Vote for THIS blog


The ABA is looking to publish a list of most popular legal blogs. Not that I seek public adulation, but, uh...why not head over to http://www.abajournal.com/blawgs/web100 by July 30, 2017 and vote this blog as one of the best legal blogs.

You know, for kicks and giggles.

Monday, July 24, 2017

It's alive

If you're not you, then what are you
Do you know who (or what) you are?  Do you have a name?  An identity?  Are you animal or vegetable?  The thing is that most everyone is someone (or something). Their parents knew they were someone when they were born and the government recognized them as a type of person when they were born (i.e. male or female).  Heck, even the SCOTUS got into the act and says a fetus is human in the third trimester. Yet, even with all this, there is still someone out there who insists on relegating the individual as a non-element.

Such was my thinking when I read an article (online, this time) about a hospital who left the identity of a newborn blank.  It was neither male nor female.  Forget the internal plumbing - we're going to call this thing an "it" for (at least) the first 8 years.

The (or a) problem with this is that when you deny a person's natural identity (be it gender or a human), you devalue that person's very existence.  Heck, labeling a human fetus as a "blob of tissue" denies unborn human children the acknowledgement of life.  For goodness sake, a freaking Revolutionary War was fought to determine that 
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty and the pursuit of Happiness.
To be fair, the woman who bore this "it" of a kid is Canadian (and Canadians are pretty out there by most anyone's standards (heck, even their money is called "a loonie")). Thing is, there are a fair number of people in these United States of America that think this is a good thing.

So, uh, where might all this "it" stuff lead?

In the very least, it'll lead to a bunch of confused people.  No way to identify you so we'll just call you an "it."  An "it" is a non-element.  Dang but if you thought introverts were withdrawn, wait until you see what calling a bunch of kids "it" does to their psyche.

Then there is the government element.  Allowing society to call a human entity an "it" allows government to do anything it wants to "it."  They can experiment on/with "it," abort "it," deny "it" benefits that would be granted to a male or female, or ignore "it" when "it" comes in for a doctor's exam.  It's and "it," after all.  No gender, no rights, no existence.  Really, guys - you're OK with this?  

Maybe I'm out in right field with this stuff but when I read constitutional resources like:
...I start to wonder how far "we the people" will take "we the people" until "we the people" realize that "we the people" are just a bunch of neutered rats?  Remember Soylent Green? Yeah, great movie but what I got from it is that it's easy(ier) to control and ignore that people are people when you can simply reduce them down to a cracker (or a pronoun, as the case may be).

Monday, July 17, 2017

Who are you?

Gossip is not nice
The other day I was perusing the Drudge Report and found an article that noted that Steve Curry would not visit the White House if he were invited.  The first thought I had was "Who does this Steve Curry guy think he is?"  I'm guessing he's in starlet mode or is someone who thinks he's more important than he is.  Thing is, while I don't really care about who he is (or who he thinks he is) he did remind me of a person I was talking to a while back.

Seems Person wanted to sue a former friend for defamation. For those not in the know, Defamation is an umbrella action that covers both libel (written) and slander (spoken), which is defined as
Oral defamation exists when someone tells one or more persons an untruth about another, which untruth will harm the reputation of the person defamed.  Slander is a civil wrong (tort) and can be the basis for a lawsuit.
What happened was former friend told another former friend some juicy gossip that Person was sleeping with someone not their husband.  Person got angry, told former friend they were no longer friends and was now standing in front of me asking what she can look at to sue former friend.

See, here is where things get complicated because this turned out to be not just a "simple" defamation case.  Person thinks she is a starlet/public figure.  Never actually starred in any movies but she did play the part of Annie in a play in high school.  That counts for something, right?!  In her mind, it does and so with much flair she is seeking damages to her reputation as a chaste and moralistic member of the community.

The reason I bring this up is that false statements dealing with people like you and me are treated differently than with people who are public figures.  There are actually two categories of public figures.  

The Limited-Purpose Public Figure.  Limited-Purpose Public Figures are individuals who "have thrust themselves to the forefront of particular controversies in order to influence the resolution of the issues involved."  That was not Person.  She craved the limelight all the time.

The second category includes the All-Purpose Public Figure. All-Purpose Public Figures are private individuals who occupy "positions of such persuasive power and influence that they are deemed public figure for all purposes...They invite attention and comment."  Gertz. v. Robert Welch, Inc.418 U.S. 323, 345 (1972).  So, does playing Annie in high school warrant "power and influence"?  It did in her mind and she was running with it.

So, because Person concluded she was public figure, in order to collect, she would have to show the statements were stated with actual malice.  Actual Malice occurs when:


  • The defendant publishes a statement about the plaintiff they know is false; or
  • The defendant publishes a statement about the plaintiff with reckless disregard for whether it is false or true.
Anyway, because Person doesn't have a clue about Defamation or Slander or damages relating to public figures, I suggest Person start looking at:
With an understanding of Slander under her belt, Person was prepared to move on to more practical resources and develop her complaint.  So, I suggested she take a look at:
The thing with gossip and defamation is that things are not always as them seem.  Most times, gossip has a hint of truth. So, while Person was flying on cloud nine with the prospects of reaping mountains of cash from her former friend, I also suggested she look at:
See, TRUTH is an absolute defense in any defamation action.  Of course, this made Person swallow her tongue and turn a variety of colors.  I'm guessing that maybe Person didn't have the iron clad case she thought she had judging by the way she slunked out the front door.

Oopsie!

Regardless, when next you find your gaggle of friends aren't so friendly anymore, know that your local county law library has what you need to help get back at those who did you wrong.  In the very least, come share your stories so I'll have something to blog about.

Monday, July 10, 2017

It's called rope

Caught the wife cheating - again
Today, as I was perusing the news feeds, I came across an article about rope.  Well, not rope, per se, but rope as in one group dolling out enough rope for another group to hang it's collective self.  

Seems the democratic party has finally realized that spiteful, hateful, angry, foolish, stupid, reckless speech targeted toward the POTUS after losing an election (rather badly, I might add) may cause rank and file people, who don't understand that politicians are a bunch of windbags, may cause said peoples to rise up and try to kill those in authority (i.e. every politician in DC). 

Such is the case in law and legal things and it brought to my mind a case that I worked on years back. Once upon a time, there was a Guy.  Guy had a wife and two beautiful children. One day, Guy was flipping through the mail and came across a letter addressed to his wife.  Turns out letter was written by an Admirer of wife.  I won't bore you with the details but after a little snooping, Guy finds out wife is in bed with Admirer - and has been for a few months.

Guy is seething but not so seething that he flips out.  Guy bides his time and collects evidence for his impending filing for divorce:

  • Guy attaches a recording device to the phone and tracks her cell phone.
  • Guy scans credit card bills
  • Guy watches the flow of the joint bank account
  • Guy hires a detective to take pictures of wife and Admirer.

Over the course of months, Guy amasses a mountain of evidence against wife, files for divorce, gets sole physical and legal custody of the kids, kicks wife out, and he and his kids have lived happily ever after, ever since.

While not all of my blogs end in a happily ever after, some of them do.  And while this is primarily a blog about the how of legal research, sometimes you don't need a whole bunch of resources.  Maybe just start with AmJur Proof of Facts. Yeah, that's the ticket.  Maybe look in volume 49 POF 3d page 277 (which basically lays out how to proceed against persons who have been faithless).

If you suspect that your significant other is sneaking around behind your back, don't flip out.  Instead, keep a weathered eye out for the signs of infidelity.  When you think you have enough (or have had enough), head on over to your local county law library and get your divorce on. 

We'll keep the light on for you.

Monday, July 3, 2017

Word of the Month of July 2017: Separation of Powers

Smart people are stupid, too.
Years back when I attended Junior High School, I remember taking a Civics class.  Looking back, it was probably the best class I could have taken as it gave me an understanding of how government is supposed to work.  I say "supposed" to because these days it seems that each branch of government is trying to do the work of the other - which can make for no small amount of confusion.

This all brings us to our word of the month: SEPARATION OF POWERS.  According to Black's Law Dictionary, SEPARATION OF POWERS is:
The division of governmental authority into three branches of government - legislative, executive, and judicial - each with specific duties on which neither of the other branches can encroach.  The doctrine that such a division of governmental authority is the most desirable form of government because it establishes checks and balances designed to protect the people against tyranny.
Wait, tyranny?  How might that happen?!?  Well, in today's news, there is a story that covers this exact scenario.  Seems a while back Judge Marc Kelly sentenced a 19-year old man to eight years in prison for sodomy with a child 10 years old or younger instead of the mandatory 25 years to life reasoning that he (Judge Kelly) "found the minimum sentence was cruel and unusual punishment."

See, here's where the SEPARATION OF POWERS thing kicks in.  Judges can't make law.  I mean, they make decisions based on the law but they can't go change the law all willy nilly.  Making law is the job of the legislature.  The job of the courts (i.e. judges) is to interpret the law/code.  

In this case, Judge Kelly found that, yes, 19-year old man had committed the crime but instead of following the law and imposing the MINIMUM established sentence, that he chose to make/change law and reduce the sentence of his own accord.  The key word here is "MINIMUM" (meaning judges are not permitted to go lower than).  You would think that someone who wears a black dress to work every day could understand what "MINIMUM" means?!

Good thing that there are Courts of Appeal (like the 4th Appellate Court) who found in People v. Rojano-Nieto, D070919 that "this is not one of the exquisitely rare cases in which the California Constitution requires a reduction in punishment."  While it is great that the court did what it was supposed to do, what is disturbing is that, by it's own admission, even the 4th Appellate Court would ignore the SEPARATION OF POWERS thing and make law in "exquisitely rare cases."  Dang but why bother having a Constitution at all if the Black Dress crowd ignores it at will?

What is interesting to note is Judge Kelly's comment (during a recall effort) where he noted that, "I took an oath to uphold the Constitution..."  and also said he acted "withing his judicial independence." While the "independence" stuff may be true (sucks that bad judges can hide behind a shield of ineptitude) but if you are really about upholding the Constitution, then why all the drama?  Follow the law, don't make it.

Anyway, anyone looking to read up on judicial conduct can take a gander at:
and you all have a great rest of the day.

Monday, June 26, 2017

Be afraid, Be very afraid

Zombie Apocalypse
I'm not paranoid.  Really, I'm not.  I just get skittish when government "officials" say there is nothing to worry about.  Really?!  If there is one group of people of whom you should be afraid, it is government "officials" who say there is nothing to be afraid of.

Don't believe me?  Remember back when Edward Snowden distributed all that information during the Obama Administration?  Shortly after that revelation, POTUS Obama stated that
American's shouldn't be too worried about these disclosures because all three branches of government had blessed the programs and activities that were being disclosed.
While that was a true statement, what was important to note is that what Obama was actually saying is that every branch of government was in on the fix.  The SCOTUS, the POTUS, and both houses of the federal legislature knew that the U.S. Constitution was being used as toilet paper to collect information on we the people - and the federal government was O.K. with that.

Imagine the chagrin when I'm reading in the newspaper (yeah, the paper version) that government "officials" have announced that there has been 20 cases of Tuberculosis ("TB") in the Inland Empire but that, "we do not consider it an outbreak."  Basically, they're saying not to worry, we have everything under control.  Who cares that there have been 155 confirmed cases of TB in LA County and 28 cases in San Bernardino County this year (so far).  They've got this under control. 

If these government "officials" have everything under control, why is this a front page story (albeit Press Enterprise front page, but front page, nonetheless)?  Is Trump not doing something to roil the democrats?  Is ISIS under control?  Those are front page stories - not that government "officials" have everything under control. 

Better bet is that these government "officials" are freaking out.  Yes, yes - I have no doubt that these "officials" have told all branches of the government about the impending collapse of western civilization and they have "blessed these programs and activities."  I also suspect that these same "officials" are hoarding as much water, food, and medical supplies as they can before the impending zombie apocalypse.

Yep, we're all doomed.