This week at the Supreme Court, March 15, 2010

Mon, 15 Mar 2010 16:17:09 GMT

This week the Supreme Court will hear arguments on Tuesday and Thursday, and may issue opinions on Thursday.

United Leasing Corp. v. Lehner Family Business Trust: When Renewing Your Motion to Strike, Do Not Renew Your Motion to Strike

Sun, 14 Mar 2010 17:20:23 GMT

Don't look now, but the Supreme Court of Virginia may have just ~~redefined~~ clarified the way you argue a motion to strike at the close of all of the evidence. Trial types may want to take some time to read over one of last session's most important opinions, United Leasing Corporation v. Lehner Family Business Trust.

United Leasing is a breach of contract case. The plaintiff, the Lehner Family Business Trust, was not actually a party to the contract; one of the parties attempted to assign its claims to the Trust, and the validity of that assignment would play a major role in the litigation.

The parties went to trial before a jury. At the close of the Trust's case in chief, United Leasing moved to strike on two grounds:

The Trust had failed to prove an assignment; and
The Trust had failed to prove damages.

The trial court overruled United Leasing's motion to strike. United Leasing put on its own evidence, and the Trust presented evidence in rebuttal. After the jury retired at the close of all of the evidence, counsel for United Leasing stated:

Renew my motion to strike. For the record, I wanted to renew my motion to strike.

Instead of addressing the motion to strike, the trial court spoke to counsel for a while about exhibits and jury instructions. After closing argument and after the jury began its deliberations, the trial court asked United Leasing about its renewed motion. At that point, United Leasing argued only that the Trust had failed to prove damages. It did not reargue the assignment issue.

The jury returned a $1.1 million verdict for the Trust. United Leasing appealed, arguing that the Trust had failed to prove an assignment.

The Supreme Court held that United Leasing had failed to preserve that argument. A motion to strike tests the sufficiency of the evidence. At the close of the plaintiff's case, United Leasing moved to strike on two grounds. But after United Leasing had put on its own evidence, and after the Trust had presented rebuttal evidence, a different set of evidence was before the trial court. In that sense, United Leasing's "renewed" motion to strike was nothing of the sort; because it tested the sufficiency of a new quantum of evidence, it was a new motion.

In those circumstances, United Leasing was required to inform the trial court of the grounds for its new motion to strike. United Leasing argued the damages issue, but did not discuss the assignment issue. Its failure to do so prevented United Leasing from relying on Code Section 8.01-384, which generally provides that you only need to object once. An objection to the sufficiency of the evidence at the close of the plaintiff's case is separate and distinct from an objection to the sufficiency of the evidence at the close of all of the evidence.

By neglecting to explain the basis of its new motion to strike, United Leasing deprived the trial court of an opportunity to rule intelligently on the issue. As such, it failed to preserve its objection, and was barred from raising the issue on appeal.

Lessons from United Leasing:

Do not "renew" your motion to strike--make a new one. As the Court stresses, a motion to strike at the close of all of the evidence is a separate and distinct from a motion to strike made at the close of the plaintiff's case. It must be treated as such. A defendant must explain the grounds of his new motion to the trial court. The key is giving the trial court a fair opportunity to rule intelligently on the issue. With that in mind, it should be acceptable to incorporate earlier argument by reference, to some extent, so long as the record reflects the basis of the motion. But in the wake of United Leasing, an naked "renew my motion to strike" is probably not sufficient.
Do not argue things "for the record." Here at the Firm on the Move (TM), I was taught that we don't say things "for the record." We say them to prevent grave injustices to our clients. But in practice, almost everybody says "for the record," and we all know why: Using the words "for the record" distances you from the argument and makes things more comfortable for everyone in the courtroom. "For the record" is like a wink and a nod to the trial judge, letting her know that you're not trying to undermine her authority; you are just speaking for the court reporter's benefit. That's not persuasive in real life, and it doesn't read much better in the transcript. If you are serious about an objection, raise it and mean it.
Plan ahead. There's a simple lesson buried in United Leasing, too: plan ahead. If the defendant had made even a token nod to the assignment issue in its second motion to strike, it may have changed the Court's analysis. Missing something like that in the heat of argument is every lawyer's nightmare. That's one of the reasons why I'm a huge believer in checklists, outlines, binders, and second-chair lawyers.

From an advocate's perspective, United Leasing is a fun opinion to read. The opinion's reasoning is transparent, and the Court does a good job of describing and engaging the parties' respective arguments. But at the end of the day, the opinion serves as a warning to strike the phrases "renew my motion to strike" and "for the record" from your trial vocabulary.

Florida Bill Limiting Access to 911 Calls Moves Forward

Sun, 14 Mar 2010 01:42:02 GMT

A committee of the Florida legislature this week approved on a party-line vote a bill that would require a court order to access 911 call recordings. This development follows on the heels of efforts in several other states to curtail access to 911 calls under state sunshine laws, a trend on which we previously reported.

On Wednesday, the Government Affairs Policy Committee of the Florida House of Representatives approved by an 8-5 vote proposed committee bill 10-03a, with all Republicans on the committee voting for it and all Democrats voting against. The bill would exempt "Any recording of a request for emergency services or report of an emergency using an emergency communications E911 system" from the public disclosure requirements of Florida's public records laws, including Section 119.07(1) and Section 24(a) of Article I of the Florida State Constitution. A 911 recording could be released pursuant to a court order finding good cause for disclosure. Upon request, a person could obtain a transcript of a 911 call, after 60 days and with all personal identifying information redacted.

The Miami Herald has reported that the 911 bill is a top priority of the Speaker of the Florida House, Larry Cretul, who took the unusual step of stacking the Government Affairs Policy Committee meeting Wednesday with an extra Republican to ensure passage. A powerful ally of Speaker Cretul has urged Cretul to secure passage of such a law after he lost his son and subsequently heard a recording of the 911 call on a news broadcast.

The Florida bill therefore follows a pattern we noted in other states where similar bills are under consideration -- anecdotal evidence of the broadcast of wrenching 911 calls is cited in support of sweeping measures that would eliminate access to 911 recordings in most cases. These bills appear driven more by a misguided desire to exercise editorial control over the use of 911 recordings by news organizations than by any genuine problem associated with access itself. In fact, the Florida bill recites as a policy basis the notion that "there are those persons, who, for personal, private gain or for business purposes, would seek to capitalize on individuals in their time of need."

This bill and others like it underscore a prominent person upset with the use of a public record in a particular circumstance can succeed in having legislative bodies consider wholesale changes to everyone's access to public records. This is a troubling trend.

The Florida bill faces an uncertain fate, as it is opposed by Florida Democrats and Governor Crist, and it must pass by a supermajority vote. We will continue to follow the progress of this bill.

Supreme Court to Consider Disclosure of Copies of Documents Placed Under Seal by a Court

Sat, 13 Mar 2010 00:27:26 GMT

The Seattle Times reported on the Supreme Court arguments in a dispute between the Yakima Herald-Republic and Yakima County regarding the disclosure of copies of court documents. The dispute involves the billing records of defense attorneys in a murder case that were placed under seal by a judge. The judiciary is exempt from the disclosure requirements of the Public Records Act, but in this case the County also has copies of the records, and the newspaper sought disclosure of the records from the County. At issue is whether copies of documents also located in a sealed court file are subject to disclosure under the Public Records Act. The Seattle Times article is available here.

Washington House Reverses Course: Legislature Makes Hand-Held Cell Phone Use While Driving and Texting Primary Offenses

Fri, 12 Mar 2010 08:39:18 GMT

Yesterday the Washington House of Representatives reversed itself by passing the Washington Senate's version of a cell phone/texting bill, which the Governor is expected to sign.

What does this mean to drivers in the State of Washington? It means that if the bill becomes law (and it's really more a matter of when than if), police officers will be able to stop motorists who are holding cell phones and/or texting while driving without witnessing another offense. Current law allows the police to issue traffic tickets to motorists for holding a cell phone or texting only if some other primary driving infraction (e.g., speeding, improper lane change) is being committed at the same time.

Proponents think the new legislation will save lives; opponents see government intrusion and wonder why other activities such as smoking, eating, and putting on makeup are not similarly made primary offenses.

As an attorney who deals with traffic offense cases every day, while I strongly support measures that make roadway users safe, I also believe in providing the driving public with incentives--especially economic ones--that will make drivers alter behavior in a positive way.

The new legislation, while making cell phone and texting infractions primary offenses, prohibits the offenses from becoming part of a driver's record that is available to insurance companies. Here, the Legislature creates a monetary penalty for the offenses, but says "hey, we don't want this offense on a driver's record, because even though we think this type of driving is so outrageous, and there is a major safety issue here that we must spend a ton of time with in this legislative session, we don't think it's really worth telling the public about or insurers." Instead, the Legislature sends the following message: the conduct is so unsafe that we don't want anyone to know the people who perform this unsafe behavior, so we will not punish through insurance increases anyone who breaks the law and we will not reward those who choose to obey the law.

There's a reason that the word "law" is in the word "flaw." The Legislature could have done a much better job by passing a bill that actually helps people who obey the restrictions obtain better insurance premiums. After all, if the conduct is so dangerous, than clearly risky drivers ought to assume a greater financial burden. But the Legislature didn't care about that, and instead chose expediency over substance, a common theme in this session.

Does Sieyes matter?

Fri, 12 Mar 2010 04:17:44 GMT

This month we cover public access to criminal defense billing records, warrantless searches of locked vehicles, and the court’s opinion on whether minors have a constitutional right to possess guns.

Supreme Court of Washington Podcast - Does Sieyes matter?

Today's Other Opinion: No contact order for life

Thu, 11 Mar 2010 21:28:16 GMT

In re Pers. Restraint of Rainey, No. 81244-6. After convictions for first degree kidnapping and telephone harassment, Shawn Rainey's sentence included an order prohibiting him from any contact with his ex-wife and daughter for life. He appealed that order, challenging that it violates his rights under Apprendi v. New Jersey and Blakely v. Washington and his fundamental rights as a parent.

Justice Stephens writes for a unanimous Court, holding that RCW 9.94A.505(8) allows a sentence to include a no-contact order up to the statutory maximum "when the jury verdict reflects facts warranting the prohibition." Here, the judge found no facts beyond the jury verdict and so there is no violation of Apprendi or Blakely.

The right to parent, however, is a fundamental right. A sentence that infringes such a right must be "reasonably necessary to accomplish the essential needs of the State and public order." The Court finds the state interest here compelling, but notes that "the interplay of sentencing conditions to fundamental rights is delicate and fact-specific, not lending itself to broad statements and bright line rules." The Court expresses dissatisfaction with the sentencing court's failure to provide a rationale for the extreme duration of the no-contact order and on that basis strikes the order and remands for resentencing.

(Briefs, argument)

Opinion: failure to instruct jury on meaning of "personality disorder" results in retrial

Thu, 11 Mar 2010 19:52:31 GMT

In re Det. of Pouncy, No. 81769-3 (briefs and argument). Curtis Pouncy has a long incarceration history after several sexual assaults. In 2003 the state filed a petition to have Pouncy committed as a sexually violent predator. In order to establish an individual is an SVP, the state must prove the person “has been convicted of or charged with a crime of sexual violence and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility.” Defense counsel proposed a jury instruction defining “personality disorder” but the trial court rejected the instruction and no other guidance defining “personality disorder” was offered the jury. The defendant also objected to the court’s decision to permit the state to attack the credibility of the defendant’s psychological expert.

The Supreme Court, with Justice Debra Stephens writing, held that the trial court erred by refusing to instruct the jury on the meaning of “personality disorder.” At the time of Pouncy’s trial, this phrase was not defined by statute, though the legislature later supplied a definition. The Court wrote that the phrase is not one of common usage and requires definition to ensure jurors are not forced to define the term based on their collective understanding.

The Court reversed Pouncy’s SVP determination and ordered a new trial. The Court also held that the impeachment evidence the state introduced against the defendant’s expert witness was inadmissible and should not be used on retrial.

Chief Justice Barbara Madsen wrote separately, concurring with the Court’s order for retrial. She however, wrote that the inadmissibility of the impeachment evidence was enough to justify a new trial, and she disagreed with the Court’s analysis of the personality disorder issue.

Thu, 11 Mar 2010 16:51:47 GMT

New nomination. President Obama as nominated Assistant U.S. Attorney Raymond Lohier, Jr. for a seat on the Second Circuit. Mr. Lohier is chief of the Securities and Commodities Fraud Task Force of the U.S. Attorney's Office of the Southern District of New York.

For more information on this nomination, click here.

General Assembly Elects Mims to Supreme Court of Virginia

Thu, 11 Mar 2010 13:02:20 GMT

Yesterday afternoon, the General Assembly unanimously elected William C. Mims to the Supreme Court of Virginia, effective April 1. The VLW Blog has the story, as does WaPo's Virginia Politics Blog. The Richmond Times-Dispatch has a blurb, and carried a short editorial about Mims a few days ago. That editorial read, in part:

Mims has earned the commonwealth's trust. He has served ably not only in the attorney general's office, but in the legislature. An individual with principles, Mims possesses a judicial temperament. We cannot think of a more fitting choice for the state's highest court.

High praise, indeed. Congratulations, Justice Mims.

Bellevue City Council Members Allege Open Public Meetings Act Violations

Wed, 10 Mar 2010 17:28:22 GMT

Publicola is reporting that members of the Bellevue City Council are accusing the majority of violating the Open Public Meetings Act by negotiating the text of a letter to Sound Transit without holding an open public meeting. The council members allege that the letter regarding the future location of a light rail line through Bellevue was drafted via phone and email. The Open Public Meetings Act, Chapter 42.30 RCW, requires that all meetings of the governing body of a public agency shall be open and public. A meeting occurs when the majority of the governing body or any committee acting for the governing body transact any official business of the public agency, including but not limited to receipt of public testimony, deliberations, discussions, considerations, reviews, evaluations, and final actions. A court may determine that a meeting has occurred if a majority transact business via a "serial" or "rolling" meeting in which phone calls or email are forwarded among the group until a consensus is reached.

Watch argument on Public Records Act in Yakima County v. Yakima Herald

Wed, 10 Mar 2010 17:01:07 GMT

In case you have a fetish for following open government law, like we do, here's the video from yesterday's oral argument in Yakima County v. Yakima Herald Republic.

Substantive Unreasonableness Argument Rejected

Tue, 09 Mar 2010 20:47:26 GMT

US v. Chavez-Suarez, -- F.3d --, 2010 WL 761077 (10th Cir. 3/8/10) - Although the court expresses some sympathy for the substantive unreasonableness argument that the 16-level enhancement for reentry after deportation following an 11-year-old marijuana conviction resulted in an unfairly long sentence in light of the "relatively benign nature" and staleness of the marijuana conviction, the district court did not abuse its discretion in rejecting the argument. The court characterizes as "singularly unpersuasive" the government's argument to the district court that "drug trafficking is as serious as murders or child molestation or other serious types of felonies . . . even if it's a small amount [that] might not look horrendous."

Today's arguments - March 9, 2010

Tue, 09 Mar 2010 14:00:00 GMT

Today the Court will hear four arguments concerning criminal evidence, public records and due process. (Docket, briefs)

Morning session, starting at 9:00 a.m.

State v. Ibarra-Cizneros, No. 82219-1. The question before the Court is whether prosecutors can use criminal evidence uncovered via a cell phone seized illegally by police.

Gilberto Ibarra-Cisneros called his brother's cell phone, not knowing that his brother had been arrested and the phone seized by police. The police answered the phone and arranged to meet with Gilberto. At the meeting, undercover officers found drugs on him and arrested him.

Later a court determined that the search leading to the brother's arrest (and thus the seizure of the cell phone) was illegal. Gilberto argues that since the police only turned their attention to him because of the cell phone, all the evidence from their meeting is “fruit of the poisonous tree” barred by the exclusionary rule. The Walla Walla Superior Court disagreed, holding that the link between the phone and the evidence was “too attenuated” to impact Gilberto’s conviction.

The Division Three Court of Appeals upheld the conviction.

Yakima County v. Yakima Herald-Republic, No. 82229-8. This case concerns whether the Public Records Act compels disclosure of sealed billing records concerning fees paid by Yakima County to public defense attorneys.

Yakima County appointed lawyers to represent two indigent murder defendants, paying them approximately $2 million. As part of the payment process, a judge who was not otherwise involved in the case reviewed the lawyers' bills to decide whether they should be paid.

The Yakima Herald-Republic filed a request under the Public Records Act for spreadsheets and other files related to the bills. The County withheld the records, claiming that they were exempt from the Public Records Act under Nast v. Michels because they are judicial records. The Herald-Republic argues that Nast only exempts “court case files,” not administrative records.

The Court recently ruled on a similar issue in Federal Way v. Koenig, affirming Nast and finding that administrative court records were not subject to the PRA, so it will be interesting to see what differentiation the Court makes in this case.

Afternoon session, starting at 1:30 p.m.

State v. Nason, No. 82333-2. The issue before the Court is whether Spokane County's policy of imposing jail time on offenders who fail to pay court costs violates due process.

James Nason was convicted of burglary, sentenced to community service, and ordered to pay certain court costs. He did not pay, and the court subsequently modified his sentence to impose jail time. (Spokane County has a policy allowing the courts to order jail time when a defendant refuses to pay his obligations.) Nason argues on appeal that this violated his due process rights in various ways, including the lack of a separate hearing and the fact that he was not given credit against his financial obligations for the time served in jail.

The Division Three Court of Appeals upheld his sentence.

State v. Stubbs, No. 81650-6. This case concerns whether a stabbing that results in partial paralysis satisfies the requirement for an exceptional sentence for first degree assault, and whether the requirement itself is unconstitutionally vague.

Troy Stubbs stabbed Ryan Goodwin in the neck, severing his spinal cord and paralyzing him from the waist down. Stubbs was convicted of first degree assault and given an exceptional sentence due to his victim's injuries. Such sentences are allowed where the injuries “substantially exceed the level of bodily harm necessary to satisfy the elements” of a crime.

Stubbs argues that since one element of first degree assault is the infliction of “great bodily harm,” Goodwin's extreme injuries are an element of the crime. The court disagreed, holding that the jury could find that Goodwin's injuries substantially exceeded the great bodily harm element.

Stubbs also argues that the test for an exceptional sentence, found in RCW 9.94A.535(3)(y), is unconstitutionally vague.

VLW Blog: Mims to Get Virginia Supreme Court Seat

Tue, 09 Mar 2010 13:29:21 GMT

Our friends at the VLW Blog are reporting that William C. Mims will replace departing Justice Barbara Milano Keenan on the Supreme Court of Virginia. Mims was introduced to a joint meeting of the House and Senate Courts of Justice Committees. Each committee must certify a candidate before that candidate can be considered by the respective houses. Mims was the only person interviewed for the SCV opening, removing any doubt that he would replace Justice Keenan.

A quick Wikipedia check (I don't pretend to know this stuff) shows that Mims is a Republican who's served in both the House of Delegates (1992–98) and the Senate (1998–2006). He was Bob McDonnell's Chief Deputy Attorney General. When McDonnell resigned as Attorney General to campaign for governor in February 2009, the General Assembly picked Mims to finish McDonnell's term. Mims did not run for a full term as Attorney General.

Update: SCOTUS Grants Cert in Snyder v. Phelps

Tue, 09 Mar 2010 13:10:11 GMT

In September, we wrote about Snyder v. Phelps, the funeral-picketing case out of the Fourth Circuit.

Yesterday, the Supreme Court granted cert in Snyder. The case is getting plenty of attention from the mainstream media, as well as some treatment on De Novo favorites SCOTUSblog, the Volokh Conspiracy (which had roughly a bajillion posts about the case yesterday), and Above the Law.

The Court will consider Snyder in the fall. This should be interesting. Stay tuned.

Oral Argument Preview - Are Judicial Records Subject to the Public Records Act?

Tue, 09 Mar 2010 00:41:23 GMT

Tomorrow the Court will hear Yakima County v. Yakima Herald-Republic, which concerns whether the Public Records Act applies to administrative court records, specifically billing records explaining fees paid by Yakima County to public defense attorneys.

The Court recently ruled on a similar issue in Federal Way v. Koenig, affirming the twenty-year precedent in Nast v. Michels and finding that administrative court records were not subject to the PRA, so it will be interesting to see if the Court will try to differentiate this case, or merely affirm Koenig.

Koenig was decided 7-2, with two pro-tem Justices replacing Justices Sanders and Madsen. Owens wrote the lead opinion, Stephens dissented and was joined by Alexander. So if a rematch is held the final vote count could be different, but it seems unlikely Koenig will be overruled.

This week at the Supreme Court, March 8, 2010

Mon, 08 Mar 2010 16:51:13 GMT

The Supreme Court will hear arguments in several cases on Tuesday, and will likely issue opinions on Thursday.

Roberson v. Commonwealth, or Will Somebody Please Answer Justice Koontz's Question?

Mon, 08 Mar 2010 00:37:56 GMT

One of the themes that we harp on here at De Novo is the importance of answering the Court''s questions. That usually comes up in oral argument, but sometimes, the Court is so kind as to direct the parties to brief certain issues.

That was the case in Roberson v. Commonwealth, handed down last session. Roberson and its companion case, Ghameshlouy v. Commonwealth, address some interesting but fairly esoteric questions of appellate jurisdiction, procedural defects, and waiver.

And in Roberson, it sounds like the Court really wanted to talk about waiver. At issue in the case was who was the proper appellee, the Commonwealth or the City of Virginia Beach. In its order granting the appeal, the Court directed both entities to appear, and specifically directed the City to address the question of whether it had made an appearance before the Court of Appeals. That could bear on whether it had waived its objection to the any procedural defect in the notice of appeal.

Justice Koontz, writing for the Court, never gets to answer this question. He winds up affirming the Court of Appeals, which had dismissed Roberson's appeal, albeit for a different reason. Fair enough. But he begins his discussion with this remarkable footnote:

Despite our direction that this issue would be addressed in the appeal, Roberson did not file a reply brief responding to the arguments of the City and the Commonwealth. Moreover, when during the oral argument of this appeal the Court attempted to elicit the views of Roberson’s counsel on the question of the Court of Appeals’ jurisdiction over the appeal and, if so, whether the City might have waived its objection to not being named as the appellee in the notice of appeal, Roberson’s counsel stated that he did not "think it was a waiver question." Rather, Roberson continued to maintain that the issue was one of "fairness" as to whether he should have been required to determine that the City was the prosecuting authority by "ferreting out some piece of paper that says City on it."

Really?

When the Court asks a question at oral argument, it is giving you a gift. It is letting you in on its thought process, and giving you a chance to share your views. It's like the Court is making you a part of its decision conference.

When the Court identifies an issue in the order granting the appeal, so that you have time to research and brief the issue in advance, it's being so generous that my metaphor breaks down. Maybe they wrapped the gift up in a purple Cadillac full of money (which is, by the way, how one of my partners rolls).

You have to take those opportunities. It doesn't matter if you don't think it's a waiver issue--Justice Koontz might, and he gets to write the opinions.

Washington Legislature Fails On Texting/Cell Phone Infraction Bill

Sat, 06 Mar 2010 21:37:13 GMT

Today the Seattle Times called the House of Representatives the "House of Wimps" in an editorial about the Legislature's failure to pass a distracted driving law. I don't wholly disagree with the Times, but House members and senators are wimps not because they couldn't pass a comprehensive law, but rather because the bills lack any real incentive to improve public safety.

A few years ago the Washington Legislature made texting and talking on a handheld wireless communication device civil traffic infractions punishable by a fine. However, the Legislature made these infractions secondary offenses, meaning that police officers can only stop drivers who are allegedly committing some other, primary traffic violation.

Since these laws took effect, many citizens and some legislators have wanted to go a step further by making the texting/cell phone bans primary offenses. Others, including some legislators who serve as police officers, criticized the move as going too far, at least as far as non-texting, verbal cell phone communication goes.

What the Legislature wholly fails to address - and why I think the bills sponsored by Senator Tracey Eide (D-Federal Way) and State Representative Reuven Carlyle (D-Queen Anne) are inadequate - are incentives for the driving public to be better drivers. If you buy the conclusion that texting and/or talking on a handheld wireless communication device, combined with driving, is dangerous - then why would you not want to punish the people creating the danger and reward your constituents who don't create the risk?

The bills don't envision any reward/punishment scenario and as such, the bills might feel great but they don't really do anything for public safety.

In fact, there is a built-in incentive for people to perform the very conduct that legislators are trying to ban. Why? Because unlike drivers' other traffic offenses that are shared with insurance companies - and lawful drivers have to purchase insurance - cell phone and texting offenses are not shared and the Legislature has prohibited such communication of these offenses to insurance companies. These offenses can still affect the privileges of intermediate (under age 18) drivers, but most of the driving public is not incentivized with any reward or punishment.

If legislators really want to improve public safety AND help most of the driving public and their constituents pay less in insurance premiums, sponsors should strike the bills’ language that prevents employers and insurers from finding out about a person's driving offenses in this area.

As there have been many comparisons to texting and cell phone offenses with DUI, if the comparisons are accurate (and I'm not arguing one way or the other that they are), it seems fitting that drivers who create risk by texting and/or holding a cell phone to their ears while driving should be readily identifiable to those who insure and employ these same drivers, whether it's a company attempting to measure risk or someone looking for a babysitter to drive their children to soccer practice.

The safety and economic incentives are simple: if employers can minimize risk on the road by screening those drivers who have a history of these offenses, we will arguably have safer roads if more people are economically incentivized to curb conduct deemed risky or offensive.

If insurers can identify drivers who create greater risk, then insurers can isolate risk to specific policyholders and policyholders who choose a more prudent way of driving will be economically incentivized to drive with their hands free of wireless communication devices if these drivers know they will pay less for insurance than the person who breaks the law.

Perhaps next year the Legislature can address the real issues with texting/cell phone legislation and debate the merits of a clean and meaningful bill.

Recent Articles in Judiciary Law from LexMonitor