Archive for the ‘law’ Category

Kansas Beer Law Under Review – Is More Beer a Good Thing?

Thursday, February 24th, 2011

Earlier this week, a Kansas Senate committee endorsed a proposal to allow grocery and convenience stores to start selling liquor, wine and full-strength beer by 2017. Debate in the full Senate could start as early as tomorrow.

As a beer lover, I should be raising a mug of celebration to my friends on the other side of State Line, right?

Well, it turns out that the truth is a lot more complicated. The debate offers a classic case of principle meeting reality, and consumers sitting on the sidelines of a battle being fought by lobbyists.

The debate even has an east/west twist. Here to the eastern side of Kansas, in Missouri, you can meander into the mini-mart and walk out with whiskey. Full-strength beer, wine and whiskey can be sold at grocery stores and convenience stores, as well as traditional liquor stores.

On the other side of Kansas, though, is Colorado, arguably the best state in the country for beer lovers (“The Napa Valley of Beer”), but one with restrictions similar to those of Kansas. Grocery store aisles have only 3.2 beers, and if you want to purchase some wine for your marinara sauce, you need to find a real liquor store.

In principle, it’s easiest to see the side of those pushing for selling beer in mini-marts. It encourages competition, it allows those of us who like beer to find it in more places, and it would probably increase the tax revenue to the state. Economic freedom is generally a pretty good idea.

But that’s where reality steps in. In reality, liquor stores are some of the classic mom-and-pop small businesses that stand little chance of surviving when mega-corporations step in. In reality, that laid-back store you visit with the bell that tinkles when you open the door will get squeezed out by a corporate convenience store domiciled in Delaware pushing cardboard boxes of Natty Light along with a taquito, served up by minimum-wage servants while the profits go to international bank accounts. Reality is a lot uglier than theory.

But, let’s be frank here. This is my blog, and my concern about some family business in Salina pales in comparison to what happens to me. As in all issues, the primary question that everyone should be asking themselves is “how does this impact Dan Ryan?”, and that’s a tough one to figure out. I’ll happily trade 50 outlets for Natty Light in my neighborhood for one store that carries Dogfish Head and Pretty Things and all those beers I read about and yearn to taste.

I care about craft beer, not mega-brands, and that’s where things get tough to figure. In Colorado, they’ve been fighting this battle for years, and the craft brewers have lined up on the side of the status quo. Micro-breweries don’t get deals with Quik Trip or 7-11 – they get deals with the mom and pop store that is responsive to the local community. The big grocery store chains and convenience store chains aren’t going to carry their products – especially not the nano-brewery that can only crank out a few hundred barrels a year. Small stores are better for small brewers. Think small.

This analysis has little to do with the Kansas legislature, though. Money talks in republican-dominated Topeka, and the battle between 7-11 and the corner liquor store is not an even one. The bill passed out of committee by a margin of 8-1, and unless a group of neo-prohibitionists steps up to unwittingly help those of us who like great local beers, Kansas will be home to coolers full of Natty Light at the gas station.

Personally, I line up on the side of the craft brewers. In the long run, I think that more employment and more revenue comes from more locally-produced goods and more locally-based retail. I think Kansas ought to reject the “liberalization” of its beer laws, save its small businesses and foster a market for the entrepreneurs with a brew kettle that may be hoping to make a go of it.

But I wouldn’t bet on it.

BP, Massey, Goldman Sachs – Don’t Hate the Playa, Hate the Game

Tuesday, May 4th, 2010

BP could have prevented the oil spill with a little more safety equipment, but failed to do so. Massey Energy sent workers into unsafe mines while fighting regulatory fines. Goldman Sachs made money by selling sure losers to “valued” customers.

The list goes on and on. Corporate farms fail to prevent manure from fouling streams. Toyota takes the cheap way out on repairs. Insurance companies target breast cancer patients for rescission.

It’s not their fault. They are doing their jobs.

The lion’s share of the evil done in this country is done by people simply doing their jobs, working for corporations. They are doing what they are supposed to do, polluting, denying, cutting corners on safety. It is aimed at making money for their employers.

And we can’t blame the corporations, either. They are doing their jobs, which is to make money. That is all.

Corporations are inhuman. Literally, they are an artificial entity created by legislatures for the purpose of making money. Here is the dry statutory language that serves as the genesis, as the Frankensteinian spark of life, as the coital means of conception, for Missouri corporations.

The rustling dry paper of statutes gives life to literally inhuman artificial organisms designed solely to make money and to preserve the assets of their owners. If I, myself, negligently sell you an apple pie that is poisonous, you can sue me and gain all my assets. If I do it after setting up Gonemild Pie Shop, Inc., though, you can only get the assets of the corporation, whatever they may be. I am freed from my personal responsibility.

That inhumane freedom grows exponentially in the hands of employees. Your engineering friend designs damns that block beautiful rivers, and takes pride in doing a great job of it, because that is what s/he is paid to do, whether or not s/he wants to see a reservoir flooding the green valley. Your health insurance company friend applies the letter of the contract to deny a single mother coverage, but feeds stray kittens in his/her spare time. Your upper management brother-in-law calculates the cost of a recall and decides how much safety is cost-effective.

BP looks at the cost of installing another “fail-safe” system, and decides to save the money. If you’re the one who made that decision, you did your job to the best of your ability at the time. It’s not your fault.

The corporation’s job is to make money. Your job, as an employee, is to help it make money, within the bounds of the law. If you go around tossing millions of dollars into safety equipment that is not required by law, your company will be out-performed by a company that uses the money to pay shareholder dividends.

The manager of the Walmart down the street would like to pay his/her employees a living wage, but it’s against corporate policy.

Corporations did not always exist. They were initially created with lots of limitations, including a limited lifespan, for specific, high-risk purposes, with perceived public benefits, such as colonizing America.

Now, multi-national corporations have outgrown even the countries that created them. Governments are granting them additional rights, such as the right to make contributions to candidates. Corporations control our food supply, and more.

The human beings at BP took a gamble on behalf of their corporate employer that the additional safety equipment would not be needed. It was, at the time, a reasonable economic decision on behalf of a statutorily created, non-human entity whose only reason for existence is to return value to its shareholders.

For years, we will argue about whose fault it is and the extent of monetary liability and the ability of regulators to have prevented this environmental tragedy.

But nobody will question the fundamental wisdom of statutorily creating paper beings whose sole purpose is to make money. The discussion will not be raised in corporate newspapers or discussed on corporate TV.

Why Should Domestic = Cheap? A Call for Legislation

Wednesday, February 17th, 2010

What is a “domestic” beer?

According to most restaurants and bars, a domestic beer is an American style light lager produced at a factory miles away by a foreign corporation.

On the flip side, a beer brewed within walking distance at a brewery built by people who live in our community – that’s not domestic.

It’s all about money, of course, with a dash of history tossed in.

First, the history. When I was a teenager and disco was alive, the beer world could be divided into two types – cheap, bland, flavor-stripped lagers brewed here in the United States, and expensive, strange beers brewed in foreign countries, ranging from Moosehead to Guinness. Back then, good beers pretty much all came from other countries, and America pretty much only produced Bud, Miller, Schlitz, Coors, Pabst and a few others of the same ilk. (It’s true that there were a few good beers made in America at the time, like Anchor Steam and a few other rarities, but they were very few, and not common enough to add any exoticism to the word “domestic”.)

So, if you wanted a domestic beer, you wanted something cheap and cold. If you wanted something else, you wanted an expensive import (which weren’t always better, by the way, but that’s another story). This is the era that gave rise to the splendor that was “Import Night” at various bars. Now, times have changed.

Let’s talk about the money now. American craft brewers are making most of the best beers in the world. Because of the scale and ingredients, these beers are more expensive than the factory beers, and the prices are all over the board. A bottle of beer from the Midwest can easily cost more than a bottle of beer from Munich or Newcastle.

So, now, when a bar or restaurant wants to tell you that they’ll sell you a cheap beer really, really cheap, they’ll post a sign that says “Domestic draws, $1″ or “$4 Pitchers, All domestics”. “Domestic” is shorthand for Bud, Miller or Coors, even though they’re brewed by foreign corporations. If you want to get a Boulevard Pale Ale, or a Goose Island Honker’s Ale, or a Magic Hat #9, you’re going to pay a lot more than the “domestic” price.

At first blush, this doesn’t seem to be a big problem. I’m happy to pay the going rate for good beer, and I don’t expect a bar to sell expensive beer to me at a loss. And I certainly don’t begrudge anyone a plastic cup of “domestic” if that’s what they want.

But I don’t want it called “domestic” any more. It’s inaccurate, it’s insulting to real American brewers, and it siphons money to foreign corporations. SABMiller and AB-InBev are NOT domestic corporations. There are thousands of true “domestics” crafting great beer, and the American beer scene deserves to be recognized as a point of national pride. When you claim that Miller Lite and Budweiser are the “domestics”, you are saying that Boulevard and Schlafly are somehow less American. It’s just not right.

Here’s what I suggest: Pass a state law that any retailer advertising special pricing for “domestic” beers be required to sell any and all American-produced beers that it carries at the advertised price. My intent is not to harm bars and restaurants; I only want them to start using truth in advertising. If they want to advertise “$1 Bud draws” or “$4 Miller pitchers”, that’s fine.

But they ought to catch up with the times. “Domestic” beers are no longer limited to corporate factory brewers. America is now a great brewing nation, and our retailers should not advertise that Budweiser is the pinnacle of American brewing.

(Hat tip to John over at the KC Beer Blog for sparking this rant with a comment to this post.)

When To Ignore Your Lawyers

Monday, July 6th, 2009

Despite their reputations as pit bulls and sharks, lawyers turn into timid mice when advising clients. The only good risk is an avoided risk, and self-preservation is valued more than common sense or human decency. If any hypothetical threat of litigation lies down a given path, legal counsel will advise you to stay at the trailhead.

Diane Stafford’s column in last Thursday’s KC Star raised the troubling issue of employers refusing to provide references for former employees. It’s a common practice for corporate employers to refuse comment on former employees beyond the dates of employment, former job title and, perhaps, whether they are eligible for rehire.

From the risk-loathing view of an over-paid lawyer, this makes perfect sense. There’s no direct benefit to the employer from sharing descriptions of the former employee’s skills or flaws, and there is an infinitesimal chance that if you say something negative, the employee could (somehow) find out and use it as evidence to support some sort of discrimination claim. Even more hypothetically, if you say nice things about good employees but nothing about bad ones, the bad ones could conceivably (somehow) find out that they aren’t getting the same kind of references that the better employees are, and use that fact as evidence to support some sort of discrimination claim.

Whatever.

There’s also a chance that flying monkeys might attack your corporate headquarters, so legal counsel advises you to keep the windows closed and locked.

The fact is that we all risk litigation every day, when we drive, when we speak, when we go to the grocery store. The risk of litigation in most things is minuscule for those who are not flaming jerks, and the same goes for corporations. If you treated an employee well during his or her time with you, chances are pretty remote that you’re going to get sued, and, if it does happen, the chances are even more remote that a reference setting forth your views are going to be outcome-determinative in a lawsuit.

But as long as that chance exists, dancing somewhere on the head of a pin, corporate counsel will want you to avoid it unless you can articulate a valid reason to face it. And, no, common sense and human decency don’t count as valid reasons to corporate counsel.

If you’re in a policy-setting role at your company, this is an instance where you should tell your lawyer that you appreciate their advice, but that you’re going to provide references on your former employees that are fair, accurate and informative, in the hopes that other employers will similarly help you in your decision-making. It might not be the most conservative legal approach, but it’s the right thing to do.

(By the way, this isn’t legal advice. This is human being advice. Sometimes they differ.)

Why The Recall Recount Will Probably Fail

Monday, June 1st, 2009

In an earlier email exchange concerning the statement of reasons for the recall of Funkhouser, I was assured by one of the organizers that “the petition and affidavit document are on the same page of paper in a large portion of the petitions printed later in the recall effort.” He further explained, in a comment to this blog, “Did you examine the document, maybe even flip it over to see the affidavit is printed on the other side of the petition to save paper?

Uh-oh.

From the City Code:

Sec. 730. Signatures to petitions.
The signatures to an initiative, referendum, or recall petition need not all be appended to one paper, but to each separate petition paper there shall be attached an affidavit of the circulator thereof as provided by this section. Each such petition paper shall consist of sheets of uniform size, printed and signed on only one side.

If the organizer was accurate in his claim that a large portion of the petition printed later in the recall effort were printed on both sides, then it seems that all those petitions should be rejected for violating the clear provisions of Section 730.

I don’t know – maybe there are sufficient signatures on one-sided petitions to carry the day, and I’m not certain whether the double-sided petitions were rejected in the initial count. Judging from what the recall organizers have publicly stated, though, it appears the recall recount ought to fail.

Success has a proud father, but failure is an orphan

Tuesday, March 31st, 2009

When should lawyers get their name in the paper? I suppose it depends . . .

In today’s Star, Dan Margolies’ column consists of two stories. In the first, he covers a decision by the 8th Circuit to reverse a local trial judge’s decision to dismiss a case for discovery abuse. The Eighth Circuit agreed that both sides had provoked the Judge Whipple, but felt that he should be recused on the case because he lost his temper toward the plaintiff.

None of the lawyers’ names appear in the paper. I know and like both sides’ attorneys, so I’m kind of glad that they dodged mention in this stinker of a case, but it seems an odd editorial decision to include this quotation:

“You didn’t hear enough with four phone conferences, and I’m sorry you missed one, with three, four, I kept telling you to produce stuff, expert stuff. You ducked. You wove. You did everything to keep from producing them. You go to the Eighth Circuit. They tell you to produce them, and you still god—- don’t produce them. Now what the hell do you not understand? You must produce them”,

and not mention who the “you” was. I completely understand that in many discovery disputes, the lawyer is caught in the hard place between a recalcitrant client and an angry court, but the inclusion of such a gem of a quotation without a clear pronoun reference is striking.

At the other end of the spectrum, Kansas City’s largest law firm is featured glowingly in the very next item. We are told that “Shook Hardy & Bacon won a big victory in Florida last week in a smoker’s liability case.” It’s notable that Shook, not the client, won the big victory, because when the vedict goes the other way, it’s the client’s loss:

In February a Broward County jury ordered Philip Morris USA to pay $8 million, including $5 million in punitive damages, to the widow and son of a chain smoker of Benson & Hedges cigarettes, finding that Philip Morris showed a reckless disregard for the smoker’s safety. Shook represented Philip Morris in that case also.

In victory, Shook wins, but in defeat, Shook merely represents its client.

In summary, the lesson seems to be that if the judge is yelling at you, then only your client’s name will show up in the paper. If a verdict goes in favor of your client, though, the victory is yours.

Unauthorized Practice of Law, Consumer Protection and the Economics of Law Practice – Lots of Questions

Wednesday, March 25th, 2009

By common perception, Unauthorized Practice of Law (UPL) is either non-existent or a victimless crime. You don’t often hear about cases of non-attorneys representing anybody but themselves. The problem of UPL appears to be a minor one, if it even exists.

But the case of a fake lawyer trying a case is not the real problem, according to many solo and small firm lawyers. The real battle over UPL is when non-lawyers offer advice and forms to help draft wills, bankruptcy filings or divorce papers. In that context, they argue, UPL is a massive problem with dangerous ramifications.

If you need a will, why should you have to pay an attorney hundreds of dollars when online forms exist? If you want a run-of-the-mill divorce, why should a lawyer get involved in your dissolution? Lawyers often charge money for “how-to” information, and the information age is making that business model seem outdated. In some cities, nonlawyers are opening shops where you can come in and they will help you prepare a will form, a bankruptcy filing, or divorce papers.

The courts have even gotten involved in the legal form business. Tired of struggling to interpret and apply the unclear and inaccurate forms brought in by unrepresented couples seeking divorce, the Missouri courts have made “approved forms” available just by asking the Court Clerk. On its face, the Court forms seem to be a helpful tool that can save Missourians the cost of an attorney while allowing the Courts to function more efficiently. If I were expected to adjudicate dozens of “simple” divorces, I would certainly appreciate the assembly line approach.

The problem is that the intersection of law and people is never really simple, and divorce is a major transaction. Anyone who argues that a simple form, court-approved or not, will fully and fairly represent either side’s interests is simply mistaken. Solo and small firm lawyers can argue convincingly that in the vast majority of divorces handled by the courts on court-approved forms, one of the parties is losing rights that a lawyer would catch. In fact, by providing forms for pro-se divorces, the Courts are helping some people hurt themselves.

On the other hand, people hurt themselves in court every day, and it’s not the court’s duty to hold people’s hands and make certain they do what is in their own best interest. Hiring the second-best lawyer in the room hurts your chances, too, but I don’t think anybody expects the Courts to issue lawyer rankings.

Of course, the issue of fees is at the back of everyone’s mind. Feeling sorry for lawyers is a lonely past-time. The popular understanding is that lawyers start at $100,000+ salaries fresh from school, spend the rest of their lives increasing their wealth without heavy lifting or contributing to society, and retire as undeservedly powerful and respected members of the community. So, when we hear about lawyers missing out on a few fees wrung out of working-class divorcees, we tend not to get too choked up.

But the reality is that the economics of solo and small firm practice in store fronts is vastly different than that of large firms in mahogany board rooms. Many law graduates coming out of school have debts of $100,000 or more, and wind up with jobs earning well under $50,000.

The disappearance of “small” divorces threatens the very existence of the “street” lawyer, and those are the lawyers who disproportionately stand up for the average Joe, and create the vast majority of case law that protect citizens’ rights. Miranda and Brown v. Board of Education were started in storefront law offices, not mahogany board rooms. But does the occasional Atticus Finch justify preventing poor people from getting divorced without hiring a lawyer they can’t afford?

Does the provision of approved forms by Court Clerks constitute the unauthorized practice of law? Of course not. Does the provision of forms with simple advice on how to properly fill them out constitute the unauthorized practice of law? We may be getting into a gray area. If John Doe opens up a shop or a website and advertises that you can come in and he will help you draft your own will or divorce papers, is that the unauthorized practice of law? I believe that it is – but will we find a prosecutor willing to file the case, when the maximum fine is a few hundred dollars?

Would it help if we made the remedies for Merchandising Fraud available in cases of Unauthorized Practice of Law?

Selection Committee Violating the Law Under a Shroud of Secrecy?! – Day 59 of the Jackson County Ethics Crisis

Wednesday, February 4th, 2009

The Jackson County Legislature’s desperate attempts to avoid ethics accountability have dragged more good people into their distasteful mess. On Monday of this week, the Jackson County Ethics Selection Committee, composed of three good and admirable people, announced their intention to violate the law and risk fines and attorneys’ fees.

In their announcement soliciting candidates for the Jackson County Ethics Commission, the Selection Committee includes a surprising promise: “Every effort will be made to maintain the confidentiality of applications, but the applications of those selected as finalists may become public. Finalists will be notified prior to their information being made public.” The promise is not only surprising because it seems weird for the ethics process to be conducted under cover of darkness, but also because it is a clear violation of Missouri law!

The analysis supporting this conclusion comes from no less a source than Jean Maneke, Missouri’s leading expert on the Sunshine Law. She maintains the blog Sunshine in Missouri, an indispensable resource for those of us who care about transparency in government. Yesterday, she posted the following analysis:

The ethics commission is an entity created by the Jackson County Charter, and therefore it is clearly a “public governmental body” as defined by the Sunshine law. That means everything it does must be done in public. The selection committee is established by the county charter. That makes that selection committee a public governmental body, also.

The Sunshine law mandates that all meetings of public governmental bodies must be held in public and all records of public governmental bodies must be open to the public, unless there is a provision in Section 610.021 which allows closure. Case law is absolutely clear, as is the law itself, that the exclusions in Section 610.021 must be read narrowly. Therefore, unless there is a clear provision in Section 610.021 to close a record or meeting, you as a member of the public must be allowed access to that information or meeting.

The commission’s website has posted a sentence at present that states “Every effort will be made to maintain the confidentiality of applications, but the applications of those selected as finalists may become public. Finalists will be notified prior to their information being made public.”

That is absolutely wrong! There is nothing in the exceptions contained in Section 610.021 that would allow any of this information to be closed. None of these persons are applicants for employment with the county. Each of these appointments are political appointments and for them to claim in any fashion that this would be confidential is legally wrong and an affront to the Jackson County citizens, myself included.

Read the rest of her analysis, including her opinion of the members of the Jackson County legislature, in this scathing post.

Sadly, all this is completely predictable, and completely the fault of the Jackson County Legislature. All the shenanigans surrounding the resignations and the rewrites of the Ethics Code to exempt the legislators from its enforcement are the fault of a couple legislators who resent public accountability. The thirst for secrecy that drove the legislature to avoid accountability to the “old” Jackson County Ethics Commission is the same backroom preference that is guiding the Jackson County Ethics Selection Committee now.

Secrecy is not healthy for government. Ethical government does not crave secrecy. The Jackson County legislature craves secrecy. Why?

(MUCH more is on its way in this series, including the announcement of an Ethics opponent for Henry Rizzo, a call for the Selection Commission to include a disclaimer on its solicitation of candidates warning them of their duty to ignore the ethics ordinance’s provisions that violate the Charter, a profile of each district and solicitation of a pro-ethics candidate for each, and a potential Ethics Initiative Campaign. The Ethics Crisis Series will continue until the Legislature accepts local enforcement of the Ethics Code, or each of the legislators who voted for it is driven from office.)

Ed Ford and Cohorts – "Too Smart by Half"

Saturday, December 6th, 2008

One of my favorite phrases was taught to me by one of the most truly clever lawyers I ever worked with, Jack Craft. Someone who creatively saw a bright side but failed to anticipate the downside, or who thought they were being smart when they were in fact being dumb, qualified as “too smart by half”. One time, in an administrative matter, I drafted a convincing argument that the bureaucrats were not, in fact, authorized to take the action they were proposing, but Jack pointed out that by attacking the authority of the state agency, I might win, but I would be exposing our client to years of regulatory retribution from the agency. I was “too smart by half”.

This week’s City Hall drama showed that our City Council is too smart by half. When Funkhouser brought to them a settlement opportunity they had been seeking for months – a chance to put the Bates suit behind them relatively cheaply and move on with the city’s business, Ed Ford rallied his cohorts to reject the opportunity. In a vain attempt to avoid scrutiny of their unconstitutional Anti-Volunteer Ordinance, they refused the opportunity to put this distraction behind them.

Now they have their distraction and the lawsuit, too.

Meanwhile, Funk and Gloria are finished with the Bates lawsuit, and focusing on the economic crisis facing our city. Marcason and Circo spent their time getting deposed yesterday . . .*

It showed real grace and leadership by Funkhouser to bring his colleagues an opportunity to put the Bates lawsuit behind them and offer them a path to focus on the real issues facing Kansas City. To employ another classic phrase, he led the horse to water. Unfortunately for the Council and for Kansas City, our council chose to behave like the wrong end of the horse.

UPDATE: *(Jan Marcason visited the comments section and reports that her deposition was canceled, and that her “day was spent productively addressing city issues.” That’s great. After seeing how much she is able to accomplish for our city in a single day, it’s doubly discouraging that she and the others chose to keep this lawsuit alive to distract them on future days.)

Jury Duty – Sebelius Leads by Example

Wednesday, October 8th, 2008

Very few of us really look forward to a jury summons. Whatever season they arrive, it’s a busy time at work. A jury summons thrusts irregularity into our schedule and our routine.

A lot of people look for excuses. “Can I get out of a jury summons?” is the most common cocktail party question faced by attorneys. Generally, the answer is “no”, though, at least in Jackson County, you can fairly easily get one postponement for a good reason. But, after that, you need to serve. Only genuine hardship cases get out of it, and by hardship, I mean stuff like dying relatives and scheduled surgeries. Even then, a postponement is a more likely result.

Here’s a filthy little secret – SOME politicians get out of jury duty. A phone call to a sympathetic judge who owes you a favor can, on occasion, convince the judge to give you a hardship waiver. I want to stress that 99% of the time, such a call will merely get you an embarrassed, awkward silence, followed by a suggestion that you call the jury supervisor and see what he or she has to say. Judges quite correctly take jury duty very seriously, so don’t try it.

All that said, though, a Governor who formerly served as executive director of the state trial lawyers association and whose husband is a federal magistrate could easily dodge jury duty. A simple phone call to the right judge is all that it would take.

But, instead, Kathleen Sebelius showed up at the courthouse when she got her jury summons. A shining example of class and civic duty, she went through the same process as everyone else.

“I’d love to serve on a jury. I’ve never had that opportunity,” Sebelius before entering the courthouse. “I think it’s important that everybody take that civic responsibility.”

Kudos to the Governor – she took the opportunity to provide an example of how citizens ought to respond to their civic duty. As it turns out, she was excused from the panel because she knew the plaintiff’s attorney, but they also serve who show up without complaining.