Occidental College, my alma mater, vexes me greatly

Hey, so I went to Occidental College.  Just like Mr. Obama (Emily Post says the title of "President" ends with the end of the term of office - yes, I checked).  Two differences stand out between us, I think.  I graduated.  And he's more famous.  Oh, plus I never inhaled.

So I mention Occidental College because I received correspondence from my alma mater today that struck me immediately as insipid and deeply troubling.  Here's what the e-mail said:

To the Occidental Community,

n Charlottesville last weekend, we saw the ugly face of racism and hate, naked and unadorned. White supremacy in all of its manifestations is an assault on the fundamental values of Occidental, the community of scholars of which we are a part, and the kind of country we want to be. Love of knowledge, intellectual rigor and mutual respect are essential in creating the kind of just, inclusive and loving community we all want to be a part of. As we welcome the Class of 2021 to campus next week, and throughout the coming months, let’s embrace these values as we continue our effort to create such a community here at Oxy.

Best,

President Veitch

A few questions came to mind immediately.  The first thing I asked myself was whether the current crop of incoming students needs to be told that white supremacists are bad.  It never came up when I was there, but I'm really confident that had I conducted a poll, 100% of my classmates would have, without hesitation, said, "Bad."  (A few might have first asked if it was some sort of trick.)  This would have been the easiest quiz, with the highest average score in the history of Occidental.

But, today, not so much.  The school has to tell them it's bad.  Here's my first tip to the admissions committee at Occidental:  if you think you need to tell incoming freshmen this, raise your standards. You are diluting the value of my degree.  Maybe there's a class action there.  Kidding. Probably.  No, kidding for sure.

The second thing I asked myself was why the President of Occidental didn't think to make any mention of the fact that Occidental also abhors the use of violence to silence even reprehensible hate speech.  I've heard quite a few political commentators in recent months suggesting that the First Amendment doesn't protect "hate speech."  Go check with a colleague that practices First Amendment law and see if they concur.  Surely it must be the case that as much as hateful viewpoints like white supremacy, misogyny, or other bigoted beliefs are contrary to fundamental values of Occidental, so, too, are any attempts to forcibly silence even unpleasant ideas.  However, as I am sure that President Veitch did not issue this letter without substantial thought and input, I have to wonder whether the omission of any warning to new students that violent suppression of speech will not be tolerated was intentional.

I can't say it isn't tempting to be sympathetic, for a moment, when a nutter white supremacist is receiving a beat down with a club.  But I would caution everyone to remember Neimoller's words:

First they came for the Socialists, and I did not speak out—
Because I was not a Socialist.

Then they came for the Trade Unionists, and I did not speak out—
Because I was not a Trade Unionist.

Then they came for the Jews, and I did not speak out—
Because I was not a Jew.

Then they came for me—and there was no one left to speak for me.

You can't send a message that criticizes what is, fortunately, a viewpoint considered by a vast majority of Americans as reprehensible while tacitly condoning vigilantism to silence that idea (if you actually doubt that, consider that a little more than 100 years ago, the KKK had membership in the millions, but a century later the membership was believed to be under 10,000). Violent repression of speech won't stop at the white supremacists.  It's already moved past that. Recall riots at Berkley, the birthplace of contrary viewpoint expression, to silence a speaker.  If thuggish retaliation against speech is allowed to build up a head of steam, it will be hard to stop.

Occidental's alumni should be very disappointed by the absence of a strong message renouncing violence to limit speech and encouraging civil dialog between members of the Occidental community at all times (with at least an implied reminder that anyone acting contrary to that principle will need to find themselves a new college to attend in short order).

I would note, in closing, that Occidental's website does a far better job of recognizing that dialog can often be challenging, but open discussion and critical thinking are central to the educational mission.  Why doesn't the President of Occidental know that?

Last day at Berns Weiss LLP

Today is my final day at Berns Weiss LLP. Beginning next week, I will return to familiar terrain, once again into the wage & hour breach.  My thanks to Berns Weiss for everything and best wishes to everyone there.

Dear Twitter, pull your head out

I customarily cross-post to Twitter when I write a new post here.  That may change soon.  The evidence I have examined is strongly suggestive that Twitter engages in viewpoint-based censorship by asserting its "standards" in a very non-uniform manner.  Twitter is a private company.  They can do this.  But I can vote with my feet if Twitter doesn't want to remain neutral in viewpoint suppression.  As a blogger, and irrespective of personal views of the speaker, I am sensitive to the long-term, dire consequences that will result if large businesses and/or governments succeed in limiting expression of entire swaths of opinions.  I was particularly disturbed when I read that Twitter had blocked the account of Glenn Reynolds, a pioneering law/politics/current events blogger known as Instapundit.  He made an ill-considered point in a rather rough way, but, at the same time, individuals advocating the murder of police officers go unpunished.  This is unjustifiable if one assumes that Twitter is viewpoint neutral in its censoring.

I don't approve of or condone all of the messages that have resulted in some high-profile account banning of late on Twitter, but the simple fact is that Twitter has permitted far worse commentary to remain on Twitter without consequence.  Maybe this behavior explains, in part, why Twitter is likely up for sale.

Law-less Friday (a day early): paragraphs you never thought you'd read in court opinions

Every now and then I look at a new appellate decision and experience the shock of reading something that I would have guessed was certain to never come up before seeing it in print.  So I was helping my daughter study for a history test the other day.  Her fifth grade class was in a chapter about American industrialization and the expansion of the United States to the Pacific (manifest destiny and all that). The war with Mexico received a mention in her study guide, along with a treaty entered into with Mexico at the end of the war, the Treaty of Guadalupe Hidalgo.  Trick question: what are the chances that an appellate decision today would rest, in part, on the need to examine the Treaty of Guadalupe Hidalgo? You should say "zero," but, since I asked, you know that's not the answer.  The correct answer is, ding ding ding, 100%.

In Friends of Martin's Beach v. Martin's Beach 1 LLC (April 27, 2016) the Court of Appeal (First Appellate District, Division Two) considered issues arising in a dispute between private land owners and the public over an area of inland dry sand at a popular beach.  Here is the paragraph that resulted in my double-take:

The case presents a number of intriguing issues, among them the meaning of Article X, section 4 of the California Constitution and its application, if any, to lands for which title is derived from a provisional Mexican land grant confirmed by a federal patent issued in the 19th century. These issues require consideration of a federal statute known as the Act of 1851 and the Treaty of Guadalupe Hidalgo, which that Act implemented. The case also concerns the common law theory of dedication of land to public use and what facts suffice to establish the elements of such a claim. Creating yet additional interest, the State of California and its agencies contend in an amicus brief that they were indispensable parties to this action because it involves California tidelands and that the judgment rendered without them is void.

Slip op., at 1-2. As an aside, if these issues also sound "intriguing" to you, you are officially a law nerd.

Today's lesson: Never say never.

Law-less Friday: Irony and Hipocrisy are no bar to standing

We all need a bit of levity on Friday, so take a moment and enjoy one paragraph from City of Palm Springs v. Luna Crest (March 17, 2016), a recent opinion from the Fourth Appellate District, Division Two, that captures the humor sometimes hidden in the law.

Luna Crest, Inc. opened a medical marijuana dispensary in the City of Palm Springs without obtaining a permit to test whether the Palm Springs ordinance requiring such a business to have a permit was invalid.  Luna Crest sought an injunction against further enforcement, claiming that federal drug laws preempt the City’s ordinance.  The Court observed:

To be sure, as the City points out, there is a certain irony, if not hypocrisy, in Luna’s invocation of federal drug laws as a basis for invalidating the City’s permitting requirements, given Luna’s intention to operate a medical marijuana dispensary in violation of those very federal drug laws.  The City cites no authority, however, for the proposition that irony or hypocrisy alone may vitiate standing, and we are aware of none.  We turn, therefore, to the merits of Luna’s claims.

Slip op., at 5.  Never let someone challenge your standing just because of the irony or hypocrisy of your position.  Never.

Have a great weekend, and, as they say, smoke 'em if you got 'em.

STUPIDERER: Two North Carolina teens hit with child porn charges after consensual sexting→

We're well on our way to self extinction by using unnatural selection to make ourselves as dumb as possible. Two teens sending dirty pictures to each other should be a parental matter, not a criminal case with both willing participants getting charged with adult felonies.

Source: Arstechnica

Article III federal judge takes prosecutor to task for lying in court

In an article from December 2014, Sidney Powell offers a colorful description of a proceeding in which a federal judge excoriated a federal prosecutor for lying in his courtroom.  Sidney Powell, Judge Kevin Thomas Duffy Blasts Federal Prosecutor For Lying in Court (December 16, 2014) observer.com.  Sidney Powell worked in the Department of Justice for 10 years and was lead counsel in more than 500 federal appeals. She is the author of Licensed to Lie: Exposing Corruption in the Department of Justice.  Sadly, these sorts of abused of power appear to be increasing in frequency (or the technology age has rendered them easier to detect and widely disseminate).

You can look at maps on your cellphone in California

As a victim (who later prevailed at trial) of law enforcement over-reach regarding the various Vehicle Code provisions relating to cell phones, it is nice to see some common sense out there (it is rare these days).  In People v. Spriggs (Feb. 27,  2014), the Court of Appeal (Fifth Appellate District) held, after weighty deliberation, that a statute about talking on a cell phone really doesn't apply to looking at a map on the phone (seeing as how the "talking" part isn't implicated).  Offered for informational purposes and your entertainment only.

Ninth Circuit finds that California's "good cause" requirement for a license

The Ninth Circuit did us a solid yesterday.  In Edward Peruta v. County of San Diego (9th Cir. Feb. 13, 2014), the Court held, 2-1, that California's restrictions (as applied in San Diego County) on firearm carry in public improperly infringe upon the Second Amendment's guarantee of a citizen's right to keep and bear arms.  At least in the more populated counties of California, you essentially cannot obtain a license to carry a concealed weapon; almost no cause (other than being best buddies with the Sheriff or a prominent politician) is good enough.  Los Angeles County and Los Angeles City are both on the extreme end of this construction.  But this gives me hope that when I choose to carry a weapon for self defense, it will be a lawful act.  I am not suggesting, by the way, that I would ever choose to act in an unlawful manner; I'm just looking forward to the time when fewer of my rights will be implicitly negated by impossible requirements attached to their exercise.

The discussion of what it means to "bear" arms, in the historical context, is highly entertaining.

Suit alleging that firm maneuvered to convert an undisclosed $6 million settlement into fees without consent by 600 clients transferred from Alameda to L.A.

2013 was a turbulent year in the class action world and in mine.  As a result, there were some newsworthy stories I didn't have time to cover this past year.  One such news story involves the transfer to Los Angeles County of a suit alleging a scheme to transform most or all of $6 million settlement into attorney's fees without fully disclosing the scheme to roughly 600 clients until it was too late for them to do anything about it.  Here's how Courthouse News Service summed up the shocking allegations:  "A California law firm accepted a $6 million 'secret settlement' of a labor class action against a bank, agreed to dismiss the claims without telling 600 clients, then tried to convert the whole settlement into legal fees, a class action claims in state court."  Jamie Ross, Class Claims Lawyer Took 'Secret' $6M Deal, Courthouse News Service (October 22, 2012).  Who would do such a thing?  Courthouse News Service identified the defendants in the proposed class action suit: " Lead plaintiff Kendra Cutting sued Mark Yablonovich; an attorney in his law office . . . , and The Law Offices of Mark Yablonovich, in Alameda County Court."  Ibid.  It appears from the docket that the attorney in Mr. Yablonovich's office was dismissed with prejudice from the action not too long after it was filed.

Courthouse News Service wasn't alone in covering these disturbing allegations.  For example, Law360 noted, "Because the Yablonovich lawyers allegedly did not first approve the deal with their clients, the Cutting complaint said the firm's actions represented a breach of fiduciary duty and legal malpractice."  Scott Flaherty, LA Attys Sued Over 'Secret' $6M Wells Fargo OT Settlement, Law360.com (October 19, 2012). 

Anyhow, in April 2013, Alameda sent this fine example of what not to do to clients to Los Angeles.  I guess that Northern California felt that Los Angeles wasn't grimy enough already.  You can read the original complaint here.  Or, better yet, get the whole thing here.  The case appears to be stayed while appeals involving Initiative Legal Group are pending.  Those appeals can be viewed here and here.  But you can check on the status of the L.A. Superior Court action by using the Case Summaries tool and entering case number BC512429.