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February 17, 2005

Comments

Ted

Given your regular "Overlawyered Watch" feature where you attack a website for real and imagined errors, it's remarkable that every time I double-check an opinion you write upon first, you misunderstand the case or get major facts wrong. In this case, there's barely a single sentence marginally correct. The posts give no indication whether an opinion is notable and worth reading or, as in this case, a routine and uncontroversial rejection of a meritless asylum petition, where the appeal has only been taken to delay removal.

1. You omit the court's finding of a lack of past persecution. The end of the civil war had nothing to do with this finding.

2. You omit the court's finding that not only was there was no evidence that familial political views would be imputed to the petitioner, there was no evidence that the father had political views subject to any sort of oppression. The end of the civil war had nothing to do with this finding.

3. Indeed, even Rodriguez-Ramirez "testified that since the signing of the peace accords neither he nor any of his relatives has been approached in a bellicose manner or threatened in any way."

4. Rodriguez-Ramirez didn't claim that he was "subject to a government offensive," as you originally wrote. He protested that "he falls into a social group known to oppose the guerrillas," who are now legitimate political participants; moreover, there was no evidence he was a member of this social group to begin with. Substantial difference.

sam heldman

Ted, you should add comments-capability at overlawyered, and that way everybody can fact-check everybody! Unless of course overlawyered is singlemindedly pursuing a corporatist-Repubican agenda; a comments section that made it easy for people to read comments pointing out errors or bias would, I admit, interfere with that.

S.cotus

Sam, I don’t think that Overlawyed is that interested in fact-checking. It would be embarrassing. They prefer to have post favorable letters, this way they can exclude the embarrassing ones, in which it is shown that a lawyer got information about a case from a newspaper article, which is not acceptable.

Mr. Behar, It doesn’t matter. Probable cause is still required.

Mr. Fore, In the state of Washington, individuals are entitled to privacy in certain things. Should the police invade a person’s privacy, then they are prohibited from using the fruits of that invasion at trial. While the US Constitution has a smaller concept of privacy a similar rule applies.

I realize that in your country, Mr. Fore, it may be different, as individuals may trust the government to look through their stuff, and the government may be able to demonstrate that they needed to crack a few skulls and rape a few babies in order to get a just result, but in my country it is different. I appreciate the diversity of governments that exist on the planet, and I am not in favor of invading your country.

There is nothing radical about it under Washington state law. I provided a link to the text of the decision, so you should have been able to tell me how it deviates from precedent. You did not. Therefore, I suspect that you were not telling the truth when you said it was radical.

Mr. Frank, I don’t know if you are a lawyer or not, but the United States Court of Appeals for the Seventh Circuit’s interpretation of the US Constitution is not binding on a Washington State court’s interpretation of the Washington Constitution. See, in the American system, there are two systems. State courts have the final word on their own constitutions, and the US Supreme Court has the final word on the US Constitution. Whether this guy was a criminal or not (or even convicted in the past) does not make much difference as to whether, in this kind of search, the police can effectuate this kind of warrantless search. (It might for Terry stop purposes, but this wasn’t a Terry stop.)

Ted

Since I never claimed that the Seventh Circuit's decision was binding on the state of Washington, I fail to see your point. The Seventh Circuit was cited for the proposition that the law in this area is unclear, as demonstrated by an 8-5 decision with seven separate opinions.

I don't know whether you're a lawyer or not, but your arguments suffer from reading comprehension problems, be they deliberately disingenuous or otherwise.

Sam, I don't see your basis for concluding that Overlawyered is single-mindedly pursuing a corporatist-Republican viewpoint. The evidence suggests otherwise. We usually don't have comments for the same reason Volokh doesn't. We do have trackbacks if anonymous trolls wish to attack us.

sam heldman

Your proof that it's not a corporatist-Republican propaganda site is that Olsen may have voted Libertarian rather than Republican based on Pres. Bush's foreign policy and intolerable fiscal policy, and doesn't want to ban gay people from the world? Color me unconvinced.

Ted

Well, at least you're not an anonymous troll. If you have an argument other than ipse dixit, I may address it.

sam heldman

Come now, Ted. Overlawyered is a corporatist Republican propaganda site, in that it tries to promote the talking point that there is an enormous amount of frivolous litigation that is dragging down American liberty and progress and the economy. This talking point is then the basis for legislative and judicial efforts to rein in all sorts of non-frivolous suits, to the benefit of corporate America and therefore to the benefit of corporate America's Republican friends, and to the detriment of employees, injured people, and all others who are not fatcats. Duh.

S.cotus

Of course Ted doesn't explain why the 7th circuit's interpretation of the US Constitution is even persuasive upon the WA courts' interpretation of a much more protective constitution. Some states just want to protect their citizens from the actions of state actors more than others. Some countries don’t protect a person’s freedom of religion, and bad certain religious expressions. It is a choice that the people make.

I don't see how anyone is "trolling" anyone. I made it a point to correct one website's continuous misstatements of cases that seem to be an effort to provoke lay people into hating anyone who representing a poor a criminal defendant or a poor victim of a tort. I provided specific references to caselaw which show that the Washington Courts are religiously following precedent and their own constitution. In my country this is legal argument. In your country, this is trolling.

Ted

Sam, I sincerely believe, on the basis of first-hand experience, that there is an enormous amount of litigation that hurts American consumers and businesses and that problem could be resolved through litigation reform. I further sincerely believe that regulation through litigation is inefficient, undemocratic, and hurts consumers as a group. I oppose the misuse of litigation by corporations to silence critics or legitimate competition. That's my motivation for writing for sites that promote litigation reform. I've publicly opposed the regular use of the word "frivolous", because I believe it's unhelpful to the discussion.

It saddens me that the Democrats have ceded to the Republicans a monopoly on that issue, but I see hope in that sensible senators such as Joe Lieberman and Barack Obama, two men I admire much, were among several Democrats who voted in favor of the Class Action Fairness Act, whose provisions help all sorts of everyday consumers to the detriment of trial attorney fatcats. I recommend you take a look at the case of Dexter Kamilewicz for an example of the abuse the CAFA is meant to stop.

If you want to call all of that corporatist-Republican propaganda, I can't stop you, but when you do so, you divest the words of any legitimate meaning. Cf. Orwell, "Politics and the English Language."

Ms. Cotus, I consider you a troll because you hide behind your anonymity in making a variety of unfair and inaccurate attacks (including the incorrect statement that the site make "continuous misstatements of cases"; you've identified precisely two such cases in the six-year history of the website, one by me and one by Walter, and Walter's mistake shaded the case pro-plaintiff). "Ted doesn't explain why the 7th circuit's interpretation of the US Constitution is even persuasive" perhaps because Ted doesn't contend the Seventh Circuit's interpretation of the US Constitution is persuasive. As noted both in the post and in my previous comment, the Seventh Circuit's opinion was cited for a different reason. Again, your arguments suffer from reading comprehension problems, be they deliberately disingenuous or otherwise.

Moreover, I consider you a troll because you suffer from the problem of motes and beams. Your accuracy rate on First Circuit cases is abysmal, and when called on your mistakes, you don't even correct them. Instead, you either pretend you weren't corrected, or make ludicrous statements like claiming that whether the ADDCA creates an independent cause of action is "debateable." (I notice you deleted my comment on the Subaru case--an appallingly amateurish way to avoid being called on your mistakes.)

Ted

So why were my comments on the Subaru case deleted? Your co-blogger's whine that "Overlawyered doesn't accept comments" loses all force when your blog deletes polite comments that point out substantive errors in legal analysis.

S.cotus

I am not sure specifically what you are talking about regarding deleting comments. I may have deleted some comments accidentally from some posts in an effort to set up a better system of cross-referencing, but I assure you that I was not singling out your sage pieces of wisdom. I stand by my interpretations (or rather my survey of opinions) regarding the ADDCA. So, if you wish to repost your comments, go ahead. I am not sure if I will respond again, because I have other things to do.

Unlike you, I will always provide citations to ever case I refer to, restating the text if necessary. You don’t. While you may be able to scream that I am not accurate, anyone who is at all interested can read the cases and decide for themselves, after reading my analysis whether I am correct or not. Moreover, since, unlike, you I do not rely on newspaper articles, I don’t claim “it is in the article.” So, while you can decry my coverage as “abysmal” at least I don’t cite to newspaper articles for legal propositions.

Now, people have a choice. They can look to you, your newspaper articles, and your condemnation of any lawyer who sues on behalf of a poor person (or defends a criminal defendant). Or, they can click on my links to the actual cases and decide whether they were correctly decided or not.

I take my federalism seriously. I have no tolerance for federal meddling in state tort regimes. While I cover a federal court (one which seems to have a lot of respect for state law) to stay abreast of issues, I do not regard it as any better or worse than a state court.

Ted

I've never cited to a newspaper for a legal proposition. I've cited to newspapers to indicate that a newspaper has coverage of the underlying issue. The vast majority of Overlawyered posts are posts about normative, not positive, questions, a concept that your comments don't seem to understand.

Since I've represented poor persons, I certainly don't condemn "any lawyer who sues on behalf of a poor person." Your continuing insistence to attack strawman arguments instead of my actual positions is telling.

Ted

Your dishonesty in claiming you were citing a "survey of opinions" about the ADDCA is noted. You did no such thing. You made an affirmative, and plainly wrong, statement about a statute. When challenged, instead of correcting yourself, you claimed that you were taking a position on a debateable issue. When I asked you to name a single person or case who agreed with you on that issue, you failed to do so and instead deleted my comment. Sam cheapens himself by associating with such shoddy work.

S.cotus

If I deleted any comments, I probably deleted mine as well. They were from an old case, anyway, and have no bearing on this one.

Clinton Bush

Hey Ted, Don’t you have an waaaaaambulance to chase or something?

Butte Fore

Mr. Cotus: I reviewed the Appellate Tips Section. I was unable to find the "Go Back to Your Own Country, Immigrant Scum" tip. I would like to learn more about it, maybe try it in court. As you know, the population of the Arab lands have 1/10th the yearly income as that of your mighty nation. However, their crime rate is a fraction of yours as well. I am interested in your explanation and any feasible justification for your self-congratulation.

http://www.unicri.it/icvs/publications/
pdf_files/No57/c04_57.PDF

Compare Egypt to:

http://www.ojp.usdoj.gov/bjs/cvict.htm

Is the reasonable expectation of privacy a core feature of the Washington State Constitution search and seizure provision?

From the Washington State Constitution:

at

http://www.courts.wa.gov/education/
constitution/?fa=education_constitution.
display&displayid=Article-01

SECTION 7 INVASION OF PRIVATE AFFAIRS OR HOME PROHIBITED.
No person shall be disturbed in his private affairs, or his home invaded, without authority of law.

Police did nothing forbidden by this Section.

Let's say, the police intruded on the reasonable expectation of privacy of having the trash intermixed with that of others by a professional sanitary engineer, and not a substitute interloper.

Please address the Plain View problem.

Please address Necessity. The suspicion of a meth lab justifies the crashing of a police personnel carrier through the bedroom wall of this alleged perpetrator's home, to prevent a catastrophe in the community, such as an explosion.

As Mr. Behar pointed out, the defendant broke a rule of disposal. That rule breaking was material to the criminal arrest. It represents probable cause per se.

When addressing Ted, please refrain from saying, "I don't know if you are a lawyer." After the 16th time, it is not funny.

s.cotus

The court addressed the plain view problem, and noted that the state not made the argument. In fact, under my understanding of Washington state law, a good “plain view” argument could be made if, say, the stuff fell out of the trash bag.

Just because someone asserts that a law is being broken does not eliminate the need for probable cause. If there was probable cause to think that he was disposing of stuff incorrectly, the story would be different.

I explained how the WA courts have interpreted the WA constitution. Since the Washington Supreme Court is binding upon this court, and it has spoken specifically to trash-bag cases, I don’t know how you think this is incorrect or somehow activist. In Washington state, people expect that stuff they put into a trash bag to be private until it reaches the dump. If it leaves the trash bag, it is subject to the plain view exception, and, of course, the police are welcome to get a warrant. Indeed, in looking at this case, I don’t see why the police did not simply go to a judge and get one.

I am sure that Ted can defend himself, lawyer or not.

Crime rates are funny things. A country can set the crime rate at whatever it wants it to be. It can do so by 1) criminalizing or legalizing conduct; 2) enforcing or not enforcing conduct. Heck, I assure you that if there were no laws and no police there would be zero crime, or at least no crime to go into a crime rate statistic. I don’t see how the crime rate in Arab countries is relevant to the Washington State constitutional theory.

I am not sure if the argument that constitutional restrictions on the police somehow increases crime or not. Whatever the case, some jurisdictions opt to protect individuals from the police more than others. C’est la vie.

Butte Fore

What if the containers of solvents and pseudoephedrine were at the top of the garbage in the can, with the police standing on the sidewalk or street, off the property? Is that plain enough of a view in Washington state? Is looking down on garbage permissible? What if they were at the bottom of the trash can, but when the substitute interloper emptied it into the gathering container, they ended up at the top? We need videotape in all future garbage can search cases in Washington State, then to relitigate this question. What if a board certified police hound dog had smelled the solvents outside the curtilage? Is there a reasonable expectation of privacy for wafting molecules of solvents and methamphetamine from across the street?

The decision is radical because it contradicts settled Supreme Court garbage thinking.

"California vs Greenwood
No. 86-684

SUPREME COURT OF THE UNITED STATES
486 U.S. 35, May 16, 1988

So you do not have to go look it up (do you have that in your tip sheet, don't make people look things up? You are always doing that. It's annoying to busy Justices.):

The Fourth Amendment does not prohibit the warrantless search and seizure of garbage left for collection outside the curtilage of a home. Pp. 39-44 . [police searched it after collection, outside the curtilage]

(a) Since respondents voluntarily left their trash for collection in an area particularly suited for public inspection, their claimed expectation of privacy in the inculpatory items they discarded was not objectively reasonable. It is common knowledge that plastic garbage bags left along a public street are readily accessible to animals, children, scavengers, snoops, and other members of the public. Moreover, respondents placed their refuse at the curb for the express purpose of conveying it to a third party, the trash collector, who might himself have sorted through it or permitted others, such as the police, to do so. The police cannot reasonably be expected to avert their eyes from evidence of criminal activity that could have been observed by any member of the public. Pp. 43-44 .

(b) Greenwood's alternative argument that his expectation of privacy in his garbage should be deemed reasonable as a matter of federal constitutional law because the warrantless search and seizure of his garbage was impermissible as a matter of California law under Krivda, [p*36] which he contends survived the state constitutional amendment, is without merit. The reasonableness of a search for Fourth Amendment purposes does not depend upon privacy concepts embodied in the law of the particular State in which the search occurred; rather, it turns upon the understanding of society as a whole that certain areas deserve the most scrupulous protection from government invasion. There is no such understanding with respect to garbage left for collection at the side of a public street. Pp. 43-44 .

2. Also without merit is Greenwood's contention that the California constitutional amendment violates the Due Process Clause of the Fourteenth Amendment. Just as this Court's Fourth Amendment exclusionary rule decisions have not required suppression where the benefits of deterring minor police misconduct were overbalanced by the societal costs of exclusion, California was not foreclosed by the Due Process Clause from concluding that the benefits of excluding relevant evidence of criminal activity do not outweigh the costs when the police conduct at issue does not violate federal law. Pp. 44-45 .

182 Cal.App.3d 729, 227 Cal.Rptr. 539, reversed and remanded."

I suggest a new exclusionary rule. If any Justice in the majority failed to recuse himself on a disquailifying bit in their past or in their campaign funding, the appellate decision is vacated automatically.

I then propose a 3 strike rule. If the Justice has caused 3 decisions to be vacated, he gets permanently vacationed from the appellate court.

An example would be if any of the Justices were ever defense attorneys, ever received any campaign contribution from a defense attorney, had a relative convicted of a felony, worse, had a relative who was a defense attorney, cavorted with or dated defense attorneys socially, told his wife he once longed to be a criminal defense attorney, so on.

scotus

What the US Supreme Court says in this context is irrelevant. Let me say it again: the US Supreme Court does not interpret the Washington State constitution. Period. The Washington State constitution is interpreted by the Washington Supreme Court, and they have set out a test for determining one’s interest in garbage. It is different than the 4th amendment test. There is nothing radical or improper about this. Different jurisdictions have different laws.

Your plain view problems are interesting, and they can be addressed in another case. I suspect, in some of your situations, they would be resolved in favor of the police.

David Behar, 2L

Mr. Cotus: Is this true or not? An administrative rule or mandate from a low Federal official trumps the Washingtion State Constitution. What about a Supreme Court decision?

The reason? The US has more Airborne Divisions than Washington State. That question was presumably settled 140 years ago.

Scotus

You don’t seem to understand the issue. The question is whether evidence, obtained the way it was, under the Washington State constitution is admissible in a Washington State court. What the US Supreme Court says has no bearing on the issue. Heck, if Washington State wanted to, they could make all evidence that wasn’t voluntarily offered by a defendant in open court inadmissible. The US Constitution or even a federal statute can’t change this.

On the other hand, Washington state can’t decide that their courts CAN admit evidence that would not be constitutionally admissible.

Whether or not someone is in violation of a federal regulation (or even a federal statute) does not change the probable cause analysis, unless a case could be made that a state agent obtained probable cause by actually observing said violation. (Even then there would be a couple of problems as some states specifically or implicitly do not allow their officers to enforce federal laws (though some have agreements on some issues with the federal government), but that is another issue.) Whatever the case, none of these issues were raised by the government.

Sam Heldman

Don't know if anyone is still reading at this point. I have no illusions that Ted will admit that he's writing for a corporatist-Republican propaganda site. I have no knowledge, of course, as to his subjective intent/beliefs. But my description of overlawyered is, I think, perfectly accurate.

As many people know, Ted perhaps among them, the last couple of decades have seen a tremendous concerted effort by some right-wing family foundations and similar groups to fund "think tanks" and other entities that will in turn employ pundits/"experts" who will push the agenda towards the right. Scaife, Bradley, etc. Among the entities funded by such foundations and the like, it appears to me from what I can learn, is the Manhattan Institute -- employer of the founder and "editor" of overlawyered.

I believe it appropriate to call the product of this network "propaganda" when its style of argumentation is built more around exaggerating anecdotal "evidence" than in reasoned discussion of policy. That is the bread and butter of overlawyered, as you can see if you visit.

And indeed you can see an example of this style of discourse in Ted's comment above -- tossing out the name "Dexter Kamilewicz" as putative justification for the class action act. A little googling will show you that the litigation involving Mr. Kamilewicz -- a class action in which some class members ended up paying more in fees than they received in benefit -- (a) is one of extraordinarily few, if not perhaps the only, examples of such a problem that anyone has ever heard of, and (b) would justify precisely one minor and uncontroversial provision in the recent act, but would do nothing to justify the more important remaining aspects of the act. This is what I was talking about: exaggerating anecdotal evidence of a narrow problem, in order to pave the way for legal changes that sweep much more broadly.

Again, I don't mean that Ted is spouting things he doesn't believe, or that he means to be deceptive. I don't know him, so I can't say. But, regardless of his motivation, the site for which he writes falls within a fair definition of the term "propaganda," including the negative connotations of that word.

Finally, I will admit that right-wingers citing Orwell on language really annoy me, more than any aspect of current blog-world discourse except use of the phrase "spot-on" by people who are not British. These tics tend to show up in the same people. This annoyance is my own problem, I recognize.

Ted

I can't pretend anyone's reading this, either, so I'll stop after this.

No doubt some business interests supported the Class Action Fairness Act for selfish reasons, just as trial lawyer lobbying groups opposed the act (including the "uncontroversial provisions") for selfish reasons. Perhaps Heldman is opposing the act for selfish reasons; perhaps for high-minded reasons. But one notes that Heldman has not identified anything actually wrong with the act itself other than his dislike for some people who have supported it.

And you gotta hate the right-wingers like Charles Schumer and Barack Obama who voted for the Class Action Fairness Act.

Dexter Kamilewicz is a particularly egregious example, but hardly the only one, of the need for CAFA. And a search for posts on CAFA on overlawyered.com and the more academically-oriented pointoflaw.com demonstrates that the argumentation on the subject has hardly been one solely of anecdotes.

Moreover, when I see Sam Heldman criticize ATLA or CJD or Ms. Mencimer for their use of anecdotes to oppose litigation reform, I'll be more impressed with his critique of overlawyered.com's use of anecdotes.

s.cotus

Does anyone really think that will be Ted's last post ?

TomFreeland

I don't think it will be Ted's last post.

Does this thread of comments make sense to anyone? This website is providing a service, digesting circuit court opinions WITH LINKS TO THE OPINIONS! Read the opinion, Ted, and draw your own conclusion. That's what we do; we don't inflict anything on anyone, and I suggest you go away if you don't find it useful.

Overlawyered doesn't do anything remotely similar. It's not comprehensive-- just anecdotes that support one side of a debate (in which both sides are often full of not particularly helpful blather, although in my part of the world-- Mississippi-- the "conservatives" are showing a tendency to f**k up a great deal of longstanding law trying to fix something that a narrow-gauge change would fix-- is that what a conservative does??).

Before I end this tirade, I'll note that Sam has described some really deep and serious problems with the class action bill, here and here, and I think perhaps elsewhere, too, on a site where it is more germain.

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