December 23, 2010

No Kosher For You!

‘Tis the season, all right. The season for a whole banker's box full of Alaska law-related proceedings and topics, any one of which would be worthy of deep analysis and serious discussion in a blog posting.

We’ve got the Alaska Supreme Court rejecting Joe Miller’s challenge to the State’s vote counting. Sad to say this likely won’t be last of the saga as Mr. Miller and crew will no doubt head back to Judge Beistline in federal court to make another run at constitutional claims. You know, Bush v. Gore stuff. (Anyone remember that case? According to the commentators, the U.S. Supreme Court seemingly does not.) In my view, Joe is earning his new title: Joe Miller, R – LaMancha.

FestivusPole.jpegThen there is the self-appointed head of the Alaska Peacemakers Militia going into court in Fairbanks. Although the guy was there on a weapons related charge, he sought to turn the tables by serving papers on the judge to charge the judge with a crime. The judge wisely set a trial date quickly, gaveled the proceedings to an end, and ducked out the back. A recent article in the Anchorage Press described the militia members’ off-kilter philosophy.

And we’ve got the still brewing fight over the SBA’s 8(a) program that is designed to benefit Alaska Native corporations (among others). A recent article by ProPublica raised some issues about how the program actually worked out in one particular instance. This is unfortunately going to be used by the 8(a) opponents in Congress to try to end the program, or at least end the special rules for Native corporations who are in it. And I expect that, when Murcowski, Leeza (come on, Joe, you know who I mean) stands up to defend the program in Congress, we are going to see another allegation from The Alaska Standard that she has been bought and paid for by the Native corporations. (But I don’t know what they will say about Begitch, Mack and Yung, Dan, when they also inevitably defend the program.)

The truth, however, is that I don’t want to write a blog post about any of these serious topics. After all, this is the 2010 gala holiday edition of the Alaska Law Blog. For this blog posting I’m in the mood for something uplifting and lawyer-affirming.

Which brings me to this bit of positive news. A lawyer in California did an invaluable service to his client by citing the judge to an old Seinfeld rerun. It seems the client was locked up in the clink but did not care for the salami sandwiches the good jailer was serving. The client was a healthy lifestyle kind of guy (aside from the jail problem), and he wanted better nutrition in the form of kosher meals that were available to Jewish prisoners. The judge was sympathetic to the prisoner – amazing in itself – but pointed out that the client was not actually Jewish. The client offered the religion of “Healthism” as an alternative, but the judge rejected this because even he recognized it was made up on the spot. At this point the lawyer spoke up to offer “Festivus,” the non-denominational holiday that was the subject of a Seinfeld episode some years back. The judge accepted this suggestion as a legally sufficient "religion" to justify ordering the jailer to provide kosher meals to the client. (At least, the jailer had to do so until the client was shifted to the federal gaol a short while later for immigration violations and likely deportation.)

So there we have it. A lawyer down in the trenches using his wits and many years of fine education to serve his client in need by reminding the judge of something he saw on TV years ago. (“Festivus” even sort sounds like it’s Latin.) What could be more heart-warming than that?

Now, the fact this court hearing took place back in October, but the story did not hit the papers until just a few days ago, that I can only attribute to a “Festivus miracle.”

December 8, 2010

Ruminations On Enforcing A Judgment

Collecting a judgment can be a real pain. The paperwork can be daunting to the uninitiated. A mistake in the smallest of details can trip you up in getting the official machinery moving in your direction, especially since the Alaska Court System can be slow to process execution packages even when everything is in order.

It seems like an odd sort of problem to have. The whole point of the civil justice system is to give private parties an effective dispute resolution procedure so that they don’t settle things out in the streets. In view of that aspiration, you might think that making use of the ultimate hammer – execution – would be looked upon with favor. I mean, the claims have already been fully adjudicated before a judgment even gets entered. What more is there to decide?

Guillotine_%28PSF%29.pngBut this is not the view the Court System or even the Alaska Legislature seems to have. There always seems to be another hurdle to overcome, another exemption to adjudicate, or a waiting period to hold things up just a little while longer. The extra time and expense it takes to collect just bogs down the whole process and, in some instances, makes enforcement of the judgment impractical.

It wasn’t always this way. Some decades back the courts actually thought they should be pro-active in enforcing their determinations. But things started to tighten up in the 60s when the U.S. Supreme Court began utilizing the due process clause to put the clamps on abbreviated enforcement procedures. Since then, the collection of judgments has gotten more difficult.

One could hope that it is about time for the pendulum to start to swing back the other direction. Why can’t execution packages be processed more expeditiously? Is any purpose really served by the rule that only one writ of execution can be outstanding at a time, since all collections have to be deposited in the court registry anyway? Are all the exemptions to execution really justified?

(The Ninth Circuit’s recent decision in Peterson v. CMA CGM is what got me thinking about these issues. The plaintiffs in Peterson recovered a $2.6 billion judgment (that's billion with a "b") against Iran over Iran’s participation in the 1983 bombing of the U.S. Marines’ barracks in Lebanon. The plaintiffs sought to collect part of this huge judgment by executing on an obligation that a French shipping company owed to Iran. The Nines held that the execution was invalid because the French company’s obligation was not “property in the United States,” even though the French company did business here and was subject to personal jurisdiction here. And it reached this conclusion even though immunity had not been plead as a defense to execution but was raised by the court on its own. You know executing on a judgment is tough sledding when the courts prevent doing so in an case of state-sponsored terrorism.)