... and Justice for All: February 2016

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February 2016

February 23, 2016

Civil Suit Filings in Kentucky Continue to Plummet

Reading my trade rag over the weekend, the Kentucky Bench & Bar, I came upon an interesting article by Judge Greg Bartlett of the Kenton Circuit Court: The Judiciary: The Transformation Continues. Judge Bartlett reports the remarkable and to me stunning decline in civil suit filings in Kentucky:

According to the Administrative Office of the Courts, there were 66, 141 civil suits filed in our state courts in 2010. By 2014, that number had steadily declined to 35,210. During the same time frame, criminal cases in circuit courts remained steady: 32,155 in 2010 and 32,067 in 2014. As one example, in the Kenton Circuit Court, civil suit filings fell from 2,867 in 2010 in 1,370 in 2014.

Statewide that's about a 47% decline in civil suit filings in a five-year period. In Kenton County, a large-population county growing in population, a greater than 50% reduction.

I have no explanation for these numbers, only a partial theory in two parts. First, the filings in 2010 were inflated by the Great Recession that took hold in 2008. Any lawyer that has spent much time at civil motion hours in circuit courts these past few years has noticed the increased number of foreclosure and collection suits. Many have heard circuit court judges lament their duty of kicking families out of their homes. Second is the somewhat increasing prevalence of arbitration. My own sense is that these two components are but a small part of the explanation. I am at a loss regarding the full explanation.

Thanks to Judge Bartlett for a most interesting and circumspect article.

Robert L. Abell
www.RobertAbellLaw.com

Posted by Robert Abell on February 23, 2016 in justice system | Permalink | Comments (0)

Tags: Bench & Bar, Judge Bartlett

February 22, 2016

the Ladder of Law Has No Top and No Bottom; Bob Dylan as a Legal Authority

The order must be rapidly fadin'. Adam Liptak reports in the New York Times how Chief Justice John Roberts has unleashed a torrent of citations to Bob Dylan's songs by courts and judges all across the country: How Does It Feel, Chief Justice Roberts, to Hone a Dylan Quote?

Here's one of the master's lesser-known reflections on justice:

Remember: to live outside the law you must be honest.

Robert L. Abell
www.RobertAbellLaw.com

Posted by Robert Abell on February 22, 2016 in free speech | Permalink | Comments (0)

Tags: Bob Dylan, John Roberts

February 18, 2016

A Clear-Eyed Assessment of Justice Scalia

Linda Greenhouse offers in the New York Times a clear-eyed assessment of Supreme Court Justice Antonia Scalia, whose untimely passing was last Saturday, Resetting the Post-Scalia Supreme Court. A few salient points:

While Justice Scalia asserted that the Constitution was "dead," that only its text as understood by its writers at the time they wrote it could or should dictate a decision, that the Supreme Court should never recognize what he called "new rights," he had no problem finding that corporations have First Amendment rights to spend endless amounts of money on political campaigns.
One might also remember Justice Scalia's cheering of the Court's evisceration of the Voting Rights Act, which had passed in the Senate 96-0, in Shelby Co. v. Holder when he remarked during oral argument:

“And this last enactment, not a single vote in the Senate against it. And the House is pretty much the same. Now, I don’t think that’s attributable to the fact that it is so much clearer now that we need this. I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It’s been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes. I don’t think there is anything to be gained by any senator to vote against continuation of this act. And I am fairly confident it will be re-enacted in perpetuity unless — unless a court can say it does not comport with the Constitution.”

Equally troubling was his suggestion recently in the University of Texas affirmative action case that the university's policy put some students at a disadvantage or where they shouldn't be, that it put them in over their heads, that they would be better at “a less advanced school, a slower-track school where they do well.”

The greatest contribution that Justice Scalia had to American law was to make it fashionable for judges to pursue an ideological agenda, both on and off the bench. Not just decide cases but actively pursue a political agenda. The inevitably and for the worse has creeped into all levels of our court system, not to every judge everywhere, but it has become a not too uncommon element of the American justice system.

And probably that is why such a scrum has started and will continue until Justice Scalia's seat is filled.

Robert L. Abell
www.RobertAbellLaw.com

Posted by Robert Abell on February 18, 2016 in Supreme Court | Permalink | Comments (0)

Tags: Justice Scalia, Linda Greenhouse, Voting Rights Act

February 11, 2016

Rough Day at the Courthouse: "You don’t add a bit of value, do you?" - Judge to Lawyer

Some days as a lawyer are rough, real rough. The Washington Post reports on the dissatisfaction of a federal district judge in Texas, Hon. Lynn Hughes, with some Department of Justice prosecutors, "You don't add a bit of value, do you?" - Texas Judge Berates Government Lawyers.

I've never had that said to me, but it is perhaps the case that some judge on one day or another may have entertained the thought. And vice-versa.

Robert L. Abell
www.RobertAbellLaw.com

Posted by Robert Abell on February 11, 2016 in justice system | Permalink | Comments (0)

Tags: Department of Justice, Judge Hughes

February 05, 2016

"Fairyland" Damages and Samuel Johnson in the Sixth Circuit

In an illustration that a good lead always attracts the reader, the Sixth Circuit's opinion in United States ex. rel. Wall v. Circle C Construction LLC begins:

Samuel Johnson would have had little patience for this case. Johnson once responded to the metaphysics of George Berkeley – a contemporary English philosopher who argued that matter has no existence – by kicking a large stone and declaring, "I refute it thus." One can do rather the same thing with the government's theory here.

The case is about 42 warehouses that were built at Ft. Campbell. The warehouses all turned out fine and, by all accounts, the government was using them pretty much as you would expect a warehouse to be used. Except there was one problem: a subcontractor had underpaid some electricians about $9900 less than the prevailing wage required by the Davis-Bacon Act. These underpayments made Circle C liable to the government under the False Claims Act, which would allow it recovery of its actual damages times three. The District Court determined that the government's actual damages were $259,298.18, the entire and complete amount paid for the electrical work on the warehouses; tripled that comes to $777,894.54.

The government's theory was that, notwithstanding that the electrical work was fine and everything worked okay, the electrical work was valueless, that everything – the wiring, circuits, switches, everything, in every building – was irrevocably tainted by the $9916 underpayment to the electricians. That overreaching claim was "belied by the government's own conduct in using the buildings."

The Sixth Circuit explained:

Actual damages by definition are damages grounded in reality. And in the real world the government could not forever withhold all payments to a contractor for work on several dozen warehouses, and yet have the work continue to completion and the government continue to use the warehouses to this day. The damages the government seeks to recover here are fairyland rather than actual.

The underpayment had been $9916, which tripled is $29,748. Since a $15,000 settlement payment had already been made, the court held that Circle C is liable for a total of $14,748. Accordingly, the Sixth Circuit reversed the District Court judgment awarding damages of $763,000 and remanded with instructions to enter judgment for the United States in the amount of $14,748.

The Sixth Circuit's opinion was written by Circuit Judge Raymond Keithledge. Judge Kethledge obtained his B.A. from the University of Michigan but I can find no information regarding his major or field of studies. Somewhere, though, he came upon, one presumes, Mr. Johnson's writings.

Robert L. Abell
www.RobertAbellLaw.com