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Define That Term #245

Dictionary_2 Wednesday's term was ejusdem generis, which is defined as:

(eh-youse-dem generous) v adj. Latin for "of the same kind," used to interpret loosely written statutes. Where a law lists specific classes of persons or things and then refers to them in general, the general statements only apply to the same kind of persons or things specifically listed. Example: if a law refers to automobiles, trucks, tractors, motorcycles and other motor-powered vehicles, "vehicles" would not include airplanes, since the list was of land-based transportation.

No one guessed this time around.

Today's term is:

remainder.

As always, no dictionaries, please.


Flying the Friendly Skies

050902_usair_katrina_hmedhmedium In the last 5 years, has at least one of your flights been delayed for hours on end with no explanation whatsoever?  Have you sprinted through a terminal past multiple fast food restaurants in an effort to catch your connecting flight, your stomach rumbling, knowing full well that you can't stop--and that you'll be fed no more than 10 peanuts during your flight, even though it occurs during a mealtime? Have you felt as if you were performing some sort of bizarre strip tease at the security check points?  Have you ever stood in an airport cursing the unhelpful and downright surly personnel under your breath, or even out loud?

I know I have.

So, I can totally relate to the irate reaction that Carol Ann Gotbaum, a New Yorker, apparently exhibited after gate crews refused to allow her to board her flight, even though the plane was still in the gate. 

Granted, she was late, but who knows why she was late?  Perhaps her prior flight had been delayed?  Maybe she'd been detained by security because it was the third Tuesday of the month, thus mandating the detention of every fifth woman with brown hair who walked with a limp and wore a size 7 shoe. I mean honestly--who the hell knows what sort of ridiculous system TSA has in place on any given day.

And who knows what was waiting for her at the end of her flight?  Perhaps an ailing child or relative?  An important and time sensitive business meeting?  Cutting edge cancer treatment?

Airport and security personnel at Sky Harbor International Airport in Phoenix likely had no more knowledge than I as to what peculiar set of circumstances led her to become so irate.  And, I doubt they really cared.  Their solution was to handcuff her and place her in an airport holding cell--where she died, as explained in this AP article:

A traveler who may have accidentally choked herself to death while handcuffed in an airport holding cell was a "wonderful" woman and mother, according to New York City's public advocate, who is her relative...

The events that led to Gotbaum's death began when she became irate over not being allowed on a US Airways flight, though she was rebooked on a later flight, officials said. Officers handcuffed her and took her to the holding room, where she kept screaming, authorities said. They checked on her when she became quiet and found her unresponsive, said Phoenix police Sgt. Andy Hill.

It appears Gotbaum may have tried to get out of her handcuffs, which ended up around her neck, Hill said. A medical examiner will determine the cause of death.

I don't know about you, but the next time I travel, I'm taking the train.


Tax the Rich to Feed the Indebted?

Pigs_flyThis New York Law Journal article from this week's Legal News Round Up deserves further attention:  Tax on BigLaw Attorneys Proposed to Subsidize Loans of NY's Public Lawyers.

From the article:

Corporation Counsel Michael A. Cardozo last night called for legislation to help attorneys working in the public sector cover the cost of repaying their student loans....He proposed that the program be funded by increasing the $250 fee for taking the bar exam and the $350 fee for biannual state registration for attorneys employed by large and mid-sized firms.

What an absolutely fabulous idea, dahling! 

Let's pull a Robin Hood on BigLaw and tax the cold hearted, rich bastards at the top of the legal ladder and send some of that money downhill to the lowly  do-gooder Legal Aid lawyer-types--those naive "true believers" who actually want to try and make a difference in the world--aka--the alleged "losers" that those who attended "top tier" law schools wouldn't dare be seen with in public, lest they be taunted endlessly by their colleagues, most of whom seem to spend inordinate amounts of time leaving nasty, misogynistic, anonymous comments at The Volokh Conspiracy, The Wall Street Journal Law Blog and Above the Law blogs.

Oh, that such a law would come to pass!

Call me cynical, but I just don't see it happening.  There's no way that the most powerful attorneys in New York would allow it to happen.  And, this less-than-rousing endorsement from the speech of the bill's sponsor serves only to support my suspicions that a law of this sort will never come to fruition:

There is some slight hope in both Albany and Washington that some kind of loan forgiveness program might become a reality. This year the State created a limited loan forgiveness program, structured along the lines I just mentioned, for attorneys employed by district attorney offices in the state Unfortunately, the Legislature appropriated just $1.5 million to fund the program, which expires in any event a year from now. Moreover, the legislation is limited to district attorneys offices, and, unlike other legislation that has been introduced in Albany, doesn’t include public defenders, attorneys representing state or local governments, or civil legal service attorneys. (Emphasis added).

Oh, and forget what I said about do-gooder Legal Aid types.  Apparently just those who prosecute stand to even have a chance of benefiting from a loan forgiveness program.  Imagine that.

Mark my words, the only time public interest lawyers will experience loan forgiveness straight from the pockets of BigLaw is when when pigs fly.


The New York Legal News Round Up

Latest_news It's Wednesday, and time for the round up of law-related news headlines from the past week:


The First and Sixth Amendments and God

Drlogo11This week's Legal Currents column, which is published in The Daily Record, is entitled "The First and Sixth Amendments and God"  The article is set forth in full below, and a pdf of the article can be found here.

My prior articles can be accessed here.

******

The First and Sixth Amendments and God

Last year, Nebraska District Court Judge Jeffre Cheuvront, while presiding over a rape trial, ruled that the use of certain words was barred during the trial.

I’m fairly confident he never envisioned his ruling would result in two separate and equally unusual lawsuits. The first is a federal suit brought by an alleged rape victim against Judge Cheuvront, claiming his ruling violated her First Amendment right to free speech. The second was filed in response to the federal lawsuit by a Nebraska state senator against God, alleging God is the cause of untold death and terror and seeking a permanent injunction to prevent him from doing so in the future.

Concerned with protecting the defendant’s Sixth Amendment right to a fair trial, and in keeping with a recent trend in criminal courts across the country, Judge Cheuvront forbade witnesses from using the words “rape,” “victim,” “assailant,” “sexual assault kit,” and “sexual assault nurse examiner.”

Criminal defense attorneys praised the ruling, asserting the term “rape” is a legal conclusion, and a complainant is not a “victim” of “rape” until a jury of her peers unanimously determines it was so. Victim advocates decried the ruling, contending that being forced to describe the act of “rape” as simply “sex” is an assault in and of itself.

Following two mistrials, the accuser filed a federal lawsuit seeking an order declaring Judge Cheuvront violated her First Amendment rights when he barred her from speaking the forbidden words at trial.

Shortly thereafter, U.S. District Court Judge Richard G. Kopf issued an order requiring the plaintiff and her counsel to show why the lawsuit was not frivolous. The court stated, in relevant part: “There is something profoundly disturbing about the notion that a federal judge has the power to tell a state judge how to do his job. ... “(T)here is also something profoundly disturbing about a judge telling a citizen that she cannot say that she was raped when testifying as a victim in a criminal case, particularly when the victim is presumably trying to do nothing more than describe what happened to her. This brings to mind the blue burkas of a distant place. …

“I have serious reservations about whether this action was commenced for the improper purpose of forcing Judge Cheuvront to recuse himself from presiding over the state criminal matter or for the improper purpose of generating pretrial publicity about the plaintiff and the criminal case…(and) I cannot find any precedent for a suit of this kind and the plaintiff could avoid any ‘injury’ whatsoever by simply electing not to testify, or, if subpoenaed, by invoking her Fifth Amendment privilege.”

While Judge Kopf adeptly summed up the conflicting and important constitutional issues at stake, I take issue with his assertion that the plaintiff could avoid injury by refusing to testify or invoking yet another important constitutional right pursuant to the Fifth Amendment. To suggest that refusing to testify, thereby allowing her attacker to go free, allows her to “avoid an ‘injury’” is preposterous, to say the least. Furthermore, it does not follow that because there is no precedent for a lawsuit, the claim is unprosecutable or frivolous.

Arguably frivolous, however, is Nebraska State Sen. Ernie Chambers’ lawsuit, filed in Douglas County Court, against God. Although Chambers contends the lawsuit was filed in direct response to the “frivolous” First Amendment claim pending against Judge Cheuvront, his motivation for choosing God as the defendant in the case is unclear, as is the underlying rationale for his claims. I can only hope more learned legal minds than my own can discern the tenuous connection between the two.

Meanwhile, I’m more concerned with the issue of jurisdiction. Sen. Chambers contends the county court has jurisdiction over the Almighty since God is everywhere. But how exactly does one effect service on God?

I don’t know about you, but I very well may lose countless nights of sleep puzzling over this peculiar procedural issue.

******

I submitted this article last Thursday.  Between now and then, God responded to the lawsuit and it looks like we're on the same page.  Failure to effect service--that's the ticket!


The New York Legal Blog Round Up

Blawgs It's Monday, Monday, Monday!  And time for the weekly round up of interesting posts from my fellow New York legal bloggers:

Indignant Indigent:

It's No-fault of New York:

Juz the Fax:

New York Attorney Malpractice Blog:

New York Civil Law:

New York Public Personnel Law:

Second Circuit Sentencing Blog:

Simple Justice:


Define That Term #243

Dictionary_2 Thursday's term was grandfather clause, which is defined as:

n. 1) a clause in a statute or zoning ordinance (particularly a city ordinance) which permits the operator of a business or a land owner to be exempt from restrictions on use if the business or property continues to be used as it was when the law was adopted. Upon passage of the statute or regulation, the specific property may be referred to as "grandfathered in." Example: the city passes an ordinance which does not permit retail businesses in a particular zone, but any existing store can continue to function in the area, even with new owners. However, if the premises stop being a retail outlet then the grandfather clause will lapse. 2) among the state constitutional amendments passed by southern states in the late 1800s to keep blacks from voting, "grandfather clauses" denied voter registration to people who were illiterate, who did not own property or could not pass a test on citizenship obligations, unless their grandfathers had served in the Confederate Army. Such laws are now unconstitutional.

Edward Wiest's guess was right on target!

Today's term is:

ministerial.

As always, no dictionaries, please.


Tutorial On Researching the Legislative History of NY Statutes

Checkmark Today I came across a really useful tutorial at the New York State Library's web site that walks you through the process of obtaining the legislative history of a New York State Law.  There's also a really helpful section that explains how to determine the legislative intent behind a statute. 

I could have used this information a few weeks ago when I was researching the legislative intent behind a section of the AUO statute.  Better late than never, I suppose.