San Jose Mercury News

October 4, 2017

By Tracey Kaplan

 

(Karl Mondon/Bay Area News Group)

Advertisements like this containing the names of four dozen bail bonds companies and criminal defense attorneys used to hang over two pay phones in the Santa Clara County Main Jail waiting room in San Jose, Calif. The county removed the signage, though it provides a list of such services. Using a MacArthur Foundation grant, the county plans to develop a video and posters about bail alternatives.

 

 

SAN JOSE — While state and federal lawmakers continue to grapple with bail reform, Santa Clara County moved ahead Tuesday with a wide-ranging plan that includes creating a nonprofit fund to post bonds for low-risk defendants who otherwise couldn’t afford it.

 

The fund is believed to be the first in California, cementing the county’s role as a statewide leader in a national reform movement. Bail reform advocates, including local police chiefs and civil rights leaders, argue that bail has become an unfair burden on the poor, allowing moneyed defendants to stay free while those who can’t afford bond languish behind bars awaiting their day in court.

 

“They are one of our model sites in the country, pushing the envelope as far it can go,’’ said Cherise Fanno Burdeen, CEO of the Maryland-based Pretrial Justice Institute, adding that she knows of no other jurisdiction with such a fund in California.

 

The California Bail Agents Association opposes the changes, saying the critics are trying to dismantle a system that works at no cost to taxpayers. The fund would include $250,000 in seed money to be matched by private parties or nonprofit sources, and potentially yearly funding to cover some administrative expenses.

 

In addition to the fund, county supervisors Tuesday unanimously approved starting a search for a nonprofit to run a program that would help ensure a defendant’s appearance at all court hearings, including by providing bus passes and other means to get to court.

 

The board also backed a pilot program allowing corrections officials — rather than judges — to free low- to moderate-risk inmates and equip them with electronic ankle bracelets to monitor their whereabouts.

The county also will install a credit/debit machine for inmates who want to charge their bail instead of paying nonrefundable fees to a bondsman. That could be in place by spring.

 

However, the most far-reaching aspects of the plan are a ways off. The bail fund, which will be run by a community-based organization with $250,000 in county seed money — isn’t expected to open until at least next fall. The organization would be required to raise matching funds from private donors. Sources said potential donors include the Future Justice Fund, founded by the creator of Instagram and his wife after he sold the company.

 

The ankle bracelet program is set to start in January, but sheriff’s officials who run the Department of Correction, may not be ready by then, sources said.

 

About 8.2 million of the 11 annual arrests across the country are for relatively low-level misdemeanor offenses, according to the Pretrial Justice Institute.

 

Advocates contend that more people can be released without impacting public safety after being reviewed under a risk-assessment protocol developed by Santa Clara County’s Pretrial Services Department.

 

For instance, in Washington, D.C., where 80 percent of defendants are now released without bail, 88 percent make all scheduled court appearances and avoid new arrests, and 99 percent avoid new arrests for violent crimes.

 

But the California Bail Agents Association opposes the changes, among other concerns, points to a recent uptick in California’s violent crime rate.

 

However, California’s violent crime rate remains comparable to levels seen in the late 1960s. And property crime was down 2.9 percent and remained lower than it was in 2010, before a wave of reforms easing the state’s tough-on-crime approach began.

 

In San Jose, violent crime last year rose 14.3 percent from 2015 — greater than the 4.1 percent rise seen nationwide, according to FBI figures released last week. However, property crimes in San Jose were down slightly more than 1 percent — similar to the national decrease.

 

Community bail funds, though, will not be used initially for people facing felony charges. According to the staff report, community bail funds elsewhere are limited to bail amounts of $500 to $2,000 — but that could be adjusted “given the high local bail” compared with what’s seen other areas. It would be a revolving fund, with money taken out to pay bail then returned when the defendant completes the required court appearances.

 

Garry Herceg, deputy county executive, said it was hard to estimate how many people would be affected by the bail reforms. As of Sept. 1, there were more than 2,350 post-arraignment, pre-sentenced defendants in custody. But the majority of those are in on felony charges, with about 260 in for misdemeanors.

 

The fund would only be used for  those of little means to pay bail themselves.

 

“Obviously everyone is not going to be eligible — we’re not going to use it for a Google executive,” Herceg said. “We’re also not going to allow high-risk individuals. Those are obvious cases. But repeat low-level offenders — do we want to use jail for that? The criminal justice system is still trying to figure that out, what is the acceptable level of risk.”

 

Jeffrey Stanley, owner of Bad Boys Bail Bonds, said he fears people will be released with no guarantee that they’ll come back to court.

 

“We ensure they come back, at no cost to taxpayers,” he said after Tuesday’s board meeting. “We ask people to co-sign for them, so someone is responsible.”

He added that low-level crimes shouldn’t be brushed off.

 

“Nobody starts off robbing banks,” Stanley said. “It starts with petty theft, drug usage. Santa Clara County used to be one of the safest metro areas in the state but we’ve seen a dramatic increase in crime. We got to stop being light on crime and hold people accountable.”

 

The county’s staff has urged officials to eliminate for-profit bail entirely and to push state lawmakers to do the same. According to their report, the bail industry is highly lucrative in Santa Clara County. Last year, bail agents posted more than 7,500 bail bonds for bail amounts totaling about $198 million. For posting these bonds, commercial bail bond agents “may have pocketed as much as $19.8 million in nonrefundable premiums in 2015 alone,” the report said.

 

Santa Clara County’s plan, however, probably won’t take a big bite out of the industry’s profits — at least at first — because of the initial focus on misdemeanor cases. The idea is to change the culture by gathering statistics on what officials expect to be a low rate of new offenses or no-shows in court.

 

Kentucky, Oregon, Wisconsin and Illinois are among the jurisdictions that  have banned the for-profit businesses, replaced it with systems allowing defendants to deposit 10 percent of their bail amounts directly with the court — and to get the money back if they make their court appearances.

 

Inmates awaiting trial cost urban counties like Santa Clara County tens of millions annually to house. The county estimates that it costs $15 per day per defendant to supervise those released from jail while awaiting trial and $3 per day for electronic monitoring via ankle bracelets, compared with at least $159 per day per inmate for those who remain behind bars.

 

The plan is the result of a two-year effort by a bail release work group set up by the county and spearheaded by Supervisor Cindy Chavez, which included voices from activist groups such as Silicon Valley De-Bug as well as law enforcement, jail and court officials.

 

Chavez said it’s critical for the county to take up the matter because of inaction at the state level.

 

“We’re having this conversation at a local level because it couldn’t be done at the state level,” she said. “And local government is the best place to figure out what works.”

 

 

 http://www.mercurynews.com/2017/10/03/bail-reform-awaiting-trial-but-cant-afford-bond-silicon-valley-moving-to-free-more-suspects/

 

 

ARSTechnica

October 4, 2017

By David Kravets

 

The Supreme Court is setting aside a request to live stream its oral arguments. The attorney for Chief Justice John Roberts Jr. told members of Congress that live streaming even the audio portion of its oral arguments might impact the outcome.

 

"The Chief Justice appreciated and shares your ultimate goal of increasing public transparency and improving public understanding of the Supreme Court," Roberts' attorney, Jeffrey P. Minear, wrote (PDF) the four members of Congress seeking (PDF) to have the court's gerrymandering case live streamed in audio. "I am sure you are, however, familiar with the Justices' concerns surrounding the live broadcast or streaming of oral arguments, which could adversely affect the character and quality of the dialogue between the attorneys and Justices. Consequently, the Court is unable to accommodate your request."

 

For years, members of Congress and the public have been trying to get the high court to televise or to live stream the audio of their oral arguments, in a bid to make the court more transparent. The response has always been an affirmative "NO" out of fear that it could affect the proceedings. The court's oral arguments are open to the public, however, and the audio version of an oral argument is usually made publicly available on the Friday of the week that the case was argued. The court's opinions are also posted to its website when the court releases them.

 

In other ways, however, public access to the court has been stuck in the Dark Ages—such as when it comes to obtaining briefs submitted by parties to the court. The court does not make them available online. But it plans to do so for free beginning next month. The lower federal courts started making their records available online nearly two decades ago using a paid system called PACER.

 

Meanwhile, the letter from the chief justice's attorney to Reps. Gerald Connolly, (D-Va), Mike Quigley, (D-Ill.), Ted Poe, (R-Texas), and Jerrold Nadler, (D-NY) said that the court would look for other ways "in which to enhance the public's understanding of its operations, while preserving the integrity of its proceedings."

 

Connolly, Quigley, Poe, and Nadler are among nearly a dozen lawmakers who have proposed the Cameras in the Courtroom Act requiring television coverage of all open Supreme Court sessions unless a court majority thinks publicly broadcasting a case could violate the rights of one of the parties in the case. However, the bill remains stalled in committee.

 

Minear's letter was made public Wednesday, a day after one of the biggest political gerrymandering cases was argued before the justices.

 

 

 https://arstechnica.com/tech-policy/2017/10/supreme-court-says-live-streaming-would-adversely-affect-oral-arguments/

 

 

 

Bloomberg Law

October 5, 2017

By Susan Decker and Tatiana Darie, Bloomber News

  

Eli Lilly & Co. won a challenge to the validity of a patent that keeps generic versions of its $2 billion lung cancer drug Alimta off the U.S. market until 2022.

 

The Patent Trial and Appeal Board rejected arguments by companies including Teva Pharmaceutical Industries Ltd., Novartis AG’s Sandoz unit and Neptune Generics LLC that the patent didn’t cover anything new. The board issued a number of opinions encompassing a total of 12 challenges to the same patent.

 

Alimta generated $2.3 billion in sales last year, making it the company’s third-biggest seller behind the Humalog insulin drug and Cialis for erectile dysfunction, Indianapolis-based Lilly said Jan. 31. Lilly rose as much as 2.5 percent to $89.09 on the news in New York trading.

 

The patent is for a way to administer the active ingredient in Alimta with certain vitamins to limit toxic side effects. The patent on the main compound, the chemotherapy drug pemetrexed disodium, expired in January.

 

“The significant scientific research that Lilly performed in support of the vitamin regimen patent deserves intellectual property protection, which has been confirmed in every validity challenge to date,” Lilly General Counsel Michael Harrington said in a statement.

 

In January, the U.S. Court of Appeals for the Federal Circuit in Washington rejected arguments by generic-drug makers including Teva that the patent didn’t cover a new idea. The same court may review this decision as well.

 

In this decision, the three-judge Patent Trial and Appeal Board looked at different invalidity arguments and used a different legal standard.

 

Israel-based Teva and Sandoz, two of the world’s largest generic-drug companies, are seeking to sell a low-cost version of Alimta. Also challenging the patent were generic-drug makers Wockhardt Ltd. and Apotex Inc. Neptune Generics, which has no regulatory approval for drugs, is backed by Burford Capital Ltd., a U.K.-based company that offers financing for litigation.

 

 

 https://biglawbusiness.com/lilly-wins-u-s-patent-challenges-to-its-alimta-cancer-drug/

 

 

 

ABA Journal

The Modern Law Library

October 4, 2017

 

 

 

 

Richard and Mildred Loving did not set out to be civil rights pioneers. But in 1958, police burst into their home and arrested them for violating the Racial Integrity Act of 1924. Richard was white, and Mildred was not. They were legally married in Washington, D.C., but that did not protect them in Virginia. After years of living in virtual exile from their home state to avoid prison time, the Lovings looked to the courts for relief. And 50 years ago this summer, the U.S. Supreme Court granted that relief in Loving v. Virginia, striking down Virginia's law against interracial marriage and declaring that the freedom to marry is "one of the vital personal rights essential to the orderly pursuit of happiness by free men."

But the Lovings were not the first American couple to love across race boundaries. The history of what we would now consider interracial relationships in America extends back to the first European explorations of the continent.

 

In this episode of the Modern Law Library, the ABA Journal’s Lee Rawles speaks with Sheryll Cashin, a professor of law at Georgetown University and author of Loving: Interracial Intimacy in America and the Threat to White Supremacy. Cashin discusses how the concept of race was introduced in America; how the doctrine of white supremacy was used as a method to divide slaves and free blacks from indentured servants; how flimsy the rationale for racial classification was; and the stories of some men and women who ignored those barriers and formed relationships anyway. She also shares her thoughts on how a younger generation’s “cultural dexterity” could help battle the forces of racism and white supremacy.

 

 

In This Podcast:

Sheryll Cashin

 

Sheryll Cashin is professor of law at Georgetown University. She is the author of several books, including Loving: Interracial Intimacy in America and the Threat to White Supremacy, Place, Not Race: A New Vision of Opportunity in America and The Agitator’s Daughter. She was law clerk to U.S. Supreme Court Justice Thurgood Marshall in his last year on the court. Cashin was born and raised in Huntsville, Alabama, where her parents were political activists. She currently resides in Washington, D.C., with her husband and two sons.

 

 

 http://www.abajournal.com/books/article/podcast_episode_65/?utm_campaign=sidebar

 

 

San Francisco Chronicle

October 4, 2017

By Bob Egelko

 

 

The state’s judicial disciplinary agency reprimanded a longtime Alameda County Superior Court commissioner Wednesday for insulting and cursing at a court interpreter and allowing staff members to make racist and sexist comments in his courtroom.

 

It was the third time the Commission on Judicial Performance had publicly disciplined Mark Kliszewski. The commission said Kliszewski was suspended without pay for two weeks in 1996 for “discourteous and improper treatment” of a female social worker in his courtroom, and he was suspended without pay for 120 days in 2000 for misconduct, including misrepresentations in his campaign literature, during an unsuccessful election campaign for Superior Court judge.

 

He was ordered to undergo training in both previous disciplinary actions, the commission said.

 

Kliszewski graduated from UC Hastings College of the Law in 1973 and then practiced law in the East Bay until 1989, when the county’s judges appointed him as a commissioner, hearing cases in Juvenile Court and conducting early hearings in civil cases. He now hears family court cases in Hayward.

 

In its reprimand, titled a public admonishment, the commission said that between 2010 and 2015, Kliszewski had made numerous insulting and derogatory remarks to staffers about a court interpreter, sometimes in her presence. After being told by a staff member in 2010 that the interpreter had reported his remarks to her supervisor, the commission said, Kliszewski referred to her as a “f— bitch.”

 

In other incidents, the commission said, Kliszewski for many years permitted staff members in Juvenile Court to “routinely make offensive and inappropriate comments” in the courtroom, some of them about race or sex, when court was not in session. Although he said he asked his staffers several times to “tone down” their remarks, he was unable to stop them and sometimes laughed at the comments, the commission said.

 

His conduct violated a judicial officer’s duties to maintain high standards of conduct, to refrain from showing bias, and to be “patient, dignified and courteous” to people in his courtroom, the commission said.

 

Court commissioners have no fixed term of office and serve until they step down or are removed by the judges.

 

Neither Kliszewski nor his lawyer could be reached for comment.

 

http://www.sfchronicle.com/bayarea/article/Court-commissioner-disciplined-for-abusive-12253514.php

 

 

ABA Journal News

October 5, 2017

By Debra Cassens Weiss 

 

 

Shutterstock.com.

 

 

A federal judge in San Francisco has refused to toss a shareholder lawsuit against executives and directors of Wells Fargo over sales pressures that led employees to open millions of unauthorized accounts for bank customers.

 

U.S. District Judge Jon Tigar ruled (PDF) on Wednesday, report Reuters and Bloomberg Quint.

 

The suit had claimed that the defendants knew or should have known about the practice of opening accounts without customer consent, but did not address the problem or disclose it to the public. Among the defendants are former chief executive John Stumpf, former retail banking chief Carrie Tolstedt and current CEO Tim Sloan.

 

Tigar dismissed insider trading claims based on California law against a few of the defendants, including Stumpf, Tolstedt and Sloan, but allowed the rest of the suit to proceed. Remaining claims include breach of fiduciary duty and violation of federal securities laws.

 

“Just as it is implausible that the director defendants were unaware of the account-creation scheme given the extent of the alleged fraud and the number of red flags, it is implausible that Wells Fargo’s senior management, involved in the day-to-day operations of the bank … wasn’t aware of the alleged fraud,” Tigar wrote.

 

The case is Wells Fargo & Co Shareholder Derivative Litigation.

 

 http://www.abajournal.com/news/article/federal_judge_refuses_to_toss_shareholder_suit_against_wells_fargo_executiv

 

 

San Francisco Attorney Magazine

Summer 2017

Rose-Ellen Fairgrieve and Dean Royer

 

 

Employee leave laws can be a complex minefield. There are federal, state, and local laws that govern various protected employee leaves. This article provides an overview of situations in which employees may be entitled to time off and suggests the top considerations for plaintiff’s attorneys when evaluating a potential leave of absence claim.

 

OVERVIEW OF LEAVE LAWS

 

The Family and Medical Leave Act of 1993 (FMLA) protects the right of employees to take protected leave in the event of the employee’s own, or a family member’s, serious health condition; in the event of a new child cominginto the employee’s family; or for a family member’s exigencyin active duty military status. FMLA provides up to twelve weeks of leave for a health condition or new child, or up to twenty-six weeks for caregivers of military family members. FMLA applies to employers who have fifty or more employees within a seventy-five mile radius, and to employees who have been employed by the employer for at least a year and who worked at least 1,250 hours within the year before the leave.

 

The California Family Rights Act (CFRA) provides up to twelve weeks of leave for bonding with a new child and in the event of a serious health condition of an employee or family member. However, it excludes pregnancy-related disability from its definition because California’s pregnancy disability leave (PDL) applies in that instance. The CFRA has the same threshold requirements as FMLA for employers and employees.

 

For employees in California who work for employers with five or more employees, there is PDL. PDL provides an employee who has a pregnancy-related disability with up to four months of protected leave.

 

Employers with five or more employees also may be required to accommodate an employee’s leave of absence related to a disability under the Fair Employment and Housing Act (FEHA). Whether an employer must grant such an accommodation involves a fact-intensive analysis. 

 

All employers are subject to paid sick leave laws. These California and municipal laws (for example, San Francisco’s and Oakland’s) entitle employees to accrue and use a certain number of paid sick days. California also has many lesser-known protections for employee leaves. Situations covered include:

• Jury duty
• When a crime victim or family member of a crime victim must appear in court or to respond to a subpoena
• When a victim of domestic violence, sexual assault, or stalking needs time to obtain relief, such as a restraining order, or to protect a child, or to obtain other types of assistance
• When a volunteer firefighter, reserve peace officer, or emergency rescue personnel perform emergency duties
• When a parent or guardian must appear at school for a child who is suspended
• When a parent must take time off to enroll a child in school or a childcare provider or to address a childcare provider or school emergency
• When an employee is called to active military duty
• When an employee donates an organ or bone marrow

The leaves discussed above, aside from sick leave, only set forth the rights of an employee to take unpaid time off. The employer can always allow employees to use accrued leave,and under some of these laws the employer can actually require the employee to use accrued sick leave or vacation. Moreover, an employee who takes time off to bond with anew child or to care for a seriously ill family member may also qualify for partial wage replacement through California Paid Family Leave (PFL). San Francisco requires certain employers to supplement an employee’s PFL so that the employee will receive full wage replacement for up to six weeks.

 

An employee must provide reasonable notice of the need for a leave to the employer. Many leave laws also require employers to provide or post notices to their employees of their right to take leave. The protected aspect of these leaves is that the employee is entitled to return to the same or an equivalent position after the leave and that the employee maintains any benefits that the employer usually provides during the leave, such as health benefits. Additionally, employers cannot retaliate against an employee who uses or asks to use a protected leave.

In sum, there are many protections for employee leaves of which an employer must be aware, each with its own requirements and nuances. That is why legal counsel is importantto any employer who is considering denying an employee’s leave request.

 

EVALUATING A LEAVE OF ABSENCE CLAIM

 

Handling a leave of absence claim requires consideration of multiple issues, just like any legal claim. What follows is a discussion of five issues:

 

1. TYPES OF CLAIMS

 

First, what types of claims are available? FMLA and CFRA claims arise when the employee requests or takes leave after reasonable notice to the employer, and the employer refuses to grant leave or takes retaliatory adverse action. A request for leave as a reasonable accommodation under FEHA gives rise to a claim if the employer takes retaliatory adverse action. Americans with Disabilities Act (ADA), PDL, and FEHA disability claims exist when the employee’s disability was a substantial motivating factor for or “but-for” cause of the adverse action. Uniformed Services Employment and Reemployment Rights Act (USERRA) claims require a showing that the employee’s service in the uniformed services

was a motivating factor in the employer’s adverse employment action. Paid sick leave law violations occur when there is a failure to provide accrued paid sick leave or retaliation against employees who use or attempt to use accrued sick days. Labor Code retaliation claims arise when the employee’s protected activity (for example, taking leave for jury duty) was a substantial motivating factor for adverse action.

 

2. VENUE

 

Second, in which venue can you present the claim? Is there an enforceable arbitration agreement? Absent an enforceable arbitration agreement, the choice is between an administrative agency and court. In terms of the former, the Equal Employment Opportunity Commission (EEOC) has jurisdiction over ADA claims. The federal Department of Labor(DOL) takes FMLA and USERRA claims. California’s Department of Fair Employment and Housing hears CFRA, PDL, and FEHA disability claims. The Division of Labor Standards Enforcement (DLSE) has exclusive jurisdiction over California’s paid sick leave law, and can also hear Labor Code retaliation claims. Finally, San Francisco’s Officeof Labor Standards Enforcement considers San Francisco’s paid sick leave claims. If you present the claim in court, you will need to decide whether to file in federal or state court.

 

3. ADMINISTRATIVE EXHAUSTION

 

Third, are there any administrative exhaustion requirements before presenting the claim to an arbitrator, administrative agency, or court? Employees of California state and municipal agencies must satisfy the Government (Tort) Claims Act for Labor Code retaliation claims. There is no administrative exhaustion required for FMLA and municipal paid sick leave claims. ADA claims require filing a complaint with the EEOC within 180 days of the violation and receipt of a “right to sue” letter after the commission closes the matter. CFRA, PDL, and FEHA disability claims require filing a complaint with the California Department of Fair Employment and Housing (DFEH) within one year of the violation and obtaining the right to sue. Federal employees have their own administrative exhaustion requirements. For ADA claims, they must contact their agency’s Equal Employment Office (EEO) within 45 days of the violation, after which the agency investigates the complaint. The matter can only proceed to the EEOC or federal court after the agency makes or fails to make a decision within 180 days from when the complaint was filed. For USERRA claims, federal employees must file a claim with the US Department of Labor, after which the matter may proceed to the Merit Systems Protection Board.

 

4. STATUTES OF LIMITATIONS

 

Fourth, the statutes of limitations vary widely for leave claims. An FMLA claim carries a two-year limitations period (three years for a “willful” violation) for commencing either the administrative or arbitration/court proceeding. An ADA claim must be filed within ninety days of receiving the right to sue. USERRA claims have no statute of limitation, but the doctrine of laches may apply. CFRA, PDL, and FEHA disability claims must be commenced in arbitration or court within one year of receiving the right to sue. Sick leave claims must be presented to the DLSE or court within three years of the violation. Labor Code retaliation claims must be commenced with the DLSE within six months of the violation. In court, the limitations period can be as short as two years from the retaliation.

 

5. REMEDIES

 

Finally, which remedies are available? Lost compensation can be claimed under all of the laws. Actual damages (for example, costs of medical care) can be claimed under FMLA. Liquidated damages are claimed under FMLA and USERRA (except against federal employers). Emotional distress damages and punitive damages (against private sector employers) can be claimed under ADA, CFRA, PDL, FEHA, and Labor Code retaliation claims. Withheld sick leave pay and administrative penalties can be claimed equal to three times the withheld pay under the California and San Francisco sick leave laws or a civil penalty up to $1,000 under Oakland law. A civil penalty up to $10,000can be claimed for Labor Code retaliation claims. Finally,attorney’s fees and costs are available under all of the laws except the California sick leave law and Labor Code retaliation

claims.

 

 

Rose-Ellen Fairgrieve owns Fairgrieve Law Office, which advises

employers on labor and employment law matters, and defends

employers in actions brought by employees. She is cochair of

BASF’s Solo and Small Firm Section.

 

Dean Royer has a solo practice exclusively representing plaintiffs

with employment matters. He has twelve years of experience in

this area of law, including discrimination, retaliation, wage and

hour, and leave of absence claims.

 

 

 http://www.sfbar.org/forms/sfam/q22017/leave-of-absence-claims.pdf

 

 

 

 

ABA Journal

October 2017

By Bryan Garner

 

 

Photo illustration by Brenan Sharp

 

Every editor must engage in triage: sorting the most urgently needed edits from minor ones that, although desirable, aren’t absolutely necessary. If instead you treat all edits as if they were equally serious—covering the page in red ink—the writer may feel hopelessly inundated and just reject them all.

 

If you approach editing sensibly, the extensiveness of your edits to someone else’s work will also depend on your seniority (will your marks be taken as orders?), your skill (do you really know what you’re doing?), and your judgment about how amenable your colleagues will be to your changes (are they secure enough to understand that editing is an act of friendship?).

 

For now, let’s assume that you’re a junior person in the office. Your colleagues have middling writing skills, but they don’t understand the finer points of style. In short, you’re in a very typical situation here. You’ve been asked to review three briefs before they get filed tomorrow, and your seniors want you to be sure that there aren’t any typos or similar gaffes. Assume that they’re addicted to prior to (for before) and pursuant to (for under), and they won’t take kindly to your editing for mere questions of style.

 

Give these briefs a minimalist edit—confining yourself to outright errors. In each sentence that follows, find one or more glaring errors and one or more venial errors. The glaring errors (wrong word, poor grammar, misspelling, etc.) must be fixed: They would be regarded as blunders by any informed reader. The venial errors (a finer point of punctuation or word choice) might slide: They won’t tarnish the firm’s image too much because they’re so common. Purely discretionary matters of improvable style (passive voice, wordiness, legalese, etc.) are off-limits here.

 

Take the Editor’s Quiz

See whether you can spot the glaring errors and the venial errors in the sentences that follow. Circle the errors and mark them G for glaring or V for venial. Find the answers on the next page.

1. The statute of limitations do not affect the Defendant’s right to pursue their cause of action against the third parties for contribution and/or indemnity.
2. Since mere need or desire, or a unilateral expectation, are not sufficient to create a right, your review and guidance is hereby requested.
3. The City of Poughkeepsie is a party to the proceeding and as such has a right to notice; such right having a foundation in APRTA as well as the state and federal Constitutions.
4. The Plaintiffs’ are attempting to use this Court for political purposes related to the City’s new airport site selection controversy.
5. The timing and expense of the judicial process is also unknown but could be significant if the process was made more complex by interveners, lienholders, or upon objection by the property owner.
6. Although there is no California case clearly on point, authority from California and federal courts indicate that Anderson may pursue it’s claim for contribution against Callycal should it elect to do such.
7. Neither the defendants nor the Court have cited a case in which the opinion or conclusion of an agent has been imputed to his principle.
8. The burden is on the prosecution to show the validity not only of the confession but also the arrest as well.
9. If either the debtor or the creditor want an extention of the stay, they should make the appropriate application to the Bankruptcy Court under the auspices of §105.
10. The yardstick by which district court’s measure the admissibility of expert testimony may have now grown another foot or two—at least in the Fifth Circuit, if not a full yard.

Fun, wasn’t it? I cut the quiz short, knowing that you probably spend much of your day consuming such fare. But you can see how important an eagle-eyed editor is for identifying and fixing errors in any draft.

 

Below are the answers keyed to three authorities on grammar and usage. But let me urge you to review your work one more time before glancing over the answers. Six of the professional legal editors at LawProse Inc. have agreed on what qualifies as a glaring error as opposed to a venial error. We hope you’re in step.

 

ANSWERS

CMS = Chicago Manual of Style (16th ed. 2010)

 

GMEU = Garner’s Modern English Usage (4th ed. 2016)

 

RB = The Redbook: A Manual on Legal Style (3d ed. 2013)

 

1. Glaring: (1) statute of limitations should take a singular verb: does not affect. GMEU at 866-68; RB at 192-94. (2) If there’s one corporate defendant, the pronoun reference should be its. If it’s a person whose gender is known, it should be his or her. CMS at 213-16; GMEU at 195-96, 534-35; RB at 179, 181-82. Venial: and/or would be better as and. CMS at 266; GMEU at 50; RB at 251.

 

2. Glaring: (1) There’s an agreement error: The first verb should be is, not are. CMS at 238; GMEU at 195, 866-68; RB at 192-94, 197. (2) Oops, there’s another: review and guidance are different things, so the verb should be are, not is. GMEU at 195; RB at 192-94. Venial: hereby is unnecessary.

 

3. Glaring: The semicolon is wrong. The language after it amounts to a subordinate clause. Either change the semicolon to a comma or change having to has to make an independent clause. CMS at 325; RB at 213. Venial: (1) For parallelism, most editors would want to add in after as well as. CMS at 213; GMEU at 670-71; RB at 211, 214. (2) Constitutions probably shouldn’t be capitalized. RB at 61.

 

4. Glaring: The plural subject needs no apostrophe: It’s just wrong. CMS at 207, 342; GMEU at 745; RB at 57, 135. Venial: Most professional editors would want to hyphenate the phrasal adjective: airport-site-selection controversy (no hyphen before the noun controversy). CMS at 227-28; GMEU at 751; RB at 44-47.

 

5. Glaring: (1) There’s a problem in subject-verb agreement: is should be are in the first clause. CMS at 238; GMEU at 195; RB at 192-94, 197. (2) The hypothetical if-clause calls for a subjunctive verb: if the process were, not was. CMS at 236; GMEU at 869-70. (3) The sentence ends with an unparallel listing: It should be by interveners or lienholders, or the property owner (if that’s the meaning). CMS at 259-60; GMEU at 670-71; RB at 214. Venial: significant appears here in the extended sense of “having an important effect or influence,” as opposed to its more traditional sense of “having meaning.” GMEU at 830.

 

6. Glaring: (1) There’s problem in subject-verb agreement: authority takes indicates, not indicate. Perhaps make it Although there is California authority clearly on point, federal and California cases suggest … . CMS at 238; GMEU at 195; RB at 192-93. (2) it’s should be its (the correct possessive form). CMS at 217, 287; GMEU at 534-35. Venial: elect to do such would be better as elect to do so. CMS at 297; RB at 311.

 

7. Glaring: (1) There’s a problem in subject-verb agreement. With a neither … nor construction, the verb must agree with the second element: hence has, not have. CMS at 239, 255; GMEU at 623-24; RB at 214. (2) Principle (rule or standard) has been misused for principal (employer of an agent). GMEU at 729; RB at 302. Venial: It’s better to call defendants by name (e.g., the Wilsons). RB at 72.

 

8. Glaring: (1) There’s a problem in grammatical parallelism: of could be moved after validity, or another of could be added after also. CMS at 259-60; GMEU at 670-71; RB at 214. (2) not only can take as its completer either but also or but … as well, but it can’t take both without serious redundancy. CMS at 255; GMEU at 634; RB at 214. Venial: No venial “errors,” but the sentence could be tightened: The prosecution must show the validity of both the confession and the arrest.

 

9. Glaring: (1) Subject-verb agreement: want should be wants. CMS at 238; GMEU at 195; RB at 192-93. (2) they, strictly speaking, shouldn’t be singular: it would be better if corporate litigants are involved. CMS at 215-16; GMEU at 907; RB at 182. (3) Extention is a misspelling of extension. GMEU at 370. (4) auspices means “sponsorship” and should be deleted: Write under § 105. GMEU at 84. Venial: Lots of wordiness, but that’s not quite classifiable as an error. GMEU at 776-77.

 

10. Glaring: (1) Use district courts as a simple plural with no apostrophe. CMS at 207, 342; RB at 56-58. (2) The dash construction amounts to mispunctuation: perhaps either another foot or two, if not a full yard, in the Fifth Circuit or another foot or two—at least in the Fifth Circuit—if not a full yard. CMS at 333-34; GMEU at 750-51; RB at 40-42. Venial: The “yardstick” metaphor doesn’t work well.

 

 http://www.abajournal.com/magazine/article/error_editor_quiz_garner/P1

 

 

Pacific Standard

October 4, 2017

By Anthony York

 

 

The California Supreme Court headquarters in San Francisco.

(Photo: Wikimedia Commons)

 

In the coming weeks, the California Supreme Court is expected to weigh in on a case that could determine the course of tax policy in the state for years to come. What seems like a wonky, esoteric ruling on local finance could affect the futures of municipal and county governance, and could potentially unravel four decades of state tax policy that began with the passage of Proposition 13 in 1978.

 

Since California's initial tax revolt, which presaged a nationwide anti-tax fervor, California has tightened the rules on local governments' ability to raise revenues that were earmarked for specific projects. Under Proposition 13, tax measures that direct revenues to dedicated projects like roads, transportation, or fighting homelessness must earn approval by two-thirds of local voters. Revenues for general fund purposes only need simple majority public approval, though those are often more difficult to sell to voters.

 

But those rules may change, depending on the interpretation of the state Supreme Court's recent decision in the case of the California Cannabis Coalition v. the City of Upland. In an August decision, the court ruled that taxes placed on the ballot by citizen initiative were fundamentally different than those placed on the ballot by elected officials, and raised the possibility that local initiatives may be immune from the two-thirds requirements of Proposition 13. It remains unclear, however, whether that will impact the vote threshold for those citizen-backed measures.

 

The court is expected to further clarify its initial decision in the coming weeks, but, already, revenue-hungry politicians and anti-tax advocates are on high alert. San Francisco Senator Scott Wiener hailed the court's initial ruling as a landmark decision that will make it easier for cities and counties to raise funds for roads, public safety, and other local services. Meanwhile, anti-tax advocates like Jon Coupal of the Howard Jarvis Taxpayers Association have warned the ruling could lead to "unbridled collusion between local governments and special interest groups."

 

"We have some real, severe financial challenges ahead with local governments."

 

The idea of lowering local tax thresholds is not a new one. In 2000, California voters approved a statewide ballot measure that lowered the vote required for local school bonds from two-thirds to 55 percent.

 

In his January of 2011 budget, Governor Jerry Brown suggested giving local jurisdictions the ability to pass revenue bonds for infrastructure projects like roads and affordable housing with a 55 percent vote. That plan was scrapped during acrimonious budget talks with legislative Republicans.

 

But the court's ruling is potentially more sweeping, and could have broad implications for local ballot measures and city governance.

 

Of the 519 local tax and bond measures before California voters in 2016, 427 were approved, according to numbers from California City Finance, which tracks local election results.

 

As the numbers show, on a whole, Californians are not opposed to taxing themselves at the local level. From liberal San Francisco to rural Nevada County, local voters have been open to raising property or sales taxes to pay for schools, public safety, and other local services.

 

But the difference between a simple majority and a two-thirds vote can be significant. In November of 2016, 85 percent taxes that required a simply majority vote were approved, while just 52 percent of those requiring a two-thirds vote were approved.

 

Of those that failed, 23 local tax measures received more than a majority, but less than the two-thirds required to be enacted, according to numbers from California City Finance.

 

CCF's Michael Coleman says 2016 brought an unprecedented flood of local tax measures. Tax proponents often wait for the November of an election year to push their revenue proposals, hoping that a larger and typically more liberal electorate will be more amenable to tax hikes.

 

"Last November was unlike anything we've seen before in terms of the sheer number" of local measures," he says. "What's clear is that we have some real, severe financial challenges ahead with local governments, most of which have to do with compensation and retirement benefits for employees."

 

Depending on how the court explains its recent ruling, cities and counties around the state could be bracing for more local taxes in the elections to come.

 

 

https://psmag.com/economics/whither-proposition-13