California Lawyer


July 2012

An Equal Say
Thank you for citing the ray of hope for overturning Citizens United, with which the U.S. Supreme Court hijacked the Founders' notion that each citizen should effectively have an equal say in the election process ["Cracks in Citizens United," Full Disclosure, May]. Had the Founders anticipated the rise of corporations, their overpowering access to funds, and the means to anonymously use them in elections, the Constitution would've been structurally reinforced to prevent the Citizens United case from even being heard.
Roger Pitt Whitcomb
Singer Island, Florida

Thomas Brom asserts, without citing any authority, that there's "widespread public dissatisfaction with the Court's majority opinion in Citizens United." To the contrary, Mr. Brom's view - that the First Amendment allows the government to regulate speech so that no speaker may gain an advantage by speaking more than any other speaker - subverts the First Amendment and is the unpopular view. Most Americans agree that the jewel of the First Amendment is that it allows each speaker to speak as much as each desires, without intervention by the government.
Alan R. Herson
Jacksonville, Oregon

Gone, But Not Forgotten
Howard Posner writes, "I suppose there's a theoretical advantage in having a statute's substance contained only in other statutes: It's automatically amended when those other statutes are amended. The reality is that this doesn't work." ["Statutes with Limitations," Legal Ease, May.]

Not so fast. [Posner has] neglected the famous (at least to me) Palermo doctrine: If a statute incorporates another by specific reference, it incorporates it as it exists at the time of incorporation, and not as it may be later modified. (Palermo v. Stockton Theatres, Inc., 32 Cal. 2d 53, 58- 59 (1948).) So while B&P section 4211 may not be found in the B&P, it lives on in H&S section 11378. That means, of course, that one cannot figure out what 11378 means without having a copy of the B&P from 1985 - "mysterious and infuriating," indeed.
John Hamilton Scott
Sherman Oaks

Acquiescence in Error
It seems to me that some corporations that cause harm abroad would like to have it both ways. As reported in "The Tort Heard Round the World" [February], it appears that some of them object to jurisdiction in the United States (perhaps thinking that the plaintiffs would not be able to afford or find counsel for litigation abroad) and then object to the enforcement of the foreign judgment when the plaintiffs are able to file outside the U.S. This doesn't seem fair, and it reeks a little of intellectual snobbery and cultural jingoism.

Moreover, where a defendant raises the defense of forum non coveniens to litigation in the United States and consents to jurisdiction in a particular foreign country, it certainly seems to have assumed the risk and contributed to its own dilemma. It's probably not hard to argue, in sour grapes fashion, that the foreign country and its judicial system are corrupt. It's a maxim of jurisprudence that acquiescence in [alleged] error takes away the right of objecting to it.
Mark E. Hancock

Fair Warning
There doesn't seem to be any evidence that any place Tom Francovich sued ["Targeting ADA Violators," January] was not, in fact, out of compliance with the Americans with Disabilities Act. Therefore, by definition [they were] discriminating against disabled persons. Francovich has his unique style, but even in the case where [a finding of vexatious litigation] was upheld by a majority of the en banc Ninth Circuit, eight judges, including Chief Judge Alex Kozinski, dissented. (See Molski v. Evergreen Dynasty Corp., 521 F.3d 1215 (9th Cir. 2008) (en banc).)

Reputable attorneys such as Sidney Wolinsky, one of the masters of civil rights law, and Larry Paradis, his partner at Disability Rights Advocates, have been handling access cases - mostly class actions against major facilities that have not complied with the ADA - for the past 22 years, and before that under state law. I have been practicing disability rights law for 37 years, and none of us has ever had a case held to be "frivolous."

Why don't major businesses simply comply with the law rather than complain when they're finally caught after years of violation and compelled by a lawsuit to "do the right thing"? As to the "small businesses," the defense that [access] barrier removal is "not readily achievable" is already built into the ADA statute itself. [42 U.S.C. § 12182(b)(2)(A)(iv).] If every business set the needs and rights of disabled persons as a high priority, lawsuits would not be necessary. Until then, they are.
Paul L. Rein

Serially litigious handicapped people are targeting small businesses and killing California's economy. Here's a simple and smart solution: Give a written warning and allow the business 90 days to bring the facility up to compliance. If they refuse, then by all means they're liable, and sue them. But if they fix the infractions, drop the case. The state is allowing renegades to take money out of the pockets of hardworking people and line the pockets of scumbag lawyers and themselves. The funniest part is that they're extorting right from the pockets of California itself because those settlements are non-taxed.
William Ma
El Monte

Apple's Newton MessagePad was introduced in 1993 ["In Tablet Form," Technicalities, May]. California Lawyer regrets the error.

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