Lawsuit filed to overturn tort reform amendment

I will be keeping an eye on this.

Former Dallas Cowboy Ron Springs, who has been in a coma since the fall after surgery to remove a cyst, is one of 11 plaintiffs challenging Texas' medical malpractice cap in a lawsuit filed Monday.

The lawsuit, filed in the U.S. District Court for the Eastern District of Texas in Marshall, challenges the 2003 Medical Malpractice and Tort Reform Act, which limits awards in Texas. The lawsuit asks the court to declare the cap unconstitutional.

[...]

In January, Springs' wife filed a medical malpractice lawsuit against two doctors she said caused her husband's brain damage during a routine surgery to remove a cyst.

Springs, who suffered Type 2 diabetes, had received a kidney from his former Cowboys teammate Everson Walls in February 2007. Les Weisbrod, Springs' attorney in the medical malpractice lawsuit, has said the coma had nothing to do with the kidney transplant.

The damages cap has been a disaster, and has had no effect on the things that it was supposed to do, like solving the problem of rural doctor shortages. I feel pretty confident that if it were to go to a vote again, it would lose. Given that we're never going to get 2/3 of the Lege to pass a repeal amendment, this may be the only hope for that. They're going to ask for class action status, so we'll see how this goes.

At least one expert speaks about the grand jury lawsuit

The lawsuit filed by grand jurors in the David Medina arson investigation is called "doubtful" by at least one expert interviewed by the Chronicle.

"I can't see any merit whatsoever to it," University of Houston law professor David Crump said of the unusual lawsuit. "It's so crazy that you have to ask, 'Where are they coming from?' "

The lawsuit asks for a declaratory judgment from a court that would give the former grand jurors the right to discuss evidence supporting their indictments without fear of punishment. It argues that they have a right to use the evidence to "fairly respond" to statements made about their motives by prosecutors -- in contradiction of the oath of secrecy placed on them by state law.

"These grand jurors have done a great deal of harm," Crump said. "The prosecutor has the responsibility for making the decision about whether to go forward. The grand jurors do not understand the burden of proof, that it's on the state of Texas, and that it's beyond a reasonable doubt and that just having some evidence won't do."

Adam Gershowitz, who teaches criminal law and procedure at South Texas College of Law, said the assistant foreman who drafted the lawsuit, attorney Jeffrey Dorrell, may be right about one thing: There's never been a lawsuit quite like this in Texas history.

"I certainly have never heard of anything like it," Gershowitz said.

[...]

Dorrell argues that he and others have a right to talk about evidence brought before them because, for a portion of their term, they were not a legally constituted grand jury, and thus are not bound by the oath. The grand jury was finally disbanded when it was discovered that its term was improperly extended.

"It is an interesting argument, but I predict one that will not succeed," Crump said. "It's too cute. There are certain principles that can't be evaded in that manner. They still got the evidence in their capacity as grand jurors, and they got that under the color of law. The reason behind it applies with equal force."

By my count, that's one expert with actual doubts, and one expert making a sort of meta-comment. I'd have thought a story with a headline that says "Experts have doubts" would have printed statements expressing dubiousness from more than one expert, but maybe they were all out of the office that day. Whatever. For what it's worth, I think this is a convincing argument that this suit won't go anywhere, and as I said before I'm concerned about the precedent it might set, but I still want to see it play out. So stay tuned.

Medina grand jurors sue to make information public

Boy howdy does this open a can of worms. This is a press release that hit my inbox a few minutes ago:

MEDINA GRAND JURY SUES DA TO GO PUBLIC

In what is believed to be the first suit of its kind in Texas history, members of a Harris County grand jury who indicted Texas Supreme Court Justice David Medina and his wife, Francisca Medina, for charges stemming from the June 28, 2007, arson of their Houston area home have sued for the right to publicly disclose evidence they considered in handing down the indictments. By law, proceedings before grand juries are usually required to be kept secret.

On January 17, 2008, the 263rd District Court Grand Jury indicted Francisca Medina for arson and Judge David Medina for evidence tampering. Within an hour, Harris County District Attorney Chuck Rosenthal announced that the Medinas would not be prosecuted for the crimes due to "insufficient evidence." On January 18, 2008, State District Judge Brian Rains dismissed both indictments at the request of Assistant District Attorney Vic Wisner.

"This suit is necessary because we want the truth to come out," said Jeffrey L. Dorrell, assistant foreman of the Medina grand jury, an attorney whose firm, Dorrell & Farris, L.P., is representing grand jurors free of charge. "However, out of a decent respect for the rights of the Medinas and for the integrity of the grand jury system, we believe it is proper to seek a judicial determination of our duties before we speak." The suit seeks no monetary damages or attorney's fees.

According to the suit filed in the 190th State District Court of Harris County today, after grand jurors criticized Rosenthal's dismissal of the cases without any further investigation, Medina defense lawyers accused grand jurors of "making a mockery of the system," and being "drunk with power," a "runaway grand jury," and "activists with a political agenda." On January 18, 2008, attorneys for Justice David Medina asked State District Judge Jim Wallace to hold grand jury foreman Robert Ryan and Dorrell in contempt of court, fine them $500.00 each, and jail them for 30 days. Wallace has not ruled on the motion. Now, grand jurors are fighting back.

"Repeatedly accused of base and corrupt motives and hidden political agendas, grand jurors have been obliged to sit close-mouthed while District Attorney Rosenthal and his assistants trumpet to media that the evidence was 'insufficient' to support either a criminal prosecution of the Medinas or even any further investigation of the charges," the suit says. The grand jurors want a chance to "respond to the attacks on their character."

"Only disclosing the evidence will allow Plaintiffs to show convincingly that they were not animated by the vile and contemptible motives of which they have been publicly accused by truly the strangest of bedfellows--the Medinas' criminal defense attorneys and the Harris County District Attorney's office," the suit says.

Adding a twist to the case, the Medina grand jury was disbanded by Judge Wallace on January 18, 2008, when a defect in the order extending their term was discovered. Wallace ruled that the grand jury was not properly empanelled after November 2, 2007, and nullified over 30 indictments handed down after that time. The ruling also invalidated grand jury subpoenas issued for more witnesses and evidence in the Medina case, and "stopped the grand jury investigation in its tracks," according to the suit. As a result, the members of the grand jury argue that they were not "in the course of the official duties of the grand jury" after November 2, 2007, and should be "free to disclose anything transpiring before what was, in legal effect, merely a meeting of 12 ordinary citizens." The suit also asks the court to declare grand jurors free to present the evidence they considered in the Medina case to another grand jury.

"Given the highly unusual defense of the Medinas mounted by the District Attorney's office in this case, the citizens of Harris County can hardly expect that their District Attorney will present the evidence in a fair and accurate manner," said Dorrell. "Therefore, we are willing to do it," said Dorrell. Texas law allows any "credible person" to present a case to a grand jury and ask for an indictment.

Another public dispute between a Houston grand jury and a Harris County District Attorney 85 years ago has many parallels to the Medina case. The Harris County District Attorney in 1923, Dixie Smith, had been elected on the Ku Klux Klan ticket. After Smith publicly accused grand jurors of failing to follow their oath, grand jurors accused Smith of failing to prosecute fellow Klansmen who were suspected of crimes, including an arson. Smith sued for libel. The appellate court in that case wrote:

Every man has the right to defend his character against false aspersion. It is one of the duties which he owes to himself and his family. Therefore communications made in fair self-defense are privileged.

The Medina grand jury's suit asks the court to declare that the privilege allows jurors to discuss the evidence publicly in order to rebut claims that the evidence was "insufficient" and that they were a "runaway grand jury."

I'm not qualified to address the legal matters raised here. My layman's sensibilities have some sympathy for the jurors, who aren't able as things stand to defend themselves from what has been said about them and their motives, but I fear this would set a bad precedent. Beyond that, I have no idea what to make of this. What do you think?

UPDATE: Here's the Chron story on this suit. I look forward to seeing how this plays out.

The Lege versus The Supremes

Here's something you don't see every day - members of the Texas Legislature telling the State Supreme Court that they've been misinterpreted.

In an unusual move, four legislators have asked the Texas Supreme Court to reverse a recent decision that, critics say, gives refineries and other industrial plants a new shield against liability claims from contract workers injured on the job.

The ruling contradicted the law, said two Democrats -- Rep. Craig Eiland of Galveston and Sen. Rodney Ellis of Houston -- and two Republicans -- Sen. Jeff Wentworth of San Antonio and Rep. Bryan Hughes of Mineola -- in a brief filed with the all-Republican court.

"This Court, by disregarding the express terms of the Legislature's enactments, has violated the separation of powers clause of the Texas Constitution and impermissibly encroached on the powers and functions expressly reserved to the Legislature," the lawmakers argued.

The Texas AFL-CIO also is seeking a rehearing of the case, and the Texas Trial Lawyers Association is expected to file a similar plea.

Plaintiffs' attorneys and union officials have said the unanimous opinion, handed down Aug. 31, expands the ability of plant owners to seek liability protection from workplace accidents under the state's workers' compensation laws.

Had the decision been in effect before the BP refinery explosion in Texas City in 2005, contract workers might not have been able to sue the company for damages, they said.

In their brief, the lawmakers noted that the Workers Compensation Act provides immunity from liability to employers who have purchased workers compensation insurance for their direct employees.

But they said the court wrongly expanded that immunity.

"This Court's holding in this case improperly extends that immunity to non-employer premises (plant) owners," they added. "The Legislature has never authorized such an extension, never intended to provide such an extension, and, in fact, has repeatedly rejected such an extension."

The fact that this was a bipartisan complaint is almost as surprising to me as the fact of its existence. What I don't know is how likely the Supremes are to reconsider, let alone reverse, their decision. Regardless of that, I'd say the next step is for the Lege to revisit this statuts, and explicitly codify the immunity limits in language that even a State Supreme Court justice can understand. We'll see what happens. I should note that the AFL-CIO sent out an email with a bunch of stuff about this on Monday - click the More link to read it.

AFL-CIO email excerpt:

1) Central Labor Councils across Texas today joined the Texas AFL-CIO and our allies in calling for the Texas Supreme Court to rehear and reverse its decision in Entergy v. Summers.

In news conferences and localized press statements, the CLCs noted labor's support for a reversal of the decision, preferably in court but, if necessary, in the Legislature. The events highlighted growing opposition to the decision within the Texas Legislature.

In related activity, a bipartisan group of four Texas lawmakers filed a friend-of-the-court brief with the Texas Supreme Court in support of rehearing the decision. The lawmakers who join others in telling the high civil court that they know full well what the Legislature intended include Rep. Craig Eiland, D-Galveston, Rep. Bryan Hughes, R-Marshall, Sen. Rodney Ellis, D-Houston, and Sen. Jeff Wentworth, R-San Antonio.

Here is the news release used in the Austin event. It is similar to the material used in events in Galveston, Dallas and other locations.

A big thank-you to all the leadership of the Central Labor Councils who put together news events and delivered news releases on short notice to make a coordinated statement on International Human Rights Day:

Dec. 10, 2007

News Release
Contacts: Becky Moeller, (512)477-6195
Or Louis Malfaro, (512)472-1124

Opposition Builds to Anti-Worker Court Opinion
Entergy v. Summers Case Poses Danger for Texas Workers

The Texas Supreme Court's decision to override clear legislative intent and allow Texas companies to shut the courthouse door to injured workers is drawing more opposition starting at the court itself, where organized labor, civil rights and community organizations are asking the justices to reconsider.

The Texas AFL-CIO and other groups filed a brief supporting the motion for rehearing filed by the victim in the case that points up the threats to workplace safety and the major holes in the reasoning of the unanimous Entergy v. Summers opinion. Meanwhile, a growing group of legislators who oversee insurance and workers' compensation issues made it clear that they intended no such interpretation of the law.

Reflecting the fundamental importance of safety in the workplace, the Texas AFL-CIO and Austin Central Labor Council joined CLCs across the state today in making the case the central theme of Texas observances of International Human Rights Day.

In addition, a broad range of labor, civic and civil rights organizations added their voice to this issue by joining with the Texas AFL-CIO in petitioning the Court to reverse its decision. Among the organizations joining the Texas AFL-CIO and Austin CLC in opposing Entergy v. Summers are LULAC, the Labor Council for Latin American Advancement, the A. Philip Randolph Institute, the Coalition of Labor Union Women, the Asian Pacific American Labor Alliance, the Alliance for Retired Americans, United Steel Workers, International Brotherhood of Electrical Workers, Texas Watch and Texans for Public Justice.

"The Texas Supreme Court has gouged a giant hole in the legal protections for Texas workers by giving large business owners a technical loophole to escape the consequences of their own wrongdoing," Texas AFL-CIO President Becky Moeller said. "This decision deprives injured workers of key rights and basic protections while providing absolutely nothing in return. It is judicial activism at its worst. It is wrong, and we are going to fight it with everything we have."

Until the Texas Supreme Court waltzed into this issue, the Texas Legislature, even at the height of the "tort reform" craze, had declined to go this far in closing the courthouse doors to injured workers, despite repeated efforts by the anti-lawsuit lobby. The Entergy v. Summers decision effectively makes an end run around the Legislature by reaching back almost 15 years to an obscure piece of a non-substantive recodification of the Labor Code to justify its decision to change the law.

Sen. Kirk Watson, D-Austin, said the Entergy decision ignored clear legislative intent to maintain legal protections for workers who enter a work site that may be dangerous.

"The Court reached a result that the Legislature has rejected over and over again," Watson said. "The Legislature has avoided reducing and has, instead, worked to assure worker protections and also make sure employers keep a commitment to safety."

A partial list of other legislators who are criticizing the decision is attached.

Moeller noted that the Entergy v. Summers case has prompted legislative review already as part of the interim charges assigned by House Speaker Tom Craddick.

"But we believe the Texas Supreme Court should return the status quo and practice the opposition to 'judicial activism' that it preaches," Moeller said. "This is no time for those who wear judicial robes to take on the role of legislators, particularly when so many lives are at stake."

2) Texas AFL-CIO President Becky Moeller issued this statement on the Entergy case:

Statement by Becky Moeller
President, Texas AFL-CIO
Dec. 10, 2007

Good morning. We are here today to raise awareness of a Texas Supreme Court decision in Entergy v. Summers that threatens the safety of workers across Texas.

Central Labor Councils across Texas are issuing parallel news releases and holding other news conferences on this issue as labor's observes International Human Rights Day. The right to a safe workplace is one of the fundamental rights that this day commemorates. Because the Entergy case threatens workers everywhere in Texas, the Texas AFL-CIO has joined in the effort to seek a rehearing and reversal of the decision and will participate in interim legislative hearings called to discuss the case.

In the Entergy v. Summers case, the court used an obscure, 15-year-old non-substantive recodification of the Labor Code to find that any worker who sets foot on a property that is covered by a certain type of workers' compensation insurance is now barred from the courthouse when the owner of the premises negligently causes an injury. This is true under the ruling even though the worker is not an employee of the premises owner and the premises owner is not a general contractor.

So a plumber who is hired to fix a leak in a skyscraper, an electrician who fixes wiring in a corporate headquarters, a caterer called in to put on a party or, yes, a visiting laborer at a refinery that explodes, as happened in the deadly BP blast in 2005, can now be saddled with the limited benefits and restrictions of the workers' compensation system if injured on the job as long as the premises owner follows the blueprint for protection laid out by the Supreme Court in this opinion.

The Texas Supreme Court has gouged a giant hole in the legal protections for Texas workers by giving large business owners a technical loophole to escape the consequences of their own wrongdoing. This decision deprives injured workers of key rights and basic protections while providing absolutely nothing in return. It is judicial activism at its worst. It is wrong, and we are going to fight it with everything we have.

Until the Texas Supreme Court waltzed into this issue, the Texas Legislature, even at the height of the "tort reform" craze, had declined to go this far in closing the courthouse doors to injured workers, despite repeated efforts by the anti-lawsuit lobby. The Entergy v. Summers decision effectively makes an end run around the Legislature by reaching back almost 15 years to an obscure piece of a non-substantive re-codification of the Labor Code to justify its decision to change the law.

In one ill-considered opinion, the Supreme Court has changed decades of well-settled law. The Texas Legislature is acutely aware of the importance of this issue, having considered and consistently rejected the pressure of the "tort reform" lobby to pass legislation to accomplish this very result. The House Committees on Insurance and Business & Industry will be examining this opinion as part of their interim charge, and the list of legislators who say the Court overstepped its bounds in the Entergy case is significant and growing. Should this decision stand, we will certainly press for legislative action to restore balance to this area of the law.

But we believe the Texas Supreme Court should return the status quo and practice the opposition to 'judicial activism' that it preaches. This is no time for those who wear judicial robes to take on the role of legislators, particularly when so many lives are at stake.

3) A number of Texas Senate members have weighed in on the case:

Quotes from Lawmakers on Entergy v. Summers

Sen. Rodney Ellis, D-Houston:

"I believe the Texas Supreme Court ruling on Entergy v. Summers threatens the safety of all Texas workers. The Legislature has studied this issue numerous times and the majority agrees that the current law provides needed incentives for employers to keep workers safe and it provides them necessary legal protection."

Sen. Mario Gallegos, D-Houston:

"Whenever the legislature looked at this issue in the past, we've specifically declined to do what the Supreme Court has effectively done on their own. As much as many complain about 'activist judges,' it's clear in this case that they have vividly overstepped their boundaries on this decision. I would hope that legislators from both Parties will remedy this travesty of justice at our earliest opportunity. Meanwhile, I hope the court reconsiders this ill-advised decision which flies in the face of legislative intent, and threatens the health and safety of working Texans."

Sen. Eddie Lucio, D-Brownsville:

"Non-Substantive re-codifications of statutes are a constitutionally mandated duty* of the Legislature (and the Legislative Council) specifically meant to NOT change the intent of law. In the Entergy decision, the Texas Supreme Court has violated the separation of powers in this state using judicial activism to write law. One of the court's primary missions is to protect those that have no voice at the Legislature, instead they are usurping powers and writing law. Perhaps, worst of all, they are using these non-substantive changes to remove protections for Texas workers that the Legislature has specifically supported again and again over the years."

Sen. Carlos Uresti, D-San Antonio:

"The Legislature already has considered and rejected policies that would have reached a result similar to the Entergy decision. The people of this state, through their elected officials, have decided to protect Texas workers with legal remedies, while requiring employers to maintain a safe environment for their employees. Unfortunately, the court has ignored the will of the people with its ruling on the Entergy case."

Sen. Leticia Van de Putte, D-San Antonio:

"The grievous ruling by the Texas Supreme Court threatens the basic safety of our workers; and my colleagues and I have unfailingly rejected propositions, in line with this ruling. It is crucial that we address this action to ensure every employer maintains a commitment to the well-being of its employees."

Sen. Kirk Watson, D-Austin:

"The Court reached a result that the Legislature has rejected over and over again. The Legislature has avoided reducing and has, instead, worked to assure worker protections and also make sure employers keep a commitment to safety."

Sen. Royce West, D-Dallas:

"The Legislature has considered this issue several times and determined that the current law provided not only important legal protections for workers, but crucial incentives for every employer to maintain a high commitment to safety," West said. "The court has stepped outside its proper bounds with an Entergy case decision that directly contradicts the will of the Texas State Legislature."

Sen. Judith Zaffirini, D-Laredo:

"In my opinion, the Supreme Court overstepped its boundaries in their Entergy decision. Legislators considered this issue before and specifically declined to pass a bill that would have had the same results."

Also, Quorum Report last week spoke to two Republican lawmakers who raised serious questions about the ruling:

Rep. John Smithee, R-Amarillo:

The chairman of the House Insurance Committee told QR late last week that he was one of those lawmakers taken surprise by the Court's decision. And with the Entergy decision now listed as an interim charge for his committee, he'd like to take a look at how the Court treats recods [recodification laws] in its opinions.

"I think we see those revisions and don't read them closely because we think those things aren't substantive," said Rep. John Smithee (R-Amarillo), noting that a recod can sometimes be an inch or two thick. Many members of the House currently don't pay attention to recods because they are told the documents don't make substantive changes in the law. With the Court's treatment of a recod in Entergy, that could change, he said.

"It seems to be a first," said Smithee of the justices' use of a recod in the opinion.

Sen. Robert Duncan, R-Lubbock:

Sen. Robert Duncan (R-Lubbock) has also been critical of the ruling, saying that legislative intent on the matter is clear. Lawmakers have had multiple opportunities in the past to address extending workers' comp protections to premises owners but have opted not to.

4) The USW issued a national statement on the Entergy case, quoting Brother Mickey Breaux, who is the District Director for the geographical division that includes Texas:

News From USW: Texas Supreme Court Decision on Remedy for Injured Contract Workers Rewards Negligent Employers who Maintain Unsafe Workplaces

PITTSBURGH--(BUSINESS WIRE)--News From USW: The Texas Supreme Court's decision in Entergy v. Summers to limit contract workers to workers' compensation benefits when they are injured at a plant they are visiting puts the burden of recovery on the workers and protects corporate wrongdoers, says the United Steelworkers union (USW). The union urges a rehearing of the case.

"This decision rewards negligent employers who fail to maintain a safe workplace," said USW International Vice President Gary Beevers. "Without the ability to sue companies where they work when they get injured, the contractors end up shouldering the cost of their injuries and the employers avoid liability except for the cost of workers' compensation coverage.

"If Entergy v. Summers had been in effect when the BP explosion occurred at Texas City in March 2005, BP would have escaped at least $1.5 billion in liability and we would have never known the extent of the corporation's wrongdoing. It was only through the legal process that we were able to get access to documents that revealed the company's disregard for safety," Beevers said.

The Texas Supreme Court removed a major incentive for employers to maintain a safe workplace-the threat of litigation.

"This threat is the only way we can force companies to make dangerous workplaces safer," said USW International Vice President Tom Conway. "Regulation and enforcement is practically nonexistent under the Bush administration. OSHA did not perform a single comprehensive planned inspection at a single refinery in the entire country between 1995 and 2005.

"Without this threat, worker injuries and deaths become just a cost of doing business. BP managers made exactly this calculation when they figured the cost of providing a safe workplace versus the liability they might face for failing to do so," Conway added.

Texas statute mandates that the Court interpret the Labor Code to promote public over private interests. The Court's decision goes against this by benefiting large corporations.

Worker's compensation was never intended to compensate an injured worker fully and deals with compensation only and not prevention of an unsafe workplace. Benefits decrease dramatically regardless of the severity of the injury. Even though a worker may not be recovered or be able to fully recover, he or she is thrown out of the system when the benefits end. Workers' compensation also does not include non-economic damages like the pain and suffering of a worker burned severely on the job and the costs his or her family bear because of the injury.

"Workers' compensation is totally inadequate when it comes to refinery explosions," said USW District 13 Director Mickey Breaux. "We had an explosion on Feb. 23, 1999 at the Tosco refinery in California. The survivors of the three contract workers killed sued the company and were awarded $21 million in damages. One of the refinery employees jumped off the tower while ablaze from the blast and broke every bone in his body. He underwent at least 24 surgeries, numerous skin grafts and the amputation of his fingers and a thumb on one hand. He is confined to a wheelchair. His only remedy was workers' compensation and now that is gone.

"Whether you like it or not, the threat of litigation is often times the only way to get companies to make the necessary expenditures to have a safe workplace," Breaux added.

The USW is the largest industrial union in North America and represents over 850,000 workers, 30,000 of them in the oil and petrochemical sector alone.

Observer versus DPS in court today

Today is the day that the Texas Observer tries once again to get the Department of Public Safety to hand over some security tapes so it can see if GOP sugar daddy James Leininger was illegally lobbying the Lege inside the Capitol back in 2005. See here for background. The case is on the docket of the Third Court of Appeals in Austin - details are here. Not much else to say other than this is your tax dollars at work, thanks to DPS' mulishness. We'll see how it goes.

Update on the DPS/Observer kerfuffle

Remember how the Texas Observer won a court ruling last November to compel the Department of Public Safety to turn over security videos from the Capitol hallways in order to see if GOP sugar daddy James Leininger was there to personally lobby for a voucher bill? And remember how DPS drew a line in the sand and proceeded to spend thousands of taxpayer dollars to get off the hook for that? Well, here's another update to that story.

Over the past two years, the Department of Public Safety has sent more than $165,000 of taxpayer money on attorney's fees to keep videotapes recorded by security cameras in a back hall of the Capitol secret. The case could go to the Texas Supreme Court -- despite rulings by the attorney general and a state district judge that the tapes should be made public.

The agency has insisted from the start that it will not give the tapes to the Texas Observer, a small-circulation, nonprofit investigative newspaper, because they reveal details that would compromise security at the Capitol. Attorney General Greg Abbott and District Judge Stephen Yelenosky have ruled that argument baseless.

Undaunted, the DPS is pressing on. Its attorneys are scheduled to make their case again Oct. 24 before a panel of three judges at the 3rd Court of Appeals.

The department's persistence in the matter has infuriated the chairman of the state Senate's Transportation and Homeland Security Committee. Sen. John Carona has promised his committee will find out how the case has been allowed to go on this long. The committee is expected to meet in November.

"The DPS is simply wrong on this issue," said Carona, R-Dallas. "This has nothing to do with security. I can think of no conceivable reason why DPS should be using taxpayer funds to hire private attorneys. This is simply an agency giving political cover for the Legislature. This is a misuse of public funds."

[...]

The saga began on May 26, 2005, when the Austin-based Texas Observer made a formal request to the DPS, which oversees Capitol security, under the Texas Public Information Act, for tapes recorded on May 23, 2005.

Jake Bernstein, executive editor of the biweekly newspaper, was trying to verify rumors that on that day James Leininger, one of the state's wealthiest Republican campaign donors, was in the hall behind the House chamber lobbying lawmakers to pass a pilot school voucher program. Such lobbying just outside the chamber is against House rules.

An amendment to launch the pilot program failed in the House, and the DPS denied the Observer's request, citing the Texas Homeland Security Act.

The videotapes "contain critical, sensitive information that relates to many specifications, operating procedures and locations of the Capitol security system, of which they are an integral part," according to a DPS brief filed with the appellate court. A terrorist could capitalize on such information, compromising the ability of the department to protect people who work in or visit the Capitol.

After reviewing the tapes, Assistant Attorney General Ramsey Abarca wrote to DPS staff counsel on Aug. 26, 2005, that their contents had nothing to do with security.

"The department has not adequately shown how the submitted video taken from Capitol security cameras relates to the specifications, operating procedures, or location of a security system used to protect public property from an act of terrorism," Abarca wrote in a letter to DPS counsel. The department, Abarca said, must release the video to the Observer.

The department responded by asking the attorney general for permission to hire private lawyers to get the opinion of a district judge. On April 12, Yelenosky ruled that the DPS had five days to turn over the tapes. DPS attorneys immediately filed an appeal.

Bernstein said he thinks that speculation by Carona and others that the DPS is perpetrating some kind of political cover-up is off-base. Bernstein said he believes the department is convinced that giving up the tapes will set a precedent that will leave security vulnerable to increasingly intrusive open records requests.

The case for the Observer has become far less about Leininger's whereabouts and much more about the DPS abusing homeland security law at considerable expense to taxpayers, Bernstein said. When the Observer made an open records request to obtain invoices for its legal fees, the DPS complied, and the newspaper posted them on its Web site in late September.

"Beyond this being a frivolous lawsuit, what I find a little depressing is the DPS is proceeding like there is this bottomless bag of money from which to draw," Bernstein said. "It just never occurred to us that they would carry this as far as they have."

Well, nobody expected the Spanish Inquisition, either. We'll see what happens when the Third Court, and (one presumes) the Texas Supremes ultimately weigh in on this. Will DPS pursue this to the US Supreme Court if they lose, or will they just go off into a corner and threaten to hold their breath until they turn purple? Stay tuned. Link via the Observer blog.

More tort "reform" commentary

The NYT had a story on Friday about an increase in the number of doctors in Texas, which is being claimed by tort "reformers" as proof of their success. I've been over this ground plenty of times, so I'm going to cede the floor to the Drum Major Institute and to New York personal injury attorney Eric Turkewitz, both of whom criticize the statistics presented in the story. Check them both out, then consider the logic of S. C. Gwynne, who notes a simple reason for the doc increase:

The population is skyrocketing. So much so that, within the next ten years, fully 6 million new people are going to be living here, the equivalent of downloading the entire state of Kentucky into Texas. The docs are going where the people are.

Makes sense to me.

On nominating judges

My buddy Matt sent me this NYT editorial about a legal challenge to the way in which New York State elects its judges.

The United States Supreme Court hears arguments tomorrow in a challenge to New York's undemocratic method of electing its Supreme Court judges. A federal appeals court ruled that the process, a relic of the era of clubhouse politics, infringes on the constitutional rights of voters and candidates. The Supreme Court should affirm that well-reasoned decision.

New York's Supreme Court judges -- who are trial-level judges, not members of the state's highest court, the Court of Appeals -- are nominated through an archaic system of judicial conventions. These conventions are dominated by delegates handpicked by party bosses, who vote however the bosses tell them.

Independent candidates for judge have virtually no chance of bucking the system. To win the nomination, a candidate who is not backed by the bosses may need to recruit more than 100 delegate candidates to run in different districts. Those candidates would have to collect thousands of petition signatures to qualify for the ballot. If they did qualify, they would need to do an enormous education campaign, because their names appear on the ballot with no identification, so there is no way for ordinary voters to make an informed choice among them.

The judicial conventions themselves are an empty exercise. More than 96 percent of the nominations are uncontested. Absentee rates range as high as 69 percent. They often take, from beginning to end, as little as 20 minutes. When Margarita López Torres, the Brooklyn-based judge who is challenging the system, asked to attend a convention so she could make her case to the delegates, she was told that candidates were not allowed.

In other words, the whole process is a sham. It has the trappings of democracy, but it is not democratic at all. Candidates who want to be elected to a New York State Supreme Court judgeship have no way, short of being given the nod by the bosses, to compete for the voters' favor. The voters have no real hope of having their votes make a difference in the election.

In the emai, Matt said this reminded him of my dad, who was a New York Supreme Court justice for 14 years. So, I sent the link along to Dad to ask him what he thought about it. Here's his response:

I read that editorial and said to myself, "What's new"? The issue in my opinion that seems to escape every writer's gaze is, Who makes the appointment and by what means does that appointment get made? From my own experience with the so-called "merit" selection process, it is more cynical than the purported "unconstitutional" judicial convention system. For example, after being denied the cross-endorsement for a 2nd term on the Supreme Court, a very rare political event, I went through the arduous task of applying to the Governor's Committee and the Mayor's Committee. This was after being voted "Highly Qualified" by the Association of the Bar of the City of New York; the only sitting trial judge to get that rating. I never made it out of the Governor's committee notwithstanding having had an affirmance rate of at least 98% on the criminal cases tried to verdict. Nor did I even get appointed by the Mayor even though his own committee voted to appoint me to the Criminal Court.

What happened? Politics at the so called merit system. Notwithstanding my qualifications after 14 years, my politics conflicted with the Governor when it came to Judicial Independence and obviously the Mayor fell into step with whom ever had the Governor's ear. Merit had nothing to do with this appointment process, politics ruled and politics in the rarefied atmosphere of one on one whispers in the ear of the appointer.

I have no illusions about the way New York State selects its Supreme Court judges. It is power politics, but at least it is a voting process no matter how watered down. I have known of floor fights within the convention to offset the rubber stamp of the political leader, but concededly they are rare.

Let's be honest, the merit system, so called, isn't the solution for the problem because it is politics of power in another shape. Without the system in New York, I would never have been a Judge. But because of the system in place at that time, a deal had been worked out between the political leaders that those who passed the selection committee would be nominated at the Judicial convention. I will be always grateful for that "unconstitutional" system.

He then sent a coda that reads "The only diffenence between the so called 'Merit system' and the unconstitutional system is that in the latter it comes from the local political leader in his neighborhood club house, whereas in the former it comes from a posh conference room on the 45th floor." So there you have it.

How about that tort reform?

Clay Robison provides a great example of why 2003's tort "reform" amendment continues to stand as one of the biggest con jobs ever perpetratred on the state.

Retired orthopedic surgeon Forney Fleming was just what the doctor ordered, or so Texans for Lawsuit Reform thought.

He was eager to bash plaintiffs' lawyers, particularly those who targeted doctors. So TLR, a business group that has spent hundreds of thousands of dollars bashing plaintiffs' lawyers and winning restrictions on judgments against physicians and other defendants, signed him up as a volunteer speaker.

Until a few days ago, TLR also featured Fleming's "supporter profile" on its Web site, where he was quoted:

"I was practicing in a 'judicial hellhole' and saw the effect of lawsuit abuse, which was decreasing the accessibility of medical care in Jefferson County."

Fleming, however, left out some details of his professional life, including his reprimand and $7,500 fine by the Texas Medical Board in 2004 for misdiagnosing what turned out to be bone cancer in a 16-year-old girl's leg. The leg later was amputated.

The board also accused Fleming of providing substandard care to six other patients, including an 81-year-old woman with a fractured hip. That formal complaint was still pending when he let his medical license lapse and retired last December.

And, according to state records, Fleming was sued or threatened with suits for malpractice three times. All were settled out of court or resolved through mediation for undisclosed terms.

None of his professional problems was mentioned on the TLR Web site, but his profile was removed last week, within an hour after I informed a TLR spokeswoman about them.

Yes, but nothing ever truly vanishes on the Internets, which is why you can still see the good doctor's profile here (PDF). Meanwhile, I don't think I can put it any better than this:

"TLR's support has always come from industries and individuals that don't want to be held accountable for bringing physical and fiscal harm to Texas families," said Alex Winslow, executive director of Texas Watch, a consumer advocacy group.

Amen. Sadly, and much to everyone else's detriment, they've done a very good job of it, too.

SCOTUS to take up voter ID laws

I have a bad feeling about this.

The Supreme Court agreed Tuesday to decide whether voter identification laws unfairly deter the poor and minorities from voting, stepping into a contentious partisan issue in advance of the 2008 elections.

The justices will hear arguments early next year in a challenge to an Indiana law that requires voters to present photo ID before casting their ballots. The state has defended the law as a way to combat voter fraud.

[...]

Election law experts had urged the court to take the Indiana case to instruct courts on how to weigh claims of voter fraud versus those of disenfranchisement. "The court better resolve this question before ballots start getting counted next fall," said Stanford University law professor Pamela Karlan.

The court is expected to issue a decision by late June, in time for the November general election.

The Indiana law enacted in 2005 was upheld by a federal judge and by the 7th U.S. Circuit Court of Appeals in Chicago. Before the law's passage, an Indiana voter had only to sign a poll book at the polling place, where a photo copy of the voter's signature was kept on file for comparison.

"The purpose of the Indiana law is to reduce voting fraud, and voting fraud impairs the right of legitimate voters to vote by diluting their votes," Judge Richard Posner said in his majority opinion.

But in a dissent, Judge Terence Evans said, "Let's not beat around the bush. The Indiana voter photo ID law is a not-too-thinly veiled attempt to discourage election-day turnout by folks believed to skew Democratic."

Bill Groth, an attorney who has represented the Indiana Democratic Party in the lawsuit, said he was thrilled that the nation's highest court will take up the case. He said the appeals court made light of the right to vote in its decision, but the Supreme Court has guarded that right more seriously.

"The court has over and over stressed that the right to vote should be protected, and any state law that burdens that right should be carefully and meticulously reviewed," Groth said.

Let me be blunt and say that I do not trust the Court in its current composition to protect anyone's right to vote. Frankly, I think the best I can hope for is a decision akin to that in the revised Georgia law case, where there has to be some kind of effort to ensure that an acceptable-to-vote ID card is made available to everyone. The Court may surprise me (in a good way), but I wouldn't bet on it.

Saw 'em off, I don't care

As someone whose collegiate sports loyalties lie outside the UT/A&M axis, I found the lawsuit against an Aggie merchandiser for violating UT's trademark on the Bevo logo to be more amusement than anything else. And while I generally side with the little guy in matters like these, it's hard for me to say that the UT position was terribly unreasonable:

Defense attorney Allan Van Fleet argued that Saw 'Em Off fell under traditional First Amendment protection of satire and parody.

Van Fleet estimated more than 50 hours were spent haggling a settlement that would allow the university to protect its cherished trademark and the Kalaouzes to keep selling Saw 'Em Off merchandise without paying royalties on past, present or future receipts.

"(The $25,000) was just a one-time, what-does-it-take-to-make-you-go-away," said Van Fleet, a Houston attorney who got his undergraduate degree from Rice, not A&M. "It just came down to them agreeing to take a payment that was minuscule compared to the cost of going forward."

Louis Pirkey, an attorney for UT, noted the settlement also requires the approved symbol to be used in the clear context of the school rivalry and restricts color combinations to prevent confusion with UT's orange-on-white or white-on-orange logo.

Fadi Kalaouze estimates legal expenses north of $200,000, about a third of which were defrayed by selling nearly 5,000 "Save Saw 'Em Off" shirts emblazoned with the old, now-retired parody logo.

The Kalaouzes could have saved their money by agreeing to make a similar alteration when UT first objected in 2005, Pirkey said.

"We told the man a long, long time ago that we understand you want to symbolize the Aggie tradition of sawing Varsity's horns off. What we have an objection to is using our exact logo to do it," said Pirkey, who got his undergraduate degree at UT.

As I said, sounds reasonable enough to me. For some reason, this whole thing is reminding me of peeing Calvins, though without the famously reclusive copyright owner. Make of that what you will.

Probate court

I'm not really sure what to say about the Chron's rather harrowing series on how messed up the Harris County Probate Court system can be, other than I sure am glad we've done estate planning, and I sure as hell hope it never amounts to more than a formality. Couple of excerpts, just to give you a taste if you skipped past them. From Monday:

Perry ''Bit" Whatley, 84, a former Baytown refinery worker and lifelong Texan, spent his final days in self-imposed exile, a fugitive from a more than two-year-old fight with the state probate courts.

Whatley was living in Arizona when he died, but it was not where he wanted to be, away from his home, cut off from his family and his $2 million fortune.

[...]

Soon after the filing of the guardianship case, the Whatleys withdrew $500,000 from an annuity, incurring an early withdrawal penalty. They gave most of the money to their own newly hired attorneys to fight the guardianship. Those attorneys now say the costs for the fight have grown to nearly $1 million.

In Harris County Probate Court, [Judge Mike] Wood, who also claimed he was trying to protect Whatley as a disabled Harris County resident, eventually authorized payments of $360,000 from Whatley's money to four lawyers, three he appointed and one hired on behalf of Whatley's niece. They have not yet provided final accounting of how much of Whatley's money was spent.

The judge openly attacked opposing attorneys as unorthodox renegades who abused the system and instigated Whatley's disappearance. In one court appearance last summer, he said he might have to order Whatley into court "in chains" and that it would be the fault of Whatley's legal team.

However, Whatley's hired attorneys remain adamant in their claims that Wood prejudged their client -- without ever meeting Perry Whatley -- and demonstrated his bias in a series of comments and rulings that threatened Whatley's savings, his independence and his marriage.

[Whatley's niece Jeannie] Anderson has another view. She believes those hired attorneys ''raped my uncle of his estate."

[...]

Whatley's attorneys decided to personally sue the judge, his appointees and others in an attempt to freeze spending of Whatley's assets. The lawsuit accused the judge and others of fraud, conspiracy and breach of fiduciary duties and asked for $15 million in damages.

Wood has called the suit frivolous and insisted he should be granted judicial immunity.

I don't think I've ever heard of attorneys suing a judge like that. I can't imagine the suit will be allowed to proceed, but it still says something to me. How screwed up do things have to be for something like that to happen?

From Sunday:

Some of the fattest fees generated by any recent Texas probate case went to the accounting firm of Paula Miller, a former court favorite who is not a lawyer, a certified public accountant or a banker.

Miller, an accountant with two master's degrees, did serve for a while, though, as Probate Judge Russell Austin's campaign treasurer -- something the family of River Oaks widow Doris Conte initially did not know.

Her family trusts eventually paid Miller and her company $1.38 million. Austin ordered more than $780,000 in additional payments to people assigned to work with her, according to court and family records.

[...]

In 1998, Austin personally introduced Miller to Doris Conte's feuding children, Susan and Joe Conte Jr. The two at first agreed to allow Austin to appoint Miller to review accounting in their family trusts.

Initially, Miller charged the Contes more than $30,000 a month for what was supposed to be a temporary job. She later got the judge to approve hiring five law firms and a CPA, who got paid separately to help.

Within seven years after her 1998 appointment, Miller had generated more than $1 million for her own firm. When the Contes' cash ran low, Miller got more by selling properties and cutting lease deals, sometimes over family objections.

In an interview, Miller claimed her fees were similar to those a bank might charge for a complex trust case. "We did a tremendous amount of work," she said.

However, when Miller prepared to leave the trusts in 2003, she collected estimates from banks who competed to replace her. Those documents show that their proposed fees were lower than her own.

Miller's work at first included redoing five years of financial records, funding the trusts, overseeing accounting and monitoring several lawsuits. But she also frequently billed at $225 an hour for tasks such as buying a lawn tractor and arranging for household repairs.

From 2003 to 2005, her last three years on the case, she earned nearly $400,000 from the Conte trusts, the second-largest reported payout to any appointee in a probate case in the state of Texas, based on a Houston Chronicle analysis of fees paid in probate cases over a three-year period.

[...]

In 2001, Miller became Austin's campaign treasurer.

Miller also was among Austin's $5,000 campaign contributors. Others who worked on the Conte case gave Austin money, too, including an appraiser, a CPA, lawyers and the doctor who had examined Conte and recommended she be declared unable to manage her own affairs. Such contributions are legal and subject to Texas disclosure laws, though critics claim they may present an appearance of impropriety.

Texas judicial rules generally do not require judges to disclose campaign-related relationships in court. However, Lillian Hardwick, co-author of the Handbook of Texas Lawyer and Judicial Ethics, said it might have been prudent in this case for Austin to tell the Contes that Miller was serving as his treasurer.

Austin said he felt it was unnecessary because it was a matter of public record. He said Miller did not help him raise money, though her name appeared on fundraising letters.

In 2005, the Contes discovered Miller's role as Austin's treasurer in an Web search of Harris County records. They were furious.

That same year, Miller had requested authorization from Austin to put all the Conte properties on the market, including their home. After the Contes objected, Miller, who had previously talked about resigning, stepped down from their case. She also stopped serving as Austin's treasurer.

But before her work ended, Austin signed one more document in Miller's favor. This one could protect her from the Contes.

"For purposes of any future claims of liability the effect of judicial discharge shall be as though Paula Miller never served ... No person or entity shall have any cause of actions against Paula Miller or any of her actions or inactions ... ," the order said.

"Might have been prudent in this case for Austin to tell the Contes that Miller was serving as his treasurer". Yeah. Or maybe for her to stay out of his campaign, what with the appearance of impropriety supposedly meaning something.

Anyway. They're good reads, and they shed some light on a part of the judicial system that I at least knew nothing about. Check them out.

Once again with jury duty

What John says.

Most people do not want to sit on a jury, and I was no different. Being away for a couple of days was quite disruptive (and this was a very short trial). Everybody has other things they want to do.

And that's fine, but it was amazing to me how many people there started spouting rationales that clearly were designed to get out of jury service. "I couldn't possibly convict someone based on proof beyond a reasonable doubt - it would have to be absolute proof." Well, by that standard, nobody's even getting convicted. "If a police officer testified, I would believe him no matter what!" You couldn't evaluate what was being said? I have great respect for police, but let's face it, like any other group of human beings, some are not credible.

The judge - a cranky guy who was substituting for the regular judge that day - was having none of it. The people saying this stuff got brought up, one by one, to discuss it with him.

Now, there are people who legitimately hold those views. It was painfully obvious that most of these folks were not among them. One woman kept saying, "I can't be impartial!" "Why not?" "I can't be!" "Why not?" "I just can't!"

The worst was a 20-something woman who approached the bench, and after some muttered conversation we couldn't hear in the back of the room, was sent away by the judge with a quite audible dismissal - "Just go be seated!" and came back to where we were sitting with a smirk on her face. Ha ha, I got out of it!

And while we all would have liked to have gotten out of it, the reality is that if we want to live in a country where we get a trial by a jury of our peers - whether in a criminal or civil case - somebody's got to sit on those juries. If not us, then who?

It's one thing to be honest about your biases. It's fine to honestly say, "I do not understand what that law you're describing means." But to sit and just spout crap to get out of it marks you as somebody who doesn't deserve the benefits of our system of justice.

You can't give up a few days of your life? Go find a nice dictatorship where, if you run afoul of the law, you'll be tossed in prison without the niceties of a trial. It is apparently what you prefer.

Perhaps someday Ms. Smirk-a-lot will find herself or a family member in court, hoping for sympathetic people to sit on the jury, and watching them weasel out of it.

I've written about this before, and I'll say it again: People who distort their beliefs to get out of jury duty, for the reason that they don't feel like being on a jury, are beneath contempt. If you have a legitimate reason for not being able to serve, that's fine - tell the judge and be done with it. Otherwise, suck it up. I've been in Houston 19 years now, and I've served on exactly two juries, one of which was for traffic court where they guarantee up front you'll be out the same day. If that's your idea of an excessive burden, I pity you.

Why you should listen to your attorney

You know how people who are involved in lawsuits are advised by their attorneys not to say anything about the case while the litigation is pending? This would be the reason why.

It was a Perry Mason moment updated for the Internet age.

As Ivy League-educated pediatrician Robert P. Lindeman sat on the stand in Suffolk Superior Court this month, defending himself in a malpractice suit involving the death of a 12-year-old patient, the opposing counsel startled him with a question.

Was Lindeman Flea?

Flea, jurors in the case didn't know, was the screen name for a blogger who had written often and at length about a trial remarkably similar to the one that was going on in the courtroom that day.

In his blog, Flea had ridiculed the plaintiff's case and the plaintiff's lawyer. He had revealed the defense strategy. He had accused members of the jury of dozing.

With the jury looking on in puzzlement, Lindeman admitted that he was, in fact, Flea.

The next morning, on May 15, he agreed to pay what members of Boston's tight-knit legal community describe as a substantial settlement -- case closed.

Let that be a lesson to us all. Thanks to Luke Gilman for the catch.

COPA struck down again

Good.

A federal judge in Philadelphia struck down a 1998 law Thursday that made it a crime for Web sites to allow children to gain access to material deemed "harmful."

The ruling is the second major setback in federal efforts to control Internet pornography. The U.S. Supreme Court struck down a similar law in 1997.

Senior Judge Lowell Reed Jr. of the U.S. District Court ruled that the law was ineffective, overly broad and at odds with free speech. Reed added that there were less restrictive methods, such as software filters, that parents could use to control their children's Internet use.

Reed wrote that he was blocking the law out of concern that "perhaps we do the minors of this country harm if First Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection."

The law, the 1998 Child Online Protection Act, never took effect because of an injunction that was upheld by the Supreme Court in 2004.

Hopefully, after more than a decade of Web ubiquity, we've all moved past the idea that this kind of regulation is even possible, let alone desireable. I presume Congress now has more important things to occupy itself and will cease chasing this ghost. I wouldn't necessarily bet on that proposition - strange things do still happen in election years - but one can hope. Salon's Joan Walsh has more.

Perry sued over HPV order

All things considered, this is probably moot, but Governor Perry has been sued over his HPV executive order. Here's Courthouse News:

Parents of three girls have sued Gov. Rick Perry to protect their daughters from inoculation with a vaccine against human papilloma virus, which causes cervical cancer. The John Doe parents claim Perry had no right to issue his Feb. 2 executive order that requires girls in sixth grade and above to be vaccinated before they can enroll in public school. The plaintiffs make it clear that they do not believe HPV causes cancer or that the vaccine is effective. "The school-aged girls of Texas are not guinea pigs who may be subjected to medical procedures at the apparent whim of Texas' governor," the suit states. "These girls, and their parents, may not be penalized for non-compliance with the Governor's wishes, and their privacy rights may not be invaded should they object to the Governor's mandates." They seek an injunction prohibiting enforcement of Perry's order.

I don't quite understand this, since the order allowed parents to opt out for various reasons, including moral and religious ones, but whatever. BOR has a copy of the suit here (PDF). As always, if any lawyers want to weigh in on this, please do so.

More on the TXU ruling

Inside the Texas Capitol had a bit of an epiphany regarding the TXU fast-track matter, for which Governor Perry was slapped down on Tuesday. He's seeing a cap-and-trade angle that TXU might be trying to exploit while it still can. Check it out and see what you think. Also see Burka's account of TXU's turn as an inflatable clown punching bag in the Senate. You might almost feel a twinge of sympathy for them. Almost. And finally, McBlogger piles onto TXU and their complaints about how they're being treated. That'll help you deal with any lingering feelings of sympathy if needed.

UPDATE: And more from the Texas Observer blog.

Perry's TXU order shot down

Good.

A state district judge today blocked Gov. Rick Perry's executive order creating a fast-track permitting process for coal-fired electric generating plants, a ruling that also could impact the debate over Perry's order requiring cervical cancer vaccinations for pre-teen girls.

State District Judge Stephen Yelenosky ruled that four environmental groups "are likely to prevail on their argument that the governor lacks the authority" to issue an executive order telling a state agency to hold hearings and reach a decision by a specific deadline.

Yelenosky ordered the State Office of Administrative Hearings to ignore Perry's demand that hearings on new power plants be limited to six months.

He did not specifically halt a hearing scheduled for today on TXU Corp.'s request for permits for six coal-fired plants, but he told the state's administrative law judge to reconsider requests for a delay from environmental groups.

Works for me. Between this and Senator Fraser's hearings on the electric utilities, it's not been TXU's best day. BOR and Vince have more.

Charges against Scheffey dropped

And from the Stuff I Was Going To Publish Yesterday But Didn't Have The Time Department: Eric Scheffey, the poster boy for tort "reform" opponents who was arrested in 2005 for allegedly practicing medicine without the license he finally had revoked, has beaten the rap.

Scheffey's attorney, Dick DeGuerin, said prosecutors made the decision after a day of testimony from former patients asserting that Scheffey treated them after his license was suspended.

"Mr. Scheffey is very relieved," DeGuerin said. "Now he can go on with his family."

In a bench trial in front of state District Judge Vanessa Velasquez, DeGuerin explained away the charges, saying Scheffey was working to transfer his 800 patients to other doctors after his medical license was suspended.

"He had a moral and ethical duty to transfer care," DeGuerin said.

Prosecutors based their case against Scheffey on the testimony of five former patients who said Scheffey was treating, not transferring them.

[...]

Assistant District Attorney Rob Freyer said he decided to drop the charges because he didn't think the state could meet the burden of proof in the case. He said prosecutors will file paperwork next week to dismiss the charges.

"Sometimes the way things come out in trial are different than the way they are before trial," Freyer said. "This is the just course of action."

Oh, well. Given that there's not much else than can be done to Scheffey at this point for all the harm he's caused, the best we can do is make sure he can never do any more. That falls pretty far short of justice, if you ask me, but that's the way it goes.

Judge to order DPS to release Capitol camera footage

Elsewhere in video camera news, the Texas Observer has won a legal victory that may have some interesting ramifications. From their press release:

A state district judge has decided that the Texas Department of Public Safety has no legal right to keep the public from seeing videotape footage taken by security cameras in a hallway of the state Capitol building.

Acting in an 18-month long dispute prompted by a Texas Observer open records request, 345th District Court Judge Stephen Yelenosky sent a letter to interested parties Monday, Nov. 20, saying he will formally rule that state law does not allow DPS to keep the tapes secret.

“This was all about the public’s right to know,� said Observer Executive Editor Jake Bernstein. “DPS has no right to shield the government’s business from public view.�

In May 26, 2005, the Observer asked DPS to release two hours of videotape shot on May 23 by cameras in the second floor hallway behind the House chamber. The hallway is a common spot for lawmakers and others to huddle off the floor while the House is in session. On that day, the House debated a controversial school voucher proposal. The Observer sought the videotape to confirm or dispel rumors that James Leininger, a wealthy San Antonio Republican donor and voucher proponent, was in the hallway arm-twisting representatives.

DPS sought a ruling from state Attorney General Greg Abbott’s office on whether it must release the tapes. When Abbott said yes, DPS sued his office. It argued that the Texas Homeland Security Act, passed in 2003, allowed it to keep the tapes secret because releasing them might give useful information about Capitol security to terrorists or other criminals.

While Abbott’s office was the named defendant in the case, the Observer, represented by Jeremy Wright of Kator, Parks & Weiser, intervened. The Austin American-Statesman also filed a friend of the court brief supporting the Observer’s position.

After a hearing Monday morning on motions for summary judgment filed by both sides, Yelenosky distributed a letter saying he could find nothing in state open records law that allowed DPS to withhold the information.

Yeleonsky noted that state public records laws are meant to be “liberally construed� in favor of releasing information to the public. “If the legislature intends to make otherwise public information secret because it was gathered through a means that reveals security information, it must do so explicitly,� Yelenosky wrote.

The judge gave attorneys two weeks to draft and submit a formal ruling for his signature. While it is still possible that DPS will appeal the case “the legal issue is fully decided,� said Jeremy Wright, who represented the Observer.

Well, I for one would like to know if Leininger was there. Anyone at the Observer know how to upload to YouTube?

The punitive damages tax

Here's an idea: Why not tax those huge punitive damage awards that juries hand out like candy to greedy trial lawyers? Doesn't that sound like a great way to add to the state's coffers without really adding to anyone's overall tax burden? Well, California gave it a shot in 2004 at the behest of Governor Schwarzeneggar. They hoped to raise as much as $450 million for the budget. How did it turn out? Not quite as expected. Dwight explains it all to you.

Details of lawsuit against AG Greg Abbott

The Lone Star Project has the details of the lawsuit filed against Attorney General Greg Abbott over his office's investigations into allegations of voter fraud (see here for background). You can read the full complaint here (PDF). Here's the executive summary:

Plaintiffs assert that the challenged statutes enacted in Texas in 2003 violate both the U.S. Constitution and the Voting Rights Act by denying senior citizens and community activists the ability to receive and provide legally protected assistance to participate in elections and, in the case of challenged ballots, the very right to have their vote counted. The suit further asks the Court to block Texas Attorney General Greg Abbott's current efforts to prosecute community activists and other individuals who assist senior citizens and the disabled in completing the mail ballot process and then help insure that completed ballots are mailed or delivered properly to election offices. It is a narrowly drawn complaint that seeks to correct a technical flaw in the Texas Election Code that is being exploited by Texas Attorney General Greg Abbott to selectively prosecute and suppress elderly, minority, disabled, and Democratic voters.

The Texas Democratic Party is one of the plaintiffs in the suit; the defendants are Abbott, Secretary of State Roger Williams, and the state of Texas. This has been a pretty decent year for the TDP lawsuit-wise, so keep an eye on this one. And while you're at it, read PDiddie about what else our illustrious AG has been up to.

Lawsuit filed over AG investigation into ballot fraud

There's been a lot of noise made by Republicans in the past couple of years about ballot fraud. It's what's been driving their efforts to require picture IDs when voting, and now it's driving Attorney General Greg Abbott's investigations into violations of a 2003 state law that makes it a crime to put other voters' absentee ballots in the mail or deliver them to election officials. You hear a lot about how "epidemic" these abuses are.

Problem is, a lot of the allegations being made are crap. Nobody ever cites any actual evidence that anything other than a tiny number of votes are being cast by people who misrepresent themselves at the ballot box. And Abbott's methods are being challenged by a lawsuit that claims he is enforcing the law in an unconstitutional manner.

Democrats complain, and the suit will argue, that Abbott is selectively enforcing the law against Hispanics and blacks to intimidate minority voters and dilute their strength at the polls.

Abbott, a Republican, said he's enforcing state law to root out an "epidemic" of fraud and to prevent "cheaters" from abusing or intimidating the elderly or disabled. For too long, he argues, Texas officials have failed to hold accountable those who undermine the electoral process.

"This has to do with breaking state law, falsifying state documents, registering illegal people to vote, casting votes for people who are dead, casting votes for other people," he said.

Abbott announced in August the indictment of a Hispanic Port Lavaca city councilwoman on allegations she falsely registered and encouraged noncitizens to vote and told one voter how to mark a ballot. Last month a Corpus Christi woman pleaded guilty to marking ballots for other voters without their consent, a third-degree felony. And, in July 2005, another woman pleaded guilty to mailing in a ballot for her dead mother.

Yet, of the 13 individuals indicted on charges of voter fraud by Abbott, 10 are accused of simply possessing another's absentee ballot for delivery to election officials or to a mailbox, Democrats say. Such activities had been legal until the 2003 law turned them into crimes.

Note first that Abbott's definition of an "epidemic" is 13 cases, of which 10 involve an activity that used to be legal. According to the Lone Star Project, the total number of ballots in question is 50. Given that the lowest turnout in a statewide election since 1998 is 3.7 million, that's got to be one of the smallest epidemics I've ever seen.

Both Democratic and Republican political activists have traditionally assisted elderly or home-bound voters who need help in voting, said attorney J. Gerald Hebert, executive director of the Washington-based Campaign Legal Center, who plans to file the lawsuit on behalf of Democrats.

"Now, merely possessing the mail-in ballot of another person is a misdemeanor. If you do it for several voters, it becomes a felony. It is my view that this is unconstitutional," said Hebert, who headed the U.S. Justice Department's voting section of the civil rights division until 1994.

Democrats also complain that of the 13 individuals indicted by Abbott for voter fraud, 12 are minority women while one is a white male. Moreover, Abbott's voter fraud indictments include no Republicans.

"I think it's evident that Abbott's practice of singling out minorities and seniors is a shallow political effort to suppress the votes," said Texas Democratic Party spokeswoman Amber Moon. "It's being done disingenuously. The majority of these cases are well-meaning folks who are simply trying to help their neighbors to vote."

[...]

Abbott's PowerPoint primer on voter fraud, "Investigating Election Code Violations," illustrates the discriminatory nature of his enforcement, Hebert argues, because it cues law enforcement to link voter fraud with black voters.

One slide alerts authorities to look for evidence of fraud on documents, especially specialty stamps. It depicts a sickle cell anemia stamp of a black woman holding a black baby, a stamp often used by blacks.

Another slide shows five black people in line for early voting, noting "all laws apply," while no white or Caucasian people are shown voting in the 71-slide presentation.

Abbot spokesman Tom Kelley said the stamp depicted was among evidence gathered in one investigation, but there was "absolutely no reason whatsoever" that the presentation only portrays blacks voting.

Just one of those coincidences, I'm sure. Look, this whole thing is baloney from top to bottom. It's overblown in a way that would make Andy Taylor blush, it's nakedly political, and it's too focused on minority voters. I'd say Abbott should be ashamed of himself, but based on this report it's not clear to me that he has it in him. PDiddie has more.

Injunction sought to require paper ballots

Via Houston Dems, the Texas Civil Rights Project has filed a lawsuit to seek an injunction to force the use of paper ballots in Texas. From their press release:

Voters, civil rights groups and a statewide candidate filed a petition Wednesday to prevent the State of Texas from using unreliable electronic voting machines in the November elections.

Travis County voter Sonia Santana, the NAACP of Austin, its president, Nelson Linder, also a Travis County voter, and David Van Os, a candidate for attorney general, filed a petition asking the court to enjoin the county from using voting machines that do not produce a paper ballot. The Texas Civil Rights Project represents the plaintiffs.

"Voters deserve the assurance their voices will be heard," said Jim Harrington, director of the Texas Civil Rights Project. "By using machines that provide no permanent record, the state is failing in its constitutional duty to provide the people with an election in which they can trust the results."

[...]

The petition charges that the use of these machines is a violation of three of the plaintiffs' rights guaranteed under the Texas Constitution and the Texas Election Code:

The right to a secure election, since the machines are all-too-often open to failure, mistake, tampering and fraud.

The right to a recount, since there is no way for voters to verify whether the votes were properly recorded, stored, tabulated or printed..

The right to equal protection under the law, since Travis County voters are forced to use a voting system that is less reliable than systems available to other Texas voters.

"The state has chosen to protect one of our most fundamental rights, the right to participate in our government, with a system rife with failure and vulnerable to fraud," Harrington said.

As you know, I believe in the need for paper receipts as part of the voting process. I'd be happy to have them in place as either the primary or backup method for counting votes, as well as for disaster recovery and audit purposes. I do not believe that paper ballots by themselves are a panacea for all complaints about voting systems, but I believe using electronic machines only without a redundant system in place is asking for a disaster to happen. Steven Wayne Smith would probably argue that we've already had such a disaster.

The Statesman has a response from the defendants.

The Texas Civil Rights Project sued Texas Secretary of State Roger Williams and Travis County Clerk Dana DeBeauvoir in state District Court.

[...]

DeBeauvoir and a spokesman for Williams, along with the founder of the Austin company that created eSlate, all rejected the claim that paper ballots are necessary for a fair and secure election.

"I am not a lawyer but I kind of doubt that there is much of an argument," said DeBeauvoir, whose office runs elections in Travis County. "I believe that the system is accurate and secure the way it is."

David Hart, the founder of Hart InterCivic, said that more than 400 jurisdictions nationwide use the company's eSlate system, which uses tablet-size screens on which votes are cast with dials and buttons.

He said the system, which is not connected to the Internet, stores ballot information in three electronic places. In Travis County, it captures images of each ballot so electronic or manual recounts can be conducted.

"The eSlate system has got a lot of security built into it," he said.

That's nice, but it still doesn't address my concern. What happens if one of these suckers fails catastrophically? What's the recovery method for a worst-case scenario?

The lawsuit claims that more than half of states - but not Texas - require electronic voting systems to produce paper copies.

Hart's company has a machine that also prints paper ballot results. It is being reviewed by Williams' office for use in Texas elections, and DeBeauvoir said she'll present the option to the community if it's approved.

"I can run any kind of election this community wants," she said.

That's good to hear. Now tell me more about the Hart machine that does print paper ballots. Seems to me that its approval and adoption would settle this matter pretty quickly.

Still pursuing a hotel tax lawsuit

I mentioned before that the city of San Antonio is suing discount online hotel brokers over lost tax revenues. The city of Houston has looked into filing a similar suit, and has now taken further action on this front.

After a setback in late April - the firm chosen by the city to move ahead with the lawsuit backed out - City Attorney Arturo Michel said he hopes to ask the City Council to approve a contract with a different law firm sometime this month.

"We still plan on proceeding with it," Michel said. "We'll keep an open mind, but we've had a lot of good lawyers looking at it, and I'd be surprised if something happened that would change our minds."

[...]

Houston has been considering legal action for months, but plans to sue fell through in late April when a Houston law firm the city had chosen bowed out of the project.

The firm did not return calls for comment, but Michel said the move was sparked by a memo that City Controller Annise Parker issued to City Council members, expressing doubt that a lawsuit would be worth the city's time and money.

"It is my belief that there is no clear, irrefutable basis for pursuing this issue further at this time," Parker wrote on April 11.

Indeed, several cities across the country that considered legal action have decided against it.

But Mayor Bill White said Houston will continue to push for a lawsuit. The city plans to negotiate a contingency fee, so it will be financially responsible to a law firm only if unpaid taxes are recovered.

I'm not sure what the merits are of such a suit (me not being a lawyer and all), but I don't suppose I have a problem with one being undertaken on a contingency basis. At least that mitigates the risk.

As for the merits, here's the point/counterpoint for you in a nutshell:

"Part of the problem here is that like a lot of our tax laws, the hotel tax law was created before there was an Internet," said Texas Deputy Comptroller Billy Hamilton. "So the law simply didn't contemplate it."

Not so, said former state Rep. Steve Wolens, a lawyer who is representing several cities in lawsuits against online travel companies.

He said both Texas and Houston law are very clear: Any person controlling a hotel room is required to collect and remit the tax.

He said that whether the Web site operators actually own the hotel rooms is irrelevant. "They control the rooms and therefore they have to collect the tax," he said.

[...]

Art Sackler, director of the Interactive Travel Services Association, which represents travel Web sites, argues they do not have to pay the tax because the price markup represents a service fee. Companies charge customers for the convenience of finding them an affordable, available hotel room, he said.

"Those service fees are not - on the law or on the facts - subject to the tax," Sackler said.

His industry is frustrated with the lawsuits, he said, because some were filed without any attempt to talk out the issue with travel companies.

"We're extremely confident that once we would have a chance to chat with anyone who is in a position to be looking at this, we'll be able to easily demonstrate that there are no taxes due on our service fees, no taxes being collected and withheld," Sackler said. "The city of Houston so far has been very responsible in this manner, approaching it in just the right way: having discussions with us."

Like I said, I'm not sure how solid the cities' cases are. I suspect that a legislative solution is going to be needed here, though I'm not sure how likely one is to pass. It would be a shorter path for the cities to get what they want if they can get a bill through the Lege, that's for sure. We'll see what happens.

Hotel tax lawsuit

The city of San Antonio is suing online travel brokers, claiming that they are insufficiently paying its hotel occupancy tax.

Dallas-based Hotels.com and Travelweb and Southlake-based Travelocity.com, a subsidiary of Sabre Holdings Corp. (NYSE: TSG), were among 19 firms that allegedly underpaid hotel occupancy taxes in violation of state and local tax laws, according to a press release from the city of San Antonio.

[...]

The suit was filed in federal district court in San Antonio Monday morning, said Steve Wolens, of the Dallas office of Baron & Budd P.C., who is working with the city of San Antonio.

[...]

Art Sackler, the spokesman for Interactive Travel Service Association, the group that represents online travel sites, said the suit is misdirected.

"The law applies to hotel operators," Sackler said. "The online travel companies are not hotel operators."

Many large Texas cities like San Antonio rely on hotel occupancy taxes that come directly from local convention and tourism industries, according to a release from the city of San Antonio. For example, there are more than 33,000 hotel rooms in Dallas that generate millions of dollars in taxes for the city each year. It is estimated that Dallas loses $1 million to $1.6 million every year in unpaid hotel occupancy taxes.

Wolens said that while the suit has been filed on behalf of all cities in Texas, it's possible the city might join the suit later. The city of Dallas' attorney couldn't immediately be reached for comment today.

As Dallas Blog puts it, sites like Travelocity book a boatload of rooms at a fixed discount price, say $75 a night for a room that would normally go for $150, then resell them in between, say at $125. They pay taxes based on the $75 price. Their customer doesn't pay the tax, since they don't do business directly with the hotel. The city claims that the broker should pay the tax based on the $125 price that the customer pays.

I'm not a lawyer, but my guess is that the city will lose this suit. This sounds like a legitimate loophole in the law to me. I think San Antonio's hotel occupancy tax - and that of other cities that may decide they have an interest in this - will have to be revisited to pick up this slack. I could certainly be wrong about this. I'll be curious to see how the suit progresses.

Cities are not the only ones with a stake in this:

In addition to the lost tax revenue at the city level, the State of Texas also is losing out as a result of the improper remittance of hotel occupancy taxes, the news release said.

I'm moderately surprised no one introduced a bill this session to close that loophole. Everybody loves a tax that is mostly paid by other people, after all. I won't be at all surprised if this does come up in a future session.

UPDATE: I missed the fact that Houston has contemplated taking this action, though nothing has come of it as yet. blogHouston has the details.

And so it begins

South Dakota has started the ball rolling in the push to outlaw abortion in the US.

(CNN) -- South Dakota Gov. Mike Rounds signed a bill Monday that bans nearly all abortions in the state, legislation in direct conflict with the Supreme Court's Roe v. Wade decision that legalized abortion in 1973.

The new law defines life as originating "at the time of conception."

The new law also makes all abortions illegal, unless they threaten the life of the mother.

Although the law -- intended as a constitutional challenge to Roe v. Wade -- is set to take effect July 1, Rounds said in the statement that he expects legal action will prevent that. He added that a settlement of the issue could take years and might ultimately be decided by the nation's highest court.

"The reversal of a Supreme Court opinion is possible," Rounds said, pointing to the 1954 Brown v. Board of Education decision that reversed the 1896 ruling that states could segregate public facilities by race if equal facilities were offered.

The bill "will give the United States Supreme Court a similar opportunity to reconsider an earlier opinion."

They didn't wait very long, did they? Alito's robes have barely been hemmed and it's time to challenge Roe. Does any one else remember the loud denials that abortion was the issue that the conservatives were trying to pack SCOTUS against? We're all against those activist judges, right?

Unless they're denying my right to choose whether or not to have a child, that is.

The new face of reform

which, I'm sure you must have read, is a major concern for House Republicans these days

House Republicans Try to Get Back on Course
Boehner seen as face of change in house
GOP picks a ‘fresher’ face
House GOP's new face
Going beyond damage control
Post-Abramoff Mood Shaped Vote for DeLay's Successor
News Analysis A Cry of Concern by Republicans at Voter Unease
Boehner chosen to lead House GOP in break with DeLay era
Reformer in upset win as Republican leader in US House
Ethics at heart of GOP leadership race

No, not the reform. The new face.

And there they've chosen well, because Mr. Boehner is one of the few remaining members of the leadership that enacted damage control without any real reform when their criminally unethical leadership derailed the revolution before this one,* and he wasn't too fastidious about it back then either.

Mr. Boehner, Online Newshour, April 17, 1997

REP. JOHN BOEHNER: The leadership really did not engage in this. Not at one time during the last three months was there a discussion of this in the leadership. It was between Newt and his wife and his advisers and his lawyers over how this would be dealt with. But he kept it to himself. He worked with his friends and really did not involve the rest of the leadership in those discussions.

A transcript of a conference call recorded by two citizens with a scanner (which is illegal, so don't) off of Mr. Boehner's cell phone signal, in which the entire House leadership discusses their strategy for dealing with Newt's little difficulties. The call took place on December 21, 1996, or, if you prefer, at one time.

Subsequently, of course, as the water rose around Mr. Gingrich, Mr. Boehner scampered up the hawser.

He's spent his time since consolidating his popularity with his fellow congresspersons on the right by the thoroughly un-DeLaylike strategy of, um, raising a huge pile of money from lobbyists*** and special interests and handing it out to his fellow incumbents.

CNN opines that it's his perpetual tan and cigarette that make him distinctive.

I'd have to agree that those would be pretty much the only things that make him stand out from the rest of the disgraced Republican leadership in my mind too.

Way to clean up the culture of corruption, guys.

*for those of you who don't remember the last time, Mr. Gingrich was crooked as a dog's hind leg and got caught. The Republicans shut down the Ethics Committee, but it didn't help. A selection of rats went racing, predictably, for the hawsers (quite a few of them didn't think he was extreme enough anyway). The rest of the leadership heard about it, tried to run to the front of the parade, and then discovered that the insurgents weren't interested in handing the reins of power over to them.

At that point, they belatedly discovered their outrage at this unconscionable disloyalty and ratted everyone concerned out to Gingrich, who accepted the resignation from leadership of Rep. Paxon for not telling him sooner (Paxon was the only one who served at the pleasure of the Speaker), although there were also rumors that his ouster also had something to do with suspicions that he had given information about private House meetings to a good friend who was a journalist.

Paxon and his wife, former Gingrich favorite Susie Molinari both left Congress shortly afterwards. Saxon and Molinari are both now employed sucking up money from friendly businesses who want to do favors for compliant congresspersons. You can't make this stuff up. Another amusing version of the tale from the socialists at the National Review (containing this remarkably satisfying assessment of Mr. Boehner: "He is a unifying figure for warring Republican factions: nobody trusts him.") is here

**Amusingly enough that seems to have been at the instigation of Mr. Armey, who (despite washing his hands in the wake of the coup attempt with the avidity of a germophobic Pilate in any public place he could find) was thought to have lobbied the hardest to be installed by the rebels in Gingrich's place

***You heard the story about passing out tobacco lobby checks to members on the House floor, right?

Juror pay raise

Starting next week, you're going to need a reason other than crappy pay to weasel out of jury duty.

Texas will no longer be among the stingiest states when it comes to pay for jury duty, raising the $6-a-day rate to $40 a day in the first increase in more than 50 years.

The increase is effective Jan. 1 under a new law designed to improve the state's low level of juror participation. They'll still get the $6 rate on the first day of jury service.

"Texas has lagged behind in fair jury fees for a long, long time," said Supreme Court Judge Nathan Hecht. "It's disingenuous to look over to them and say, 'We couldn't do this without you,' then hand them $6. At times that won't pay for parking and it certainly won't pay for lunch."

Juror pay varies greatly from state to state, with Texas near the bottom before the increase, according to the National Center for State Courts. Massachusetts and Colorado pay nothing up to the first three days, but increase that to $50 a day on the fourth day. Other states such as Iowa, Kansas and Maine pay a flat rate of $10 per day. Federal courts pay $40 per day.

Lawmakers, lawyers and judges hope the change in Texas will increase jury participation and bring more minority representation to juries. One expert said the increase should help.

"If you don't pay a decent fee for the jurors' service, you are excluding those people who can't afford to spend a day in court on $6 a day," said Phoenix attorney Patricia Refo, who oversaw an American Bar Association project on public participation in the courts. "Hopefully, this will encourage people to do their civic duty."

You can thank the firm of Vinson & Elkins, plus former Dallas Mayor and Senate candidate Ron Kirk for the assist on this one. Forty bucks a day still isn't a king's ransom, but most people could get by on it for a week if they had to, and it will more than cover costs for those of us who still get our salary while doing our aformentioned civic duty. I've said before that I have little patience for people who whine about the inconvenience of serving on a jury. I have even less patience for them now.

Identity theft protection

The good news is that there's momentum in Congress for federal legislation to protect consumers when their personal data is stolen from brokers like ChoicePoint. The bad news is that this new law may well be weaker than current state laws but would nonetheless supersede them.

Bills introduced in Congress after lapses at information broker ChoicePoint, LexisNexis and elsewhere would supersede the growing number of state laws, many of which impose stricter standards on data brokers, banks and credit reporting agencies. Rigorous disclosure requirements in California's law — the first in the nation, in effect since 2003 — brought many of the breaches to light.

Texas is among the states that require companies whose data is compromised to notify in writing the individuals affected.

"Many states are starting to deal with the problem," said Susanna Montezemolo, an analyst for the nonprofit Consumers Union. "A national solution is great if done the right way, but it could actually set us back."

Several of the federal bills have provisions that consumer advocates like, but the drafts keep changing and probably will be combined in the spring, said Chris Hoofnagle, West Coast director of the nonprofit Electronic Privacy Information Center. Some of the bills would force disclosure of an information breach only when the company involved decided there was a "significant" risk of fraud — a loophole Consumers Union said would have stopped disclosure in many of the 2005 cases.

The American Bankers Association said a high threshold for notification was necessary because otherwise consumers would get so used to being warned that they wouldn't take the notices seriously. Banks and information brokers also argue that without a uniform federal rule, most companies will end up complying with the toughest state law in order to have a uniform policy, in effect letting one state regulate national conduct.

Help me out here: If I own a safety deposit box, is my bank required to notify me in the event that it gets broken into or otherwise damaged (by, say, a flood)? If so, then I can't think of any reason why a data broker should be allowed to avoid notification of customers in the event that they get hacked. If they whine about the expense, remind them that a few extra ounces of prevention might be a good investment.

I really have no sympathy for the data brokers. I never chose to entrust the likes of ChoicePoint (who even heard of them before the stories about their stolen data started breaking?) with my information. It shouldn't be up to their discretion to tell me when that trust has been violated.

Abbott sues Sony over rootkit

Texas Attorney General Greg Abbott has filed a lawsuit against Sony for violating the state's new anti-spyware law.

Attorney General Greg Abbott said he filed the lawsuit under a new Texas state law forbidding such hidden tracking tools, and predicted tens of thousands of Texans might have been hurt by Sony's anti-piracy software.

Sony has said the tracking technology was designed to prevent unlimited copying and unauthorized distribution of music and does not track personal information about computer users, he noted.

But Abbott said his suspicions about its real purpose were heightened by his investigation's findings that the hidden technology remains active at all times.

Citing Sony BMG's Web site, he said the software was placed on 52 music titles by artists ranging from Celine Dion to Flatt & Scruggs.

"Sony has engaged in a technological version of cloak-and-dagger deceit against consumers by hiding secret files on their computers," Abbott said.

"Consumers who purchased a Sony CD thought they were buying music. Instead, they received spyware that can damage a computer, subject it to viruses and expose the consumer to possible identity crime."

[...]

The CDs do not create problems if used in a compact disc player, said Abbott's spokesman Tom Kelley.

However, any consumer attempting to play the discs on a personal computer must first sign a user agreement, which Abbott said secretly installs the tracking software without the consumer's knowledge.

"The file it is implanting into your system is possibly going to damage the unit plus expose you to all kinds of hackers, viruses, ID theft — you name it," Kelley said. "The consumer had no way of knowing whatsoever that this phantom file was being installed on their computer to gather information about them presumably."

Abbott's lawsuit seeks to determine what purposes Sony might have had in placing the software on computers, which affects Microsoft Windows folders, beyond merely tracking piracy violations.

The lawsuit as filed seeks $100,000 for each violation in damages to the state under the Consumer Protection Against Computer Spyware Act of 2005, a law filed by Sen. Judith Zaffirini, D-Laredo.

Abbott also plans to amend the lawsuit to seek damages for individual consumers under the Texas Deceptive Trade Practices Act, said Kelley.

Dwight, who references this story, has been your one-stop shop for information about this case. The Golden State Blog also has some useful info. Here's a list of affected CDs - if you've played any on your computer, see h