Huffington Post Documents How Bad Civil Courts Rationing Is

Rationing justice, civil and criminal, begins with overburdened courts. And Huffington Post just released well-researched report on just how bad it’s become on a federal level, with more than 60 judgeships going unfilled and pleas for more help being ignored by the U.S. Congress. In some cases, judges are handling hundreds more cases than “normal” while pushing cases further and further away, threatening anyone’s hopes of achieving justice.
The report explains: “The Huffington Post talked to half a dozen federal judges about how court vacancies and the lack of new judgeships affect their workloads. All of them said they feel like they’re underwater and desperately need more judges, but at the same time, they aren’t comfortable calling out Congress for failing to do its job. Many didn’t feel it appropriate for a judge to weigh in on legislative or political matters. So their situations don’t change.”
It includes: “For the most part, we’ve just resigned ourselves that this is our fate and there’s nothing we can do about it,” said Judge Morrison England Jr., the chief judge of the U.S. District Court for the Eastern District of California, which includes O’Neill’s Fresno division. “We’ve complained. We’ve begged. We’ve cajoled. We’ve done everything you can humanly do to try to get additional judgeships.” Yahoo adds that the Fresno division is among the hardest hit in the country, and even getting the allotted judges would not meet caseload demand.

VICE News Looking Hard At Migrant Family Lockups

The VICE media network has made a living off covering stories under-reported by mainstream (or, more accurately, “more mainstream”) media, and it is focusing on American jails this week. Mostly that is going to involve criminal lockups, but the VICE News is reporting on the family lockups facing a federal judge’s order to release families – and how the government is likely to work around that order.
The report notes what other have missed: “With tens of thousands of migrants flooding into Europe in recent months, it’s easy to forget that the US faced its own refugee crisis last summer when scores of children and mothers bolted from Central America amid heightened gang and drug violence. Desperate for a safe haven, the families mounted buses and trains through Mexico and then poured across the Texas border, seeking political asylum.” To that we would add: Last summer? How about now?
VICE gives some context: “… to combat the influx, the Department of Homeland Security (DHS) launched an “aggressive deterrence” strategy last July designed to discourage more people from coming. The solution, DHS Secretary Jeh Johnson announced, was to lock up Central American moms and kids as they fought their asylum cases in court. Previously, DHS did not detain such families, but rather allowed them to pay a small bond as an assurance they would show up to their court dates.
The new DHS strategy spawned a massive, long-term family detention system for Central American people seeking asylum in the US. The agency contracted the nation’s two biggest private prison companies to open facilities in southern Texas that hold about 3,000 people combined and cost taxpayers hundreds of millions of dollars to operate. Many families have spent seven or eight months in detention while awaiting their day in court.”
Check out what very likely is going to happen next here.

Charter Schools Efforts Play Out In Courts

Dan Walters, the Sacramento Bee columnist who is picked up by other papers statewide, has noted the ongoing school reform battles that usually end up in civil court. In the context of state officials handing off to local jurisdictions, he noted that they “… haven’t succeeded in persuading judges that they can wash their hands of responsibility, most recently in a suit filed by the American Civil Liberties Union on behalf of high-risk students, alleging that they hadn’t received the attention state and federal law require.”
“A state cannot abdicate its supervisory responsibilities by ignoring credible evidence of persistent or significant district noncompliance,” Los Angeles Superior Court Judge James Chalfant declared in a recent 45-page decision. “If districts fail to provide services and the state has notice of this failure, the state has a duty … to take reasonable action.”
Faced with that, writes Walters, state officials backed down and agreed to monitor what districts are doing for high-risk kids. The writer does not make this point, but the column offers an example of how much civil courts have become policy-setting bodies. Read the story here.

As Government Delays, Civil Lawsuits Set Pot Policies

As California considers a sweeping regulatory changes in how it handles marijuana use, the civil courts continue to define how laws will actually be applied. A good recent example, covered by NBC in San Diego, involves a “… couple whose home was raided by agents with guns drawn” who has filed a lawsuit against San Diego law enforcement, alleging their rights as medical marijuana patients were violated.
The report points out that “… the lawsuit filed in U.S. District Court is the latest example of the ongoing debate over the rights of medical marijuana patients in California – how their treatment is regulated and how, according to their attorney, these type of cases are perceived by law enforcement.” This particular couple had previously arrested and put on trial for marijuana infractions, but found innocent.

What Should We Call Those Migrant Refugee Immigrants Seeking Asylum?

Words matter, and the U.S. media has been struggling to settle on what to call all those folks seeking to leave a very bad place in hopes of a better life. Actually, that would not qualify for “refugee” status, which requires a human to be fleeing war zones or natural disasters. Migrant is a wider net, but loses some of the urgency. “Immigration” carries its own weight. Those seeking asylum, with those political overtones, are yet another situation.

The NPR ombudsman offered an on-air outline of how that standards-leading group approaches the wording. The one thing that seems clear is that just leaving a place because it sucks does not gain the benefits of other status.

See the report here: ‘Refugee’ Or ‘Migrant': How To Refer To Those Fleeing Home

California Finally Moves To Regulate Legal Marijuana

The Golden State was the first to legalize medical marijuana, but was also the first of several states to drag its feet on how to regulate growing and selling the now-legal medicine. Now, 20 years after the Compassionate Use Act of 1996, the state legislature has passed several bills that establish “seed to sale” systems. Proponents of medical marijuana are wasting little time in urging Gov. Brown to sign the bills into law, noting that he did help draft the regulations.
The Los Angles Times has a fine editorial asking the gov to not only sign the bills, but take an active role in making sure they are implemented. The LAT says that previous efforts have “… provided little guidance on how the state could help ailing patients get the drug — or how to keep it out of the hands of those who weren’t entitled to it. Legislators repeatedly failed to develop rules, so cities and counties adopted a patchwork of policies, which triggered a series of lawsuits and judgments that created a confusing mess for patients, law enforcement, cannabis growers and dispensary operators.”
Read the newspaper’s argument, signed by “the editorial board,” here: Gov. Brown, sign the medical marijuana bills

New Federal Law Targets Civil Pot-Forfeiture Issues

For anyone who noted the civil forfeiture issues raised by HBO’s John Oliver (and if you have not, stop whatever you’re doing and watch it now), there’s news of a bill that would target the marijuana aspects of the practice, cutting off some funding for the DEA.
On a Forbes Magazine “recommended blog,” Nick Sibilla of the Institute for Justice reports that a bipartisan bill in Congress “… would prevent the Drug Enforcement Administration (DEA) from using federal forfeiture funds to pay for its Domestic Cannabis Eradication/Suppression Program. Additionally, the bill would ban transferring property to federal, state or local agencies if that property ‘is used for any purpose pertaining to’ the DEA’s marijuana eradication program.”
The blog adds some context: “Last year, the program was responsible for over 6,300 arrests, eradicating over 4.3 million marijuana plants and seizing $27.3 million in assets. More than half of all plants destroyed were in California, which also accounted for over one-third of seized assets and nearly 40 percent of the arrests.”

US Increases Cap On Accepting Refugees

Photo from The New York Times 9/21 article. They report "Migrants in Bregana, Croatia, near the border with Slovenia. Authorities in Slovenia on Sunday were halting migrants at its border with Croatia to the south and allowing them to pass in small groups."

Photo from The New York Times 9/21 article. They report “Migrants in Bregana, Croatia, near the border with Slovenia. Authorities in Slovenia on Sunday were halting migrants at its border with Croatia to the south and allowing them to pass in small groups.”

Secretary of State John Kerry, speaking in Germany, announced that the United States will increase the number of “worldwide” refugees it will accept until it reaches 100,00 per year in 2017. That is up from the current annual cap of 70,000. The move is in reaction to the high-profile crisis involving European migration and there was no conversation about how the than 400,000 pending immigration cases, many of which involve refugee status claims, might be effected.

Civil Rights Report Blasts Family Detention Centers For Asylum Seekers

A new report released last week by the U.S. Commission on Civil Rights, added to the complaints about the U.S. government’s family detention centers that house asylum seekers who entered the country illegally. Reuters is reporting that the group said it found evidence that the federal government “was interfering with the constitutional rights afforded to detained immigrants,” including their access to legal representation.
Reuters offers context: “… a year ago, President Barack Obama responded to a ‘humanitarian crisis’ unfolding on the U.S. southwestern border with Mexico, as tens of thousands of children – some traveling with parents and others alone – arrived from El Salvador, Guatemala and Honduras. Among steps he took were a rapid expansion of detention facilities for migrant women and children. It marked a departure from previous practices of largely tracking the immigrants with electronic ankle bracelets and telephone check-ins, which immigration rights groups argued were effective and far less costly.”
Meanwhile, a federal judge in California has ordered the government to close the facilities because they violate a longstanding agreement on how such asylum seekers will be treated. See that story in the L.A. Times here.

‘Outlier': Garlock Case Gives Traction to Asbestos Fraud Claims

Originally featured in the Huffington Post. 

Even if all you know (or ever want to know) about the world of asbestos litigation business comes from those unavoidable “if you or a loved one has been diagnosed with mesothelioma” commercials, you still ought to know that big changes are coming to what is called the longest-running personal injury litigation in the United States; some estimates (okay, mine) say it does about $10 billion a year, making it as big as the “industry” of pro football, the NFL.

Multiple defense lawyers have been alleging institutional and operational fraud for years, but lately those charges are gaining some credence. From North Carolina to New York, cases that were initially discredited by victims’ attorneys as mere “outliers” are gaining traction as federal courts allow lawsuits to advance.

For example, politically savvy New Yorkers are likely aware that Manhattan’s Sheldon Silver resigned his longtime post as State Assembly Speaker earlier this year after he was indicted on fraud and extortion charges in a $4 million influence-peddling scheme. However, they may not have made the connection that his fraud charges stemmed from how victims of mesothelioma, the “asbestos cancer,” found legal help. Prosecutors allege Speaker Silver steered taxpayer money to a clinic in exchange for the clinic steering victims to his law firm, in turn receiving millions of dollars in referral payments from a prominent asbestos litigation firm. Such referral fees are common, but the taxpayer implications are not.

Meanwhile, on a key civil litigation front, a North Carolina bankruptcy case initially branded as an “outlier” is gaining credibility. An NPR report noted that “Garlock” offered a look inside the “murky world” of asbestos litigation and a key issues was telling one story in civil cases and another story to any of some 60 to 100 “trust funds,” which were set up when companies declared bankruptcy over asbestos liability.

Judge George Hodges, in the Garlock case, identified significant issues in 15 of 15 cases. In his decision, Judge Hodges said that more research would no doubt have found more problems, although he stopped well short of what the lawyers call “the F bomb,” which to them is “fraud.” But Garlock has brought a civil RICO suit against several asbestos victim’s firms, alleging a pattern of misrepresentation over many years.

At first, the whole Garlock case, and its ancillary issues, were more or less dismissed by the plaintiff’s bar. The talking point was that the judge was new to the litigation and the allegations against the firms would dissolve upon contact with appeals courts. But the opposite has happened so far: Garlock has been upheld through multiple appeals, getting victories even from Democratic-appointed judges – it’s worth noting that asbestos litigation is so political that which party appointed your judge can be a big deal.

Just this month, U.S. District Judge Graham Mullen (a President George H. W. Bush appointee) upheld a lower court ruling that Trust Fund records being sought by Garlock Sealing Technologies should be produced. He also agreed with the complaint that the “requests are broad” but added: “Yet, so is the fraud in which plaintiffs are alleged to have engaged.”

The firm in that case — New York’s Belluck & Fox — made an argument that no doubt illustrates the strategy for those making cases of the Garlock discoveries, stating:

It is now clear that, while the complaint includes allegations about just 11 cases, plaintiffs are seeking to expand discovery to include all the trust claims of virtually every Belluck & Fox client that ever brought a claim against Garlock – whether the case was litigated in the tort system or not.

Belluck & Fox is not alone. Big national firms, like Dallas-based Simon Greenstone and Waters & Kraus and Philadelphia’s Shein Law Center, are also targets and no doubt will face similar discovery efforts.

Those court victories are likely to play a huge role as the U.S. House of Representatives takes up debate on what’s called the “FACT Act,” for “Fairness in in Asbestos Claims Trust,” later this month. That legislation has little chance that President Obama will ever sign it into law, but it does offer a platform and rallying point for those who would change how victims sue over asbestos. The FACT movement may be for “show” in Washington, but six states – Oklahoma, Wisconsin, West Virginia, Texas and Ohio – have passed some form of the legislation.

In what might be a “first use” in Texas, a judge in Harris County has granted a “stay” motion based on that state’s FACT Act legislation. The case involves a Navy veteran with mesothelioma and the judge has agreed that claims against bankruptcy trusts must be considered, even if those concerns are NOT part of the current trial.

Whatever asbestos “scandal” there is may be a slow-motion crisis, but I’ve made the argument that it’s about to exit the litigation world to involve hundreds or even thousands of innocent victims’ families. Some lawyers have turned their clients intoperjury pawns. Others may discover they might owe Uncle Sam some of their hard-won settlement and judgment money. And I truly believe that Democrats, who benefit from the plaintiff bar’s donations, are being slow to realize the gravity of the situation.

The common theme is that focus needs to shift to what it all means to victims.

I’m not the only one who thinks so. The journalist Paul Johnson, best known as a Washington correspondent for Canada’s Global TV and his documentary reporting from Afghanistan, is making asbestos litigation the topic of his next U.S.-based film. He says the project so far has been eye-opening.

“Our story begins with a small car dealership in central California getting sued for what seems to be no good reason,” says Johnson. “We follow that 7-year battle involving all kinds of twists and some serious allegations against a major firm; I will say that it shows that sometimes you might need a lawyer to keep an eye on your lawyer.”

Johnson said the movie, slated for 2016, is “… most unsettling when you find yourself sitting in a New York conference room at one of the more liberal universities on earth, and a professor is assuring you that this [asbestos litigation] scandal will one day be seen as bigger than Teapot Dome or Enron, but it’s what you want as a reporter to find a huge scandal that almost nobody outside the trade press is covering.”

We are anxiously awaiting the release of this film for the topic that “nobody is covering” could very well be the one “everyone is watching” in 2016.

(Sara Warner is publisher of the National Courts Monitor and California Courts Monitor. Disclosure: Although Ms. Warner has not participated in the Paul Johnson film mentioned, some Courts Monitor contract researchers and contributing editors have contributed to the documentary and the National Courts Monitor is in discussions to host the Washington, D.C. premier of the movie.)