Friday Photo: Tieton sky

Tieton sky

A picture from the Tieton RIver near Yakima, a few weeks ago.

Rafting was awesome, and the river was rocking.

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Governing by Blackmail

Shutdown theater proceeds apace.

Our WWII Veterans are still showing us snot-nosed kids how to do things right.  “The memorial’s closed?  Nuts to that!”  Storm those barricades, boys.  If the Nazis couldn’t stop you at Normandy, the feds can’t stop you now!

On the plus side, we won’t be getting hectored about out dietary choices on social media with the FLOTUS site down.  By the way, why would a personal site for the First Lady go dark because of a government shutdown?  Since when is “First Lady” a formal title for an official position in the administration?  Even more odd, you mean someone is paid in actual money and receives government benefits to pretend to tweet for Michelle Obama?  Maybe we need an extended shutdown “furlough” for “non-essential” workers like that.

It is appalling and embarrassing that grown adults would engage in a public temper tantrum by shutting down the things that people actually use in the federal government.  No word that IRS, DOE, HHS, HUD, or EPA is shuttering because of this.  It really galls to see this same type of government blackmail used to forever turn the ratchet of bigger government and higher taxation.

Cancelling or withholding the visible and popular things government does to fund the deputy undersecretary to the assistant director of sustainablility or whatever is utterly ridiculous, and we as Americans should demand more of our government.  The Senate didn’t pass a budget for over four years, and everything kept right on churning. Now we’re supposed to believe that a single day without funding requires a shut down of our entire infrastructure, even those things that don’t take any people to run?

Closing our National Forests.   Good Lord.  We are governed by a pack of petulant brats.

UPDATE:  Then again, maybe shutting the national parks is a good idea (at least for today)!

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I would have called it: There’s No Stupid Like Zero Tolerance Stupid

A buzzing pen.

They suspended a seven year old for a buzzing pen

Thank the lord they got this violent miscreant away from other students for a few days!

Yeesh, and people wonder why homeschooling is growing exponentially.  Sue like the wind, little G.  Sue like the wind.

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Klutschkowski v. Peacehealth: A phenomenal win for the people of Oregon!!!

What a great, great opinion from the Oregon Supreme Court today in Klutschkowski v. PeaceHealth, SC S059869 (September 26, 2013)

For a while it seemed as if Howell v. Boyle, 353 Or 359, 298 P3d 1 (2013), was going to send Oregon trial practice into chaos with trying to figure out ancient defenses available at common law to determine if the damages cap could apply to claims.  In one fell swoop, the Court cleared up that notion, and righted the law that Howell left askew:

Because an action for medical malpractice is one for which “the right to jury trial was customary in 1857,” Article I, section 17, prohibits the legislature from limiting the jury’s determination of noneconomic damages. See id.; see also Hughes, 344 4 Or at 156 (recognizing that Article I, section 17, prohibits the legislature from modifying jury awards in actions that were recognized in 1857). It follows that applying ORS 31.710(1) to the jury’s damages award in this case violates that constitutional guarantee. Having reached that conclusion, we need not address plaintiffs’ arguments under Article I, section 10, or Article VII (Amended), section 3. Specifically, we need not decide whether, under Howell v. Boyle, 353 Or 359, 298 P3d 1 (2013), the $500,000 limit on noneconomic damages provided plaintiffs with a substantial remedy within the meaning of Article I, section 10.

Slip Op. at 33 (emphasis added).  It doesn’t matter if there was a defense to a certain type of action, or whether comparative fault could nullify an award.  If the type of action went to jury in 1857, no cap can apply.  Well-reasoned, and great news for those injured by the carelessness or malice of others.

Cheers to Kathryn Clarke, Gene Hallman, and the rest of my OTLA amicus committee family who assisted in this case.  It’s a major win.

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Debt service on how many trillion?

In the near future, our entire GDP is going to go to making interest payments.  By 2020:

One thing is clear: Based on CBO projections, if interest rates just rise to their 20-year average, we will have an untenable, unacceptable interest rate bill whose beneficiaries are China, Japan, and others who own our bonds.

That simply will not happen.  We are looking down the long barrel of default.

So what does that mean now?  Probably not much short term except for continually rising inflation, stagnating wages, spikes in crime, and given the nation’s resemblance to the rest of the 1970s, I’m sure ugly polyester clothes are just waiting in the wings.

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Slower, Dumber, and … Younger?

Isn’t “progress” supposed to work the other way?

This is what we get for two decades of “participation” trophies.  Younger Athletes Are Racing With Less Concern About Time”

The Hipster Olympics are coming to pass!

Really, when we lose our sense of wanting to excel, we lose both the joy and quality of life.  It’s not necessarily about beating someone else so much as pushing yourself as much as possible.  But then again, it’s cool not to care about such things, right?  Once we are all in the same pile, we will truly be equal.  And that is where the obsession on “equality” results in its own demise.  The only place we are all equal, as Ecclesiastes 3:20 notes, is in the grave.

While we live, we should challenge ourselves.

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Not nearly long enough

A 21 year old convicted of having sex with a 14 year old and he gets just a little over a year in prison?

And he had more than one victim.  Disgraceful to accept a plea deal this light for such crimes.

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California Senate passes child abuse statute of limitations reform

Great news for child abuse survivors in California.  The State Senate passed a new “window” provision that allows child abuse victims to bring suit for one year, even if their claims had been previously barred.  The bill is going to be sent to the Governor, who has indicated he will sign it.  This brings California in line with Hawaii in allowing a window for all victims to bring claims.  These windows are necessary when a statute of limitations for child abuse changes, since survivors who were barred under earlier versions of the statutes would otherwise be excluded from relief.  On behalf of survivors everywhere, thank you California legislators; your example is one to be imitated.

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A Release signed during minority continues in effect after reaching 18, sometimes

The Oregon Court of Appeals today issued its decision in Bagley v. Mt. Bachelor, Inc., A148231 (September 5, 2013), holding that a full release from negligence applies even though the person was a minor when originally signed (with parental approval), and later becomes an adult, because the person ratified the release by continuing to use the ski lifts after reaching the age of majority. 

The plaintiff below had argued that the trial court was wrong by:

(1) concluding that there was no genuine issue of material fact as to whether Bagley ratified, after reaching the age of majority, a release agreement entered into while he was a minor; (2) concluding that the release agreement was not contrary to public policy; and (3) concluding that the release agreement was neither substantively nor procedurally unconscionable.

The court approached the question primarily by examining the release, the lift pass, and the resort’s signage, all of which conveyed the same basic idea: “If you ski here, you accept our terms.”

Although a minor can disaffirm a contract upon reaching majority, he can also choose to ratify it.  The court keyed into one particularly salient fact in finding ratification: plaintiff used his “season pass at least 119 times over the course of 26 days” after turning 18.  The court held that post-injury actions taken to disaffirm the contract were irrelevant, since the plaintiff had already availed himself of the benefit of the bargain.  Slip Op. at 10.  The facts of the case were important for another reason, the release was signed by plaintiff just two weeks shy of his 18th birthday, and the release was posted everywhere but the bathroom walls, it seems.  So the Court of Appeals limited its holding to factual situations where the minor is not of overly tender years, and where the release was not buried in one page of 5 point font boilerplate. 

The court went on to hold that recreational releases of negligence do not offend public policy, and that there was no “oppression or surprise” in the release that would be unconscionable.  Again, those holdings are largely limited to factual scenarios like those in the case.

Still, it’s a hard decision for the plaintiff here, if the ramp was in fact poorly maintained.  The plaintiff was an “advanced expert” skier, so presumably he could handle minor issues with the terrain.  Plus, the poor guy ended up paralyzed, so he really needs some sort of relief to have a decent quality of life.  While I can understand the Court’s decision, my heart goes out to the plaintiff here.  Even if they are not legally obligated to pay compensation, I would hope Bachelor does the right thing and agrees to help him, if there’s any indication at all that they messed up on the ramp.

While corporations are faceless, soulless, profit-seeking entities (not necessarily in a bad way, that’s just what they are), hopefully not everyone who runs them is the same. 

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Self-Defense can be based on Prior physical violence between the parties

The right to self-defense seems to be perennially under attack, no pun intended.  The continuing issue seems to be, “When is it OK to fight back, and how much can you fight back?”  Oregon law requires you to attempt to retreat before using force, provided it is safe to do so, but only if you are not in your home.

But what if someone has been attacking you over the course of a few days?  Do you have to retreat before assuming they are going to seriously assault you if they start something in a public place? The trial court in State v. Beisser, A148833 (August 28, 2013), said that where the victim of assault had dumped the defendant’s cleaning bucket in the mud and started pushing the defendant, the defendant could not introduce several days’ worth of prior altercations to show that he was in reasonable fear for his safety when he beat the tar out of the victim.  Instead, the trial court found that the jury could only consider the actual incident leading to the defendant’s arrest in determining whether self-defense was appropriate.  Looking at the offers of proof, it’s hard to see how the trial court reached that conclusion.

First, the “victim” in the case, Beisser’s roommate named Saner, had gotten drunk a few days before and exploded at Beisser, yelling at him about bringing home a TV and setting it up to watch in the living room.  Hardly a rational response.  But the second incident really informs the self-defense analysis.  A few days after the TV incident, Beisser was taking a bath, and Saner went into the bathroom (according to Saner, because Beisser’s radio was too loud), and when Beisser tried to get out of the bath, another roommate said that he saw Saner shoving Beisser under the water three times.  Hardly just a “frank exchange of differing viewpoints” as the euphemism goes, and made even more threatening by the fact that Beisser was taking a bath.  Beisser broke his toe in that encounter, and had a third party witness (another roommate) to confirm his story about what happened.

So finally, when Saner again began getting in Beisser’s face and provoking him about the bucket, Beisser went on the attack.  Beisser only got to tell the jury that “Saner did not make any verbal threats and was not pushing hard enough to knock him down, but that Saner was taunting and shoving him.”  Slip Op. at 6.  So apparently Beisser went to town on Saner, and Saner came out of the fight worse for wear (and filed charges).

How about if that person came into the bathroom when you were taking a bath, started yelling at you, and shoving you under the water a few times when you tried to get out?  The next time you saw that person and they started to get physical, would you assume that nothing was going to happen?  Or would you immediately figure, “here we go again” and try to defend yourself before he got a cheap shot in?  I mean, really, self-defense has to consider the parties’ history with each other.

And the Court of Appeals held exactly that.  The court said that the bathtub dunking and the TV incident were relevant to the claim of self defense during wash bucket incident pursuant to State v. Lunow, 131 Or App 429, 885 P2d 731 (1994).  Slip Op. at 9.  The Court of Appeals also noted that excluding the testimony of the roommate that witnessed the bathtub altercation was error, because allowing an eyewitness to testify to a prior physical altercation was not in any sense improper “bolstering.”  Id. at 10.  Because this evidence would have a substantial effect on a reasonable jury’s view of a self-defense claim, the conviction had to be reversed and remanded for a new trial.  Id. at 11-15.

At least from the Court of Appeals decision, it is difficult to see how the trial court got to the point of excluding this evidence.  Even if the defendant was particularly unsympathetic (and I’m not saying he was or wasn’t–I don’t know), even jerks have the right to defend themselves.  It’s good to see the Court of Appeals affirm the right to self-defense, even where it just looks like simple common sense to do so.

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