los Angeles Superior Court. Courtroom View Network’s target audience are members of the legal and financial community who require instant, comprehensive coverage of litigation that affects their business. Its Web site is at www.courtroomview.com.

Nevada has a substantial interest in brothel advertisements

Yes.  Perhaps an over-generalization, but, yes.  See, Coyote Publishing, Inc. v. Miller (9th Cir. Mar. 11, 2010), wherein the Ninth Circuit held that Nevada's restrictions on brothel advertisements are constitutional because they are justified by state's "substantial interest."   These headlines sometimes write themselves.

"Approved as to form and content" language added to many agreements finally held to be just shy of worthless

You've seen them.  The settlement agreements with "Approved as to form and content" at the end of document, with a place for the attorneys to sign right along with the parties.  I know a lawyer that has, for many years, refused to sign off on such language.  His reason?  He's not a party to the agreement; his client is.  It turns out that his instincts were pretty accurate.  In what it believes to be a case of first impression, the Court of Appeal (Second Appellate District, Division Four), in Freedman v. Brutzkus (March 11, 2010), examined at least some of the legal import of that language:

The signature block on a contract bears an attorney signature under the legend “approved as to form and content.” Does that signature amount to an actionable representation to an opposing party‟s attorney? We conclude that it does not.

Slip op., at 2.  The Court noted the lack of authority directly construing the import of this recital:

Apart from the signature approving the agreement “as to form and content,” Freedman does not allege, nor does the record show, that Brutzkus made any representation as to the agreement‟s validity, or affirmed any representation of his clients. We find little authority in California or elsewhere addressing the meaning of this recital. (See, e.g., In re Marriage of Hasso (1991) 229 Cal.App.3d 1174, 1181 [declining to find an attorney‟s approval “as to form” a condition precedent to enforceability of an agreement]; Ahrenberg Mech. Contractor v. Howlett (Mich. 1996) 545 N.W.2d 4, 5-6, citing Kirn v. Ioor (Mich. 1934) 253 N.W. 318 [finding approval as to form and content of a court order insufficient to establish a consent judgment]; First American Title Ins. Co. v. Adams (Tex.Ct.App. 1992) 829 S.W.2d 356, 364 [determining that an attorney‟s approval as to form and substance does not establish a consent judgment or relinquish a party‟s right to appeal]; CIC Prop. Owners v. Marsh USA, Inc. (5th Cir. 2006) 460 F.3d 670, 672-673 [agreement stating it was “„reviewed by counsel for parties and approved as to form and content‟” indicates that parties were separately advised by counsel].)

Slip op., at 5.  Having no direct authority to answer the question raised on appeal, the Court did the only thing it could do, apply common sense: 

We conclude that the only reasonable meaning to be given to a recital that counsel approves the agreement as to form and content, is that the attorney, in so stating, asserts that he or she is the attorney for his or her particular party, and that the document is in the proper form and embodies the deal that was made between the parties.

Slip op., at 5-6.

This isn't a complex litigation issue, or a class action issue.  It's just a fine example of all those mindless acts of habit that attorneys insist upon without a good reason.

California Supreme Court activity for the week of March 8, 2010

The California Supreme Court held its (usually) weekly conference today.  Notable results include:

  • A Petition for Review was denied in Davis v. Ford Motor Credit Co. (November 19, 2009) (adopting FTC-based formulation for "unfair" under the UCL and declining to import two-way attorney fee provision into UCL via predicate statute).  See, UCL Practitioner here and here for background 
  • A Petition for Review and Request for Depublication were denied in Keller v. Tuesday Morning, Inc., Inc. (November 4, 2009; pub. ord. December 4, 2009) (appeal of order denying class certification)

Other coverage of Coito v. Superior Court

Coito v. Superior Court (March 4, 2010) is apparently generating a fair bit of interest, based upon the search engine traffic viewing this blog's post about this new opinion.  Other articles that may be of interest include: 

More commentary will likely follow; this decision seems to have hit a nerve.

 

in brief: Coito v. Superior Court may alter the way in which information is gathered in some class actions

Yesterday, in Coito v. Superior Court (March 4, 2010), the Court of Appeal (Fifth Appellate District) addressed an issue that nominally concerned the collection of evidence in a wrongful death lawsuit naming California as one defendant.  The facts are particularly sad in that the case involved the death of a child, but, then, the facts of all wrongful death cases are sad.  The issue addressed in Coito is whether an attorney's collection of a witness statement after the attorney selected the witness to interview is work product (absolute or qualified).  Coito holds that even attorney-collected statements are not, unless the attorney's independent thoughts and analysis are inextricably intertwined with the statements of the witness.  The majority is exceedingly critical of Nacht & Lewis Architects, Inc. v. Superior Court, 47 Cal.App.4th 214 (1996), a case frequently relied upon to shield putative class member declarations from discovery.  Coito puts that argument in jeopardy.  I may be wrong, but I think that this decision may affect the manner in which putative class members are handled during interviews by counsel on both sides.  The case, and especially the long and thoughtful concurring and dissenting opinion, deserves more attention than I can provide today, so I may post a longer comment over the weekend.