A pair of glasses sitting on top of a table.

Quote of the Day: Everything in life is luck. Donald J. Trump

May It Please the Court

May It Please the Court

The Hawai’i Supreme Court Upended Gun Laws


Our United States Supreme Court recently expanded the Bill of Rights’ Second Amendment to allow individual gun rights, expanding the “well-regulated militia” right to bear arms in Heller, Marshall and Bruen. The Hawai’i Supreme Court took issue with those rulings, instead upholding Hawai’i’s “place-to-keep” laws limiting gun use to homes, offices and hot pursuit from those locations. There is no right in Hawai’i to possess a gun in public.

That right was taken away long ago by King Kamehameha in his “law of the splintered paddle,” when he was attacked and almost killed by fishermen who beat him with a paddle. He ruled that the rights of Hawai’ians to be safe in public places outweighed the right to carry a weapon.

To jump back to the USSCT’s rulings, the Court invented a new test based on “historical textualism,” or how the founders would have interpreted the Constitution at the time it was written. The Hawai’i Supreme Court, on the other hand, pointed out that “[James] Madison’s writings suggest that the Second Amendment originated from fear of a federal government power grab. The Second Amendment quelled alarm that the national government might disarm and disband state militias. Those militias could “oppose” a federal army, Madison wrote, and ‘would be able to repel the danger’ of the federal government. The Federalist No. 46, at 301 (James Madison) (Isaac Kramnick ed., 1987).

That’s what they were thinking about long ago. Not someone packing a musket to the wigmaker just in case.”


They didn’t stop there, recognizing that states’ rights trump federal rights. The opinion reads, “The Hawaiʻi Constitution often offers ‘greater protections’ than the federal constitution. [cite] When the two contain look-alike provisions, Hawaiʻi has chosen not to lockstep with the Supreme Court’s interpretation of the federal constitution. Rather, this court frequently walks another way.

Long ago, the Hawaiʻi Supreme Court announced that an ‘opinion of the United States Supreme Court . . . is merely another source of authority, admittedly to be afforded respectful consideration, but which we are free to accept or reject in establishing the outer limits of protection afforded by . . . the Hawaiʻi Constitution.’ [cite] Further, ‘this court has not hesitated to adopt the dissents in U.S. Supreme Court cases when it was believed the dissent was better reasoned than the majority opinion.'”

The Hawai’i Supreme Court ended their 5-0 unanimous opinion with a nod to their heritage: “The spirit of Aloha clashes with a federally-mandated lifestyle that lets citizens walk around with deadly weapons during day-to-day activities. The history of the Hawaiian Islands does not include a society where armed people move about the community to possibly combat the deadly aims of others. [cite] (‘The law of the splintered paddle . . . shall be a unique and living symbol of the State’s concern for public safety.’). The government’s interest in reducing violence through reasonable weapons regulations has preserved peace and tranquility in Hawaiʻi. A free-wheeling right to carry guns in public degrades other constitutional rights. The right to life, liberty, and the pursuit of happiness, encompasses a right to freely and safely move in peace and tranquility. [cite] Laws regulating firearms in public preserve ordered liberty and advance these rights.”

As if not content with leveling criticisms of the Supreme Court’s gun rulings, the Hawai’i Supreme Court leveled one more insult of the Supreme Court’s interpretation of the Second Amendment, noting that the “well-regulated militia” language in the Second Amendment requires that it be read as part of the amendment, which reads:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

“A textual approach to constitutional interpretation appreciates that words appear (or do not) for a reason. Both clauses of article I, section 17 and the Second Amendment use military-tinged language – ‘well regulated militia’ and ‘bear arms’ – to limit the use of deadly weapons to a military purpose. In contrast, there are no words that mention a personal right to possess lethal weapons in public places for possible self-defense.

First, we examine the prefatory clause to article I, section 17 and the Second Amendment. The opening words carry a military meaning. The ‘well regulated militia’ clause warms up the rest, defining the text. It ‘sets forth the object of the Amendment and informs the meaning of the remainder of its text.’ Heller, 554 U.S. at 643 (Stevens, J., dissenting). Article I, section 17’s first clause offers context and clarity, like preambles do. ‘It cannot be presumed that any clause in the constitution is intended to be without effect.’ See Marbury v. Madison, 5 U.S. 137, 174 (1803).

To English speakers – in 1791, 1868, and now – the first clause narrows the right that the second clause confers.”

And with its opinion, the Hawai’i Supreme Court ripped apart the US Supreme Court’s newly-minted historical test to shoehorn individual gun rights into the Second Amendment, essentially overruling Heller, Marshall and Bruen with pure logic.

Technology Brings Us to the “Chatbot Lawyer”


What’s a chatbot lawyer? It’s that little box that pops up on lawyer’s websites offering to answer legal questions, put you in direct contact with one of the firm’s lawyers and even fills out intake forms. Legal dictionary writer Bryan Garner frets whether to include the phrase in Black’s Law Dictionary. It’s also a form of Artificial Intelligence that is finding its way into every corner of the law.

For some, the transition to using AI in the legal world hasn’t gone well, perhaps deservedly so in this instance. To some degree we’ve become so accustomed to website pop-ups and chatbots that appear on many other websites, so is it really a big deal that chatbots stormed the bastions of law firm websites?

On the other hand, the Robot Lawyer got yanked from the courtroom by the California State Bar, so apparently lawyers aren’t going to be replaced by robots anytime soon. Some would argue even so that there are already robotic lawyers in the courtroom who don’t have enough experience but rely instead on book learning and lack creativity.

But that’s a different story for a different day and not too far off I’m afraid. One AI chatbot passed part of the bar exam last month.

I tried AI. It doesn’t work for writing briefs, legal research or anything really that requires a lawyer. It makes up citations and cases that aren’t real. Unlike the lawyers in the last link, I researched the brief I asked ChatGPT to write. Not one of the citations was real, and when I searched for the text it supposedly excerpted from the mystery cases I couldn’t find, I was unable to find a case that used the quoted language. I unceremoniously uninstalled the app.

ChatGPT did a fine job writing a fictional story with a few human editing changes, but legal briefs aren’t fiction despite what your opposing counsel may claim. AI is not ready for prime time in a law firm or courtroom.

Chatbots on the other hand may be a great idea if they’re limited to intake and facilitating contact between lawyer and potential client. Chatbots that answer legal questions raise all type of ethical issues that likely won’t pass legal muster, however..

But you can always ask Lucy, even though it appears her 5¢ increased to $5.00 on Just Answer, a site with a 3.5 rating on Glassdoor, but will let you ask a real lawyer.

For now.



If you’re confused, then here’s a primer on how the Insurrection Clause works.  If you want to dive deeper, then listen to this Lawyer2Lawyer podcast that covers the law and the facts.

First, let’s dispense with the basics.  Here’s the actual language.  If you read section 3 closely, then you’ll see that the Insurrection Clause in section 3 of the 14th Amendment to the Bill of Rights does not require a criminal conviction to prevent a person from holding office.  There is no such language in the clause.  Rather, it requires that the person simply “engage in [an] insurrection or rebellion.” 

It also requires the person to be an “officer” who has taken an oath to “support the Constitution of the United States,” which obviously would be violated by engaging in an insurrection or rebellion against the United States.  There is a very good article from the New York University Journal of Law and Liberty that argues against the conclusion that the President is an officer of the United States.

But, when you look at the language the Constitution itself dictates for the Presidential Oath, you can be the judge whether the President is an “officer:”

"Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:– I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

Article II, Section 1, Clause 8. If it’s an “office” that the President holds, then it seems likely the President is an “officer” of the United States, according to the Constitution.

Unfortunately, however, section 3 is shy about a whole lot of other things.  

Other grounds
The Colorado Supreme Court’s decision to disqualify Donald J. Trump from its electoral ballot was met with a dissent by its Chief Justice on the grounds that the foundational Colorado state statute is not broad enough to allow the challenge to be brought in the first place. Every wrong has a remedy, so a dissent without a solution is of no help.

Another Colorado Justice dissented on the grounds that the Insurrection Clause is not “self-executing,” which means that it takes another step to become effective.  That Justice argued that section 5 of the 14th Amendment vests power in Congress to enforce its provisions by legislation.  Since there’s no legislation regarding section 3, then it is not self-executing.  

On the other hand, the Supreme Court itself limited Congress’ powers to just two aspects of section 1 in the 14th Amendment:  

"[Congress ...] does not have the power to create new rights or expand existing rights, but rather only [...] the authority to prevent or remedy violations of rights already recognized by the courts. Moreover, the remedies provided by federal statutes must be 'proportionate' and 'congruent' to the scope of proven constitutional violations."
Chemerinsky and Maltz.

Generally, however, the Supreme Court opinions that led to the requirement of “proven constitutional violations” focused only on section 1, the due process clause, not sections 2 - 4, so the “self-executing” aspect of the dissent is a red herring.  While Congress “shall have” the power to enforce the Amendment, the Supreme Court has had no issue enforcing it, either, despite the apparent lack of Constitutional authority in this section to do so.

Moving past the self-executing issue leaves us with identifying the proper authority to enforce who appears on what ballot.  Since the states, not the federal government, are in charge of the elections, then the state supreme courts are the appropriate battleground for that list of persons who appear as candidates for office (there’s that word again). 

Trump flouts two main defenses to disqualification in the Colorado case, which factually found that Trump did engage in the insurrection and based on the tapes there's little doubt of that finding.  Trump claims his right to First Amendment free speech and Presidential immunity preclude that finding.  

The immunity issue will be solved soon in Trump's criminal case over January 6, but again it appears clear that wanting to be President again is a private citizen desire, not within Presidential duties.  Free speech does not allow you to yell "fire" in a crowded theater, and it seems that Trump's speech on the Ellipse rose to that level with a crowd in tow.  But you be the judge.

Trump’s campaign says he will appeal (whether you donate is up to you), but the US Supreme Court does not have to accept his case.  They can choose to either let the Colorado ruling stand or accept the appeal, but since Trump already appealed once to the Colorado Supreme Court from its lower district court, he’s out of mandatory appeals like a football team out of time outs at the goal line in the fourth quarter.  

But, if another state’s decision to allow Trump on their ballot is also appealed, then we will have a showdown at the US Supreme Court.   

Stay tuned!  We’re far from out of the woods.

Personal Injury Law Just Got Trickier For Hospitals


What Is Reasonable and Necessary?

We thought the tort law in personal injury cases was fairly well defined, but a new appellate opinion has got hospitals and their attorneys in a dither, while plaintiffs and their lawyers are throwing a big party.

Especially now that they can afford it.  Let me explain.

Michael Huff got injured in a car accident and went to the hospital.  When he left the hospital’s care seven days later, it slapped him with a $34,000 bill that he didn’t pay.  Huff’s lawyer then sued Steven and Matthew Wilkins for negligence in causing the car collision that injured Huff.  State Farm insurance defended the Wilkinses.  The hospital, Pioneer’s Memorial Healthcare District, duly filed a lien in Huff v. Wilkins, claiming the $34,000 that Huff owed.

The jury awarded Huff more than $350,000, and before State Farm could even get out its checkbook to pay Huff, the hospital said, “First dibs on the $34,000 that Huff owes us.”

That’s legal talk, in case you missed it.

Summoning all of the chutzpah they could muster, Huff’s lawyers replied to the hospital, “Hold on there, bucko, those expenses weren’t needed.”

That’s more legal talk.  I’m getting into a pattern here in case you were wondering.

Like any good neighbor, State Farm put the disputed $34,000 in the Court’s hands and told Huff and the hospital that they had to fight over the disputed money. 

In legal talk, that step is called an interpleader.  I know, legal talk is really boring.  That’s why I was warming you up to the first couple of legal phrases like “first dibs” and “bucko.”  Well, sure enough, Huff and the hospital both told the Court that they wanted the $34,000.  At the trial of the matter, four things happened:

1.  The hospital submitted the bills that Huff didn’t pay;

2.  Huff told the hospital that he had no insurance but should bill the Wilkinses;

3.  The hospital submitted its lien notice that it sent to State Farm; and,

4.   Huff’s personal injury attorney confirmed that he had submitted all of Huff’s medical bills in the case Huff filed against the Wilkinses and authenticated the $350K Judgment in Huff’s favor.

Notice what’s missing.  Didn’t notice?  Well, how about the hospital’s proof of the expenses it charged to Huff?  Nowhere did the hospital say that the charges were reasonable or necessary.  It just said Huff incurred the expenses.

Those are magic words in personal injury law.  “Reasonable and necessary.”

You see, in order for the hospital to recover the $34,000 lien that it placed on Huff’s recovery of the $350,000, the hospital should have proved that the expenses it charged Huff were both reasonable and necessary.  Under the Hospital Lien Act at California Civil Code sections 3045.1-3045.6 (a whopping five subparts), the hospital can only recover on its personal injury lien if it can prove that the expenses were both reasonable and necessary.

Look back on that list of four items that were introduced in the trial.  Look carefully to see if there’s anything there about the expenses being “reasonable” or “necessary.”  Can’t find it?  Neither could I, and I wrote it.

That’s because the hospital either forgot or failed to do so.  Now comes the Court’s ruling.  Because the hospital had the opportunity in the trial to introduce this evidence, say through a doctor who treated Huff, but failed to do so, the hospital got stiffed.

That’s right:  no recovery for the hospital, and Huff walked away with the $34,000.  But don’t get excited.

I suspect this case isn’t completely over, however.  Despite the hospital’s failure to recover on its lien, the hospital can still sue Huff on both a breach of contract and equitable basis.  Huff did get $34,000 in services that he apparently still hasn’t paid for, and with this loss, that debt is pretty high on the hospital’s radar screen.  We’ll see.

Look Around Before You Buy a Firewall, and Watch Out if You Buy a SonicWALL


So, if you’re buying a SonicWALL (including model TZ205 ) as your firewall, don’t waste your money. The price that you pay for renewing the annual software and subscription plan does not include any assistance from the new seller, Western NRG to configure it once it’s installed. Dell used to sell the device but apparently Dell spun off the SonicWALL device, and Western NRG picked it up.

If you want to call it that. 

The division of labor between Dell and Western NRG takes a flow chart to understand, but if you have a problem with the device, rest assured that Dell will tell you Western NRG can fix it, and Western NRG will tell you that Dell can fix it. Neither one will, though.

Fix it, that is. They will, however, gladly take your money .

Sure, they give you software and a hardware warranty, but those provide little benefit if the device isn’t configured correctly. Which you will have to pay to get, and pay more than the device itself is worth.

Who knows of a good firewall device that also provides support? Dell and Western NRG don’t, in my humble opinion.

Justice Department Asset Forfeitures Outstrip Burglary Thefts


Feds Become the new Criminals?

The Justice Department restarted what it amorphously calls the “Equitable Sharing Program” that allows federal, state, county and local cops to seize assets of burglars – up to 80% of what they seize, and then funnel that money to their own budgets.

The Justice Department must have missed the “conflict of interest” lecture in law school ethics class.  Check out this chart from the Washington Post article. 

Wells Fargo Pays Attorney General and District Attorneys to Settle Case; Nothing Paid to Victims


Well, that’s one way to settle a case:  pay the attorneys  who sued you, not the victims whose telephone calls Wells Fargo recorded.

According to the San Francisco Chronicle, “none of that money will go to consumers whose privacy was allegedly violated.”

Instead, Attorney General Kamala Harris and five district attorneys will split $8,500,000.00. 

You decide who wins. 

Must California Businesses Provide Seats For Employees?


Cubicle workers can’t imagine standing all day long at their job, but many bank tellers, shelf stockers, assembly line workers and a host of other employees do. Apparently, howver, some of those employees are tired of standing. Workers from CVS and JP Morgan Chase Bank sued their employers in federal court over a California law that requires employers to provide seats.  Here are the parts of the law that are at issue:

If the tasks being performed at a given location reasonably permit sitting, and provision of a seat would not interfere with performance of any other tasks that may require standing, a seat is called for…. The inquiry does not turn on the individual assignments given to each employee, but on consideration of the overall job duties performed at the particular location by any employee while working there, and whether those tasks reasonably permit seated work.

When employees are not engaged in the active duties of their employment and the nature of the work requires standing, an adequate number of suitable seats shall be placed in reasonable proximity to the work area and employees shall be permitted to use such seats when it does not interfere with the performance of their duties.  

Wage Order No. 7-2001, §§ 14(A) and (B) .

The federal courts didn’t know how the California Supreme Court would rule, so they asked.  California rejected the federal court’s attempt to treat the issue holistically, and instead ruled that the inquiry turns on the tasks the employee is performing.  Here’s what the Court said:

If the tasks being performed at a given location reasonably permit sitting, and provision of a seat would not interfere with performance of any other tasks that may require standing, a seat is called for…. The inquiry does not turn on the individual assignments given to each employee, but on consideration of the overall job duties performed at the particular location by any employee while working there, and whether those tasks reasonably permit seated work.

In other words, if an employee can sit, then sit.  The employer must provide the seat.  The lesson for employers is simple:   get some chairs and avoid a class-action lawsuit.  

Will the Federal Consumer Protection Bureau and the State Bar Ensure Recovered Funds Go to Defrauded Homeowners?


Doesn’t Look Like It
The California State Bar has warned attorneys for a long time: don’t handle homeowner mortgage foreclosures. In fact, those warnings started in 1978 after our state Legislature. The warnings started in earnest in 2008-2009 when, the State Bar issued an ethics ruling alerting lawyers to the ethical problems with loan foreclosures. We listened; we’ve never handled a homeowner loan foreclosure.

Apparently, though, the message didn’t reach everybody, and perhaps most notoriously, now suspended Chance Edward Gordon. Go ahead. Click on that last link and see the State Bar’s warning to consumers. In fact, every time you hire an attorney, you should check with the State Bar to ensure the lawyer is licensed. Mine’s here for comparison purposes.

Well, it turns out that Mr. Gordon handled forclosures from 2010 to 2012, and collected a lot of money from homeowners facing foreclosure. More than $11 million dollars. That’s right. $11 million from people who had no money left to pay their mortgages.

Now, the Federal Consumer Protection Bureau has fined Mr. Gordon $11.4 million dollars, seeking to disgorge the fees he collected. He fought and just lost before the Ninth Circuit Court of Appeals, and he’s likely reached he end of the appeal road, and will have to start forking over money.

I have a few questions. First, why didn’t the State Bar collect this fine? Apparently, the State Bar found out about Mr. Gordon after he was sued by the FCBP, and decided to pile on, but left the collection of money up to the Feds. And what is the State Bar of California Anti-corruption League that’s referenced on Mr. Godon’s State Bar profile?

Second, will the $11.4 million go back to the very same people he took the money from, or will the money go to the coffers of the FCPB? Becuase the FCBP’s webpage about Mr. Gordon makes no mention of the money going back to the homeowners.

Sure, Mr. Gordon defrauded homeowners, but it looks like their losses aren’t going to end there.
Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Friday, April 15, 2016 at 08:18

Different Rx Needed for Third Leading Cause of Death: Medical Errors


That’s right: unless you’re having a heart attack or suffering from cancer, you may be better off not seeking medical care.
According to the Washington Post, the medical industry itself is the third leading cause of death. In fact, you’re less likely to die if you get respiratory disease, accidents, stroke or Alzheimer’s, which are respectively the fourth to seventh leading causes of death.
Thanks Obama.

Or perhaps its more accurate to look at other causes. There’s the cost-cutting pressure put on the medical industry by the insurance industry. Doctors have convinced legislatures across the country to cap and cut back on medical malpractice awards. Medical Boards have rubber-stamped admissions from overseas medical universities without ensuring compliance with standards set for US medical schools. There’s a host of factors to consider.

Maybe we need a House-style diagnostic to identify the real problem.
Whatever it is, perhaps lawyers aren’t the unhappiest profession after all.
Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Tuesday, May 03, 2016 at 14:47