Law Blog

In California, some consider the fight to legalize same-sex marriage as an effort by a small minority to circumvent the will of the majority. Supporters of recently enacted Proposition 8-a constitutional amendment eliminating same-sex marriage in California-hailed the initiative as immune from challenge. The amendment was designed to be invincible from attack by the courts, which have overturned previous voter initiatives banning same-sex marriages in California and Connecticut. Opponents attacked these rulings as going behind the people’s back and forcing a small minority’s agenda on society. Now, they insist, the people’s will has finally triumphed.

Not so fast. A case filed by the ACLU in the California Supreme Court on November 5^th, 2008 charges that the Proposition itself is an unconstitutional attempt by the voters of California to revise the constitution, not amend it.

According to Article 18 of the California Constitution, amendments to the Constitution can be made by popular vote. Revisions, however, require legislative action. A revision, according to the California Supreme Court, is a change to the fundamental underlying principles of the Constitution itself. An amendment is merely an addition or change within the lines of the original instrument, or any change designed to better carry out the fundamental principles of the Constitution.

The California Supreme Court has frequently stated that equal protection is a fundamental principle of the California Constitution. Court documents filed for the petitioners argue that because Prop 8 eliminates the right of same-sex couples to marry, Proposition 8 is revising the Constitution by mandating government discrimination of a suspect class, contrary to the Constitution’s underlying principles of equal protection. (Same-sex couples were designated a suspect class with the fundamental right to marry in the In re Marriage cases of early 2008.) The Proposition also fundamentally alters the role of the courts by stripping them of their ability to protect the fundamental rights of a minority against the tyranny of the majority, a basic principle of our Republic’s system of checks and balances.

It makes sense initially to balk at the Supreme Court stepping in and twice overturning laws enacted by the people in democratic elections. However, what is being lost in articles and commentaries on this important case is a discussion of the true nature of government, and the definition of “will of the people.”

The government cannot enforce the will of the majority when it lacks the authority to do so. To accomplish the extraordinary feat of enforcing government discrimination and circumventing the underlying principles of our Constitution, a simple majority vote cannot suffice. The will of the people was permanently embodied in the California Constitution when it was ratified. Their will was ensuring equality for all and the protection of human dignity and liberty, and this voice should always speak louder than a simple majority vote. Hopefully that will was not changed by Proposition 8.

Once upon a time, lawyers were venerated for their fine morals and commitment to upholding the law.  Since the 1970s, however, public opinion has plummeted.  In fact, according to recent polls, lawyers were among the five least-trusted occupations, and almost half of respondents ranked the legal profession as having either “some or hardly any prestige at all.”

What happened?  Some say that pop culture and the media’s portrayal of lawyers (think Carlito’s Way, The Devil’s Advocate, and The Firm) has dampened public opinion, and certainly there are bad apples who fuel negative stereotypes; moreover, some dismiss the State Bar’s disciplinary practices as woefully inadequate.  Others point out the sad reality that most people associate lawyers with some of the worst times in their lives – divorces, personal injuries, and probating a loved one’s will, for example.  

Another reason for lawyers’ bum rep stems from the fact that criminal cases – despite being a slight minority of lawsuits overall – are made much more public than civil ones.  Furthermore, people tend to distrust lawyers because their profession sometimes calls on them to defend the “worst of the worst.”  Finally, even when people have a good experience with a lawyer, many see that experience as unusual and cling to the more global negative perception of lawyers.

One way to address negative perceptions as well as legitimate concerns surrounding the legal profession is to start early – by training students in Christian law schools or offering additional ethics classes at traditional law schools.  At the other end of the timeline, solutions include privatizing professional liability boards and forcing wayward lawyers to pay for the costs of their own prosecution. 

While religious-based education may not be for everyone and reformed disciplinary measures may come too late, I’m hopeful that as truthful information about lawyers becomes more accessible to the general public, and prospective clients are given the proper background information to choose a lawyer wisely, we can dispel some persistent myths.  In the meantime, I hope studios start producing more movies like The Rainmaker or Erin Brockovich . . .

Instead of voting in the next election, why not just put your USB into a voting machine and upload your preferred results? If you live in a state that uses Sequoia Voting System technology, this is not a joke. This can actually happen.

In 2004, the Rutgers Law School Constitutional Litigation Clinic filed a lawsuit against the State seeking de-certification of 10,000 Sequoia AVC machines in New Jersey. It has taken 4 years of discovery and pre-trial litigation for a report to finally be released detailing numerous security flaws in Sequoia’s machines. Unfortunately, the case will not be resolved until sometime after the presidential election.

Computer Science experts analyzing New Jersey’s Sequoia DRE (direct recording electronic) voting machines discovered that voters and election officials alike had the ability to alter votes without leaving behind any evidence of tampering. Votes could be manipulated by physically opening the machines or bypassing unsophisticated security measures on the computers used to count and calibrate them. You can read their report (In a disturbing turn, experts on Sequoia voting machines were recently denied when they asked for permission to view votes being read from the machines this election.)

The voting machines were so easily tampered with that the Judge wanted guards posted at centers where machines were kept before the election, a request denied by the state. Amazingly, New Jersey’s Sequoia voting machines do not even leave a paper trail, which may eliminate several of these security flaws. New Jersey is one of a handful of states using touch screen voting machines that do not print hard copies of every voter’s choices, meaning there is nothing to examine if something goes awry.

How easily can something go awry? According to a report by Computer Science Professors at the University of California Santa Barbara, all it takes is a paperclip or a USB drive. In fact, this is not the first time Sequoia or other DRE machines have been criticized. In 2007, California ordered a full-scale review of every electronic voting system used in the state, which led to sweeping security measures and even decertification of some machines, including those made by Sequoia. Ohio conducted a similar review of its electronic voting systems. The report found all the voting machines currently in use suspect and also recommended their de-certification.

Tampering with votes on DRE machines generally requires surreptitious access to the machines, or one unscrupulous election official. You might be thinking: what else is new? However, these machines were heralded as the new weapon in the fight against election fraud. Billions of dollars was spent on buying the machines, setting them up, and training election officials in their use.

What are we left with after this substantial investment? In some states, an unreliable voting system where there is no guarantee that your vote will be accurately counted. Although no system is perfect, the least we can do is try and move forward, not backward.

Currently, all U.S. states have some type of “safe haven” law.  These laws allow parents or guardians to leave their children in the care of the state by dropping them at a local hospital or police station without fear of criminal prosecution (so long as there has been no abuse).  Nebraska is the only state to adopt a safe haven law without specifying an age limit, and over the three months since the law took effect, 18 young children and teens have been deposited at these facilities.

Safe haven laws were originally enacted to prevent infanticide and to protect very young children, and Nebraska’s law is clearly having unintended effects.  So far, most criticism of the law has focused on how it supposedly allows parents to shirk their responsibilities and how older children will be irreparably damaged by abandonment.  While older children and teens will certainly suffer from being abandoned, and the law should definitely not be used by parents as a “scare tactic,” to control unruly teens, I wonder if society’s outrage is misplaced . . .

In response to public outcry over the law, Governor Dave Heineman and Speaker of the Legislature Mike Flood have announced plans to amend the law, and will probably set the age limit at three days old.  Yet, until all of Nebraska’s parents provide safe, loving homes, or the government provides adequate social services for children and teens at risk, children who might be abandoned under the safe haven law may be worse off after it’s amended.

I think that the vast majority of parents would only abandon their children if they saw no other way to properly care for them.  According to Voices for Children, 15% of children in Nebraska were living in poverty and 36% lived in homes considered “low income.”  Parents who simply lack the money or other resources to care for their children should not be condemned for giving up custody for the state.  And parents who recognize that they are abusive toward their children – whatever age they may be – should have an easy way to get their kids to safety.

In 2006, authorities substantiated 3,065 cases of abuse and neglect involving 4,501 Nebraska children, and 17 Nebraska children died as a result of child abuse or homicide.  Hopefully, the Nebraska Department of Health and Human Services and other social service agencies will be able to fill some of the gaps that caused parents to abandon their children in the first place.  If you or a family you know in needs help, please contact the Boys Town National Hotline at 1-800-448-3000, Childhelp USA at 1-800-4-A-CHILD, or visit the Human Services of Nebraska or The Department of Health & Human Services’ Administration for Children and Families.

We’ve all heard of people getting into minor fender-benders, hiring an attorney, and suddenly hitting the jackpot.  Some people have even been arrested for purposefully staging car accidents with hopes of making it big. 

My experience has shown: the gold-rush days of auto accident recoveries have long ago passed.  If you get in a car wreck, don’t expect to retire anytime soon.  You’ll likely get some money, but nowhere near an amount you’ll think is fair to make up for all your pain and suffering, inconvenience, and lost time.   

Worse, people with legitimate injuries now must fight for proper compensation from auto insurance companies.  If you get into a car accident, and suffer anything less than a broken bone, prepare for a fight. 

This is bad news for many LegalMatch consumers who have automobile collisions.  I went through and tabulated the most commonly cited injuries they suffered from auto accidents in 2008.  Next to each injury, I cite the percentage of people who cited the ailment when posting their auto accident case on LegalMatch:

1. Neck pain 49%
2. Lower back pain 42%
3. Headaches 39%
4. Shoulder pain 37%
5. Upper back pain 34%
6. Difficulty sleeping 31%
7. Anxiety 25%
8. Cuts and bruises 20%
9. Loss of feeling in part of body 12%
10. Broken bones 10%

Of the thousands of auto accident cases posted on LegalMatch in 2008, it’s not surprising that the most commonly cited injuries are neck and back pain.  Many people in auto crashes suffer traumatic whiplashes from blunt force impacts, which inevitably lead to neck pain and headaches.  And with any of the ailments noted above, they can make it very difficult for someone to sleep properly.         

The only physical manifestations of an injury noted above are “cuts and bruises”, which 20% of people suffered, and “broken bones”, which 10% of people cited.  The rest of the injuries are not visible injuries that a doctor can see.  This makes it very difficult for insurance companies to determine who is telling the truth and really suffering, and who is trying to milk them for an unmerited windfall.