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Friday, February 25, 2011

Challenged Parking Fines Won't Be Refunded

Challenged Parking Fines Won't Be Refunded 

Denver city officials say they will not refund at least $768,000 in parking tickets issued by unappointed parking enforcers, arguing that the two agents were authorized by city ordinance to write the tickets.

City attorneys say the Vehicle Control Agents in question were acting in their “official duties” as employees of the city, and therefore were authorized to write the estimated 30,700 parking tickets, despite not being appointed by the manager of safety and chief of police to do so.

“The Vehicle Control Agents in question had authority to issue parking citations as part of their official duties as employees of the City of Denver by ordinance,” read a statement from the City Attorney’s Office yesterday. 

City attorneys add that even if the agents were not authorized to issue the tickets, violators have little recourse to appeal what essentially equates to guilt by having paid the tickets.

“Additionally, after a citation is paid, each case is permanently closed and is not subject to reversal. Denver Public Works Right of Way Enforcement will adhere to this opinion and no refunds will be issued for the citations in question,” continued the statement from city attorneys.

The story was first reported this week by KCNC-TV Channel 4.

Vehicle Control Agents Paul Lucero and William Shirland were not officially appointed to write parking tickets. Parking enforcers in Denver are appointed to write citations by the manager of safety and the chief of police, according to public works. The appointment includes a background check and six weeks of training that includes how to “de-escalate confrontations” and field training. 

In Shirland’s case, he was up for re-appointment, a process that takes place every two years, yet he wrote more than 30,000 parking tickets between January 2009 and December 2010; in Lucero’s case, he was a new hire awaiting his appointment, yet he wrote nearly 700 tickets over nearly two months. Both agents have been assigned different roles with public works.

Denver City Ordinance Sec. 54-786 states, “Whenever any driver is found with a motor vehicle parked or stopped in violation of any of the restrictions imposed by this chapter, any police officer, or any employee of the city, or other person designated by the manager of safety to give such notices or summonses as a part of their official duties shall take the name, address and driver’s license number of the alleged violator and the registration number of the motor vehicle involved and shall issue in writing and serve upon the violator a notice or summons to respond to and answer charges against the violator within twenty (20) days at the parking magistrate’s office, or such other division or bureau of county court as may be designated by the chief judge or the rules of the court.”

City attorneys argue that it is a duty of employees of Denver Public Works Right of Way Enforcement to issue parking tickets. Whether they had the appointment or not, the two agents were employed in the Right of Way Enforcement division, and therefore were authorized by city ordinance in their “official duties” to write the tickets.

The appointment itself is only necessary because Vehicle Control Agents have special enforcement duties that go beyond that of a simple Right of Way Enforcement employee, argue city officials. 

As for the presumption of guilt based on payment of the parking ticket, defense attorneys tell the Denver Daily News that the case could technically be reopened if it can be proven that the original ticket was a nullity, meaning it should have never been issued in the first place. 

But city officials believe because the agents were acting in their “official duties,” it would be difficult for someone to argue that defense. City officials say they are prepared to fight any lawsuit, including a potential class-action lawsuit.

Meanwhile, public works is examining how it processes appointment renewals, as well as admitted “processing errors” that led to the confusion.

Wednesday, February 23, 2011

Federal Judge Democrats Uphold Health-Care Law, Republican Judge's Do Not

Federal Judge Democrats Uphold Health-Care Law & Republican Judges Do Not. Score 3-2

Anybody else out there ready for the U.S. Supreme Court to settle the health-care debate once and for all?
We clearly understand that the federal courts work in a time-tested and methodical way. Lower-court rulings beget appeals, which beget requests for rehearings, which beget Supreme Court appeals.
All this takes time. Yeah, yeah, yeah; we get it, we get it.
Still, we’ve now had five (five!) lower-court rulings on the constitutionality of the health-care law, and it’s become abundantly clear that no sort of consensus is going to emerge down below. After a federal judge in Washington, D.C., on Tuesday night upheld the law as constitutional, the tally now stands 3-2 in favor of its constitutionality.
Click here for the WSJ story on Tuesday’s ruling; here for the BLT Blog piece; here for the WaPo story; here for the 64-page ruling, made by U.S. District Court Judge Gladys Kessler (pictured).
The three judges who’ve upheld the law were all appointed by Democratic presidents; the two who shot it down were appointed by Republicans. Coincidence?
In any event, in her ruling, Kessler said Congress was within its constitutional authority to regulate interstate commerce when it chose to penalize people who forgo health insurance.
“Congress had a rational basis for its conclusion that the aggregate of individual decisions not to purchase health insurance substantially affects the national health insurance market. . . . Consequently, Congress was acting within the bounds of its Commerce Clause power.”
Judge Kessler said those who don’t purchase insurance “will ultimately get a ‘free ride’ on the backs of those Americans who have made responsible choices to provide for the illness we all must face at some point in our lives.”
The individual-insurance requirement is set to go into effect in 2014.
Judge Kessler, a Clinton appointee, also rejected to the plaintiffs’ challenge to the law on religious grounds, saying the health-care overhaul wasn’t a substantial burden on their Christian faith.
She granted the government’s motion to dismiss the case.

Wednesday, February 16, 2011

Law to protect German kids' right to noise

Law to protect German kids' right to noise

BERLIN -- Children of Germany take heart - it may soon be perfectly legal to make noise.
Germany is so desperate to encourage people to have more children that the government is proposing a bill allowing citizens under six to laugh, shout and play at any volume.

Germany is a land of many rules, especially about noise. The government's move comes after a series of lawsuits about children and noise, and a recent call from a senior citizens' chapter of Chancellor Angela Merkel's conservatives, who sought to ban kindergartens from residential areas because they are too loud.

The government said Wednesday the proposed law would exempt children from strict regulations on noise limits, which force construction sites to stand idle for hours at midday and prohibit mowing lawns on Sunday.

Saturday, February 12, 2011

State Bar considers changing how its board chosen

State Bar considers changing how its board chosen 

The president of the group that regulates California lawyers is proposing that the state Supreme Court be given the power to choose the group's governing board.

Currently members of the State Bar of California choose their own board.
But President William Hebert says he wants to address criticism that the board has been overly protective of lawyers.

The San Francisco Chronicle reports that Hebert made his proposal this week to a task force that must submit a report by May to the Legislature, which must approve changes to the selection process.

Under the proposal, the board would consist of 11 lawyers appointed by the high court and six representatives chosen by the governor and lawmakers.

Governing boards for other professionals, such as doctors, already are appointed that way.

Monday, February 7, 2011

Judge Judy and Tax Law Part II

Judge Judy and Tax Law Part II 

About ten days ago, in Judge Judy and Tax Law, I shared my reaction to a Judge Judy episode in which tax consequences played a tangential role, demonstrating the maxim that “Taxes are everywhere.” On Thursday, after shoveling snow and slush for several hours, I came into the house, sat down, flipped on the television, and there was Judge Judy. Having missed the first two minutes of the episode, it took me several more minutes to figure out the issue. It was a contract claim resting on a tax return preparation agreement.

According to the plaintiff, a woman whom he knows – possibly the mother of a former girl friend – approached him and said that she understood he could not afford to pay for tax return preparation as he had done the year before. Subsequent testimony revealed that he had been a client of H&R Block. So this woman offered him a deal. Her sister, she explained, was a tax return preparer and charged less than H&R Block. The plaintiff takes her up on the offer. At some point, the woman or her sister suggested to the plaintiff that he claim as a dependent on his tax return the child of a woman – and because I missed the first two minutes, I’m not certain of this – who was the former girl friend. The plaintiff had never previously claimed an exemption for this child, even though his confusing testimony suggested that at some point he thought the child was his but at other times knew that the child was not his. It seems that the child’s mother wasn’t going to claim the child because, having little or no income, she did not need the deduction. So the plaintiff agreed. He also was told that he would be getting a sizeable refund. A few days later, the woman who had initially approached him called him and explained that he would get his refund more quickly if he agreed to have the refund deposited into the woman’s bank account. She promised she would immediately remit the money to the plaintiff. He agreed, but not surprisingly, she didn’t transfer the money to him. So he sued her.

Judge Judy looked at the return in question and noticed that not only was a dependency deduction claimed that should not have been claimed, but that a child tax credit also was claimed. It wasn’t clear how much of the refund was attributable to these two items. The camera zoomed in on a small portion of the return, from which it was impossible to dissect the underlying entries. Judge Judy quickly figured out that the intermediary defendant and her sister were running a scam, and that the plaintiff, knowing he was not entitled to the dependency exemption, was no less complicit. In her questioning of the plaintiff, she used the word “fraud” on at least three occasions. She also, through questioning the defendant, determined that the defendant was not the mother of the woman whose child was being claimed, but was, at best, a foster mother.

Accordingly, Judge Judy dismissed the plaintiff’s case. She pointed out that there are all sorts of doctrines on which she could rely, but that the doctrine of “clean hands” would suffice. The plaintiff had not come to court, she explained, as an innocent victim but as a participant in some sort of scheme. Judge Judy told the plaintiff, “You need to file an amended return. You need to file an honest return.” She added that he knew that he was not entitled to claim the child. She then told both parties that the IRS would be told that the defendant has the refund, that the defendant has money that “belongs to” the IRS, and that the IRS would want to get it back. She also told the parties that the IRS doesn’t like fraud. No kidding.

I wonder what sort of impact on the viewers this episode has made. Has it taught people that it doesn’t pay to commit tax fraud, that the improper filing might be identified even if it is not the IRS that discovers it, that con artists specializing in tax fraud are popping up all over the place, and that one should check out the credentials and experience of a prospective tax return preparer? Or is it putting ideas into the heads of people who figure that with a little more care they can avoid being detected?

There wasn’t any means for me to determine what happened thereafter. Did the plaintiff file an amended return? Did the IRS go after the defendant and recover the refund attributable to the improperly claimed deduction and credit? Did anyone go to jail? Did the tax return prepare sister have other clients? Did she work similar scams with them? Perhaps when “Judge Judy: The Aftermath” debuts, we’ll find out. In the meantime, yes, tax is everywhere.

Sunday, February 6, 2011



Earlier this week, after grading student papers from my Yale Law School class on constitutional law, I began reading federal District Judge Roger Vinson's recent opinion declaring "Obamacare" unconstitutional. One thing was immediately clear: My students understand the Constitution better than the judge.

I strive to be apolitical in evaluating students and judges alike. Over the years, many of my favorite students have been proud conservatives, while others have been flaming liberals. The Constitution belongs to neither party.

As every first-year law student learns, lower court judges must heed Supreme Court precedents. The central issue in the Obamacare case is how much power the Constitution gives Congress, and the landmark Supreme Court opinion on this topic is the 1819 classic, McCulloch vs. Maryland.

In McCulloch, when states' rights attorneys claimed that Congress lacked authority to create a federal bank, Chief Justice John Marshall famously countered that the Constitution gives Congress implied as well as express powers. Marshall said that unelected judges should generally defer to elected members of Congress so long as a law plausibly falls within Congress' basic mission. Though the words "federal bank" nowhere appear in the Constitution's text, Marshall explained that Congress nevertheless had the power to create such a bank to facilitate national security and interstate commerce. Other words not in the Constitution include "air force," "NASA," "Social Security," "Peace Corps" and "paper money," but all these things are constitutional under the logic of McCulloch. Obamacare is no different.

In 34 years as chief justice, Marshall never struck down an act of Congress as beyond the scope of federal power. The modern Supreme Court has followed Marshall's lead. Since 1937, only two relevant cases — U.S. vs. Lopez in 1995 and U.S. vs. Morrison in 2000 — have held that federal laws transgressed the limited powers conferred on Congress by the framers.

Neither of the laws at issue in these cases plausibly fell within the Constitution's grant of congressional power to regulate "commerce among the several states" — a phrase that includes all interstate transactions, such as a national market in goods or services or a situation in which people, pollution, water or wildlife cross state lines.

By contrast, Obamacare regulates a healthcare industry that obviously spans state lines, involving billions of dollars and millions of patients flowing from state to state. When uninsured Connecticut residents fall sick on holiday in California and get free emergency room services, California taxpayers, California hospitals and California insurance policyholders foot the bill. This is an interstate issue, and Congress has power to regulate it.

Even were it conceded that a particular piece of Obamacare regulates a wholly intrastate matter, that piece is OK so long as it is a cog within a truly interstate regulatory regime. In 2005, the court allowed Congress to criminalize private possession of homegrown marijuana plants because, even if these plants did not themselves cross state lines, a blanket prohibition was part of a legal dragnet regulating a genuinely interstate black market in drugs.

There is nothing improper in the means that Obamacare deploys. Laws may properly regulate both actions and inactions, and in any event, Obamacare does not regulate pure inaction. It regulates freeloading. Breathing is an action, and so is going to an emergency room on taxpayers' nickel when you have trouble breathing.

Nor is there anything improper about requiring people to buy or obtain a private product. In 1792,George Washington signed into law a militia act that did just that, obliging Americans to equip themselves with muskets, bayonets, cartridges, the works.

Strictly speaking, Obamacare does not mandate the purchase of insurance. It says that those who remain uninsured must pay a tax. Vinson says this mandate cannot be upheld under Congress' sweeping tax powers. Wrong again. A basic purpose of the founders was to create sweeping federal tax power, power that was emphatically reinforced by the 1913 Income Tax Amendment.

If Congress can tax me, and can use my tax dollars to buy a health insurance policy for me, why can't it tell me to get a policy myself (or pay extra taxes)? Vinson offers no cogent answer to this basic logical point.

He also mangles American history and constitutional structure. In a clumsy wave to today's "tea party" groups, he rhetorically asks whether Americans who fought a tax on imported tea in the 1770s would have authorized Congress in the 1780s to mandate tea purchases. Huh?

Surely Congress was authorized to do the very thing that Parliament could not — tax imported tea. Congress could do so precisely because Congress, unlike Parliament (and unlike Vinson) is elected by voters who can vote the bums out if they do not like the taxes. The rallying cry of the American Revolution was not "No Taxation!" but "No Taxation Without Representation!" Congress represents voters, so it can tax voters, or impose mandates on voters, regarding tea or militia service — or insurance policies.

In the interest of full disclosure, I should note that acting Solicitor Gen. Neal Katyal, who will defend Obamacare in the appellate courts, is a former student of mine. But my views today have nothing to do with him, and everything to do with constitutional first principles.

Obamacare's opponents are free to vote for politicians who will repeal it. They should not use seats on lower courts to distort the Constitution, disregard applicable precedents and disrespect a duly elected Congress, which gave Americans in early 2010 exactly what the winning party platform promised in November 2008.

In 1857, another judge named Roger distorted the Constitution, disregarded precedent, disrespected Congress and proclaimed that the basic platform of one of America's two major political parties was unconstitutional. The case was Dred Scott vs. Sanford, involving a slave who sued for his freedom because he had lived with his master in places where Congress had banned slavery. In an opinion by Chief Justice Roger Taney, the court not only ruled against Scott, saying that even free blacks were not citizens and therefore had no right to sue; it also declared the Missouri Compromise, which had outlawed slavery in Northern territories, unconstitutional.

History has not been kind to that judge. Roger Vinson, meet Roger Taney.

Wednesday, February 2, 2011

Howrey Loses 11 Lawyers to Morgan Lewis

Howrey Loses 11 Lawyers to Morgan Lewis

The Howrey exodus continues.
Morgan Lewis & Bockius today announced that three partners and two associates in Howrey’s Chicago office have jumped ship, including the office’s managing partner and the chairman of the firm’s consumer class action defense group.
Chicago managing partner David Clough, who holds a Ph.D. in microbiology and specializes in intellectual property law, made the move, as did class action practice leader Kenneth Kliebard and commercial litigator Scott Schutte.
Yesterday, Morgan Lewis announced it had picked up Howrey litigators Robert Gooding Jr. and Scott Garner plus four associates in Irvine, Calif. Gooding was co-chairman of the securities litigation, white collar and government enforcement practice.
NLJ affiliate The Recorder reported yesterday that Winston & Strawn made individual offers to a little more than three-quarters of Howrey’s partners over the weekend, citing a source close to the firm.
The partners who did not receive offers either have conflicts of interest or have signaled they're interested in other opportunities, said a recruiter familiar with the offers. Howrey partners have at least 21 days to respond.