Wednesday Writs for 1/23

Wednesday Writs for 1/23[L1]: In honor of Dr. Martin Luther King, Jr. and the week in which we celebrate his birthday, our case of the week is one of which he was at the center. The year was 1960, and the strife of the civil rights movement raged particularly strong in the south. In Alabama, Dr. King often found himself at odds with local authorities, having being arrested several times and facing criminal charges. On March 29th of that year, the New York Times ran a full page advertisement, titled “Heed Their Rising Voices”, seeking donations to fund Dr. King’s legal defense. The advertisement contained the names of many celebrities, including prominent black celebrities such as Sammy Davis Jr., and Eartha Kitt, and was endorsed by 16 members of the clergy from the south.  The ad described the turmoil in the south, the efforts of the protesters and the actions of law enforcement in response.

But according to L.B. Sullivan, one of three Montgomery City Commissioners, the ad had several inaccuracies and while it did not mention Sullivan in person, he believed the actions described were attributable to himself. The inaccuracies included the erroneous statement that Dr. King had been arrested 7 times, when it was actually 4; that protesters sang ‘My Country Tis of Thee’ on the steps of the state capitol, when it was actually the National Anthem; and that the Alabama State College campus had been “ringed” by “truckloads” of police in response to the demonstration at the capitol. Sullivan, alleging that statements implicating “the police” necessarily referred to him because of his role as the supervisor of the Montgomery Police Department, filed suit against the NY Times for libel. Sullivan was eventually awarded $500,000 by an Alabama jury, which was affirmed by the state supreme court on appeal. The Times took the fight to the United States Supreme Court, and New York Times v. Sullivan became a landmark case on libel and the freedom of the press.

The Court ruled 9-0 in favor of the paper in a decision penned by Justice Brennan. The case established the actual malice standard for libel cases in which the subject of the libel is a public official: “…the First Amendment protects the publication of all statements, even false ones, about the conduct of public officials except when statements are made with actual malice (with knowlege that they are false or in reckless disregard of their truth or falsity.” Further, said Justice Brennan, the “erroneous statement is inevitable in free debate, and… it must be protected if the freedoms of expression are to have the ‘breathing space’ that they need to survive”.

[L2]: In a lawsuit filed by the ACLU of Missouri, the state is violating the right-to-counsel due to its shortage of available public defenders and its refusal to increase funding. The 8th Circuit says the government is immune from the suit. Missouri spends an average of $355 per indigent defense case- or roughly the hourly rate of private counsel.

[L3]: The US Supreme Court rejected a challenge to the appointment of acting US Attorney General Matthew Whittaker on the grounds that his appointment was not confirmed by the Senate. The Court said that while the attorney general position is subject to confirmation, an “acting” official is not, because it is not a “continuing or permanent position.

[L4]: Justice Brett Kavanaugh wrote his first opinion since taking the bench in October, and it’s a doozy of a snore about arbitration.

[L5]: One-hundred years to the day that prohibition became the law, the Supreme Court heard arguments in a booze dispute out of Tennessee. The issue is whether Tennessee may prohibit out-of-state retailers from selling in the state.

[L6]: In a serious case of throwing good money after bad, a California lawyer who battled all the way to the state court of appeals to avoid paying $300 to a former employee says the lawsuit has cost him nearly $100,000.

[L7]: Also out of California, the state Appellate Court ruled that imposing fines against indigent defendants is unconstitutional. The criminal case underlying the decision was a woman convicted of multiple counts of misdemeanor driving on a suspended license. The defendant, a homeless and disabled woman who could not afford the fines, was driving her children to school or going to work. She was ordered jailed for non-payment.

[L8]: In what can only be described as a niche area of law, taxidermy is, it turns out, highly regulated. Check your local laws before you have your beloved cat stuffed. And do not throw away that stuffed bird.

[L9]: Slap a hippo, go to jail: our dumb criminal of the week thought spanking a baby hippo would make for a funny video, and became the subject of an investigation by the LAPD. No one told him hippos kill more people than any other animal in the world, save the mosquito; watch the Darwin contender here:


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Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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26 thoughts on “Wednesday Writs for 1/23

  1. [L6] $300 in wages plus $5700 in fines plus $31000 in the employee’s legal fees, so the payout *started* at $37000, and the other $63000 was tacked on because the employer appealed the legal-fee part of the award but failed to file the proper cover sheet on his appeal form and the trial judge awarded more legal fees to the employee.

    So, no, not “$300 turned into $100,000”, more like “$94,000 turned into $100,000”.

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      • There was never an option to “just pay the $300”. The guy’s payroll provider made an error and the employee filed a lawsuit over it, and the trial court decided that the $300 error required an additional $36,700 in restitution.

        Again–the first chance the guy had to do anything about this was when the cost was $37,000. And he didn’t, actually, dispute the lost-wages part of the claim; it was the $31,000 in attorney’s fees that he disputed, and in fact the court would have been on his side if he’d filed the paperwork properly.

        Like, I get the delicious shareable clickable irony of a story where a big rich turd of a business owner gets fucked because he wouldn’t pay some piddly little sum of money, but that’s really not what’s going on here.

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        • Where do you get that the employee filed a lawsuit immediately upon discovering the error? That would be extremely unlikely. It is more likely that the employer and the payroll refused to timely correct the issue (perhaps because of an internal disagreement over who was liable for the mistake).
          It also doesn’t say who appealed the decision of the labor board to the trial court. If he had paid the wages and the fine, it would have cost him $6K. Since the employee won at the labor board, then it stands to reason that HE is the one who appealed to the trial court and lost, hence the attorney’s fees.
          He would not have had to pay attorney’s fees- at most he would have had to pay the fine and the wages.

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          • “Where do you get that the employee filed a lawsuit immediately upon discovering the error?”

            I didn’t say “immediately”.

            The court ruling issued for the first case is interesting because it shows that the employer actually paid almost a thousand dollars over the wage owed, and paid the rest of the wages before the court case started; it went to trial anyway because the employee claimed that the actual amount owed was sixty thousand dollars.

            And, also, nobody told the employer that he’d misfiled and the case was an unlimited proceeding until the very end of the trial; the court documents sent out described it as a “limited civil” proceeding, and the labor commissioner described it that way as well.

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            • Interesting.
              But it also shows that Beck was indeed the one who appealed the decision of the labor board.
              He could have initially paid the $300, he didn’t (per the decision you linked) so Stratton filed his claim with the labor board. Beck lost. He then could have paid the $6K, but he didn’t. He appealed (which wass his right). He lost again and that’s why he got hit so hard. Since attorney’s fees etc are permitted by statute, he knew the risk when he decided to appeal.
              Also, he’s a lawyer, so he should have known the rules for civil court filings, or looked them up if he didn’t. I’m not surprised they didn’t have much sympathy for him on the missing cover sheet. Cover sheets are a pretty standard requirement.
              If Beck was a pro se lay person, I would be in agreement that the court was unreasonably strict and perhaps unfair, but lawyers are held to higher standards, even when they represent themselves.

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            • The employer was being a jerk. This is the basic background:

              Beck hired Stratton to work for him in September 2013. Stratton quit the job two months later, in November 2013, while Beck was out of town. Stratton left a “somewhat confusing” note on his desk, in which he claimed he was owed a total of $1,957.95 in wages, overtime, and other compensation. Of that, $1,075 was for 43 hours of “straight time” at Stratton’s hourly wage of $25.

              Beck promptly directed his payroll service, ADP, to pay Stratton the $1,075 in ordinary wages. For reasons “no one at trial could explain,” ADP paid Stratton only $771.45 instead of the requested $1,075. Beck later paid Stratton the other moneys he had requested, but did not pay the $303.55 difference between the $1,075 in ordinary wages Stratton was owed and the $771.45 ADP remitted.

              He didn’t pay the $303.55 that he had already told his payroll service to pay. He made the employee go to hearing to recover undisputed wages. My personal view is that the law should impose criminal penalties on such employers.

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              • And the law *did* impose those penalties, and those penalties were the same before and after the court case, so there was never an opportunity to “just pay the $300” and not have those penalties. The appeal that the story is talking about is entirely due to attorney fees, and those weren’t part of the claim until afterwards.

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                • That is incorrect. The case went to three different tribunals. There were two appeals: one from labor board, one from trial court.

                  1. He could have paid the money-$300- as soon as the employee complained he was shorted. He didn’t, so employee goes to labor board.
                  2. Labor board rules in employee’s favor, results in the fines. Employer now owes $6K.
                  3. Employer appeals the ruling, goes to trial court. Employee says ok, fine, but now I want attorney’s fees too (which he was permitted to do because of employer’s screw up on the filing paperwork). Employer lost there, too, and got hit with the attorney’s fees.
                  4. Employer appeals the trial court ruling. Loses.
                  Fin.

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                  • I keep posting after you. I agree with everything you’ve written here, but would have added below that the employer doesn’t pay the approx. $300 until late at stage 3. At “the eve of trial” sounds like he realized he would look bad in front of the judge.

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                    • That’s not at all what you’ve been saying.
                      You keep insisting he never could have paid *just* the $300. Yes, he could have. He didn’t. Then, he could have paid *just* the $6K.He didn’t. He appealed.
                      There were NO attorneys fees assessed until he appealed the labor board decision and lost and the employee asked the trial court for them. Attorney’s fees are statutorily awardable to the employee if the employer loses the case. He, being a lawyer, knew he was taking that risk when he appealed-thus he threw good money after bad, as I said to begin with.

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                • No, he could have paid the outstanding wages when he realized his payroll service had not done so. He could have reduced the accrual of the penalty if he had acted sooner. He could have also argued that the failure to pay was an honest mistake and thus avoided penalties and attorney’s fees, a point the Court addressed in your link:

                  . . . the court in Harrington found that it was “plain that Harrington was underpaid as the result of an honest mistake made in reliance on a formula provided by his union, not based on any willful or knowingly wrongful conduct by” his employer. Here, the superior court found that although Beck initially acted in good faith by calling ADP and arranging payment of the ordinary wages Stratton claimed, he “could no longer claim in good faith the [payment ADP made] was the full amount of straight time owed to [Stratton]” by the time of the hearing before the Labor Commissioner. Beck continued to refuse to pay Stratton the $303.55, however, which the trial court reasonably concluded was an intentional withholding meriting penalties — and attorney’s fees when challenged in superior court.

                  It looks like he paid $303.50, over 600 days late. I call that theft.

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  2. L5: Tennessee’s month for liquor-related cases. Earlier this month the SCOTUS heard a case involving a couple newly-moved to Tennessee challenging the state law requiring that people be residents of the state for two years before they can own a license to operate a liquor store.

    There was a similar case around 1978 while I was a grad student in Texas, in which a group of graduate students challenged the University of Texas’s requirement that you had to be a resident of the state for a full calendar year before you qualified for in-state tuition. In that one the University got smacked down in the state supreme court, which held that you were either an adult resident or not, and if you were a resident, you were entitled to all the rights and privileges of residency. Among the matters they settled was that yes, a dormitory room could be a permanent address.

    The SCOTUSblog write-up on this Tennessee case suggests the Court is wrestling with whether the 21st Amendment gives the state authority to restrict commerce in odd ways when liquor is involved.

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    • Was the residency case argued because UT would not consider being a student for a year a valid requirement of residency? Like, they wanted students to live in the state and not be in school for a year before they could qualify for residency?

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      • In-state tuition was dirt cheap; out-of-state was not. For graduate students in particular, being a TA qualified you for in-state tuition regardless of residency. If they could keep you from qualifying for in-state as a resident, it made the decision to take a research position that paid somewhat more cash but didn’t have the tuition waiver, or an off-campus job, instead of staying in an (often miserable) TA position, more difficult. (Graduate students, last indentured servitude in the US.) Grad students were also more likely to quickly do the things that established residency: get a Texas drivers license/state id and give up your old one; register your car and change your insurance location; register to vote; put your own Texas address on all the forms.

        UT had a substantial grad student population living in graduate dormitories. The rules were different — none of the restrictions on booze or visitors or such applied. Among other things, the University argued that a dormitory room, even on a graduate floor, was different than a room in a boarding house and couldn’t be a permanent address. The courts decided otherwise.

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        • The idea that you should be able to qualify for in-state tuition after living in the state as a student for a year has always struck me as absurd. The whole point of in-state tuition is that your family has (in theory) been paying state taxes, and that you have a connection to the state and are more likely to stay there and continue paying taxes in the future.

          If living in state specifically for the purpose of attending the university qualifies you for in-state tuition, then nobody pays out-of-state tuition for more than one year. Which I guess is fine if you quadruple the out-of-state tuition surcharge so that you collect it all the first year, but given that the university was trying to fight it, they presumably hadn’t done that.

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          • It’s been a long time so the details are fuzzy/missing entirely, but I know the court let a variety of tests stand. I believe that if you were listed as a dependent on a non-resident’s federal income tax form, you “inherited” your status from that. (With assorted exceptions involving whether and when they had lived in Texas.) That catches most undergraduates attempting to scam the system. Such a rule was consistent with the way the state treated you for other financial benefits — eg, food stamps. What the court ruled was that there was nothing special about an in-state tuition benefit for independent adult residents, and the University couldn’t impose its own waiting requirements in excess of those otherwise used by the state.

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  3. I don’t know if the link will work or be pay walled but here is a story about the billable hour possibly leading to overbilling:

    https://www.law.com/thelegalintelligencer/2019/01/18/lawyers-caught-overbilling-the-billable-hour-shares-the-blame/?kw=Lawyers%20Caught%20Overbilling?%20The%20Billable%20Hour%20Shares%20the%20Blame&et=editorial&bu=TheLegalIntelligencer&cn=20190123&src=EMC-Email&pt=AMLegalAlert&slreturn=20190023114542

    This quote stuck out to me:

    “I see a lot of overbilling going on, but a lot of times it’s inadvertent,” said John Conlon, a legal ethics expert who formerly chaired the Indiana State Bar Legal Ethics Committee. He pointed to the act of filing a document, a task courts have said is a clerical task that can’t be billed.

    Adam Smith Esq. partner Janet Stanton, a legal industry consultant, reached the same conclusion. “I think it’s pretty rare that people consciously overbill,” she said.

    “I choose to believe in any industry, that includes Law Land, that 99 percent of people are trying to do the right thing,” she added.

    I read “choose to believe” as “despite all the evidence that the current way of being provides for a lot of incentives to do the opposite, 99 percent of us are super duper honest.” This might or might not be true. I’ve always worked in firms that did contingency fees. The only times I’ve tracked hours is for common billing time on MDLs when the firm was part of the leadership committees.

    But the billable hour is a soul-destroying monster that no one really knows how to get rid of either because they benefit too much and/or it is a collective action problem and no one wants to be the first firm to take the plunge.

    It is true that you only hear about overbilling when it gets really bad but that doesn’t mean it is just a few bad apples.

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