Wednesday, October 15, 2014

Voter ID statutes and a recent, real-life experience that prompts a question regarding same

One way you may give away your allegiance in the Culture Wars these days is by how you refer to statutes requiring voters to produce identification at the polls. These may be referred to as voter ID statutes, but the Red Meat Right refers to them as "vote fraud" statutes, and the True Blue Left calls them "voter suppression" laws.

To illustrate, just last Thursday Think Progress ran an article, "Surprise! The Roberts Court Just Halted A Voter Suppression Law."

The article refers to the recent case concerning the Wisconsin voter ID statute, Frank v. Walker. The Seventh Circuit heard arguments on the stay imposed by the Eastern District of Wisconsin against enforcement of the law on September 12, issuing an Order dissolving the stay that same day. 2014 U.S. App. LEXIS 17653. The Order provided, in pertinent part,
After the district court's decision, the Supreme Court of Wisconsin revised the procedures to make it easier for persons who have difficulty affording any fees to obtain the birth certificates or other documentation needed under the law, or to have the need for documentation waived. Milwaukee Branch of NAACP v. Walker, 2014 WI 98, 851 N.W.2d 262 (July 31, 2014). This reduces the likelihood of irreparable injury, and it also changes the balance of equities and thus the propriety of federal injunctive relief. The panel has concluded that the state's probability of success on the merits of this appeal is sufficiently great that the state should be allowed to implement its law, pending further order of this court.

The appeals remain under advisement, and an opinion on the merits will issue in due course.
Due course rolled around on Monday, October 6, when the 7th Circuit issued its opinion in the Frank case. 2014 U.S. App. LEXIS 19108. By Thursday, however, the United States Supreme Court had intervened to reinstate the original District Court stay. 2014 U.S. LEXIS 6734. The Supreme Court's Order provides:
The application to vacate the September 12, 2014 order of the United States Court of Appeals for the Seventh Circuit presented to Justice Kagan and by her referred to the Court is granted and the Seventh Circuit’s stay of the district court’s permanent injunction is vacated pending the timely filing and disposition of a petition for a writ of certiorari respecting case Nos. 14-2058 & 14-2059. Should the petition for a writ of certiorari be denied, this order shall terminate automatically. In the event the petition for a writ of certiorari is granted, the order shall terminate upon the sending down of the judgment of this Court.
Justice Alito dissented (joined by Justices Scalia and Thomas), conceding that there "is a colorable basis for the Court’s decision due to the proximity of the upcoming general election," but insisting that the application should be denied because there was no indication that the 7th Circuit "clearly and 'demonstrably' erred in its application of 'accepted standards.'"

In the Think Progress post, Ian Millhiser posits that the colorable basis conceded by Justice Alito is found in Purcell v. Gonzalez, 549 U.S. 1, 127 S.Ct. 5, 166 L.Ed.2d 1 (2006). In Purcell, Millhiser writes, "the Supreme Court explained that judges should be reluctant to issue orders affecting a state’s election law as an election approaches. 'Court orders affecting elections,' according to Purcell, 'can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.'"

I confess that there is a part of me that does not understand the controversy: Elections are about getting more votes for your candidate than their candidate. This can be done in two ways, either by getting more of your voters to the polls (GOTV campaigns) or by keeping more of their voters away (voter suppression tactics). Serious political campaigns do some of both. Partisans of the Red Meat Right and the True Blue Left and anybody else who wants to see their candidate elected (and who can afford to do so) routinely engage in voter suppression tactics. What else would you call negative ads? Whether they are attack ads aired on TV or mailers sent on behalf of more local candidates, Candidate A does not run negative ads to excite his or her base. Rather, Candidate A (or his or her surrogates) run the ads to dampen the potential enthusiasm of undecided voters for Candidate B. If we can't get these votes, goes the thinking, we must make sure the other side can't get them either. (Studies show that, although staunchly opposed to Candidate A, some voters will, after a sufficient barrage of negative commercials targeting Candidate B, stay home on Election Day. How -- the disillusioned voter reasons -- can I vote for Candidate B, a candidate who is the catspaw of the [choose one] public employees unions - Welfare Lobby - Koch Brothers - Gun Lobby - Wall Street oligarchs and who kicks puppies besides?)

As a life-long resident of the Chicago area, and a registered voter in Chicago for over 30 years, I believe, for the most part, that voter fraud is -- in Illinois at least -- much less of a problem than it was in the Bad Old Days when Chicago's "river wards" vied with certain DuPage County precincts to see who could hold out longer and then 'deliver' for their candidate in a close statewide contest. Still, I have so far spurned early voting -- I want to make sure my vote is actually cast in my precinct and I don't want to rely on someone else to deliver it there -- and I always vote early in the morning on Election Day. I seem to recall one mayoral election where CTA service was mysteriously disrupted on the evening of election day, in what sure looked like an attempt to hold down a particular candidate's vote....

The True Blue Believers have a host of statistics that show that voter fraud prosecutions are virtually nonexistent and this is offered in support of an assertion that voter fraud does not exist.

Well... maybe. But, let's put it this way so as not to cast aspersions on anyone: For an elected prosecutor, or even an appointed prosecutor serving at the pleasure of the party controlling the White House, it would understandably be a higher priority to deal with voting irregularities if they threaten to drive your party from power than if such irregularities, to the extent they exist, help keep your party in power -- or don't make any difference in likely outcomes. Human nature being what it is, a reasonable person would investigate, and prosecute, more urgently in the former situation than in either of the latter ones. The absence of vote fraud prosecutions may mean there is no vote fraud, but it it may also mean that identifying and extirpating vote fraud is not a high priority because any vote fraud that does exist benefits the party in power or is not outcome-determinative.

This brings me to a recent, real-life experience. I begin by reiterating that I firmly believe our election process today to be cleaner than it was in my youth.

But we recently received a jury summons at home for my oldest child. She lives in Indianapolis these days, and has for five years now, where she is married and has a daughter. She is registered to vote in Indianapolis. She is licensed to drive in Indiana.

I was enlisted to 'take care of' the jury summons. After a couple of false starts, I found myself in the Jury Administration's Office in the Daley Center, asking for instructions. I was told to have my daughter send a letter, providing her current address and proof of her non-Illinois residence. She happened to be in town that very weekend, so it was easy to put the letter together and provide the requested copy of the driver's license. For good measure, in addition to sending the letter to Jury Administration, my daughter sent a copy of the letter (including a scanned copy of her Indiana driver's license) to the Chicago Board of Election Commissioners.

This was in late June of this year.

We subsequently received our new voter registration cards in the mail. My oldest child has always received a new card, despite her move out of town. But this time -- surely this time -- she would be removed from the voter rolls. Right?

If you've stayed with me this far, you know where this is going: We received a new voter registration card for my oldest child pursuant to the July canvass.

So far as I know, no one has presumed to vote on my daughter's behalf in the past several years. But, apparently, the opportunity exists, and has existed for some time. I assume this is entirely innocent. But, given that these types of errors can occur, even when specific requests are made to remove a person from the voter rolls, why is it per se unreasonable to consider requiring some additional identification at the polls over and above voter registration?

Friday, October 10, 2014

Nobel Peace Prize awarded to Malala Yousafzai

Pakistani schoolgirl Malala Yousafzai, is a co-recipient of this year's Nobel Peace Prize.

You may recall that Malala Yousafzai captured the world's attention when, in 2012, two brave, young Taliban fighters stopped the bus in which the girl was riding. One of them muscled his way into the school bus crowded with school children, courageously announced his intention to shoot them all if Malala did not identify herself -- and when she did, he heroically shot the defenseless, unarmed schoolgirl in the face at point-blank range. (A couple of other children were also wounded.) Somehow, Malala survived.

And the heinous crime committed by Malala that justified the Taliban's attempt to murder her? She had the temerity to blog about her desire to stay in school and receive an education on a BBC-sponsored, Urdu-language website.

The New York Times reported on October 13, 2012, just days after the botched murder attempt, that both Malala and her father remained on the Taliban's hit list. The Times article, by Declan Walsh, with Sana ul Haq and Ismail Khan contributing from Pakistan, stated,
Sirajuddin Ahmad, the spokesman for the Taliban in the Swat Valley, said that Ms. Yousafzai became a target because she had been "brainwashed" into making anti-Taliban statements by her father, Ziauddin Yousafzai.

"We warned him several times to stop his daughter from using dirty language against us, but he didn't listen and forced us to take this extreme step," he said.

Both father and daughter remain on the Taliban's list of intended victims, he said.
But Malala has not been silenced by the Taliban's actions or it's threats.

Instead, on her 16th birthday, just last year, Malala was able to address the United Nations General Assembly:
"The extremists were, and they are, afraid of books and pens," [said] Malala, who was wearing a pink shawl that belonged to assassinated Pakistan leader Benazir Bhutto. "They are afraid of women."

She called on politicians to take urgent action to ensure every child has the right to go to school.

"Let us pick up our books and pens," Malala summed up. "They are our most powerful weapons.

"One child, one teacher, one pen and one book can change the world. Education is the only solution. Education first."
And today, Malala Yousafzai is announced as a winner of the Nobel Peace Price. Sometimes there is justice in the world.

Tuesday, October 7, 2014

October 8: Anniversary of the day the Midwest caught fire

Currier & Ives lithograph obtained from the Chicago Historical Society

You probably remember that October 8 is the anniversary of the Great Chicago Fire.

State and Madison after the Fire
School children are probably not required to memorize the gruesome statistics of the fire anymore, but they are readily accessible on Wikipedia: The fire destroyed an area about four miles long, averaging averaging 3/4 of a mile in width. Roughly 17,500 buildings were destroyed; property damage was estimated at $222 million. One in every three Chicago residents -- roughly 100,000 of the City's total 300,000 population -- was made homeless by the fire. There were 120 bodies recovered after the fire, but authorities estimated the actual death toll at up to 300.

Most folks don't remember this, but the Chicago fire destroyed the records of two Illinois counties -- Cook, of course, but also DuPage. In 1871 Naperville and Wheaton were literally up in arms over which town should be the seat of DuPage County and the county records were removed to Chicago for safekeeping.


And yet -- believe it or not -- the Great Chicago Fire was, in many ways, the smallest of three major fires in the Midwest on October 8, 1871. Over on the Lower Peninsula of Michigan, a number of cities, including such widely scattered burgs as Holland, Manistee, and Port Huron, were damaged or lost entirely in a series of fires collectively referred to as the Great Michigan Fire. There were not as many lives lost in the Michigan fires, but more land and timber was damaged in these fires.

Mass grave at Peshtigo. © Deana C. Hipke.
There may have been 300 people killed in the Great Chicago Fire, but the mass grave shown in this picture, in a picturesque cemetery next to the converted church that serves as the Peshtigo Fire Museum, is the final resting place of roughly 350 unidentified victims of the Peshtigo Fire.

At least 1,200 people died in the Peshtigo Fire, roughly 800 in the town of Peshtigo alone (roughly half the population of the town); the total death toll may have been as high as 2,500. Whole families were wiped out; in many cases there was no one left, after the fire, to remember who'd been lost.

The firestorm was so intense that the flames jumped right across Green Bay, damaging large portions of the Door Peninsula. It also spread into the nearby Upper Peninsula of Michigan, ultimately damaging an area twice the size of Rhode Island.

One area that was not involved in the Peshtigo Fire, though it was in the path of the flames, was the Shrine of Our Lady of Good Help, in New Franken, Wisconsin.

Many believe that the Virgin Mary appeared at this site on October 9, 1859 to Adele Brise, a young Belgian woman. A church and school were built there because the Virgin told Brise to teach religion to children. According to the website of the Catholic Diocese of Green Bay:
When the Peshtigo Fire spread across Green Bay on Oct. 8, 1871, area residents walked around the chapel grounds all night praying the rosary and carrying a statue of Mary. Everything outside that five-acre area was burned.

Every year on Oct. 8 people reenact the procession at the Shrine.
A church was also saved from disaster in Chicago, too, but the story is less impressive.

Fr. Arnold Damen, S.J. founded Holy Family Church in 1860 and St. Ignatius College in 1870 in what was then the middle of nowhere. But that isolated location was uncomfortably close to the infamous O'Leary barn when the Great Chicago Fire broke out, only about 3/4 mile away. Cecil Admams picks up the story in a Chicago Reader Straight Dope column from 2009 (emphasis in original):
When the Great Fire began, the wind was blowing out of the southeast. Holy Family and Saint Ignatius were directly west, and arguably would have escaped the flames had conditions remained unchanged, but Father Damen was taking no chances. In the version of the story I initially heard, he stood on the front porch of Saint Ignatius and prayed to the Almighty to spare his life's work. This was embroidery. In reality his prayer was offered up in Brooklyn, where he was preaching at the time. No matter; the Lord could hear him there just as well. Father Damen vowed that if his prayers were answered, he would keep seven vigil lights burning before an image of the Virgin.

The wind shifted. Formerly it had been driving the fire toward the outskirts of town; now it began to blow out of the southwest, pushing the fire northeast. You see the implications of this. The church and school were saved. Instead, the conflagration burned down the rest of Chicago.
But, Adams adds, the City Council did not hold a grduge: Damen Avenue was eventually renamed in Fr. Damen's honor.

Friday, October 3, 2014

Anita Baker's legal woes provide lessons for would-be litigants in small claims cases

Edited 5/9/18 to remove no-longer-functioning video link.

I heard this on the radio in the last couple of days: Singer Anita Baker is being sued by an attorney who says he stiffed her by not paying $69,000 in legal bills he incurred in fighting a suit brought by contractors who claimed Ms. Baker had failed to pay them $15,000 for painting they'd done at her home in the Detroit area.

This, I thought, was ideal fodder for a blog post. I have conversations with prospective clients almost every week about relatively small disputes. I always try to explain that smaller cases often take significant time to prepare and that fees could quickly become disproportionate to the amounts really at stake. But I've noticed that trying to explain this concept in general terms isn't always particularly effective. On the other hand, people pay attention to celebrities and stories about celebrities. This story, I thought, might provide a teaching moment.

Of course, the story wasn't quite as simple as the Chicago radio account made it out to be. I've tried to republish a Detroit TV story about the suit. Even if the video won't play on your device, however, I have this link to the TV story.

It appears that Ms. Baker has been involved in a number of suits with disgruntled -- and unpaid -- contractors of one sort or another, including lawyers.

Please understand: I'm not taking sides. Sometimes people try and take advantage of celebrities. Sometimes celebrities think their fame gives them license to engage in all sorts of anti-social behavior. I don't know, and don't pretend to know, whether Ms. Baker is justified in her refusals to pay.

Looking at the archives of the Detroit News on Lexis, I discovered that the present dispute arises from a 2010 suit filed by Ray A. Smith Painting and Decorating. According to Robert Snell's October 24, 2010 story, the painter alleged that Ms. Baker owed "$15,239.60 for work at her Grosse Pointe home last year, including painting the walls and ceiling of her son's bedroom, replacing a rotten doorsill, removing water-damaged plaster in her living room and other painting."

Ms. Baker did not respond to the suit. She was defaulted. Elisha Anderson's March 21, 2014 story in the Detroit News reported that a bench warrant had been issued for Baker's arrest on account of her failure to appear "at a creditor's examination" in September 2013. The painter's attorneys had pursued post-judgment proceedings trying to collect on the default judgment. In Illinois, we'd call this a Citation to Discover Assets hearing. The bottom line, though, was that -- three and a half years after filing suit -- the painters had not been paid. And this was long after they'd won their suit.

There are a number of lessons here for would-be litigants in small claim cases:
  1. For Defendants -- If you are sued, the worst thing you can do is ignore the suit. If you had a basis on which to oppose the claim -- maybe the painters really did do a bad job -- when you allow the suit to go into default, you almost certainly give up your rights to assert that defense, or those defenses. In Illinois, at least, once 30 days have passed after the entry of a default judgment, your 'best' chance to open up the judgment is under §2-1401 of the Code of Civil Procedure. That will be difficult, if not impossible. And, either way, it will be expensive. You'd be far better off to meet the suit head on in a timely manner -- and, if you owe the money, you may be able to work out a payment plan or even a discount.
  2. For Defendants -- If you haven't followed my good advice above, and have instead allowed the suit to go into default, and if the case was filed against you in Illinois, interest will accumulate on the judgment at 9% per year. By statute. Non-negotiable. And all the costs of post-judgment proceedings -- such as Citation proceedings -- will be tacked on.
  3. For Plaintiffs -- It doesn't matter how 'good' your case is. It doesn't matter how quickly you 'win.' (A default judgment is a win.) It still can take years to get paid. You may never get paid: Ms. Baker presumably has the money to satisfy this judgment -- but the party you sue may not. You can't get blood from a stone -- and you have court costs to pay and perhaps your attorney. Sure, many attorneys take cases on a contingent fee basis -- meaning they don't get paid until you do -- but that typically happens in personal injury cases, where there is a presumably solvent insurer making business decisions on the other side. You might get an attorney to take your collection case on a contingent fee -- but, one way or the other, the attorney's fee is coming from your bottom line. Unless there's a statute or contract provision that allows for it, the other side is not going to have to pay your attorney's fees.
The attorney who is now suing Ms. Baker was engaged after the bench warrant was issued. The first thing he had to do was keep Ms. Baker out of jail. Robert Allen's story in the April 19 Detroit News reported that Ms. Baker's new attorney was also going to sue the painting contractor and attempt to set aside the default on the grounds that Ms. Baker didn't know the suit existed until long after the default was entered. (Failure to obtain service could be a valid basis on which to open up a judgment in Illinois even if §2-1401 grounds are not present. No court can act without acquiring jurisdiction over the defendant; a court obtains jurisdiction over a defendant in a civil case when the defendant is properly served.)

I don't know how Baker's suit fared, but the fees run up by her new attorney were not just for the defense of the painter's suit. (In fact, unless that judgment were opened up, there was nothing to defend in that case at all.) And the TV story suggests that the attorney had negotiated a broader representation agreement with Ms. Baker, signing on to represent her as necessary as a "vice president of operations." So the allegedly unpaid $69,000 fee may well have been reasonable.

But there's still a lesson here for would-be litigants: Beware of mission creep. You think you've hired a lawyer to represent you in a $15,000 collection case -- but, if you ask her to advise you on other matters, you will be (and should be) charged for these additional services. Don't hire an attorney without a clear view of what you want him to do. Do you want the lawyer to negotiate the best possible settlement on your behalf -- or do you want her to fight to the last ditch? One option is far more expensive than the other if you're paying an hourly rate.

People watch Judge Judy and Judge Mathis and other courtroom shows and get grand ideas about how quick, cheap and efficient the justice system is. When a lawyer tries to tell you that things don't work in real life like they do on television, please listen.