Sneaking Suspicions
Archives-- October 20-26, 2002

rwbstripe.gif (1115 bytes)
This page includes posts from October 20-26, 2002 in the usual reverse order. Each week's postings on the home page are perma-linked to these pages.

October 26, 2002
Evil on all sides

Two stories this week relating to businesses and unions call to mind once again at least the first portion of Lord Acton's famous quote:

Power tends to corrupt, and absolute power corrupts absolutely.

First, Sam Heldman wrote a great post detailing a broad-brushed approach to union-busting conducted by a business trying to prevent the initial unionization efforts by its employees. As Heldman described the NLRB case decision, the company's efforts included the following tactics:

[T]he company repeatedly offered the employees new sorts of wonderful things if they would disavow the union, interrogated employees about their beliefs, threatened employees with various adverse consequences up to and including discharge if they voted the union in, and other things.

Here's how one of the NLRB members described one of the tactics:

In uttering one of the discharge threats, supervisor Pernell even assaulted employee Garrett in Garrett’s own home, and punched a hole in the wall of Garrett’s bedroom. Nor did the unlawful conduct end with the election: Pernell threatened employees with discharge even after the election, thus demonstrating a likelihood that the Respondent would continue to violate the Act in the future in order to keep the Union out.

Heldman did not care much for how the Board handled these near-classic violations of labor law. As a specialist in the area, he's less than sanguine about the ability of the existing statutory scheme to deal effectively with this kind of abusive behavior:

This is what you get when you have a labor law with no teeth, and companies with no respect for the law.

On the other side, today's Washington Post described a federal plea bargain involving a former union official:

Former ironworkers union president Jake West, aged, ailing and facing two trials that included more than 50 felony counts, pleaded guilty to an embezzlement charge in U.S. District Court in Washington yesterday as his first trial was about to get underway.

West, 75, who has a pre-leukemia condition, pleaded guilty to one count of embezzling money from an employee pension benefit plan before Chief U.S. District Judge Thomas F. Hogan. In exchange for the plea, federal prosecutors will drop all the remaining charges against him when he is sentenced.

As described in the WaPo story, West faced allegations about the misuse of over $250,000.

For a long time, I have always assumed that unions are initially created out of necessity. Sometimes workers simply must band together for protection from the evil that those in power can wield, whether in the private or public sector.

Over time, enlightened management practices can make the need for unions disappear in a given instance. On the other hand, there are no guarantees that employers will always take the long view that fair treatment is the best management practice under all conditions.

As the WaPo story also shows, at times the workers also need protection from their alleged protectors. In addition, sometimes employers and union leaders join together to take advantage of the workers.

The labor laws are only part of the safety net, and the adequacy of these statutes is debatable from the perspective of both sides.

As with many other parts of life, employees can't fully depend upon others to treat them fairly, whether they're dealing with management or their union representatives.

They need to watch out for themselves, and then seek what help they can find when those in authority take unfair advantage of their status.

Full disclosure: For eight years I was a management attorney for a city government with 6 union locals, and there are three generations of IBEW members in my family.

October 26, 2002
Say it isn't so!

Harry Potter at age 12

Harry Potter turns 47
October 28, 2002

On the other hand, this explains a lot.

October 25, 2002
The Patsy Cline Defense doesn’t always work

This week the Eighth Circuit Court of Appeals upheld a determination that the Patsy Cline Defense didn’t work for Linda J. Hook.  

Linda married Steven Hook, but unfortunately their union was ill-fated. Rather than wait until death did they part, the Iowa couple divorced. 

Steven eventually found love in the arms of another woman, and became engaged to marry again. 

Linda, on the other hand, became enraged at this turn of events. 

As recounted in the dry tones of the appellate court: 

Hook had expressed anger toward Steven and had acted on that anger by shooting a hole into Steven’s favorite painting and by carving into a table tombstones with the dates of their marriage. A witness testified that upon learning that Steven had a new girlfriend, Hook stated, “There is never going to be another Mrs. Hook walking down the streets of Davenport.” 

On one fateful day, November 3, 1990, two persons who knew Linda saw her, and testified that she seemed “upbeat”.  

Perhaps her happy mood was in anticipation of her actions a few hours later. 

Linda drove to Steven’s home, and rang the doorbell. Steve answered the door, and Linda shot him. 

Steven’s fiancé was in the house, and heard Linda say immediately after the first shot, “I’m going to kill you, Steve.” Linda then fired another shot, which somehow hit the ceiling. The first bullet did the damage, however, and Steven died. 

Linda returned to her own home, and was arrested later that evening. 

Three police officers testified at her trial for murder. During their testimony each one noted that Linda received her Miranda rights warnings. According to them, Linda then asserted the right to remain silent and to speak to her attorney. 

A fairly lengthy trial ensued. Linda attempted to escape responsibility by using the insanity defense. A physician testified that Linda was suffering from a psychotic episode at the time of the shooting. 

Her attorney didn’t object to the police officers’ testimony about Linda’s seemingly rational reaction to the Miranda warnings, however, based on advice from the same doctor.  

The state’s medical witness did not agree with the defense doctor’s diagnosis, and the jury convicted Linda of first degree murder. 

Linda sought habeas corpus relief in the ensuing decade. She claimed that her counsel’s failure to keep the Miranda warning testimony out of the case ruined her insanity defense. 

On the other hand, at this stage of the proceedings Linda had to prove that but for the Miranda testimony, her defensive strategy would have worked.  

She couldn’t jump that hurdle.  

First, her trial counsel’s explanation for using the testimony, based on advice of her doctor, simply wasn’t a crazy way to defend her.  

Second, and more important, there was simply too much other evidence supporting the first degree murder verdict, and not nearly enough evidence suggesting that Linda really was crazy:

[T]he evidence presented by the state was of such force and magnitude that, absent the post-Miranda warnings testimony, there is no reasonable probability that the result of the proceeding would have been different….

The court then discussed the facts about Linda’s pre-shooting attitude that day, her bullet-based disagreement with Steve’s notion of great artwork, her tombstone carving, and her threat that a certain person would never walk the streets of Davenport.

The now objected-to testimony comprises no more than five exchanges on seven pages of a trial transcript that exceeds one thousand pages in length. Given the weight of the evidence establishing that Hook was not suffering from any mental impairment at the time of the shooting, we agree with the district court that the Iowa court reasonably determined that there was no reasonable probability that the jury would have adjudged Hook insane in the absence of the post-Miranda warnings testimony.

The Circuit Court therefore affirmed the district court’s decision.

The lesson here, of course, is that while you may believe you were crazy for trying, or crazy for crying, or just crazy for loving someone, not everyone else will necessarily agree with you.

October 25, 2002
Joe Biden V

For the last week or so, the local television stations have been running a Joe Biden re-election commercial. In the ad, the senior U.S. senator from my little state sits quietly and talks about his interest in helping to make this country as good as possible--For the ChildrenTM, of course.

In itself, this kind of political puffery is fairly innocuous. Nonetheless, my wife and I laugh whenever we see this ad, for reasons that have nothing to do with kids.

It just so happens that the background music for this Biden commercial is a short segment of Patrick Doyle's stirring orchestral music for Kenneth Branagh's great movie version of William Shakespeare's Henry V.

Considering Biden's past troubles caused by taking his inspiration from Great Britain, one might think that the folks running his campaign could find something other than a Scottish composer's music to "borrow" for this commercial.

I sure hope the Senator's people pay the royalties, as it were.

NOTE: I'd have linked to the commercial itself, if I could have found the URL. If it ever makes it onto the web, please let me know.

October 22, 2002
Blog Break

It's a busy week, including a trial, a viewing, a board of directors meeting, and a stockholders' meeting.

Something had to give.

Back soon.

Take a look around in the meantime.

October 22, 2002
Two Balls and a Strike for a Prisoner’s Lawsuits

Lawsuits filed by prisoners create a disproportionate level of activity in the federal court system. The sheer number and frequently baseless frivolity of convicts’ claims can make even the most starry-eyed law clerk a bit cynical in very short order. 

Congress recognized the burden that prisoner lawsuits place on the federal courts, and enacted special legislation to keep the number of less-meritorious filings down to a dull roar. For example, 28 U.S.C. Section 1915(g) can put a real crimp in the recreational opportunities otherwise available to the convict with time on his hands and ready access to the prison law library. This statute prohibits the usual in forma pauperis status granted most prisoners, under defined circumstances: 

In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.  

Without this status, prisoners have to come up with the filing fee before the court must accept their suit papers. With prison industries paying just a tad under the minimum wage, this can be an effective deterrent.

In operation, Section 1915(g) can also create some interesting case decisions all its own, as illustrated in a Seventh Circuit opinion issued October 21. 

Marvin Gleash is a guest of the American penitentiary system. He filed a federal lawsuit under the Eighth Amendment, alleging that prison guards had confiscated a back brace the prison hospital issued him. The judge dismissed his case on grounds that Gleash failed to state a claim on which relief could be granted, assuming that the prisoner was primarily complaining about a negligent delay in replacing the device, which would not be a constitutional tort. Gleash moved for reconsideration, arguing that the real problem was that the guards took the brace the first time without any cause. The District judge denied the motion, and Gleash did not appeal the final decision.

Five months later, Gleash tried again. He filed the same lawsuit, making the same allegations. 

The same judge didn’t bother to wait until the prison officials were served with the new suit papers. He dismissed Gleash’s second suit,  

observing that a suit “duplicative of a parallel action already pending in another federal court” may be dismissed.  

That wasn’t exactly correct, since the prior case had been dismissed. This time, however, Gleash appealed the judge’s second dismissal to the Seventh Circuit. 

Here’s the problem--Gleash should have appealed from the first decision, which failed to address the primary allegation that would have kept the case from being dismissed on the grounds used by the district judge. In addition, the way the trial court dealt with the second lawsuit was also flawed. The case should have been stayed instead of dismissed outright.  

Writing for the Circuit Court, Judge Easterbrook noted the missteps that marred the lower court’s handling of this prisoner’s lawsuits. On behalf of the unanimous panel, Easterbrook recognized that while the first complaint was dismissed on faulty grounds, Gleash’s failure to appeal the decision made it final. His attempt to revive his case by filing the second lawsuit couldn’t bring Gleash’s now-dead claim back to life. 

The only remaining issue was how many Section 1915 strikes should be assessed against Gleash. 

The panel’s decision was in the best tradition of those in another profession, who also wear black and make clear-eyed decisions that affect others:

Gleash’s first suit was not frivolous and does not count against the limit of three. But his second suit, squarely barred by claim preclusion, is frivolous. This appeal is not itself frivolous; we did not determine until after Gleash filed his notice of appeal that district judges are entitled to dismiss (before service) on account of affirmative defenses other than immunity. [citation omitted.] What is more, the district judge’s stated reason for dismissal was erroneous, so an appeal could not be deemed frivolous. The bottom line is that Gleash has accumulated one “strike” over the course of the two suits and one appeal.

Sounds fair to me.

October 21, 2002
The Risky Business of Special Education

David McKinney worked as a special education teacher for the Irving Independent School District (IISD) in Texas. His teaching assignment placed him at the Gilbert Transitional Center, whose students were burdened by severe behavioral problems, emotional disturbances, and learning disabilities.

Because of these challenges, the school environment at Gilbert was far more structured and closely monitored than the regular schools. In fact, Gilbert was the most restrictive educational institution of all of the IISD schools.

Unfortunately, that kind of unique care and precaution didn’t extend to the school buses that brought the kids to Gilbert.

In December 1996, McKinney took a second job as a bus driver for the Dallas County Schools, a separate entity from the IISD. His bus route gathered up the Gilbert students, and their behavior problems were in full throttle during the rides:

Shortly after McKinney began driving the bus, he began to document frequent and serious behavioral problems on his bus route, including students fighting, throwing objects at other motorists, and leaping from the emergency exit in the rear of the bus into traffic. On one occasion, McKinney called 911 for assistance because he was unable to operate the bus safely while also monitoring the students’ conduct.

IISD had the authority to hire and place bus monitors on the Gilbert bus, but refused McKinney’s repeated requests for help.

McKinney nonetheless kept driving.

Eleven months after he accepted this dangerous second job, however, his luck ran out:

McKinney was driving through rush-hour traffic when he was attacked by a student, who sprayed him in the eyes with a fire extinguisher. Although McKinney’s vision and ability to drive were greatly impaired, he was able to safely maneuver the bus to a stop. As a result of the attack, McKinney has sustained significant injuries, including asthma and reactive airways disease that impair his ability to talk, his physical endurance, and his stamina, and he has been unable to teach or drive a school bus.

McKinney and his wife then sued the IISD under 42 U.S.C. Section 1983. They claimed that the IISD’s failure to put monitors on the bus amounted to a state-created danger that violated McKinney’s civil rights, for which the school district should be found liable.

The federal district court dismissed their claim, and the McKinneys appealed to the Fifth Circuit.

Civil rights law recognizes both sins of commission and sins of omission as potential sources of liability, but not all of them.

Generally speaking, state and local governments such as IISD owe no special duty to protect persons such as McKinney from the private acts of others, such as the child who sprayed him in the face with the fire extinguisher. On the other hand, under certain circumstances these governments do have that responsibility.

One of the exceptions to the general rule comes into play, at least under the law of some Circuit Courts of Appeal, when

(1) the state actors created or increased the danger to the plaintiff and (2) the state actors acted with deliberate indifference. [citation omitted]…. "The key to the state-created danger cases . . . lies in the state actors’ culpable knowledge and conduct in affirmatively placing an individual in a position of danger, effectively stripping a person of her ability to defend herself, or cutting off potential sources of private aid." [citation omitted].

The Fifth Circuit, however, does not recognize the more liberal interpretations of this theory of liability that other Circuits follow. Instead, that court requires a showing of deliberate indifference by the government, a limitation fatal to the McKinneys’ lawsuit:

[T]here is no doubt that the McKinneys described a dangerous working environment in their pleadings–that of uncontrolled and disruptive special-education students on a moving school bus in heavy traffic. They do not, however, allege any facts showing that defendants took any affirmative action to increase the risk over the dangers inherent in this working environment. The McKinneys concede that they do not allege or argue that the supervision of the students on the bus before McKinney became the bus driver was altered or changed when he agreed to drive the bus. As defendants point out, McKinney drove the bus transporting these students for eleven months before the attack, during which time he allegedly reported numerous behavioral problems. The McKinneys do not allege that defendants’ actions or inactions resulted in a more dangerous working environment … than would otherwise have existed for McKinney. This indicates that McKinney faced nothing more than the ordinary risks of driving the school bus that transported the special-education students to and from Gilbert. The McKinneys’ real complaint is that defendants did not take an affirmative step, namely, provide a bus monitor to supervise the students or other safeguards for McKinney’s protection while driving the bus. We hold that the due process clause did not require that defendants place a monitor on the school bus.

David McKinney had other options for seeking relief from this awful incident, and I assume he’s taken advantage of them. For example, he was clearly eligible for worker’s compensation benefits under Texas law from the Dallas County Schools, his employer for the bus-driving job. In worker’s comp terms, this was what is called a third-party lawsuit, in which McKinney attempts to obtain additional monetary relief from those responsible who were not his employer when this work-related injury occurred. If Texas law is similar to other states, however, any recovery in this civil rights lawsuit would have required reimbursing Dallas County for its worker’s compensation payments to McKinney.

Given the conflict between Circuit Courts on the state-created danger liability theory, this issue may eventually be resolved by the Supreme Court. On these facts, however, I’m not sure this is the case for such an appeal.

The IISD dodged a major bullet with this result. Even so, I wonder if the District will change its practices in light of this incident. It’s obvious that many other people are at risk from the lack of adequate supervision on the Gilbert school buses than just the drivers.

I just hope it doesn’t take a serious accident resulting in dead special ed students and injured innocent drivers of other vehicles to make the District rethink its bus monitor policy.

October 20, 2002
Notes from the Jazz Festival II

Chaka Khan knows how to give her fans a great show.

With her daughter Indira as part of a three-person vocal backup, and an incredibly talented band behind her, the funk diva wowed the sold-out audience at the Rehoboth Convention Center.

One measure of Khan’s popularity, even among jazz lovers, is the fact that tickets for her segment of the Jazz Festival sold out almost as soon as they became available. A second show was quickly arranged, and I believe it also sold out.

We went to the 8 o’clock performance, and I frankly wondered how much Khan would have left for the second show after seeing how much she put into the first one. I'm sure she recovered well.

The first part of the show included a well-done collection of jazz standards, demonstrating a smoky mature voice and a wide range. Many of the songs were taken from the set she performed for a BET “Jazz Central” concert now on DVD, including My Funny Valentine, Chick Corea’s High Wire (The Aerialist), I Loves You, Porgy, I'll Be Around, and Billie Holiday’s End of a Love Affair.

She thanked the fans for the opportunity to sing jazz pieces, saying that when she puts them into her regular show “the audience gets pissed.” This news made the crowd laugh and applaud. Later she suggested that although the Rehoboth bunch might itself become “pissed,” she was ready to do some more contemporary stuff, and launched into a fast-paced version of Sweet Thing, from her days with the Rufus group.

Khan clearly knew she was actually taking few risks with this audience.  As soon as they recognized the first few notes, the crowd roared its approval.

A few more pieces then followed, and she finished the main concert with her huge hit, I’m Every Woman. The crowd jumped up, danced, and sang along whenever Khan pointed her microphone toward it.

She waved as she left the stage, and the roughly thousand fans eventually convinced Khan to perform two encore pieces. The audience clearly wanted more, but an announcer came on stage and bluntly told them that Khan had a second show to do, and that was that.

A fine show.


Contact Information:

Fritz Schranck
P.O. Box 88
Nassau, DE  19969


Home Page
Table of Essays
Links to the Weekly Archives

Official small print disclaimer: This is, after all, a personal web site. Any opinions or comments I express here are my own, and don't necessarily reflect the official position of my work as a government attorney or any of my clients.

That fact may become obvious later on, but it needs to be said here anyway.

© Frederick H. Schranck 2002