Judge Atherton ordered the Salt Lake Legal Defenders to pay for an expert witness for a defendant in a criminal case.  The LDA was not happy and sued Judge Atherton for violating its rights.

The Supreme Court today agreed with the LDA.  The Court said that Judge Atherton could not require the LDA to hire an expert for a crimional defendant without giving the LDA the right to tell it’s side of the story to the judge.

A little background may help.

Under the U.S. and Utah Constitutions, indigent criminal defendants are entitled to have defense attorneys appointed at the expense of the government.  That obligation usually falls on the counties.  To satisfy that requirement, Salt Lake County hired an independent company to hire and manage the defense attorneys.  That independent company is the Salt Lake Legal Defender Association.  The LDA is not owned and operated by the County.  It is a separate not for profit business.

The LDA receives its funding from Salt Lake County.

You may wonder why the LDA cares if it receives its funding from Salt Lake County.  Won’t the LDA just get more money to pay for the expert witness?  The answer is no.  Salt Lake County has created a flat fee contract with the LDA.  There are a few exceptions, but for the most part, the LDA must pay for everything out of the budget amount.  They can’t just pass on extra costs to the county.

Because the Supreme Court ruled in favor of the LDA, Judge Atherton must hold another hearing.  She must give the LDA the opportunity to participate.  At tht hearing, the LDA will likely argue that it is not obligated by its contract with the county to pay for the expert.  The LDA will likely win and the County will end up paying for the defense expert.

In AT&T Mobility v. Concepcion, the U.S. Supreme Court struck a serious blow to class action suits.

Concepcion, the plaintiff in the case, alleged that AT& T acted fraudulently while selling a cell phone.  Essentially, AT&T advertised and stated that the phone was free but then ended up charging Concepcion $30 for the phone.  Concepcion did not notice the error until after signing the contract.  Concepcion sued for return of the $30.  AT&T denied any wrongdoing.

Concepcion hired a law firm that attempted to frame the case as a class action.  They claimed that AT&T had done the same thing 17 million times.  Instead of suing for $30, they were now suing for $510 million.

AT&T defended by pointing to a clause in the cell phone contract that required that all cases against AT&T be arbitrated and that no class actions were allowed.  The California State court held that the clause was invalid under California law and allowed the suit to go forward.

The U.S. Supreme Court reversed.  The court was split with the conservatives stepping to the defense of AT&T and the liberals stepping to the defense of the consumer.  Justice Scalia wrote for the majority.  He said that a 1925 federal law preempted State law.  In other words, California was not allowed to apply its own law to the case.  Instead, the case was governed by the Federal Arbitration act of 1925.  He went on to explain that under federal law the clause in the contract was valid.  He justified the decision stating, “class arbitration greatly increases risk to AT&T . . . .”

The liberal minority on the court disagreed.  They said that the Federal Arbitration Act says that arbitration clauses are valid “save upon such grounds as exist at law or in equity for the revocation of any contract.”  Since California law allowed the contract to be revoked for fraud, the clause was invalid.  The liberal minority justified their decision by stating, “What rational lawyer would have signed on to represent the Concepcions in litigation for the possibility of fees stemming from a $30 claim. The alternative to a class action is not 17 million individual suits, but zero individual suits, as only a lunatic or a fanatic sues for $30.”

This holding has the effect of immunizing AT&T, and others, from small claims.  Arbitration is an expensive process.  If Concepcion had been allowed to go to small claims, she could have pursued her claim for a small filing fee, represented herself and gotten a $30 judgment plus her filing fee.  The only thing she would have lost would have been her time.

Under arbitration, she will be forced to pay 1/2 of the arbitrator’s fees.  Those fees would have been $300 per hour for each of the three arbitrators.  If the trial took 1/2 hour, she would have been forced to pay $225 in arbitration fees.  She would not get those back.

Arbitration is more expensive for most litigants because the Government subsidizes the court system by paying the salaries of judges, clerks and the rest of the court staff.  The government does not pay anything to arbitrators.  The parties pay that.

The 2009 conviction of a Salt Lake man was upheld by the Court of Appeals today (the Court of Appeals refers to the case as State v. Long but refers to the man only as C.D.L.).

The man had been convicted of aggravated assault in an incident in which he ramed his wife’s car with his own car.  The interesting thing about this case was that the man was convicted even though his wife did not testify against him.

The Court of Appeals did not know why the wife did not testify and was forced to speculate on the issue.  In domestic violence cases, victims of domestic violence frequently refuse to testify.  That is because they have reconciled with their spouse and don’t want to see their spouse go to jail.

In this case, the prosecutor admitted a tape recording of the wife making the 911 call.  The prosecutor also had several other driver’s who witnessed the incident.

The man challenged the admissibility of the 911 tape.  He claimed that it was hearsay.

The Court of Appeals disagreed.  It held that the 911 tape met an exception to the hearsay rule and ruled that its admission during trial was proper.

The Court of Appeals upheld the conviction.

Fred Thompson, a well known Republican from Tennessee wrote a guest column for a Tennessee newspaper that was published on January 29.  I mention it here because I think it is well reasoned and I agree with it.

Here are a few snipets from the column.

“I am certainly aware of the ideological boxes that advocates like to put folks in when it comes to “tort reform.” Republicans and conservatives are supposed to be for anything called tort reform. However, I’ve never subscribed to these boxes. Not when I was in the Senate faced with these issues and not now.”

As an attorney and a Republican, I’m continually amazed that “Republicans” blindly support tort reform.  If they really thought about it, they would realize that tort reform is not a conservative issue.  It is simply an issue pushed by a few special interest groups.

“To me, conservatism shows due respect for a civil justice system that is rooted in the U.S. Constitution and is the greatest form of private regulation ever created by society.  Conservatism is individual responsibility and accountability for damages caused, even unintentionally. It’s about government closest to the people and equal justice with no special rules for anybody. It’s also about respect for the common-law principle of right to trial by jury in civil cases that was incorporated into the Seventh Amendment to the U.S. Constitution.”

Amen.  It amazes me that people who feel that it is a moral imperative that their children pay for breaking a neighbor’s window by hitting a baseball through it, somehow feel that businesses and doctors have no responsibility for negligently hurting their customers and patients.  Makes no sense.

“I recognize that several other states have [passed tort reform]. It’s understandable. The pressure to do so is very strong. Those groups who benefit from such rules are well defined and are very vocal. Those who would be hurt cannot even be identified today. That does not make it right or sound policy.”

I believe this hits the essence of tort reform.  If you look at the numbers in Utah, those who benefit from escaping responsibility for their own negligent conduct are very vocal.  They give huge amounts of money to politicians and spend enormous amounts of money on lobbyists.  Their victims, two years from now, don’t see the pressing need to participate in the discussion.

What is sad to me is that so many of the tort reformers are hired guns.  They are willing to push for something in the legislature that they don’t believe in, just to make a buck.  I’ve represented at least two people in personal injury lawsuits who have encouraged the Utah legislature to pass tort reform.  If they truly believe tort reform is good for society, why are they pursuing their own case?

You can read the entire column here:

http://www.knoxnews.com/news/2011/jan/29/tennessee-justice-system-aint-broke/

The federal court recently issued a decision further clarifying this issue in Utah.  Before I get to that decision, let me back up a little bit.

In Utah, post injury releases are almost always valid.  Most people are surprised to learn that pre-injury releases are usually valid as well.  The huge exception to that is pre-injury releases for children.  If the injured person is under the age of 18 at the time of injury, the release is never valid.

In other words, if you and your children go somewhere and you all sign releases.  Your release is valid and your children’s releases are invalid.

In Jozewicz v. GGT Enterprises, LLC, a women rented skis and then went skiing at Alta.  She fell and injured her neck.  She claimed that she fell because her bindings malfunctioned.

As it turned out, the rental bindings had been recalled.  Rather than pulling the bindings off the shelf, GGT went ahead and rented them.

GGT filed a motion to dismiss the case because the woman had signed a release at the time of the rental.  Judge Waddoups found the release to be ineffective.  He said that because the bindings had been released, it was unlawful for GGT to rent the skis.

Judge Waddoups held that releases are not valid when they let a defendant escape liability for unlawful conduct.

A Federal District Court in California ruled yesterday that the United States’ Constitution guarantees the right to gay marriage.  The logic is that the equal protection clause requires this.

The Federal Jude in California is simply wrong.  The equal protection clause was added to the Constitution after the Civil War.  It’s purpose was to give black people equal protection under the law.

Taking the argument to its extreme shows its folly.  If this line of reasoning were extended to its natural conclusion, the constitution would guarantee the right of a person to marry a sibling, a child, a parent or even an animal.

Why stop at marriage.  If someone is taxed at a higher rate merely because they have a higher income, isn’t that denying them equal protection?  What about not letting someone into a State college merely because they are mentally disabled?

The problem with our current judicial system is that some judges are activists.  They do not honor their oath to protect the Constitution.  Instead, they undermine the constitution an disgrace their office, when they use twisted logic to further their own political agendas.

My experience in Utah is that very few judges are willing to ignore the law to reach a certain outcome.

Hopefully, the California decision will be overturned by the U.S. Supreme Court.

Wikileaks was founded by Julian Assange.  Wikileaks claims to be “a multi-jurisdictional public service designed to protect whistleblowers, journalists and activists who have sensitive materials to communicate to the public.”  The website goes on to claim ”we believe that transparency in government activities leads to reduced corruption, better government and stronger democracies.”

While the website justifies its purposes by talking about government secrets, the website routinely discloses business secrets and violates U.S. copyright laws.

Recently, Wikileaks has released classified U.S. military documents regarding the war in Afghanistan.  Some newspapers have reported that the leaked documents contain the names of Afghan citizens that have cooperated with the U.S. military.  Some fear that the lives of those Afghan citizens are now at risk.

Strangely, Wikileaks claims that sunshine is good for everyone but itself.  For a long time, Wikileaks kept the name of its founder secret.  Since being exposed, Mr. Assange has admitted his involvement.  Wikileaks brags on its website that it has never disclosed the name of any source of leaked documentation.

Wikileaks double standard is astonishing.  Apparently, Mr. Assange  feels that the world is a better place when he decides what information is public and what information is private.  His decision to divulge the names of Afghanis who have cooperated in fighting Al Qaeda while keeping secret the names of U.S. service men who have violated the law by leaking classified documents is not only puzzling but troubling.  I disagree with Mr. Assange.  The world is not a better place when he decides what information is secret and what information is public.  That is what we have laws for.  Good government means that everyone is subject to the law.  The law should be applied equally.  Mr. Assange does not believe that.  In his arrogance, he believes that he should decide what to make public and what to keep private.  In his arrogance, he believes that he should decide what documents are classified, when copyrights should apply and when trade secrets should be disclosed.  While he claims that his actions support good government, he is wrong.  His actions further chaos and corruption.  Whenever power is concentrated in one man, democracy and good government suffer.

To date, Mr. Assange has been able to act with impunity because he has operated in countries that are willing to protect him.  Sweden is perhaps the worst culprit.  Those countries need to wake up and recognize that the decision of what information to make public and what information to keep private should not rest in any one individual.