August 26, 2008

"Carpetbagger" Is Not A Dirty Word

Alaskans have entirely the wrong idea about Vic Vickers, the unsuccessful candidate for the Republican nomination for U.S. Senate. People attacked Vickers as a “carpetbagger” because he has only lived in Alaska since January of this year. They took umbrage at this brash interloper from Outside, throwing his money around, trying to buy his way into elective office. The conspiracy theorists out there even postulated that Vickers was a Democratic operative whose real agenda was to smear Ted Stevens for Mark Begich’s benefit. (This theory, however, took a serious hit when Vickers publicly described Begich as "Ted Stevens on training wheels.")

But people, people, people, let’s take a “big picture” view of Vickers’ candidacy. We shouldn’t be attacking Vickers. Instead, we should be encouraging him. We should be encouraging him and any other millionaires with more money than sense who have a desire to throw away oodles of dough to become elected officials of the Greatland. In fact, the first thing that the Alaska Legislature should do when it reconvenes this winter is to pass a resolution commending Vickers for his participation in the election and asking him to please, please put up a bunch more money to try again.

Just think about it for a few nanoseconds. This guy spent something like $750,000, or maybe even $1 million, of his own money to campaign here. This money was all paid to Alaskans: Alaska TV stations, Alaska radio stations, Alaska newspapers, Alaska ad agencies, Alaska printers, etc. These local businesses are now in the process of passing along this money to the rest of us through those economic channels we all cherish so much. And, this money was all dollars that Vickers successfully pried out of the good citizens of Florida. I mean, its like Florida just loaded up a huge pile of cash on a semi-trailer truck and sent it up here for us to have fun passing around. As an Alaskan, how can you not be in favor of that?

We should embrace this as a business model and develop a cottage industry out of it. Take out ads in the Lower 48 encouraging rich guys who have high opinions of themselves (maybe that’s redundant) to run for office here. “Big. Wild. Wide Open Elections.” Set up a State commission, like the Alaska Film Office, to encourage wealthy Outsiders to try their luck at Alaska politics. Maybe even give them helpful hints, such as suggesting they legally changing their names to something like “Ned Stevens” before making the run.

carpetbag_01.jpg Of course, we would have to do something about the pesky Alaska Constitution. (I mention the constitution here so that I can legitimately say this blog entry has a tie-in with the law.) The state constitution says that candidates for the Alaska Legislature have to live in Alaska for a minimum of three years and in their legislative district for one year. The constitutional requirements to run for governor are even worse. A candidate for governor has to live in Alaska for at least seven years. (Vickers sidestepped these requirement because he ran for federal office.) But I’m sure that if we look at this thing in the right spirit we can all get behind a “Carpetbagger Amendment” to the state constitution. We can just add an exception that lowers the residency requirements by a couple months for every $1 million in net worth that a candidate spends to campaign in Alaska.

It’s a great idea, don't you think? There will be more money flowing throughout Alaska and we will have more entertaining political campaigns to watch. And what is the worst thing that could possibly happen? That some know-nothing weirdo actually might get elected to public office? You know, I’m pretty sure that’s already happening in almost every election.

August 20, 2008

Defaming The Olympians

Like most everyone else, the lawyers here at Atkinson, Conway & Gagnon have been watching the Olympics. For some reason, the games have made me think of defamation law. All of those finely honed athletes are doing astonishing things for the glory of sport. But there is an awful lot of criticism that seems to go with the territory.

Take Uberswimmer Michael Phelps for instance. The unkind bloggers out there are zinging the big lug for his supposed lack of fashion sense. They ask (and affirmatively answer) the question: “Is Michael Phelps a douche?"

So what sort of a comment is defamatory anyway? The Restatement of Torts says that a communication is defamatory “if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” (Say what?) I think that in the English language this means a statement is defamatory if it exposes the person to hatred, ridicule or contempt in the community. If the statement is written down its called libel. When its stated orally, its just slander. (If its written down and stated orally, then I guess you can call it whatever you want. Like maybe libelous slanderific bladderdash or perhaps slanderous libelicious poopycock.)

The law on defamation is a patchwork construct. The rules that apply are Byzantine and bizarre. Consider this: who gets the first cut on saying whether calling Michael Phelps a douche exposes him to hatred, ridicule or contempt in the community? Do we take a poll of community members to figure out if they think less of Phelps because of the comment? No, we do not. Instead, the law entrusts this critical decision to the one person who is probably least qualified to make it. This is a person who is by necessity out of touch with the rest of society, isolated in an ethical tower of solitude. And its a person extremely unlikely to know what passes for fashion amongst the i-generation. That’s right, the trial court judge is the one who makes the frontline decision.

(You might be inclined to ask: Did this joker just defame the trial court judges? Rest assured that I did not. You see, I can poke fun at the trial court judges as a group all that I want and I will not face any liability for defamation. To be defamatory, a comment about a group has to be reasonably understood as being directed a particular member of a group. And when it comes to each one of the particular members of the trial court bench, my view is that each is an intelligent, hard-working public servant who gets nowhere near enough appreciation or reward for the vital work he or she is doing.)

Bringing a defamation lawsuit is almost never a good idea. (Just ask Oscar Wilde or General William Westmoreland.) Defamation claims are subject to a number of unique defenses and the damages that can be proven are usually very limited. It used to be that the law allowed damages to be presumed, but this only occurred when it was a slander per se, or in some states, a libel per se but not a libel per quod. (To make matters worse, a libel per se was strangely something different than a slander per se put into writing. ) The U.S. Supreme Court got involved, though, and stirred up the pot by saying presumed damages are generally not permitted. See what I mean, defamation is a jury-rigged mess.

And, you have to determine whether the person supposedly defamed is a public figure or not. Because of a little technicality, which is commonly known as the First Amendment to the Constitution, public figures have to have thicker skins than the rest of us. So I’m on safe ground when I say: “George W. Bush did not fill out his beach volleyball bikini very well at the Olympics.”

And, thank heavens, satire and opinion are not defamatory. This means the folks at The Spoof! can get away with using the headline: "Chinese Olympic Gymnasts Really Third Trimester Fetuses, Claims IOC". And the guys at The Onion can say that the Chinese have been doctoring public perception during the Olympics by having "cotton balls glued into sickly pandas' bald spots." (Hey, actual humor is not the test. Whether or not you think its funny, its still not defamatory.)

So is it defamatory to call Michael Phelps a douche? Well, he’s a public figure for sure now. And, no one is really going to believe that he is a hygienic rubber bag in the literal sense. So the statement is really one of opinion when you examine it. Given those considerations, I don’t think Michael has a good defamation claim. At least, I wouldn’t bother bringing it on his behalf.

Besides, truth is an absolute defense in defamation cases. Which is why I can say with impunity that: “In my opinion, gymnast Shawn Johnson resembles Gadget, the brainy cartoon mouse from Rescue Rangers.”

Shawn2.jpg gadget39.jpg

August 11, 2008

A Modest Proposal

People complain about the snail’s pace of civil litigation. It takes a minimum of a year for almost any case to get to trial. Bigger and more complex cases take even longer.

If you ask around, you find that many civil litigation lawyers blame the delay on all the family law cases. The trial courts are clogged with divorce, child custody, division of marital property, domestic violence, and child in need of aid proceedings. The judges spend so much time refereeing for all these angry people who for one reason or another can’t run their own lives that they have no time to deal with the “regular” civil lawsuits. (You know, the really important “regular” civil cases, like the ones involving a slip and fall in a grocery store, or a State of Alaska employee who is unfairly disciplined for being an impossible jerk who won’t do any real work.)

It used to be that the Anchorage Superior Court had one particular judge assigned to handle the family law cases. But that practice was never actually authorized by statute so it was abandoned a while back. Now, all the Superior Court judges on the civil side get a slice of the family law cases, whether they want them or not. The civil judges have to juggle all these prickly family law disputes where emotions run high with their “regular” caseload where usually only something unimportant like millions of dollars are at stake.

Some have suggested that Alaska set up its own family law court to handle these cases, as other states have done. But I’ve got another idea. (Notice, I did not say a better idea.) I think the State ought to set up a Judge Judy type program on cable TV. The State could hire some shrill or half-insane retired judge to act as the star of the show. (A few candidates come to mind.) And give the family law litigants the option of volunteering to submit their dispute to a TV judge rather than a real one. No doubt this will clear out a bunch of cases because I bet any number of star-struck dillweeds would jump at the chance to be on TV.

Of course, you would need a savvy TV production person to screen the cases. You would want to televise only the really juicy ones. Like ones involving infidelity, custody disputes over pets, or the misuse of duct tape. (“I tell you, your honor, since he didn’t pay child support, I had to restrain the kids and feed them bowls of paint chips for dinner!”) With good case screening, the State would have a hit TV show on its hands. It could even make some money from all the advertisers wanting to sponsor the show. (“The Alaska Justice Show, brought to you by your friends at VECO Corporation.”)

I have to admit that I question whether the family law TV show would really speed up the pace of “regular” civil litigation much. The civil litigation process, with all that discovery and whatnot, just takes awhile. Besides, you need to give the hard-working lawyers in those cases enough time to earn their fees. But at least the Alaska Justice Show will keep us entertained while waiting for our "regular" civil cases to come up on the docket.