Archive for October 2006

Another Reason For The Delay In Exxon Mobil

October 31, 2006

The background is here.

The conspiracy theory is that the state supremes are waiting until after the election to release the opinion because they lose no matter who wins the appeal. Affirming the amount of punitive damages awarded at trial will hack off their big money political donors. Cutting the damages will leave them open to accusations of being corporate tools.

I suggested that the delay is a result of the “law” governing punitive damages. It’s a completely subjective standard applied to a factually complex case, and so it should not surprise us that it has taken this long from nine individuals to agree on a result.

I forgot about it when I put that post up, but there is yet another possible reason for the delay. Scotus has before it this term a major case on punitive damages. Perhaps, anticipating an important new holding, the state supremes are waiting for it before making their own decision. If that’s the situation, the reports about the Scotus case indicate it may be some time before our state supremes decide Exxon Mobil.


My Favorite Part Of The Debates

October 31, 2006

It actually occurred during a commercial. One of the other channels had the Florida Guber debate between Jim Davis, Charlie Crist, and Max Linn. I flipped to it just in time for this beauty:

there was a downright weird exchange when Crist (like Davis and Linn) explained his opposition to gay marriage. Marriage, he said, is a “sacred” relationship — “like I had, before I got divorced.”

The Debates

October 31, 2006

The debate, actually. I did not watch the goober or assistant goober debate. Both were formalities, the former because the outcome of the election is assured, and the latter because the outcome of the election does not matter. I did, though, watch the AG debate. It looks like all the non-partisan Alabama bloggers think Tyson won, and I agree with them. You can follow that link for a roundup of opinions, I’ll add a few thoughts here.

First, my jaw dropped when King criticized Tyson for entering plea bargains with defendants. As a criminal defense attorney and civil libertarian, I would absolutely wholeheartedly rejoice if the state of Alabama suddenly decided that there would be no more plea bargains. If the state had to empanel a jury for every single arrest made in this state, the entire criminal justice system would explode. There is no way the current system could handle the exponential increase in costs that would result from mandating full blown trials for every arrest. The only options would be spending an ENORMOUS amount of money to build new courthouses, hire thousands of new employees, and pay hundreds of new judges, or else drastically cutting back on the number of arrests. Given the costs of the first option, the second is the likely result. Some way to fight crime there Troy.

Second, what I really like about Tyson is he doesn’t suffer from the same simplistic thought processes that King does. Last night King continued his attack on Tyson’s early intervention programs. In King’s mind, identifying kids who might end up as criminal defendants and trying to help them avoid that fate is being soft on crime. But it isn’t. As Tyson recognizes, and as he explained last night, it’s being smart on crime. Implementing these kinds of programs certainly does not mean that those who do commit crimes will get away with their misdeeds; it means there will be less people committing crimes in the first place.  

I don’t like Troy King. I think he’s an ideologue. I think he’s a simpleton. I think he’s a grandstanding fool. I think he’s petty minded and irresponsible. I think he’s an embarrassment to Alabama and the practice of law. Go put “Troy King” into the search box on the side bar and you’ll find the reasons for these thoughts. Nothing in last night’s debate changed my attitude about him.

So what about Tyson? He did not say anything new last night, but there was no need for him to make a spectacular showing. I would probably vote for anyone with a pulse rather than Troy King. Nevertheless, I think Tyson does have some good ideas and would make a fine AG. I like the idea of early interventions. His guarded answer to the death penalty question makes me think he will approach the issue with the seriousness it deserves. His practical experience, I hope, will lead him to focus on the day to day issues of the job and avoid King’s sorry use of the office as a soapbox for various culture war issues. Tyson just seems like a much more level headed and reasonable person. IMHO, right now he is the best choice for AG.

Updates: Jeff has the full roundup of blogger and newspaper coverage. He doesn’t include me. Probably because I hinted that partisan loyalties had something to do with him saying King won the AG debate. Others have pointed out that Jeff watched the debate at Shelby County’s Repub HQ, and is also, like King, a Troy alumni. To be fair, he defends his choice on style grounds, saying King looked more polished. King is certainly the professional politician, so Jeff has a good argument there.

Hands down, the best summary of the debates is here. An excerpt:

“TROY KING”: I will lobby for a law making it legal to hunt homosexuals for sport.

JOHN TYSON: My opponent was appointed by Bob Riley as some kind of obscure joke.

“KING”: I get an erection every time someone is sentenced to death.

TYSON: I’m not going to say anything, I’m just going to let him talk.

“KING”: We need toughnewlaws making it harder for vampires to stalk our children.


Consequences Of Ads In Judicial Elections

October 30, 2006

In the news today :

Chief Justice Drayton Nabers is not participating in Exxon Mobil’s appeal of the largest verdict in Alabama history, the Alabama Supreme Court announced Monday.

Exxon Mobil is appealing a $3.6 billion verdict that the state government won in a lawsuit accusing the oil company of underpaying natural gas royalties to the state from wells drilled in state-owned waters along the Alabama coast.

Exxon Mobil’s appeal has become an issue in the race for chief justice, with Democratic Judge Sue Bell Cobb describing herself as the only candidate who has not taken oil money, and the Republican incumbent saying he has not received any donations from oil companies.

The Supreme Court sent a notice to attorneys on both sides of the Exxon Mobil case Monday saying Nabers “has not at any time participated and will not in the future participate” because he was involved in matters related to the litigation while serving as Gov. Bob Riley’s state finance director in 2003-2004.

I’ve already posted about this case, but what really caught my attention was the next part of the story:

In a related matter, attorneys for dog track operator Milton McGregor have asked Nabers to step aside from hearing an appeal involving the legality of electronic sweepstakes machines at the Birmingham dog track.

Their request, filed Thursday, cites Nabers’ campaign ads where he accuses his opponent of taking money from gambling interests and says he has “fought against the gambling bosses.”

A Jefferson County judge ruled that the sweepstakes games were legal, but Jefferson County District Attorney David Barber appealed that decision to the Supreme Court, which has not yet ruled.

Judges like to complain about being overworked. People like to complain about justice being too slow. Elections contribute to both problems. In addition to the costs associated with the election itself, statements about being (for/against)  (position/group/person/party) invite litigation about recusals.

But the added election and litigation costs are not the only problem with campaign ads. Ads like Nabers’ are fundamentally incompatible with being a judge. His job is not to be “for” or “against” anyone. His job is to give each side a fair hearing and then to make a decision based on the law and the facts in front of him.

I know he isn’t the only offender; anyone who wants to be elected has to do this stuff. But campaign promises leave the judge two options when elected. Either they do their job, in which case the ad was just a sham to get elected, or they keep their word, in which case they undermine the law. Neither option is very attractive.

Woo Hoo! We Finally Topped Atlanta!

October 30, 2006

Yes sir, B’ham is the place to be when it comes to crime. In this year’s list of the most dangerous cities, we’re number six, while hotlanta comes in at seventeen.

Contest Results

October 28, 2006

I thought last week’s might be difficult, but plenty of you got it right. Curtis was the first and therefore the winner, but I’ll give Dystopos credit for most complete answer:

“Homage to Leonardo: The Vitruvian Man” (Bronze, 1982)
by Enzo Plazotta, outside the Medical Arts Building at
the Birmingham-Jefferson Convention Complex. Donated
by Mr & Mrs John M. Harbert. Another copy of this work
is displayed in Belgrave Square, London.

If you are still not sure where this is, it’s on 22nd St. N., just North of 20/59. Join this ride, and you’ll go right past it.

Because my usual schedule has been thrown out the window this weekend, I have not yet taken the next contest picture. But don’t worry, I’ll get it soon enough.

As a substitute, here’s a few I took last week while on an easy ride around town.

Self explanatory:

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The next four are shots of Norwood.

This is the main entrance. Behind the sign is a wide median that runs the length of Norwood Boulevard. Traffic goes one way on one side and the other on the other side. Think the median on Highland Avenue or Bush Boulevard, but bigger, with room for benches, a walking trail, and even tennis courts. While I took this picture, several kids were playing football in an open spot on the median.

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Here’s a house someone recently redid:

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An interesting campaign sign:

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Across the street from the sign is what once must have been home to some of those super rich folks.

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What struck me most about that house was that it’s probably no more than eighty or ninety years old. It was born, had its years of glory, and died in less than a century. How could something so beautiful so quickly come to such a painful end? I guess it’s a combination of bad urban planning – the interstate cut deeply into this neighborhood (you can see some of the resulting infections in the background) – and racial ignorance – I’m sure the neighborhood’s decline coincided with the aftermath of Brown. I wonder what the house’s creator would think if he saw this picture; what he would say could justify this neglect?

Roy Moore And Home Schooling

October 27, 2006

On the Roy Moore Blog today:

The story about Germany’s anti-homeschooling law is getting uglier and more Gestapo-like. You may recall that the German law, introduced under Hitler, was recently upheld by the European Court of Human Rights, which cited “the general interest of society to avoid the emergence of parallel societies based on separate philosophical convictions.” Most, if not all, German homeschooling families are Christian, but their “separation philosophical convictions” could not be allowed to initiate “parallel societies” that threaten and contradict government-approved indoctrination in Germany.

As reported on WorldNetDaily, German police are now forcibly removing crying homeschooled children from their homes and driving them to public school classes. According to,

On Friday, October 20th, three children were picked up by the police and escorted to school in Baden-Württemberg, with the “promise” that it would happen again this week. . . . The previous minister/secretary of education had said that it was senseless to use police force for something like that, that it wasn’t good for the children, who were obviously well-cared for, and a waste of time for the police. The current minister/secretary of education apparently has another opinion.

Germany’s criminalization of home education is a travesty for religious and educational freedom, and for the authority of the family vis-à-vis the state. And now that we are seeing the boorish manner of enforcement, it is all too reminiscent of a shameful era that we thought Germany had left behind.

I’m not going to fact check this story, though the World Nut Dailey is certainly NOT a reliable source. For purposes of this post, the truth of the report does not matter.

What I am going to point out is that what prevents stuff like this from happening in America is exactly what the Moore Blog slams in this post: Scotus finding non-textual rights.

The case was Pierce v. Society of the Sisters of the Holy Names of Jesus. The state of Oregon had passed a law, like the one in Germany, mandating that all children attend public schools. No private schools, no home schools; the choice was public schools or a criminal conviction.

Opponents argued:

that the enactment conflicts with the right of parents to choose schools where their children will receive appropriate mental and religious training, the right of the child to influence the parents’ choice of a school, the right of schools and teachers therein to engage in a useful business or profession, and is accordingly repugnant to the Constitution and void.

Now there is nothing in the Constitution about “the right of parents to choose schools” or “the right of the child to influence the parents’ choice of a school” and making decisions about education requirements is a policy decision. So Scotus did like the Euro Court of Human Rights by quickly rejecting the argument and upholding the law, right?


Under the doctrine of Meyer v. Nebraska, 262 U.S. 390 , 43 S. Ct. 625, 29 A. L. R. 1146, we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children [268 U.S. 510, 535]   under their control. As often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the state. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.

Good luck finding any of that stuff in the text of the Constitution. I think it’s in between the right to have an abortion and the right to commit sodomy.

I point this out for two reasons.

First, I find it strange that the Moore crowd will slam Roe – a case whose result they hate – on grounds that apply with equal force to Pierce – a result they love. If Roe is bad because Scotus found rights not explicitly mentioned in the text, then Pierce is bad too. But they never mention Pierce. 

Second, as I’ve said before, ignoring the Ninth Amendment – you know, the one that says the Bill of Rights is NOT an exclusive list of rights – and saying that the only Constitutional rights are those rights explicitly mentioned in the text would get rid of a lot more than just Roe. If there is no right to privacy, there is no right to abortion and there is no right to home school. So you ought to think real hard before deciding to chuck the “right to privacy.”

Oh sure, we can comfort ourselves by saying that even without a Constitutional guarantee, we will always be free to send our kids to private schools or home schools. Nothing like that story from Germany could ever happen here. Except that it did happen. And Scotus stopped it.