Campaigns and Felonies

As a former political science instructor, the Jamestown Lawyer is saddened by the current tactics on display in the mayoral race.

Regional: Buffalo's Poverty

Jamestown, situated between Erie and Buffalo and on main interstates reaching other large cities, doesn't have its fate tied entirely to the nearest urban hub. However, news out of Buffalo concerning the Census Bureau's determination of poverty rates doesn't bode well for the city or for WNY. (Story via Buffalo News)

Law Lessons

Were the Jamestown Lawyer truly creative, I'd be working on a booklet of witty legal aphorisms to advise and inform. I'd like to take a page from that hypothetical book and explain, in basic terms, something that comes up over and over about our legal system:

Anyone can sue anyone else for anything.

It's not as witty or pithy as I'd like it to be, but in a way it sums up the answer to a question I get way too often from friends and clients. Quite often it is after the usual forward of frivolous lawsuits (most of which never were actually filed anywhere) goes around and people get up in arms.

I'm not trying to say we aren't an overly litigious society. I firmly believe that common sense needs to be applied to every lawsuit, even those filed for legitimate reasons. That said, the Jamestown Lawyer would like everyone to realize that the court system is not an exclusive nightclub with a velvet rope and a bouncer at the door.

The check on whether cases have merit occurs, in most cases, once they are filed. Court staff can turn away the truly frivolous, but are unwise to do so except in very clear situations since it opens them to civil rights liability for denying access to the courts. The system is designed in a way that a person is able to make his/her claim of how he/she has been wronged and it then falls on the other side to address why the case has no merit. In an instance where a case has zero merit, there are fines and disciplinary sanctions. Quite often the person bringing the case will then be responsible for the defendant's legal fees. Overall, it is a system geared toward protecting the rights of those who have been wronged, who get a chance to put the issue before a court. The court may agree with the opposing party that there is no claim, or perhaps there may be a claim where nothing can be done, but the allegedly wronged person has a right to present those claims.

I am not writing from the perspective of a plaintiff's lawyer here, as I usually see more defense work in my own practice. Defendants are usually between outraged and awestruck that they are being sued. A full understanding of the legal system involves understanding that service or delivery of papers, while it should be taken seriously, doesn't mean much about the value of the case or the eventual result. Sure, your former landlord is suing you for $20,000 because you left a bottle of ketchup in the fridge when you moved out. The number is scary, but the overexaggerated situation generally isn't.

BPU

The Jamestown Lawyer wonders what is going on at the Board of Public Utilities. The Post-Journal reports on a string of resignations in high positions. Most important to the Jamestown Lawyer is correcting whatever the reported issue is with Customer Service.

Gonzales Steps Down

ABC.com has a good article on the upcoming process to confirm a new US Attorney General. Current AG Alberto Gonzales, mired in controversy, submitted his resignation on Monday. As indicated by ABC News, this will be the first time Pres. Bush sends an AG nominee to the Democratically controlled Senate.

The Jamestown Lawyer's initial hunch is that a sitting Senator will be offered the post. Hearings on the confirmation would then have an additional layer of fraternal respect. Otherwise, I would expect the Senate to use the hearings as a public forum to question administration policies in bruising detail.

Sports & Labor Law

This story features two WNY native sons: NFL Commissioner Roger Goodell and former SU and NFL star Daryl Johnston (Chautauqua and Niagara Counties, respectively). It is an interesting question, even if not really addressed in the article: what responsibility does the players' union have to former players? It's a similar question to what might be faced in coal mining unions--what happens when the black lung sets in after someone hasn't been in the mine for a few years? It's job-related risk, but it's not directly "on the job" injury.

The article, in discussing Johnston's neck injury, also touches on an issue the Jamestown Lawyer sees far too often in dealing with injured clients: the "able to work" distinction. I have encountered people who have lost decent jobs due to illness and injury and then have been turned down for benefits because they are found eligible for 4 or 5 hours a day at a fast food restaurant, even though the wages won't put a dent in Rx costs. All of which is your Jamestown Lawyer standing on a soapbox and not law-related, directly, but certainly an area where law and legislation should combine to add some common sense to the system.

Judicial Conduct

The Jamestown Lawyer has written in the past on attorney and police conduct, be it exemplary or ethically challenged. For reference, here is a link to the State Commission on Judicial Conduct. This is the body which oversees judges in the state.

A telling statistic is visible in this chart (scroll down a bit) comparing the disciplinary proceedings against Justice Court judges and all other judges. In some ways, it isn't unexpected given the massive number of low level courts in the state. At the same time, I'm not sure the numbers are in proportion and we're seeing the lack of professionalism in action. That's an opinion, but it's backed up, anecdotally, by an unscientific review of a few cases. The most serious transgressions (lying under oath, repeated ex parte communication, issuing favorable judgments to friends without hearings) were most often in the Justice Courts.

Demolition

An unofficial follow up to a previous post on liability and demolition costs, via a P-J article from today's paper.

The city has stepped up activity on dealing with blighted properties, but it isn't cheap. I could probably opine more on the issue, the economics and the role of government, but I'll leave it at that. Of a more topical nature is the legal basis. The Jamestown City Code allows the Department of Development to declare buildings hazardous and take them down, while seeking to recover costs from the property owner. The relevant section can be found in section 215 of the City Code. A court order is required, but the Jamestown Lawyer has never been a witness to the process to know how it unfolds in practice.

Enviro, Muni and Liability

Today's P-J features a story on the Dahlstrom building, which may or may not be set to drop into the Chadakoin River. One's perspective on the situation is inevitably tied to the potential impact on the pocketbook. The building's owner says help from the state and city is needed to bring it down. The city could demolish the property as a hazard, but there's no guarantee of ever getting any money back from the owner.

This situation reminds the Jamestown Lawyer of a couple pieces of environmental law. Superfund, at the state and federal level, and New York's Oil Spill Law, in the Navigation Law both come to mind for the concept of "strict liability." Strict liability, by way of my own definition, is when the statute establishes that an involved party is liable for the costs of cleanup regardless of the involvement. Under the Oil Spill Law, for example, if you buy property and later find out it was a gas station and the soil all needs to be dug up and trucked out, you as the owner are liable for either doing it or reimbursing the DEC. The statute does allow the liable party to sue other parties who are responsible for the action, but not to shift liability (except in certain narrow cases.)

It seems a situation that could lead to unfair results, unless we remember "caveat emptor." The reason, though, is that it avoids finger pointing and blame shifting and all the like that prevents someone from undertaking the cleanup. All of that may follow in eventual civil actions between various potentially responsible parties, but by putting one person on the hook from the start, there's increased likelihood some costs will be recovered. This is important under Superfund and Oil Spill laws since every piece recovered helps fund the cleanup of additional impacted sites.

Statutory mechanisms already exist for a muni to take down a building and hold someone responsible. The more complicated situation is one like this, where it isn't an immediate danger and repair/upkeep could solve the problem. Perhaps code violations in an attempt to make the owner fix would be an answer, but it seems much less efficient than the mechanics of environmental law.

JPD Hearing

The hearing regarding the termination of Sgt. Smeraldo reconvenved over the weekend, with the officer presenting a defense against the allegations. (Story is from the Post-Journal).

Being a spectator to the whole thing, I have no real insight into the matter. As the case is reported, however, I find it could go either way. The officer sounds evasive in not knowing what he said, but the case against him doesn't seem very strong.

Additional opinion, free of charge: he was suspended for assaulting a prisoner, but he's in danger of being fired for badmouthing a superior? Perhaps the list of priorities needs to revisited at 200 East Second Street.

Vick: Not yet tried.

ESPN has an intriguing feature related to Michael Vick, profiling some of the civil rights leaders and activists who are taking issue with the coverage of the case and the treatment of the accused.

Racial history in our country, and in narrow areas like the law, is often downplayed because it is such an incendiary topic. This article presented the case, in a clear fashion, how many are trying to avoid a rush to judgment based on their own pasts.

The good old hockey game

This post isn't professionally related, unless someone takes a puck to the face and I decide to move into torts. Alternatively, I am available to be the Jamestown Hockey GM.

If you haven't heard, Jamestown now has professional hockey.

Watson Suit Dismissed

The State Supreme Court recently granted a motion for summary judgment brought by the City, dismissing the suit brought by former JPD officer Michael Watson. The link leads to P-J coverage of the decision, with comments from the attorneys on both sides.