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captainsblogI actually worked close to 9 to 5 day in Rochester on Wednesday, and the beginning of this post was written while I was driving back home from it with my Bluetooth off. Found that dictating into my phone gets much more degraded when it runs through the car audio, especially in Eleanor‘s car. So hopefully this will work out better with my words just transmitting through the air. Which, by the way, sucks again this week. The dim color and odor of the Canadian wildfires are back with us, only today instead of tasting like a woodfired barbecue, it’s got the taste of plastic. Apparently this is a function of UV light messing with the chemicals in the burning air, as this explainer from another border state lays out in a quote from a toxicologist at the Michigan Environment, Great Lakes and Energy Department:
"Wood fires emit a lot of volatile organic compounds (VOCs). Most of these VOCs are noticeable to our noses as the familiar ‘campfire’ smell, but they break down quickly when exposed to UV radiation from sunlight. Other VOCs like benzene, formaldehyde, and acrolein are also released, and they outlast the ‘campfire’ VOCs. It’s these chemical compounds that you’re smelling as the smoke wafts around for a few days and settles to the ground and reaches your nose.”
Fun? Wow!
But hopefully without too many ridiculous typos, I can take you through the four court cases I wanted to discuss. The oldest one is mine, the new local one is from federal court in New York, and the other two have and will come up from the Supremes in Washington DC.
Starting with the one that is the nearest, dearest and definitely the oldest.
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I have occasionally represented insurance companies over the years. These typically, but not exclusively, have been commercial matters where a bonding company issued a bond, which is what they do, to guarantee completion of a construction project. They typically make sure that the company and its owner(s) agree to "indemnify“ them for any money they pay out on claims against the bond. In some cases, claims of this kind can survive even a bankruptcy, and the other day I was looking for a form I had filed in such a court many years ago to extend time for something. I couldn’t remember the name of the case, but I knew it would have the word “surety" (not "Shorty," Siri:P) in there somewhere. When my computer brought up a list of a few nominees, I eventually found what I was looking for, but it also brought up one of the strangest cases I’ve ever handled.
Another thing insurance companies will sometimes hire a lawyer for is to bring a “subrogation“ claim. The most common example is where someone hits your car and causes damage. First, you report it as a claim on your own insurance. To get you back on the road, they will typically pay that claim, less your deductible, if you've got collision insurance. But they will then go after the other guy for everything they paid out, plus your deductible on top of it, if the other guy is plainly at fault. That’s what’s known as the insurance company “subrogating” to your rights arising out of the accident in getting their money back.
Here’s a very uncommon way it could, but did, happen. Let’s say you run a restaurant. Let’s say you have a decent insurance policy. Let’s also say you hired a real sleazy guy and gave him one of your business credit cards. Finally, let’s say he decides to go on a two-day bender to New York City and uses that card to run up a tab at a strip club. We’ll get to the how much in a moment, but the sequence is the same as with the car accident situation. (Amazingly, Siri didn’t translate that as “sequins,“ even though there might’ve been some of those on the girls.) The insurance company immediately reimburses the restaurant under the theft policy the owner very wisely took out. The insurer then “subrogates” to the restaurant's rights and can sue the bad guy for the tabby rat up. I’m leaving that last typo for "tab he ran up," because I think it’s reasonably accurate. Take a guess which of these four numbers the guy managed to exceed in under 48 hours:
How much DID our bad boy run up at a scrip club in under 48 hours in 2002?
(A) Five thousand dollars!
1 (25.0%)
(B) Fifteen thousand dollars!
0 (0.0%)
(C) Thirty thousand dollars!
2 (50.0%)
(D) $1,000,000 and he put a green G-string in her ticky box!*
1 (25.0%)
* But not a real green G-string, that's cruel
Yes it’s C, it’s always C.
After they paid out, the case came to me. I sued the guy in a court that was local to me. He hired a lawyer to put in an answer and demanded that I "change venue“ of the case to where he was located. This was a situation where he was legally right but practically stupid. I wrote him back and told him, Dude, if this case gets picked up in the local papers in Essex County New York, is going to make your guy look bad.
He came to his senses and it stayed where it was. A few months later, after I scheduled it for trial, the judge called us in for conference, stared the lawyer down, and said, in so many words, REALLY?!?
We agreed to a minor reduction of the amount the kid stole, allowed him to pay it over time, but most importantly we were allowed to file a judgment right then for the amount of the settlement, on the understanding that it could be enforced if he didn’t keep the terms of the agreement. That is when I ended active involvement in the case, since the payments were directed to the insurance company. The firm I was then with ceased to exist a year or so later, I left the successor entity to it in 2006, and my main remaining contact with that organization died of COVID in 2020 after already being afflicted with Alzheimer’s. So the happenstance of my finding my old file document on it was the first time I laid eyes on specifics of this case in close to 20 years.
The "20 year" part turns out to be important, because judgments in New York are good for 20 years, and it's been accumulating 9 percent interest this whole time to the extent it was never paid. On something of a lark, I tracked down what appeared to be the successor to the law firm sent this to me all those years ago and emailed them about it. Within two hours, I had a call from the insurance company.
Unfortunately, they didn’t have any record of the claim, the employer or the bad guy. It’s enough of a claim, and enough of a story underneath it, to put a little more time into investigating it, so I ordered the court file on my way out of Rochester and we’ll see if anything turns up. There can’t be too many guys have by name in Essex County New York, and I’m pretty good at finding people, even ones who don’t want to be found, so we’ll see how it goes.
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Our next actual case from New York is one that had not actual cases. The federal judge in the chatbot case ruled late last week. You can access the actual opinion by clicking link 54 in this free docket (which may show up as a download in your browser), but to be honest, I think they got off easy. Here’s what the decision did and didn’t do:
- No referral to state disciplinary authorities or to discipline from the judges of the SDNY federal bar (though that may well proceed independently and privately until they come down);
- No mandatory continuing education imposed, since the firm has already pinky-sworn they're doing that themselves;
- A $5,000 sanction, jointly imposed on the bad actors and their firm, to be paid to the Registry of the Court (Not-theJudge Badass here would have directed it to the Electronic Frontier Foundation or some similar good actor. Also, there would have been more zeroes in back of that five);
- Each actual judge besmirched by the bad actors having "cited" a fake case with that judge's name on it is to receive a letter from the bad actors informing them of the bad act for whatever sanctioning, shaming or mocking they deem appropriate. "The Court will not require an apology from Respondents because a compelled apology is not a sincere apology. Any decision to apologize is left to Respondents;" and
- No award of attorneys fees to the opposing party which probably had to drop more than 50,000 dimes worth of time in dealing with this mess;
Oh, and in a separate opinon, Hizzoner dismissed the bad actors' case. So we've got that going for us, which is nice.
Link is to entire docket. Dismissal is Document 55, but the good stuff is in 54. Free links because somebody scraped it off PACER for us.
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Then there's what's going on with SCOTUS.
The "First Monday in October“ used to be the media trope, for when the Court began sitting for its annual term. They even made a fairly cheesy movie with that as the title years ago, but now it’s really the last week in June that gets all the attention. That’s when this bitterly divided and openly partisan bunch comes out with their biggest decisions, at least the ones they don’t disappear down a memory hole through their “shadow docket.” In recent years, it was when gay marriage was approved, Obamacare upheld, and more recently, abortion rights eviscerated; but this year has several big ones.
The one on Tuesday, which followed a surprising number of cases where the Court actually found violations of the Voting Rights Act by Republicans, was titled Moore v. Harper. This had nothing to do with Jeannie C. Riley’s PTA, but with whether five crazed Republican appointees would take a single footnote in a Bush v. Gore concurring opinion and turn it into a “doctrine" giving state legislatures virtually absolute power over federal elections within their boundaries. Six of the nine justices, including both of TFG’s final appointees, said no to that.
Well, they sort of did. They did say that state legislators do not have such absolute power, but they also said that state court judges don't have absolute power either. So we’re likely now to spend the next several years with Republican state Lejs saying, "Okay, how about we only gerrymander all the Blacks in our state into TWO districts instead of just one? Is that too far?” And two election cycles later, when they finally decide that it was, the whole thing will get kicked down the road another two years until Congress finally becomes completely gerrymandered and says, as the Constitution says they can say, fine, y’all do whatever you want to the scary Black people.
Speaking of SBP's, after taking a day off yesterday to do whatever Supreme Justices do between big decisions, they were back today with another evisceration, this one of affirmative action in college admissions. The three craziest dissenters from the Tuesday decision were joined by the other Trump appointees and by the Chief Justice himself in declaring that the no quotas but you can consider race principle laid down in their Bakke decision 45 years ago was in desperate need of overruling. Now, Harvard and that lot can't consider race at all in its decisions, though they can still allow Oliver Barrett XIV to be admitted under a legacy admission program because, hey, plenty of Black families were here after 1619 to start such dynasties, right? A Black poet-by-night friend of ours, who we saw Wednesday night when we went to our biweekly poetry event (or, as Eleanor's brother thought she said, the "pull a tree" event) (Charlie's getting too close with Siri, yo), had a long career as a PhD math professor at UB. Here's what he had to say earlier today about this latest court bullshit:
University had zero in its Sciences and Mathematics when Affirmative Action caused them to hire two of us, one Black one Puerto Rican. We were significantly better than expected.
After he left I was the only one the next 30 years. Each time I brought them a stellar candidate, they hired a white guy who stayed at most 3 years. Now they need not make excuses.
That's him, reading for us at the start of the event last night. We would never have had the chance to learn of the "content of his character" if the government hadn't beaten down almost 400 years of beatings of his ancestors to let him display it. Now, unless we fix things at the ballot box, his grandkids won't have that chance.
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Just one more big one to go: the student loan decision, perhaps impacting me more than any I've mentioned here. There may have been a hint in one of today's lower-on-the-page headlined stories about the Court affirming a different "affirmative action" program, one intended to keep First Nations children adoptions within tribes whenever possible. Thomas and Alito, the most ethically challenged Bush appointees on the court, were the only ones who didn't want it upheld. Key to tomorrow's ruling, though? The Court rejected some of the arguments against the law on standing grounds, and the challenges to Biden's partial forgiveness program "stand" on some of the weakest and most thinly constructed concepts of actual injury. Roberts might get two of the four in the Republican bloc to reject the case on that ground.
Or the six of them may impose upon me, and millions of others, its own form of affirmative action by screwing everybody regardless of their race, their color or their creed.