A trademark of the modern Republican brand is avowed hatred of frivolous litigation. I don't just believe this, I don't just know this, I've lived it. I was a partner in a boutique personal injury, medical malpractice and Workers Compensation law firm in Texas in the 1990's when Governor George Bush and his newly empowered Republican allies went on a rampage against those awful trial lawyers and their supposedly frivolous lawsuits. Texas rapidly transitioned from a state where working people had a chance of a remedy for the harm carelessly inflicted on them by the almighty lords of Texas bidness, to a state where corporations are king in the courtroom and 90% of victims, in some communities, are turned away penniless or with ridiculously truncated remedies.
Republican victories in their war of the big guy against the little guy have done nothing to slake their thirst for more. As recently as September, 2013, The American Spectator continued to catapult the propaganda, saying:
It's not surprising that litigation rates are so much higher here than elsewhere. Subsidize something and you get more of it. Differences in legal ethics matter. In America, much more than elsewhere, lawyers are encouraged to advance their client's interests without regard to the interests of justice in the particular case or broader social concerns. American lawyers' professional culture is unique in permitting and implicitly encouraging them to assert novel theories of recovery, coach witnesses, and wear down their opponents through burdensome pretrial discovery. Great stuff if you're a trial lawyer, but non-lawyers pay for this through higher consumer prices and foregone jobs.Led by a Congressman from, need I say it, Texas, House Judiciary Committee Republicans recently moved forward their Lawsuit Abuse Reduction Act of 2013 on a party line vote, as reported by Legal Times:
Representative Lamar Smith (R-Tex.), a chief sponsor of the bill, said in a statement today that the bill would eliminate what he described as "legalized extortion."Let me set Congressman Smith straight. Trial lawyers work almost entirely on contingency fees, or, as we used to so delicately put it, "we eat what we kill". In all the years I practiced in that field, I never once woke up and thought to myself, "Gee, I sure hope someone comes in today with a frivolous claim." What I wanted, like every other trial lawyer with a brain, was cases with merit, lots of it. What Congressman Smith wants to stop isn't frivolous claims, but meritorious cases that might make his contributors pay for the harm they do to people.
"Lawsuit abuse is common in America because the lawyers who bring these frivolous cases have everything to gain and nothing to lose. Lawyers can file meritless lawsuits, and defendants are faced with the choice of years of litigation, high court costs and attorneys' fees or a settlement," Smith said. He added: The Lawsuit Abuse Reduction Act "encourages attorneys to think twice before filing frivolous lawsuits."
Of course, frivolous lawsuits do get filed, but when it happens, it is usually by lawyers working on the clock for wealthy Republicans trying to contort the law to fit their demented philosophies or trying screw a business competitor.
The suit filed today in Hawaii is of the first kind. Follow me out into the tall grass for the details of why the case is utterly frivolous and a bit more discussion of this phenomenon.
I am not currently a trial lawyer and for many years before I was one in Texas, I had been an Assistant Attorney General in a different state. During that part of my career, much of my work consisted of working on official Attorney General opinions declaring the meaning of statutes and constitutional provisions. Much of the rest of my work consisted of litigating those same kinds of issues. I know a lot about what the words in a statue or constitution mean and how they should be applied. For years, my constant companion was Southerland on Statutes and Statutory Construction, an ancient but constantly updated multi-volume legal treatise that exhaustively examines virtually every decision by every court touching upon the issue of how to read enacted law.
I can foresee with considerable certainty that the legal principles that will govern the outcome of the Republican challenge to marriage equality in Hawaii are twofold: First, the words in question must be read with the meaning that they would receive in common and usual speech; second, the determination of the meaning will be made from the words themselves, only, and, unless they are susceptible to more than one reasonable meaning, there will be no resort to outside sources, like the history behind the enactment.
The "words" that I am talking about here are the words of a Republican brain-child amendment to the Hawaii Constitution adopted in 1998:
“The Legislature shall have the power to reserve marriage to opposite-sex couples.”According to the LA Times, Hawaii Republicans are going to court claiming that those words forbid the Legislature from declining to reserve marriage to opposite-sex couples:
Over the last few weeks as the Legislature debated SB1 -- which passed through the Senate 19 to 4 on Tuesday afternoon -- the Honolulu Capitol rotunda was crowded not only with cheering supporters of gay marriage, but opponents who chanted “Let the People Vote” and “Let the People Decide.”Why is he arguing that, you ask? Well, it's not because of the constitutional language. Nope, the LA Times tells us that Rep. McDermott is relying on the lies he and his fellow travelers used to get their base out to enact the proposition back during the anti-gay heyday of the 1998 off year election:
Among them was Hawaii Rep. Bob McDermott. The congressman has filed a lawsuit against Abercrombie claiming that same-sex marriage cannot be legalized until a court rules on the meaning of a constitutional amendment passed in 1998 about gay marriage.
“We’re going to go to court and ask for a temporary restraining order,” McDermott, who filed the lawsuit, said in televised remarks. “This is what voters were told in '98 -- that marriage would be reserved to opposite-sex couples.”But, as noted above, it doesn't matter what voters were told in 1998. It only matters what words were enacted into the Constitution and what they mean and whether or not they are clear and unambiguous. It is Rep. McDermott's misfortune and all his bigoted supporters, that the words are crystal clear and have only the meaning stated: As far as the Hawaii Constitution is concerned, there is nothing to stop the Hawaii Legislature from reserving marriage to same-sex couples. But they sure as hell don't have to.
Utterly frivolous. But IOKIYAR.