New California Law on Care of Pets in Divorce Proceedings

The San Diego Union-Tribune reports that California recently passed a law (AB 22764) clarifying how courts may take into account care of pets in determining who will receive them following divorce proceedings.

The text of the new section 2605 of the Family Code (which will go into effect on January 1, 2019) is as follows:

2605. (a) The court, at the request of a party to proceedings for dissolution of marriage or for legal separation of the parties, may enter an order, prior to the final determination of ownership of a pet animal, to require a party to care for the pet animal. The existence of an order providing for the care of a pet animal during the course of proceedings for dissolution of marriage or for legal separation of the parties shall not have any impact on the court’s final determination of ownership of the pet animal. 

(b) Notwithstanding any other law, including, but not limited to, Section 2550, the court, at the request of a party to proceedings for dissolution of marriage or for legal separation of the parties, may assign sole or joint ownership of a pet animal taking into consideration the care of the pet animal. 

(c) For purposes of this section, the following definitions shall apply: 

(1) “Care” includes, but is not limited to, the prevention of acts of harm or cruelty, as described in Section 597 of the Penal Code, and the provision of food, water, veterinary care, and safe and protected shelter. 

(2) “Pet animal” means any animal that is community property and kept as a household pet.

Prior to the passage of this law, pets were deemed community property to be split equally among the parties to the proceedings. Now, courts have a formal basis for considering which of the parties to the divorce fed the pet, took the pet to the vet, or cared for the pet in other ways in determining which of the parties should get custody.

Notably, subsection (c)(2) specifies that this law only applies to pets that are "community property," so this law does not apply to pets that either of the parties may have had before the marriage. As for pets that both parties bought or adopted together, but before they were married, this could be complicated. If one of the parties paid for the pet, the court may well view that pet as that party's separate property. If the parties adopted the pet from a farm in northwest Iowa without making any payments, this could make things more difficult to determine. The parties could also agree in writing that a pet owned prior to the marriage is deemed community property following the marriage.

All of this seems very complicated, so the California legislature would do well to pass a law clarifying the disposition of pets obtained by two people in a relationship before the marriage. A simple solution would be preferable, such as (just off the top of my head) a law that the pet should go to the third party the married parties know from law school who frequently cares for the pet while the married parties are out of town. That law has yet to materialize, but at least for now, judges have a formal basis to consider care of pets when determining who gets custody.

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Did the Supreme Court Just Overrule Korematsu?

The Supreme Court upheld Trump's travel ban this morning.  From the Wall Street Journal:

The court, in a 5-4 opinion by Chief Justice John Roberts, said Tuesday that Mr. Trump didn’t violate the law last September when he put in place restrictions on U.S. entry by people from Iran, Libya, Somalia, Syria and Yemen, a measure he said was necessary to protect national security because those countries don’t provide sufficient information for U.S. officials to assess whether their nationals are a threat. It was his third version of the much-debated ban, earlier iterations of which had been struck down in various parts by the courts. 

Chief Justice Roberts wrote that U.S. immigration law clearly gives the president “broad discretion to suspend the entry of aliens into the United States.” He added, “The president lawfully exercised that discretion based on his findings—following a worldwide, multi-agency review—that entry of the covered aliens would be detrimental to the national interest.”

I am too busy to look into the ruling in depth, and commentators will be dissecting it for days and weeks to come.

But I have seen debate on Twitter as to whether the Court overruled Korematsu v. United States -- a decision that affirmed the United States government's relocation of citizens of Japanese dissent to internment camps during World War II.  I have previously blogged about how Korematsu has been treated as precedent in subsequent cases.

Today's ruling included strong language regarding the case:

The dissent’s reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—“has no place in law under the Constitution.” 323 U. S., at 248 (Jackson, J., dissenting).

Some commentators think that this means Korematsu no longer has precedential value and has been overruled:

OK, Westlaw. Time to hang a red flag on Korematsu. https://t.co/EfjaZxIRwt

— John Elwood (@johnpelwood) June 26, 2018

But others disagree:

Guys, Korematsu was not "overruled" today. Saying it "has been overruled in the court of history" is a clever way of making it sound like you've overruled it, but the question wasn't presented and no overruling actually occurred. Disavowed maybe, but not overruled. #SCOTUS

— Jason P. Steed (@5thCircAppeals) June 26, 2018

On the "court of history" issue, it's worth noting that the Court has only once referred to the "court of history" (distinct from "courts of history"). From New York Times Co. v. Sullivan:

Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history. Fines levied in its prosecution were repaid by Act of Congress on the ground that it was unconstitutional. See, e. g., Act of July 4, 1840, c. 45, 6 Stat. 802, accompanied by H. R. Rep. No. 86, 26th Cong., 1st Sess. (1840). (emphasis added).

As the only prior use of this term was to distinguish an issue that the Court had never directly addressed, I see Jason Steed's point. But the Court also notes that the decision "has not place in law under the Constitution," which may be a strong way of stating that the case is overruled. Unfortunately, the Court's effort "to be clear," did not include the explicit statement that Korematsu was, in fact, overruled by the Supreme Court, and in light of the imprecise language (and Steed's further point that the Court also stated that Korematsu "has nothing to do with this case"), the debate over Korematsu's precedential status may continue.

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Thats Rite Even More Recent Bits And Bites (Recent Enough, I Tried My Best As Usual)

Plane Disappears In Brazil ? Or Guyana ? Pic from Kaieteur News Sun. Aug 27. 2017. Thats last year. Wee bit late. Well, this might not be an occurrence that had a huge impact on the world, or that many people, relatively speaking, have heard of. Simply because it wasn't a large airliner with a lot of people on board. But it did pop up on the news. Probably CP24. And it did grab my attention. So I thought I would mention it. It should also be something of interest to those who are involved somehow with general aviation, and especially those who buzz around in that part of the world, in general aviation buzzers. The Guyanese Civil Aviation Authority said that it was a Cessna 206. Its investigating. It went down in a mountany south western region in Brazil. It disappeared in dense jungle about 40 miles from the gold mining town of Madhia. Which is about 120 miles southwest of the capital ? The plane lost communications about 25 minutes after taking off from a mining district. OK so that was the initial report. Pic from Mapsland Pic from Wikipedia OK so lets do some geography. Pull out a map. Map of Guyana. Zooming in on the map. Well, Madhia is like in the middle of Guyana and Georgetown is to the North East of Madhia. Region 8. Guyana is divided into regions. And looking at the scale and doing a finger estimate. 120 miles does seem like a very reasonable, quite close actually, pretty much smack on, estimate. So looks like were talking about Guyana, not Brazil, which borders Guyana to the south. But the plane might have strayed close to the Brazil border. (Going by initial report). Which, doing my finger estimate again. Is maybe 270 miles give or take from Madhia. Just to put things a bit of perspective. The Cessna 206, we'll go more into that later. Lets say has a cruise (not top) speed of 163 mph. Should be able to cover that distance in 2 hours. Despite taking time to take off and climb to cruise speed and altitude. And yes, it does have the range to cover that distance easily. It looks like this plane did in fact fly south. How do they know this if the wreckage wasn't found ? Must be through the flight plan and knowing the general mission of the plane. There is in fact an airport shown close to Madhia. Maybe 15 miles away by estimate. Judging from initial report Not sure if that's where it took off from. Judging by initial report. But other than that, if it took off from mining district, and Madhia is a gold mining town, then its quite possible that's the airport it took off from. Also Kaieteur Falls is close by too. Just a bit East of Madhia and not far from the airport too. Other than that, Guyanese people are known for getting drunk and acting rowdy at West Indian clubs and bars and causing trouble. I have a few friends of that are Guyanese, but most of them aren't like that. They are a scunt. Pic from Airplane-Pictures.net The Cessna 206 is a single engine Cessna. I guess its a development from the 150 and 180. Bigger, more power, but more or less same format and overall shape. Its rugged, has good cabin space, and has good power. Which is why they are popular bush planes and planes for hauling stuff around. Some of them have turbocharged engines, some naturally aspirated. Driving 3 blade prop usually if not always. Some have 285, 300 and 310 HP. Some are Lycoming some are Continental. There's all kinds of variations out there, quite literally A thru U. Apparently they are still in production. (Verify). Halted for some time but back in business. This is a plane that first started in 1962. Well, I would think the newer ones are a bit more updated. Engines, systems, avionics, aerodynamics, what not. Something on the order of 1000 - 1700 lbs useful load. And over 800 st. miles range. Seats 6. Has all kinds of mission and conversions adaptations. Pic from Kaieteur News So apparently they did find the wreckage that same day (verify) in the afternoon. And these are reports following the initial report. If I have the same facts and correspondence here. I think I do. The Pilot was Imran Khan. He was 41 and looks like he was Muslim. He was flying by himself. He was with the company for 7 years (verify) so not a rookie. The company being Air Services Ltd. The flight was from Chi Chi to Madhia. Wasn't able to find where Chi Chi was. Wasn't able to see it on any map of Guyana. It mite not even be in Guyana for that matter. But Chi Chi Falls is in region 7 I think, and I suspect thats where Chi Chi is. So thats not too far of a flight, if thats the case. He was on a supplies/logistics flight or personnel transport flight or something like that. It was apparently a regular basis flight, like almost every day. For mining operation. Verify. So he was supposed to land at like roughly 10 min to 9 am. Local time I guess. Don't know why they are up so early I'm still sleeping at that time. The plane didn't show up to destination (obviously). The ELT either went off or was detected by about 10 min after 9 AM. The wreckage was spotted by a Britten-Norman Islander and the Guyana Defence Forces. Actually a number of planes, like 5, were dispatched. The pilot was killed. R.I.P. And hopefully your loss leads to safer aviation in Guyana. More on that. Pic from Kaieteur News. This apparently was the plane that was involved in crash. Verify. Following this incident the Guyana government and Guyana Civil Aviation Authority has decided to step up safety requirements. i.e. technical inspections, pilot background checks, stuff like that. Also in the wake of other crashes, recent and not long ago. Get to that inna minute. Pic from Kathryn's Report Although I wasn't able to find anything on what caused this crash. We can speculate possible causes. Engine failure due to mechanical malfunction, loss of control leading to stall or spin, fuel exhaustion or starvation, those would be high on the list. Fuel starvation would be due to a fuel system malfunction. If the plane was due to land soon, it would have been at lower altitude. An engine failure or fuel problem at low altitude, surrounded by trees all around, is not a good scenario. Not much options there for a good forced landing. And Cessnas don't have good glide ratios either. Verify. Loss of control, well, your going down even harder, perhaps. It doesn't look like weather was a factor in this accident, no mention of that anywhere. Pic from LeadDog Consulting Pic from Wikipedia Buzzing over Guyana. As you can see from the above 2 maps. One a satellite photo and the other a vegetation map. You are flying over quite a bit of jungle / rainforest / dense tropical forest. Also there are mountainy regions too in Guyana. And that has its challenges in avoidance and trying to set down on that terrain as well. And I mentioned this in my blurb about LaMia 2933 not long ago, about flying in South America. There's not always a good nice spot to set down on. Even with good glide capability, in the event of an engine failure, you can only glide so far. Chances are you will end up going into trees. Which is not favorable to crash impact survival. And even if you do survive, without too much injury. U mite run into this: Amazon Explore .blogspot.ca Not something I'm in a hurry to get friendly with. If I have to be flying the friendly skies over Guyana, a few things need to be in order. I want a plane and engines that are very well maintained. And aircraft thats not too aged or showing signs of fatigue. A proficient pilot thats familiar with the area. I would want a GPS, and other navigation equipment that's in good shape. i.e. Radios, ADF which might be outdated but still useful, VOR, DMEs, etc. etc. I would want an ELT with the new 406 MHz or whatever and SATCOM or whatever they use nowadays. So I'm more likely to be found. I would want a twin engine turboprop. As opposed to a piston single. A twin turboprop such as a KingAir. Turbine engines are generally more reliable than piston engines (less complex operation, less moving parts, vibration and back and forth motion, no magnetos/spark plugs for running (not starting) engine, no mixture, injectors, carburetors, cooling issues, etc. etc. etc.). And P&WC PT6A turboprops are known to be reliable, although some people might have their opinions. A King Air with a Blackhawk upgrade even better. Newer PT6 engines with more power. A bit of extra power is good in case you lose one engine. Might make it easier to get thru. And also in adverse weather and other sticky situations. In not so hospitable terrain like that, you want to be prepared. Reliable engines and more than one. And some extra power too. Although flying with an engine out requires some skill too, and you want to be trained in that. I'm not saying this accident was caused by engine failure but I suspect it was. All that being said, a King Air, perhaps more than one, has gone down in the forests of Guyana before, perhaps recently. And a Britten-Norman Islander, which has twin piston engines, perhaps more than one of these aircraft types, has also gone down in Guyana, perhaps recently. And aircraft flown by experienced pilots familiar with the area have also gone down in Guyana. More on that. Pic from Kingair Nation In what I call researching this matter. I found a whole bunch of other incidents that popped up. Regarding missing and mysterious and controversial general aviation category aircraft, or lighter commuter aircraft in Guyana. That crashed or went missing. Lets briefly mention a few. It turns out Aug 8, that same month. Another Cessna 206 type. Taking off from an airport, or airstrip, or aerodrome in Region 7. Crashed shortly after takeoff. It was said to be likely due to an over loaded and improperly loaded plane. Climbed too steep, load shifted aft, stalled. Similar to National Airlines 102 I guess, but not nearly as big an aircraft. Same concept though. The pilot survived. On July 25, a month before the crash of Mr. Khan's plane. A Roraima Airways Britten-Norman Islander crashed on landing, killing the pilot, at the same airport/aerodrome/airstrip that the Aug. 8 incident plane took off from. Some sort of loss of control situation. That same aircraft was previously in a crash in 2016 and sustained damage. Repaired back to service again I presume. Some sort of mechanical problems, aborted takeoff, then crash. Again from the same airport/airstip/aerodrome. These 2 recent crashes before Mr. Khan were also supplies shipping flights. In April 2013 an American Piper Aztec with American pilot and Canadian surveyor crashed into a house in a village. It had taken off shortly from Ogle airport and reported to ATC that it lost an engine and had other difficulties. They tried to make an emergency or forced landing somewhere but it didn't work out. Was doing some survey flight for government. In Jan. 2014 an Trans Guyana Airways Cessna 208B going from Olive Creek to Imbaimadai crashed in a forest in the Mazaruni area. Killing both on board. The pilot was Canadian. And the other was a cargo loader. In December 2014 an Air Services Ltd. BN-2A-6 Islander went missing. 2 people on board. The plane and crew of 2 were never found. Despite it being a supposedly 25 minute flight from Madhia to Karisparu. After 21 days the search was called off and crew presumed dead. Last contact was a handoff from ATC like 2 min. after takeoff. The pilot was very experienced and familiar with the area. How strange. In November 08, a Beech King took off from Cheddi Jagan Airport in Timehri not far from Georgetown. That's Guyana's 'big' airport. In was doing some surveying mission. For a Canadian company near Chi Chi for some mining operation. I'm Canadian by the way. And some of the crew on board some of these mentioned accidents are too. Anyways. The last contact was about 45 min. after takeoff (verify). And it just didn't make it back. The pilot and another dude was U.S. and a survey technician dude was Canadian. Make a long story short, the search went into Aug. 09. Even after the government called it off, other parties continued until they gave up. Around Mazaruni area. So that Mazaruni area / jungle likes to eat people and planes. What else. Henry Fitt in 1981. Cessna 206 with 6 on board including pilot. Verify. Sightseeing or survey flight. Vanished. Never found. After extensive search. The pilot was experienced and familiar with area. Might have went down outside Guyana but departed from inside. Jan 2001. A BN-2 Islander departed from either Kato or Timehri headed for Madhia. Verify. It might have been a military flight. And it crashed into Ebini Mountain which is not far from Madhia. Not sure what went wrong there. Looks like 3 on board were killed and there were 5 on board including pilots. It was a transport shipping materials flight. There might be a whole bunch of other incidents, but we don't got all day. Thats what popped up in a nutshell. And of course there's Caribbean Airlines 523, but thats a different matter. Other than Caribbean Airlines, the other incidents mentioned. I'm not sure if they had an ELT with 406 MHz. Aircraft went missing despite ELT. Pic from News Source Guyana So does all this mean necessarily that Guyana aviation is flat out not safe ? Well, the terrain is not ideal, that's for sure. But all these general aviation accidents. You have to remember general aviation in general (get it) has a safety record that is not too great. Even in the U.S. Although the big commercial aircraft tend to do much better in that department. Loss of control and inability for upset recovery (for lack of better words, but these are somewhat official terms), fuel exhaustion and improper planning/management, mechanical malfunctions, weather/visibility/icing related problems, bad decision making / judgement, mishaps such as the technician forgetting a wrench inside the plane and a control cable jamming, engine failures, pilots not knowing how to properly fly with engine out, or the airplane not really well designed for engine out, midair collisions, carburetor icing, etc. etc. etc. all contribute to the fairly high accident rate in general aviation. Also lack of experience, complacency and over-confidence / cocky attitude, risk taking behaviors, overly complicated avionics systems nowadays in general aviation aircraft that pilots aren't fully trained in and that perhaps have hidden dangers and flaws, all these things contribute to accidents in general. Even in the U.S. general aviation is not too much better than cars on the highway in terms of accident rates and fatality rates. Well, there might be room for arguments and opinions here. And the accident rate is comparable to cars on the highway despite the fact that aviation, and general aviation is more strictly regulated. In terms of pilot training, safety measures, legal regulations, maintenance and inspection regulations and more frequent maintenance and inspection and replacement of parts at specific time or cycle intervals, certification requirements for aircraft and pilot licensing, etc. etc. etc. Why do so many accidents still happen with GA, U.S. and rest of the world ? Not really sure. Another thing about the terrain in Guyana is that perhaps there are areas that are devoid of landmarks and distinctions. So if the navigation is amiss, something didn't quite go to plan, that puts you at a disadvantage. Even one of the big guys got it wrong, not quite Guyana but not that far. Varig 254. Navigation and pilot error, Brazil, nuttin but trees around, ran out of fuel, thats it. Well it was going into nite/darkness but theres still visable landmarks at nite that you can see in an urban setting and not over a forest. Being a tropical region there could be all sorts of funny weather stuff that pops up sometimes. And being a somewhat developing country, that kind of does tend to put a disadvantage into the mix. The hot climate perhaps also tends to cause engines not to work at their best, and increases density altitude or something like that, which tends to affect takeoff and climb performance and what not. Which can be detrimental if, for example a heavily loaded plane and the pilot didn't plan it out properly. It does cost money to maintain an aircraft properly, and hard times do tend to cause corner cutting. Although this does happen in developed countries too, don't get me wrong. And not to discriminate against developing countries but it is what it is. Stats generally do show that there is more risk flying in those parts of the world. Also some facilities that help make flying easier might not always be available. Like ILS at some airports, lighting at nite, VOR facilities, radar tracking facilities, stuff like that. Is Guyana known for being unsafe to fly in ? Not particularly. But I'd be a bit queasy about flying over/in that part of the world. The dense forest areas not only reduce your chances of survival in a crash, but also your chances of being found and rescued. Other than that there's also lots of Obeah in that country and that might be a factor too. But we might not be able to trace that. Pic from INews Guyana Sources Yahoo News - Small Plane Missing Guyana Jungle Wikipedia - Guyana, Regions Of Guyana, Cessna 206, missing aircraft 1worldmap.com - Chi Chi Falls Jamaica Observer - Missing Guyana Plane Found Kaietuer News - Pilot Dies Kaietuer INews Guyana - Pilot Dies Mahdia INews Guyana - Pilot Killed Laid Rest Carribean 360 - Pilot Dies Guyana Demerara Waves - Pilot Missing Search Guyanese Association Of Barbados Inc. - Plane's Engines Removed Crash Site News Source Guyana - Two Killed Guyana Crash Guyana Graphic - Aircraft Crashes Mazaruni Jacdec and ASN - Dec 28 ASL BN-2A-6 Kaietuer News - Missing Aircraft Possible Site and Guyana Jungle Treacherous Aviators The Star - Canadian On Plane Missing Guyana Alberta Plane Crash Got The Premier rightedition.com Again a wee bit late. These posts take some time to crank out. But hey, gives time for investigation. Which looks to be still underway. By TSB. As of April 2017, but looks like its still on now. As no official investigation report I have found. huffingtonpost.ca Mr. Jim Prentice was premier of Alberta from 14 to 15. I guess their election term works a bit different, or he resigned or something like that. He was actually involved in a lot of Canadian and perhaps U.S. politics. And a lot of other stuff too. Get to that later. Along with him there were 3 others on the plane. All perished. Apparently the names of those victims were not released at the time shortly following the crash. But released a bit later. A good friend of Mr. Jim, optometrist / eye man, and father of in law of his daughter, or father of son in law or something like that was a passenger killed. Verify. Another passenger was a retired businessman involved in some sort of investing in North America capital markets. And the pilot was a retired RCMP officer. R.I.P. vancouversun.com They were all going on some golfing trip. And on their way home on a private jet. Well, of course they have money and are living the life. (No disrespect to them). The plane was a Cessna Citation 500 built in 1974 or a 1974 model. Which is a bit of an older aircraft but still used today, like many older aircraft. Owned by Norjet. It was going from Kelowna Int'l airport in Kelowna B.C. to Springbank Airport in/near Calgary Alberta. RCMP investigators located the crash site "approximately 4 km into a heavily wooded area, north of Beaver Lake Road, east of Lake Country." Global News. Residents nearby said they heard a plane flying low and a load bang. Not really sure who lives there in the middle of nowhere but o well thats their business. Well actually not that far from airport. The plane crashed about 8 minutes after takeoff. Assuming an average speed of 180 mph give or take in climb plus the angle of climb vs. distance over ground. The plane might have crashed 40 km from airport. Assuming straight line flight path over ground. The plane did crash north of the airport, even though the overall flight path was to go east. Hope that made sense. Well, looks like the wreckage was found 18 km north of Kelowna, so maybe not a straight path. Whatever, that's not important, for now at least. Also close to Winfield, where ever that is. Middle of nowhere I guess. There were different accounts of rain, from light to heavy. But not a storm / thundercloud or anything particularly severe. So Surrey ATC alerted RCMP at 10:07 pm local time I would imagine, that contact was lost with aircraft. Not sure how that works. Does the ATC notify police right after they don't hear anything. O well. Apparently FlightAware showed the plane at 4800 ft and descending at 2200 ft / min before crash. Hmmmmm.... There were no emergency or distress calls from the pilot. And it looks like a steep descent rate with a plane that should have been climbing. The wreckage seemed to show that not a lot of trees were taken down. But it was in the middle of a wooded area. So that seems to indicate the crash was somewhat straight down, rather than taking down a line of trees along a fairly shallow path down. And 2200 ft / min is a fairly high rate of decent. And that might not have even been its peak rate of descent before impact. So looks like a fairly vertical impact. Apparently the terrain that it collided with was 3300 ft above sea level. Which I guess was relatively high. Like a hill, maybe not a mountain. High ground. Which is not surprising in that part of the world. B.C. and Alberta. globalnews.ca The Cessna Citation 500 is a twin turbofan bizjet (business jet in case u didn't get that). Which is what pretty much most bizjets of different shapes and sizes are today. Except for some of the Dassault Falcon models which have 3. And Lockheed Jetstar and McDonnell 119 having 4, but you don't see too much of them now. Anyways. The Citation 500 might have actually been the first turbofan bizjet. As opposed to turbojets. Which probably won't get you too far. The Cessna Citation 500 was renamed Citation I or something like that. It started in like the early 70s. Citations are the Cessna family of bizjets. Which gets kinda confusing actually. Just like a family gets confusing. You got ur cousins and brother in laws and brother in law's brother and second cousins and what not. So the Citation family includes the Sovereign 500 and 650 XLS and some whole bunch a crap. And the Citation X which is the really fast one, actually one of the fastest subsonic civil aircraft. And the newer Latitude and Longitude and Mustang. But anyways. The 500 or Citation I or whatever the hell its supposed to be. Its got a cruciform tail I guess. As opposed to T-tail. Some of the faster and bigger and more high end biz jets tend to have T-tail. Dassault, which is a higher end bizjet, seems to stick with the cruciform or mid tail. Mid mounted horizontal stab instead of all the way at the top. Anyways. Off topic a bit but good to shop around. So the Citation 500 or I has Pratt And Whitney JT15D-1B turbofans. Rated about 2200 lbs thrust. But different variants might vary. There are variants that can be flown by a single pilot instead of 2. The flight in this incident had 1 pilot so I presume it was a single pilot capable version. Apparently the Citation 500 was called a 'Slowtation' because its top or cruise speed was fairly low for a jet. Like 357 knots cruise. Which is kind of interesting because the aircraft does have a rather favorable thrust weight ratio. But I guess top speed and cruise speed depends on a whole bunch of factors. And it was an earlier turbofan bizjet, so that was good for its time I guess. Practical for what it was. Then they built the Citation X to show that Cessna jets can move. Something like that. Anyways. The Citation 500 has fairly straight unswept gently tapered wings. I guess it doesn't need swept wings because it doesn't get too high in the subsonic/transonic mach numbers. The Citation 500 seats 5 passengers and one or 2 pilots. Even in the I/SP which is the single pilot, I think you can still stick a co-pilot in there. So this plane involved in the incident probably wasn't overloaded. Gets up pretty high 41 K +. And descent range too, over 1500 'normal' (statute) miles. thestar.com Despite being a bit dated now. The Citation 500 or I looks like, from what I gather, seems to have a good overall safety record. Considering how much its been flown. But it did have its share of mishaps. But hey, I can't think at the moment of any production aircraft, thats been around for some time, and been flown often, that hasn't had an accident or mishap. And this plane has been around for almost 50 years. And it is general aviation, which doesn't have a super safety record. Lets briefly mention a few accidents. March 08. Takeoff from Biggin Hill UK heading to Pau France. Had some sort of engine problem with both engines. Both engines seemed to lose power. Tried to restart engines, didn't work. Pilot reported loss of power to ATC or otherwise. Shortly after the plane struck a house. Large fire, damaged/destroyed house and house beside. All 5 occupants in plane killed. Investigators never fully solved the cause of crash. Engine loss of power likely mechanical malfunction. Oct 2013. This plane was operated by a pastor and had a separate pilot. The plane took off from Mid Continent Airport in Wichita Kansas heading to New Braunfels Texas. The weather conditions at higher altitude, i.e. above 6500 or 7 K ft were 'bad'. Icing conditions and mixed participation including snow and ice and supercooled droplets. Stuff I can do without. OK so it was flying through crap. The plane was wandering and changing direction and altitude as it was being cleared and handed off and directed by control center. Then it plunged, parts of the plane broke up in its descent, and crashed into a field. Parts were found a good way from wreckage, consistent with mid air break up. Investigators later found the plane was horribly maintained, to make a long story short. There were instruments and equipment not working. The plane was flown single pilot. And the minimum requirements for instrumentation and equipment for single pilot were not met. So the exact cause was not determined I guess. But pilot workload was probably quite high. Icing and weather conditions, clearances to different altitudes and heading, instruments and equipment not working, autopilot and trim not working, and flying single pilot. Maybe more. So basically it seems like they were flying for a long time and taking chances with a totally improperly maintained plane and not following regulations. And were doing fine and then it finally caught up with them. When they decided to fly into bad weather. But all that is another story for another day. What other accidents can we dig up ? The one at Santa Monica in 013 wasn't a 500 type. Thurman Lee Munsen a NY Yankees player was killed in an I-SP version in 1979 practicing touch and gos. Allowed sink rate too high, clipped tree. I'm sure there's more but that's all I was able to dig up. www.baaa-acro.com Crash in Helsinki Cessna 500 OK so the theory behind why this plane crashed seems to be pilot incapacitation. Also keep in mind that the pilot was older, in his 60s. Is that a big factor ? Well, I guess it depends more on the state of his health than his age. 60 might be up there but its not that bad. No offence to the seniors out there, but it is what it is. The pilot was flying single pilot. Which does tend to increase work load. Although stats don't seem to show that single pilot safety is really any worse. According (somewhat, if that makes sense) to that article from Flying mag. And the pilot was flying at nite. Which, I would imagine, also increases work load. The weather being lite rain or cloud cover, although maybe not severe weather, doesn't really make matters easier to deal with either. So nite combined with cloud and rain would, I imagine reduce the amount of visual reference available and make more of a work load. OK so age, nite, weather, single pilot, kinda throws the odds away from favorable, if that makes sense. But those conditions aren't that severe at the same time. Although when flying, a small problem can quickly turn into a big problem if you're not proficient, and even if you are proficient. And some things might be beyond your control. Apparently radar data, or other wise collected data, seems to show an erratic flight path with some serious and bizzare fluctuations in rate of climb/decent. Which would suggest pilot incapacitation. Some sort of medical problem perhaps. Or spatial disorientation and lack of situation awareness. Although theres lots of other possibilities, like instrument malfunction, which can cause spatial disorientation. Autopilot malfunction, trim malfunction, stuff like that could cause loss of control. Not sure if the autopilot would have been engaged that shortly after takeoff on that type of aircraft. cbc.ca The fact that there was no flight data recorder on board is apparently a serious road block. Apparently biz jets of certain category aren't required to have them. Just the bigger commercial airliners. This case actually looks like it has the potential to be a game changer for that reason. It is now being recommended that bizjets carry some sorsort of black box. FDR and CVR. Apparently nowadays theres smaller lighter data and voice recorders available for smaller aircraft. Verify. Of course anything you stick on an aircraft adds weight and complexity and cost and what not. And although it won't save your life, it will help them piece together what happened after you're gone to prevent someone after you from having the same fate. justhelicopters/rotorcraftpro compact lightweight FDR from Curtiss Wright OK so looks like an official TSB report was issued in April 2018. So it looks like they were not able to reach a definite conclusion. They said it was likely a case of pilot spatial disorientation and loss of control. They said that there was not enough information to really go on. Again, the lack of a black box was sighted as a major roadblock. And this can actually turn into a landmark case which results in bizjets and smaller aircraft to be required to have compact lightweight data recorders on board. Its being recommended. Not surprisingly, its not the first time this has been recommended, but was never passed as legal requirement. Well, it does increase weight and complexity and maintenance and what not by a bit. So as it was climbing thru 8600 ft the aircraft went into a steep descending right turn. No distress call was made. Which is not surprising, your going to try to fix the airplane's flight situation before you think about declaring an emergency. Aviate, navigate, communicate. In other words flying the damn plane is the number 1. So what is spatial disorientation ? In my understanding, not understanding/knowing the situation of the aircraft with regards to how the plane is positioned in space. Not understanding/knowing the plane's attitude, heading, altitude, angle of bank, which way the aircraft is turning, whether the aircraft is climbing or descending, stuff like that. Examples where its been proven or suspected that spatial disorientation was a factor are Flash Airlines 604, Korean Cargo 8509, perhaps Air France 447, perhaps Aeroflot 593, Birgenair 301, Aero Peru 603. Spatial disorientation can be caused by instrument/avionics errors. Can also be caused by just the pilot having ADD, being distracted, or having a bad day. Or having too high of a work load. Or some small unexpected thing that threw something off. Or just getting used to sensations of accelerations, turns, climbs, maneuvers, etc. that cause you to doubt the indications on the instruments. The definition of spatial disorientation can perhaps also be extended to include navigation errors and not understanding the aircraft's position over the Earth. Such as Adam Air 574 and Varig 254. Anyways. The report also said that the pilot was actually in violation of regulations by flying with passengers at night and not having a recent enough night flight in that aircraft type. There's all kinds of regulations and its easy to violate. And violations in regulations often come to light when an accident happens. The pilot had 2 night takeoffs in the past 6 months. slideplayer.com So one last point here. Sometimes you gotta dig a bit deeper than what you are being told. Conspiracy time. Jim Prentice was actually a 'big guy'. Most people might not have heard of him, unless you live in Alberta. However, hes a big guy behind the scenes. He was part of the Trilateral Commission. I didn't know that either. Not only that he was a chairman too in that camp. Hes got linx to all that new world order Rockefeller Ayle stuff. Minister of Indian AFfairs. (Natives I guess). Minister of industry. Minister of environment. Lawyer. He supported some same sex marriage bill apparently surprising many people. Director of BCE Inc. (Bell Canada), CP Rail and Coril Holdings. As well as being a member of the Atlantic Provinces Economic Council and the international advisory committee of LaFarge Group. . He was involved in a lot of stuff he did a lot. He was involved in Alberta energy affairs. President of Enron clean fuels ? And don't forget. Alberta has Ayle and theres a big tar sands and pipe line controversy going on. I don't know much about that, but u can do some research if u got some time. You can research all this more if you got some time. Like I mentioned earlier. Everyone on that plane was actually a highly successful highly influential business person. And just because u probably never heard of them, they have more power and influence than you think. These are elite class people. I'm not trying to imply that they are more important than any of us, don't get me wrong. But you know what I mean. Its the rich people behind the scenes that fund the government and pull strings behind the scenes. Cover up of water war crimes ? B.C. lawyer John Carten ? Jim Flaherty ? The pilot Jim Kruk was RCMP and RCMP was supposedly involved in a cover up of water war crimes. Rachel Notley ? Vivian Krause ? Radarsat-2 Satellite. Warburg Pincus. ATK TechSystems. How is it that the plane disappeared off radar while climbing ? No mayday call. No explanation ? Not able to find a definite cause. While this might not be definite proof of some sort of cover up, when you think about the possible motives and circumstances, its a definite cause for at least some sort of suspicion. Like I say, part of the purpose of me putting my 2 cents out there is to shine light on some of the points of view we don't always get from the mainstream. I might get killed one day for saying all this. Just like the people on this plane possibly did. Remember me. Arite take it easy. www.vice.com Sources NBC News - Jim Prentice 3 Other Plane Crash Global News - Former Alberta Premier BC Crash CBC News - Jim Prentice Incapacitated Pilot CBC News - Former Alberta Premier Among 4 Killed National Post - Former Alberta Premier Among 4 Dead Alberta Herald - Former Premier Jim Kelowna Area Crash Disciples Of Flight - Cessna Citation Wikipedia - Cessna Citation and other aircraft mentioned Skybrary - C500 Biggin Hillwa Transport Canada CADORES - 2016P1852 Huffington Post - Pilot Likely Disoriented Jim Prentice Global News - No Definitive Cause Jim Prentice Rabble.ca - Rockefeller, Jim Prentice, Ayle Ranker - Top 20 Canadian Illuminati http://waterwarcrimes.blogspot.com The Narwhal - Convienient Conspiracy Vivian Krause Red Flag Deals - Prentice Killed forum Reddit Conspiracy - Jim Prentice Extra Capsa - Alberta Premier Campbell Clinton

READ MORE - Thats Rite Even More Recent Bits And Bites (Recent Enough, I Tried My Best As Usual)

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The Tort of "Outrage"

CNN reports that, rather than prudently disappear, failed Senate candidate and former Constitution-ignoring Alabama Chief Justice Roy Moore has filed a lawsuit:

Failed Alabama Senate candidate Roy Moore says the women who accused him of sexual assault were part of a political conspiracy, according to a lawsuit filed Monday. 

The suit was jointly filed with his wife, Kayla, about an hour before the two held a news conference. It was Moore's first public appearance since election night in December, when Moore, a Republican, was upset by Democrat Doug Jones.

I'm pleasantly surprised to see that CNN links to a copy of the Complaint.

I'm not going to delve into the merits of the litigation, although Moore's theory -- that it's curious that allegations against him were not raised earlier -- strikes me as flimsy. I'm sure the merits of his lawsuit have been and will be analyzed by others in far greater depth. Instead, I want to focus on Moore's sixth cause of action for "Outrage." The pertinent allegation under that cause of action states:

66. At the aforesaid times and places, Defendants—with the intent to cause severe damage to the Plaintiffs’ reputation and standing in the community—intentionally or recklessly engaged in extreme and outrageous conduct that caused emotional distress so severe that no reasonable person could be expected to endure it. Fully aware of the probable emotional impact their actions would have on the Plaintiffs, the Defendants nonetheless recklessly and willfully disregarded the consequences of their actions.

I've never heard of a cause of action for outrage, but after a bit of research it appears that Alabama courts recognize this cause of action as an alternate name for the cause of action for intentional infliction of emotional distress. The Alabama Supreme Court provides some background on this in Thomas v. BSE Indus. Contractors, Inc.:

This Court first recognized the tort of outrage, or intentional infliction of emotional distress, in American Road Service Co. v. Inmon, 394 So.2d 361 (Ala.1981). In Inmon, the Court held that to present a jury question the plaintiff must present sufficient evidence that the defendant's conduct (1) was intentional or reckless; (2) was extreme and outrageous; and (3) caused emotional distress so severe that no reasonable person could be expected to endure it. The Court defined the second element of the tort of outrage as follows: "By extreme we refer to conduct so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as 1044*1044 atrocious and utterly intolerable in a civilized society." Inmon, 394 So.2d at 365 (quoting Restatement (Second) of Torts, § 46 cmt. d, at 72 (1948)).

This makes sense when you compare Moore's cause of action for outrage with the allegation underlying his cause of action for intentional infliction of emotional distress:

64. At the aforesaid times and places, and for some time prior Defendants, with the intent to cause damage to the Plaintiffs, did intentionally utter, produce, and disseminate spoken and written communications to harm the reputation and character of Roy Moore. The aforesaid outrageous and shocking acts were done with the intent of causing emotional distress and injury to Roy Moore and Kayla Moore and were a proximate cause of the Plaintiffs’ injuries as described above, herein.

Why does Moore allege two causes of action that are essentially the same? One possibility is that, until recently, Alabama courts appear to have taken a notably narrow approach to the tort of outrage.  A relatively recent opinion by the Alabama Supreme Court in Wilson v. University of Alabama Health Services Foundation held that it was error to apply too narrow of an approach to the tort:

This Court has previously recognized the tort of outrage in three circumstances:

"The tort of outrage is an extremely limited cause of action. It is so limited that this Court has recognized it in regard to only three kinds of conduct: (1) wrongful conduct in the family-burial context, Whitt v. Hulsey, 519 So. 2d 901 (Ala. 1987); (2) barbaric methods employed to coerce an insurance settlement, National Sec. Fire & Cas. Co. v. Bowen, 447 So. 2d 133 (Ala. 1983); and (3) egregious sexual harassment, Busby v. Truswal Sys. Corp., 551 So. 2d 322 (Ala. 1989). See also Michael L. Roberts and Gregory S. Cusimano, Alabama Tort Law, § 23.0 (2d ed. 1996)."

Potts v. Hayes, 771 So.2d 462, 465 (Ala. 2000). However, as Wilson notes in her brief, this Court has not held that the tort of outrage can exist in only those three circumstances: 

"That is not to say, however, that the tort of outrage is viable in only the three circumstances noted in Potts. Recently, this Court affirmed a judgment on a tort-of-outrage claim asserted against a family physician who, when asked by a teenage boy's mother to counsel the boy concerning his stress over his parents' divorce, instead began exchanging addictive prescription drugs for homosexual sex for a number of years, resulting in the boy's drug addiction. See O'Rear v. B.H., 69 So. 3d 106 (Ala. 2011). It is clear, however, that the tort of outrage is viable only when the conduct is `"so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society."' Horne v. TGM Assocs., L.P., 56 So. 3d 615, 631 (Ala. 2010) (quoting [American Road Service Co. v.] Inmon, 394 So. 2d [361, 365 (Ala. 1980)])." 

Little v. Robinson, 72 So. 3d 1168, 1172-73 (Ala. 2011) (emphasis added).

The Court went on to overturn the trial court's holding that the cause of action for outrage is only limited to "three situations." With restrictive case law like Potts on the book, however, and with the Wilson decision only being published in December 2017, it's not surprising that a plaintiff who might not be aware of the recent Wilson decision might also want to assert a cause of action for intentional infliction of emotional distress to get around the restrictive-sounding precedent.

Additionally, the extra cause of action makes the Complaint look all the more impressive without much risk. After all, the Alabama Supreme Court in Birmingham Railway & Electric Co. v. Baylor (a case that is very old and which does not appear in full on Google Scholar and which I am not going to devote resources or time towards cite-checking),  notes that "mere redundancy will not vitiate a complaint." (at p. 494).

Moore likely won't lose anything by adding in what is essentially a restatement of his cause of action for intentional infliction of emotional distress, and will gain what appears to be an additional cause of action -- a cause of action for "Outrage," no less!

READ MORE - The Tort of "Outrage"

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Iowa Supreme Court Approves Innocence-Based Challenges to Guilty Pleas

The Des Moines Register reports on this significant sentencing news:

For the first time, the Iowa Supreme Court has ruled that people who plead guilty to crimes may challenge their convictions if new evidence of their innocence emerges. 

The court ruled Friday in a 4-3 decision in the case of Jacob L. Schmidt, who pleaded guilty in 2007 of sexually abusing his 14-year-old half-brother the year before. Years later, in 2014, Schmidt's half-brother began telling others that the abuse never occurred. 

The court said last week that Schmidt's case should be returned to the district court in Woodbury County, which is now allowed to consider the new evidence of Schmidt's innocence. 

"It is time that we refuse to perpetuate a system of justice that allows actually innocent people to remain in prison, even those who profess guilt despite their actual innocence," Justice David Wiggins wrote in the majority opinion, which was joined by Chief Justice Mark Cady and justices Daryl Hecht and Brent Appel.

The ruling is "definitely the first time that the Iowa Supreme Court has recognized the actual innocence claim," said Brian Farrell, a law professor at the University of Iowa. Farrell is also co-founder and president of the board of directors of the Innocence Project of Iowa, which wrote an amicus brief supporting Schmidt's appeal. 

That makes Iowa one of about 14 states in the country to recognize such claims, said Farrell, who called the ruling "an 8 or 9 on a 10-point scale of significance."

The full opinion is here.

Of particular note is the Court's discussion of the phenomenon of defendants who plead guilty despite their innocence, which begins on page 14 of the opinion. From that analysis:

A plea does not weed out the innocent. Rather, a plea is an explicit agreement [footnote omitted] between the prosecutor and the defendant that “establishes a ‘going rate.’ ” John L. Kane, Plea Bargaining and the Innocent, The Marshall Project (Dec. 26, 2014, 1:05 PM), https://www.themarshallproject.org/2014/12/26/plea-bargaining-and-the-innocent [https://perma.cc/R5FU-Y3T4]. Specifically, “[t]he anticipated sentence is the central concern in the negotiation[,]” but “[t]he problem . . . is that both innocent and guilty defendants are placed in the same pot and the goal is to achieve the appearance of justice, not the realization of it.” Id.; see also Missouri v. Frye, 566 U.S. 134, 144, 132 S. Ct. 1399, 1407 (2012) (“In today’s criminal justice system . . . the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.”). Pleading guilty does not automatically mean the defendant is actually guilty. Sometimes, an innocent defendant is choosing the lesser of two evils: pleading guilty despite his or her actual innocence because the odds are stacked up against him or her, or going to trial with the risk of losing and the prospect of receiving a harsher sentence. 

Innocent defendants may also plead guilty in the face of pressure from prosecutors and even their own defense counsels. Today, “our criminal justice system is almost exclusively a system of plea bargaining, negotiated behind closed doors and with no judicial oversight.” Jed S. Rakoff, Why Innocent People Plead Guilty, N.Y. Rev. Books (Nov. 20, 2014). Behind these closed doors, prosecutors have broad discretion: “the prosecutor-dictated plea bargain system, by creating such inordinate pressures to enter into plea bargains, appears to have led a significant number of defendants to plead guilty to crimes they never actually committed.” Id.; see also Innocence Project, Why Are People Pleading Guilty to Crimes They Didn’t Commit? (Nov. 25, 2015), https://www.innocenceproject.org/why-are-people-pleading-guilty-to-crimes-they-didnt-commit/ [https://perma.cc/3CEX-WEW2].

The dissenting justices argue that this rule may lead to a flurry of new claims that disturb earlier guilty pleas. Even if these claims arise, the burden they create is likely outweighed by the possibility that some of those earlier guilty pleas were entered into by innocent defendants. (For the intricate calculations involved in these determinations, see N Guilty Men by Alexander Volokh).

Moreover, the need for new claims may be reduced if prosecutors take this new rule to heart. While one hopes that even without the Court's ruling, prosecutors would stay true to their roles as "minister[s] of justice and not simply . . . advocate[s]," this rule may prompt prosecutors to ensure that negotiated pleas are on solid factual footing to minimize the probability of an innocence-based challenge in the future.

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"Don't Be a Lawyer"

I recently read an article by an anonymous author urging readers to avoid becoming attorneys, noting various troubles facing the profession and the difficulties facing those starting out. Here are some of the relevant excerpts:

The competition is terrific. Under prevailing conditions, legal ability is no longer a prerequisite to success. The lawyer without connections is a business-getter, or he rots in his office. Wiles have so boldly supplanted ethics that we have had in recent swift succession a receivership scandal, an ambulance chasing scandal, and a jury-fixing scandal. The integrity of the profession is constantly impugned in the press, and all lawyers are under a cloud. 

It is only the dearth of other employment that keeps the counselors in my town from deserting in droves. Many barely earn their keep, or are assisted by parents, in-laws, or wives. They no longer expect a steady income from law, but live only in hope of a steady job or a political sinecure. Recently a prominent young attorney quit the profession to become a shoe salesman. Others have gone into insurance, bookselling, and storekeeping. One is now the happy proprietor of a fruit stand. 

. . .  

I believe that the harassments which have made the practice of law so dismal today are due principally to overcrowding. My state did not contain a single law school ten years ago; now there are three booming ones. Huge morning, afternoon, and evening classes accommodate everybody. In ten years, the number taking bar examinations has increased by 348 percent.  

. . .  

Hopelessness has sunk deep into my profession, but most pessimistic of all are the newcomers. If I were a young attorney beginning the practice of law in my community today, I should be at my wit's end to earn a dollar, unless I were resolved upon wholesale disregard for ethics. The sharpster has a way of coming out on top nowadays, and survival has come to be most certain for those lawyers who are willing to meet vicious competition with still more vicious practices. It is a condition fraught with serious consequences for the public as well as for the ethical practitioner in law.  

. . .  

Decent youngsters would be better off these days if they raised potatoes instead of practicing law. There is little money in either, but at least from potatoes you derive some satisfaction, and retain your self-respect.

This fairly standard set of indictments against the legal profession is quoted from the straightforwardly-titled article, "Don't Be a Lawyer," which was published in The American Mercury in 1936, and which I found in an April, 1936 edition of Reader's Digest. I'm a bit miffed to be discovering this article now, as I have already become a lawyer, and in the 75 years between the publication of the article and my enrollment in law school, nobody thought to refer me to the author's warnings.

While I have not been able to locate a version of the article online, after a bit of searching, I located this response by William Cain which was published in the Notre Dame Lawyer in November, 1936. Cain criticizes the "pessimistic mental wanderings" of the anonymous author and writes that while many of the facts the author set forth are true, the article focuses on the worst practitioners of the legal profession -- a profession that is primarily composed of "learned, courageous and upright men." (This is not entirely true -- there were learned, courageous and upright women in the legal profession as well, in as early as 1869). Cain points out that the author's selective focus on negative examples could employed to call for readers to avoid the medical profession, business of banking, and institution of marriage.

From Cain's response:

Notwithstanding my anonymous friend's statement that legal ability and real talent are no assurance of success, my own intimate observation and experience of over thirty years active practice at the bar is exactly the reverse. In all that time, I have never known any lawyer with moral courage, ability, integrity and dependability who has failed to enjoy a satisfactory practice yielding amply sufficient pecuniary returns to support himself and family in decency, and to properly educate his children. None of them are, or ever will be, millionaires. None ever wanted to be. Their burning and abiding ambition was to become competent lawyers, and to enjoy the trust and confidence of the communities in which they lived and wrought, and this they achieved. And whatever others may call it, I call it "success."

Things have changed, and I suspect that by now there are some decent lawyers who have managed to surpass that million-dollar mark. But the anonymous article and Cain's response show that present-day arguments about the feasibility of joining the legal profession stretch back farther than one might initially suspect.

READ MORE - "Don't Be a Lawyer"

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Winkler on Corporations and Their Quest for Civil Rights

I haven't posted in a while, partially because work is busy, but also because I have been making more time for recreational reading (a hobby that can be difficult to pursue when one is an associate in the field of civil litigation).

But I've somehow managed to get some reading done recently, so partially to highlight some darn good books (and partially to dilute the frequency of posts fixating on ordinances banning "distracted walking"), here's the first of a couple posts on what I've been reading!

First up is We the Corporations: How American Businesses Won Their Civil Rights by Adam Winkler. I bought the book partially because I was a student at UCLA Law and had the opportunity to take one of Professor Winkler's classes, and partially because I read Winkler's previous book, Gunfight: The Battle Over the Right to Bear Arms in America a few years ago and thought it was excellent.

Winkler's We the Corporations, like Gunfight, showcases his remarkable ability to tell a story. Many cases that are explored in his book are covered in typical law school classes or casebooks on constitutional law. The cases, while significant, are often dry, dense, and confusing. Not here. In discussing significant cases or doctrine, Winkler develops the plot by delving into facts behind each case, the drama of the conflicting interests involved, and the pitfalls of the litigation preceding the various opinions. Winkler explores the characters involved by discussing the histories, backgrounds, quirks, and vices of the corporations, their officers, and the attorneys involved in the cases. All of this combines to create an engaging series of stories that paint a picture of the development of various rights, or sets of rights, that corporations have managed to secure. It is a vast undertaking that is nevertheless straightforward and clear enough to appeal to attorneys and non-attorneys alike. 

The books is nearly 500 pages (closer to 400 if you don't count the endnotes), but you can expect to breeze through it in far less time than you might think because the writing is so clear and engaging. And I hope that many choose to engage, as Winkler reveals that the common debate over whether "corporations are people," is far more nuanced than may be expected. For instance, Winkler points out that corporations have won some of their greatest victories when their personhood is ignored. Rather, it is when courts pierce the corporate "veil" and focus on the people behind the corporation, that corporations have made some of their most dramatic strides in their quest for civil rights. Winkler also draws attention to the recurring phenomenon of corporations' sheer ability to get what they want through the courts. Through hiring the best lawyers, choosing the best cases, and persisting as only tireless business entities can, corporations have often gained recognition of their rights earlier than the other disadvantaged groups who are typically central to the study and discussion of civil rights.

You can find reviews of We the Corporations here, here, here, and here.

Next up will be my thoughts on The Justice of Contradictions: Antonin Scalia and the Politics of Disruption by Richard Hasen. Spoiler alert: it's also pretty dang good.

P.S.: For those looking for recommendations for shorter things to read, check out this post at Josh Blackman's blog on Justice Brennan's correspondence with Barack Obama.

READ MORE - Winkler on Corporations and Their Quest for Civil Rights

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Iowa Senate Bill Would Require State Supreme Court Supermajority to Find Laws Unconstitutional

The Des Moines Register reports:

The Iowa Senate narrowly approved a controversial bill Tuesday that says no state law can be held unconstitutional by an Iowa court without the concurrence of at least five justices of the seven-member Iowa Supreme Court. 

Senate File 2282 was approved on a 26-24 vote, sending it to the Iowa House, where it faces an uncertain future. All the votes in favor were cast by Republicans, while the opposing votes came from 20 Democrats, one independent and three Republicans.

Here's the text of the bill:

Pursuant to the provisions of Article V, section 4 of the Constitution of the State of Iowa, the general assembly declares that no statute shall be held unconstitutional by a court of this state except by the concurrence of at least five justices of the supreme court of Iowa.

The Iowa Supreme Court is made up of seven justices, meaning that this bill would require a supermajority of justices to hold that a state law is unconstitutional. Additionally, the bill applies to statutes being held unconstitutional by "a court of this state," meaning that a statute cannot be deemed unconstitutional unless it is ultimately appealed to the Iowa Supreme Court where at least five justices agree that the law is unconstitutional.

This structure of the bill makes some sense, as it avoids the scenario where the Iowa Court of Appeals holds that a law is unconstitutional, and then becomes precedent because it is not appealed to the State Supreme Court. At the same time, the bill would have a strange effect on the status of Court of Appeals' opinions that are not taken up by the State Supreme Court -- as opinions finding state laws unconstitutional that are not reviewed by the Supreme Court would appear to run afoul of the law and therefore be invalid.

Democrats in the Republican-controlled state senate have spoken out against the law, arguing that it seizes power away from the Supreme Court. Republicans agree -- arguing that the courts should not have the power to overturn laws without this additional requirement. For some truly dense commentary, look no further than Senator Jason Schultz:

Sen. Jason Schultz, R-Schleswig, thanked [Senator Julian] Garrett for advancing the bill, saying it's a measure needed in this day and age. 

"Ladies and gentleman, this bill acknowledges that the Constitution is a contract; that the words do not change. What this bill does is say that we are not going to simply have a popularity contest on the constitutionality of a law," Schultz said.

While it isn't really related to the substantive issues, I'm going to break down Schultz's comment, as it demonstrates a stunning failure to grasp what the Senate is doing and how the the Court works. First, Schultz's assertion that the Constitution is a contract is not correct, as the Constitution is a set of rules that govern the basic functions of state government, and also sets forth individual rights that may be used to strike down laws. It's a set of rules that was enacted by popular vote -- not a contract.  Second, even if the Constitution is a contract, it's unclear how the law acknowledges this. Third, the words of the Constitution do change -- the Constitution can be amended.  Fourth, the bill does effectively say there will be a popularity contest on the constitutionality of law in that five, rather than four, justices can still hold a law unconstitutional. The law just has to be "more unpopular" if we are to adopt Schultz's misleading phrasing.

While I don't approve of the law, as it raises some unpleasant memories of woefully misguided backlash against the Court back in 2010, I don't agree with Democratic lawmakers who claim that the bill is unconstitutional. From the Register:

Sen. Matt McCoy, D-Des Moines, said he was troubled by the partisanship that had appeared to develop over the bill, as well as what he described as "the contempt that this Legislature has towards the courts." 

"I have news for you," McCoy said. "This is not going to be constitutional, and Iowans are going to be angry again at this effort to bring partisanship into this process. Make no mistake about it: This is about partisan politics. When the Legislature doesn't get its way, it punishes the courts."

While the bill certainly has an impact on the separation of powers, and while it certainly appears to be a partisan ploy, McCoy is not correct to imply that the bill violates the Iowa Constitution. Article V, Section Four of the Iowa Constitution states that the Iowa Supreme Court shall "constitute a court for the correction of errors at law, under such restrictions as the general assembly may, by law, prescribe." (emphasis added). This section indicates that the general assembly can place restrictions on the court's jurisdiction. This constitutional grant of power to the legislature is reaffirmed by Article V, Section 14, which states that the general assembly has the duty to "provide for a general system of practice in all the courts of this state," meaning that the legislature is charged with making court rules and enacting procedures.

Senate File 2282 would place a limit on the Iowa Supreme Court's ability to hold laws unconstitutional. It is a clear attempt by the legislature (which is now entirely controlled by Republicans) to limit the power of the Court. This attempt smacks of partisan politics, as Iowa conservatives likely still see the Court as a liberal institution following its 2009 decision in Varnum v. Brien striking down the state's law restricting marriage to opposite-sex couples. It's unfortunate to see such partisan fiddling with the mechanics of the legal system and I hope (though I am not optimistic) that the bill will fail in the Iowa House.

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Montclair Passes Broad Ordinance to Combat "Distracted Walking"

The city of Montclair in Southern California recently passed an ordinance that bans crossing the street while talking on the phone, looking at the screen of an electronic device, or wearing headphones or earbuds on both ears (regardless of whether they are playing music).

Many outlets have reported on this ordinance. I learned about it this morning from a teaser for a local public radio report that you can find here. Illustrious publications such as the LA Times reported on the ordinance. Local outlets as well report on it here and here.

Because I'm a lawyer with a blog and not a "journalist," I'm going to depart from the standard practice that all of these reports have in common, which is to fail to provide a link to the text of the ordinance. Here it is. You're welcome. Here, also, are the minutes for the December 4, 2017 meeting where this Ordinance was approved.  The minutes contained the ordinance number (17-791), which finally led me to the text. (Two links to the text in one post. I'm out of control.) 

To make things even crazier, here's (most of) the text of the municipal code sections that the ordinance added to the Montclair Municipal Code (and which became effective on January 3, 2018):

8.02.010. Definitions. 
As used in this Title, the following definitions shall apply. For purposes of Title 8, these definitions shall supersede any other definitions of the same terms elsewhere in this Code.  

Emergency Responders include, but are not limited to, public safety officers of either a municipal or county police department or fire department, emergency medical technicians, paramedics, private ambulance service responders, emergency management workers, and federal and state law enforcement and fire service officers on duty and responding to an emergency service request.  

Mobile Electronic Device means any handheld, head- or body-mounted, or portable electronic equipment capable of providing wireless and/or data communication between two or more persons or a device for providing amusement, including but not limited to a cellular phone, smart phone, text messaging device, paging device, personal digital assistant, laptop computer, video game, video/audio player, digital photographic device, or any other similar electronic device. 

Pedestrian means a person who is afoot or who is using any of the following: (1) a means of conveyance propelled by human power other than a bicycle; or (2) an electric personal assistive mobility device.  

Personal Audio Equipment means any device placed in, on or around a person's ears capable of providing an audible sound, including but not limited to headphones or ear buds.  

Viewing means looking in the direction of the screen of a mobile electronic device.  

Chapter 8.28 PEDESTRIANS  

8.28.020. Pedestrian Use of Mobile Electronic Devices.  

A. No pedestrian shall cross a street or highway while engaged in a phone call, viewing a mobile electronic device or with both ears covered or obstructed by personal audio equipment.  

B. Upon presenting evidence, it is an affirmative defense to any citation for a violation of subsection (A) that the cited person was engaged in, or making, a "911" emergency communication with a mobile electronic device.  

C. Emergency responders viewing a mobile electronic device, or whose ears are covered or obstructed by audio equipment, while in the performance and scope of his or her official duties are exempt from subsection (A).  

D. Persons with medically prescribed hearing aides [sic] are exempt from subsection (A).  

E. Any person who violates any provision of this Chapter is guilty of an infraction violation punishable in accordance with Chapter 1 .1 2 of Title 1 of this Code.

A few things.

Montclair City Manager Edwin Edward Starr said that he wanted to address "distracted walking" in the city, and that he eventually found Honolulu's distracted walking ordinance which was passed in 2017. (For the record, the LA Times did not link to the text of Honolulu's ordinance, but the Daily Bulletin did).

I too had heard of Honolulu's ordinance, which I blogged about here. I concluded that while Honolulu's ordinance could give rise to some strange situations and maybe abuse of discretion in its enforcement, it was narrow enough that these problems either would not arise, or at least only have a minimal negative effect. Starr claims that he "took cues" from the Honolulu ordinance, but it is unclear what this means, as Montclair's ordinance prohibits far more conduct than Honolulu's ordinance.

Honolulu banned looking at the screen of an electric device while crossing the street. This makes sense because if a pedestrian is looking at the screen, they are not looking elsewhere -- such as to either side to ensure that no cars are coming, or ahead to see if the "Walk" sign is indeed lit. Montclair, on the other hand, bans looking at screens, but also bans talking on phones and having headphones on both ears while crossing the street. These activities may distract pedestrians to a certain degree, but they at least involve circumstances where the pedestrian not necessarily looking at the screen, and therefore far less likely to be blindsided by a car or to fall into a pothole.

Not Montclair's ordinance, however.  Montclairs broad ban means that anyone who is jogging while listening to music must now remove their headphones before crossing a street. The ordinance does not defined "engaged in a phone call," so it is not clear if simply putting a phone down by one's side before crossing the road is fine, as the phone is still "engaged" in that call. The safest bet would be to hang up your phone while crossing the street, so good luck if you are on the phone asking for directions to anywhere in Montclair.

While Starr and his staff who drafted the ordinance attempted to curtail its foolish overreach to exempt people with hearing aids from the ban's gratuitous scope, they even failed at this.  The ordinance states that people with medically prescribed "hearing aides" are exempt from the ban.  This apparently refers to the rare circumstance in which a doctor decides to address a patient's hearing loss by prescribing two or more assistants to follow the hard-of-hearing person around and yell any words that the person may not have heard, or scream at the person to alert them to quiet noises that may otherwise be missed. I think it would have been better had they exempted people with "hearing aids," but I'm not the municipal-code-drafter.

If Montclair had copied and pasted Honolulu's ordinance, that would have been fine. But the ordinance that Montclair passed prohibits a far greater range of conduct, which could give rise to selective enforcement of the law. After all, if the number of people who violate the ordinance is far greater than the number who may be practically cited, it falls on law enforcement to decide when to enforce it and against whom the ordinance should be enforced. This makes it all the more likely that the law will be enforced along racial or class-based lines.

"But it's only a $100 fine!" a supporter of the ordinance may say. To which I respond: $100 is a significant amount for some, these penalties could add up since they prohibit such a routine activity, and fines are often accompanied by various court and administrative fees that expand the amount that people end up needing to pay.

"But the city is going to put 'stencils' on every crosswalk corner warning people not to use phones!" a supporter may argue. To which I respond: the sign itself should be enough to alert people, removing the need for an ordinance, and the city's plan to put up "decals depicting a no-cellphone symbol below the words: 'Don't be Distracted'" is misleading because those decals imply that only cellphone use is prohibited when, in fact, the ordinance prohibits far more.

Honolulu's ordinance banning looking at screens while crossing the street was fine, if perhaps unnecessary. Montclair's ordinance is sloppy, overly-broad, and should never have been passed.

READ MORE - Montclair Passes Broad Ordinance to Combat "Distracted Walking"

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