Pushing the Envelope
California Lawyer

Pushing the Envelope

Attention-grabbing legal strategies can have an impact, even if they don't always succeed.

January 2014


Illustration by Jon Berkeley

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Sometimes it's the first thing defendants say to belittle a suit filed against them: "This is nothing more than a PR stunt."

But in litigation, distinguishing between the outrageous and the ingenious is not always so easy - especially when the media takes up a cause and press coverage forces changes that courts cannot.

Indeed, behind a certain category of legal actions we see are lawyers who never expect to win at all - though winning is always welcome (and not unheard of). Instead, these attorneys focus on raising awareness and creating a platform for a larger issue. If the lawyers and plaintiffs are honest about it, they might even admit as much. Otherwise, it's anyone's guess.

Of course, not all long-shot lawsuits are high-minded in nature. Sometimes the motivations behind them are downright cynical (think patent trolls). But the kinds of legal actions we are talking about here have loftier goals - like curbing greenhouse gas emissions or treating animals with respect. And in so many ways they make their case by prevailing in the court of public opinion.

In this vein, these five legal actions have caught our attention.

A Bid for Freedom
When it comes to animal rights, no group is more adept at grandstanding than PETA (People for the Ethical Treatment of Animals). In the past, it has demanded that Ben & Jerry's use human milk instead of cow milk in their ice cream. It also erected a fake tombstone near Colonel Sanders's grave containing a coded message that accuses KFC of treating birds cruelly.

But the animal rights group outdid itself in 2011 by filing the first-ever lawsuit seeking constitutional rights for animals - in this case, whales. (Tilikum [yes, the whale's name] v. Sea World Parks & Enterm't, Inc., No. 11-CV-02476 (S.D. Cal. filed Oct. 25, 2011); PACER even lists the lead plaintiff as "Tilikum (orca).") PETA alleged that the amusement park keeps the whales in violation of the Thirteenth Amendment, which outlaws both slavery and involuntary servitude.

The complaint maintains that Tilikum and four co-plaintiff whales "were forcibly taken from their families and natural habitats, are held captive at SeaWorld San Diego and SeaWorld Orlando, denied everything that is natural to them, ... and forced to perform."

PETA General Counsel Jeff Kerr argues that killer whales make the best case against animal enslavement because the conditions they are kept in are so bad. And the complaint was replete with details. "Telling their story was a necessary part of the lawsuit," he says.

SeaWorld, however, was not about to roll over. "[The claim] that Orcas have rights under the Thirteenth Amendment is so baseless," the company declared in its motion to dismiss, "that no party has ever wasted the time, energy, and expense of any court in making such claims into a lawsuit."

Not surprisingly, District Judge Jeffrey T. Miller didn't see the situation through the whales' eyes either. Just four months after the plaintiffs surfaced in his courtroom, Miller ruled that the orcas lacked standing and that the Thirteenth Amendment did not apply to nonhumans. (See Tilikum ex rel. PETA v. SeaWorld Parks & Enterm't, Inc., 842 F. Supp. 2d 1259 (S.D. Cal. 2012).)

Still, from PETA's perspective, the suit could hardly be described as a waste of time. For one thing, it brought an awful lot of bad publicity down on SeaWorld; it also helped the group mobilize its members and may even have boosted fund-raising. It certainly didn't hurt.

And the lawsuit paved the way for another animal rights group's petition last month for a writ of habeus corpus on behalf of a chimp named Tommy. (The Nonhuman Rights Project, Inc. v. Lavery, No. 02051 (Fulton Cnty. [N.Y.] Super. Ct. filed Dec. 2, 2013).)

"The law evolves," says Kerr, "and now, for the first time, people are talking about animals as slaves. We're changing the debate."

Personhood in the Fast Lane
It took San Rafael resident Jonathan Frieman more than a decade of driving around Northern California to get pulled over for driving solo in a carpool lane during commuting hours. Rules for using the lanes required him to have at least one other person in the car. But instead of begging the CHP officer not to give him a ticket, Frieman had a more creative argument: "I wasn't in violation of carpool rules," he told the officer, "because I have corporation papers in my car and everyone knows a corporation counts as a person."

"It turned the situation on its head," Frieman observes.

He certainly didn't expect the officer to agree with him, but Frieman hoped to use the occasion to draw unflattering attention to prevailing legal doctrine that gives corporations many of the same rights as people - an idea enshrined in the California Vehicle Code and most recently affirmed in the celebrated Citizens United case (Citizens United v. Fed. Election Comm'n, 558 U.S. 310 (2010).) And by making the point in this fashion, Frieman not only expected his defense to fail; he actually was counting on it.

Needless to say, the traffic court judge indeed rejected Frieman's argument. Frieman and his lawyer, Ford Greene of San Anselmo, then appealed the traffic ruling in superior court. (People v. Frieman, No. SC 184051A (Marin Super. Ct. (App. Div.).) As their opening brief insisted: "A statute that means the opposite of its plain language or which has duel meaning is fatally flawed." They lost there too.

Still, the publicity the case drew led to both a Facebook page (Occupy the Carpool Lane) and a website (www.thecarpoolguy.com).

"To lose the case," Frieman says, "means the state is invalidating the use of incorporation papers to symbolize a corporation, and that a 'person' is not a person in the carpool lane. That's a win, even if I have to pay a fine."

TV's Reality Check
Lots of people have tried to get a spot on reality TV shows and been rejected, and likely this news is received with varying degrees of acceptance. Nathaniel Claybrooks and Christopher Johnson, however, filed a class action against the network after they were passed over for The Bachelor, claiming race discrimination. (Claybrooks v. Amer. Broadcasting Cos., Inc., No. 12-CV-00388 (M.D. Tenn. filed Apr. 18, 2012).) The African-American pair - both former college football players now in business and teaching, respectively - contended that their rejection stemmed from a systematic bias on the part of ABC. Both cited specific incidents when they attempted to apply to be on the show and said they were treated differently from white applicants. Their complaint points out that in ten years of The Bachelor and The Bachelorette, covering a combined 23 seasons, no minority had ever been cast in the feature role.

Attorney Byron Perkins, who had made a name for himself in previous discrimination suits and represented Claybrooks and Johnson, argued that the shows' lack of minorities was a deliberate effort to avoid alienating the predominantly white audience. "The shows' complete lack of people of color is no accident," he alleged.

ABC denied the charge. But the suit got nationwide coverage anyway, and shined a spotlight on the irrefutable fact of minorities' scarcity on the series. Clearly, that was not the sort of press that the network wanted.

District Judge Aleta A. Trauger dismissed the suit just six months after it was filed, saying that the company had a First Amendment right to put whomever it wanted on the air. (Claybrooks v. Amer. Broad. Cos., Inc., 898 F. Supp. 2d 986 (M.D. Tenn. 2012).) Still, it was probably more than a coincidence last summer when ABC announced it had cast its first Latino "Bachelor."

Plaintiffs of the Future
Who's to blame for air pollution? The obvious answer is everyone. But everyone would be hard to sue. So Julia Olson, a public interest environmental attorney in Oregon (also licensed in California), decided to shift the focus to those most likely to suffer from its effects, inviting five children to be plaintiffs in a lawsuit against the federal government.

"We knew the kids would have appeal," says Philip L. Gregory, the lead lawyer in the case, filed in San Francisco. The kids have the added bonus of representing the future.

The suit (Alec L. v. Jackson, No. 11-CV-2203 (N.D. Cal. filed May 4, 2011) lists as defendants the heads of the Environmental Protection Agency and of the Departments of the Interior, Agriculture, Energy, Commerce, and Defense. Gregory, of Cotchett, Pitre & McCarthy, argues in the complaint that the federal government has a fiduciary duty to protect natural resources, which it has neglected. "Human lives are already being lost because our federal government has failed to address destruction of our natural resources," it reads.

The legal effort behind the case has spilled over into a number of courtrooms in different venues. The original case was transferred to the District of Columbia. At the same time, supporters have spearheaded a series of companion suits filed strategically in certain jurisdictions by different legal teams in different states; all make the same arguments that the public trust doctrine should be expanded to include the atmosphere.

The results have been decidedly mixed. U.S. District Judge Robert L. Wilkins dismissed the original federal complaint May of 2012, but the plaintiffs have appealed to the D.C. Circuit. (Alec L. v. Jackson, 863 F. Supp. 2d 11 (D.D.C 2013), pending as No. 13-5192 (D.D. Cir. filed June 27, 2013).) And one of the state-level cases, in Texas of all places, succeeded. An Austin judge ruled that Texas's state constitution incorporates the common law public trust doctrine, and that the doctrine covers not only land but all natural resources, air included. (Bonser-Lain v. Texas Comm'n on Envtl. Quality, No. D-1-GNM-11- 002194 (201st Dist., Travis Cnty. Tex.) (letter ruling issued July 9, 2012).) "We didn't expect" the outcome, says Gregory.

The state has appealed.

A related case in New Mexico went the other way. (See Sanders-Reed v. Martinez, No. D-101-CV-2011-01514 (N. Mex. Dist. Ct., 1st Jud. Dist., Santa Fe Cnty.).)

How all those cases wind up remains to be seen. Even if they fall short of victory, Gregory acknowledges, the attention they generate "tees up the public trust issue," which, he hopes, will pave the way for change.

Up Against the Wall
China's notorious Internet firewall has long been a thorn in the side of free speech advocates, but how to pull out that thorn has been a puzzle.

Bringing a lawsuit against the Chinese government wouldn't work, since there are formidable legal obstacles to an American organization's standing in a foreign country. But the First Amendment Coalition in San Rafael is trying to get around that, in a very clever way. The nonprofit group approached the U.S. Trade Representative's Office, asking it to file a complaint with the World Trade Organization. The gist: The Internet firewall creates a trade barrier because it effectively blocks foreign Internet companies from entering the Chinese market.

Of course, that's not the coalition's primary objection to Chinese censorship. But like catching gangster Al Capone on tax evasion, the strategy does have a certain logic.

China still has its great firewall. But the First Amendment Coalition's efforts have gone beyond the merely symbolic. In 2011, in fact, the Obama administration, buoyed by the coalition's advocacy, launched a formal inquiry, via the trade office, into China's Internet restrictions.

Getting the leader of the free world to jump on board your legal action - now that's more than a stunt.

Attention-grabbing legal strategies can have an impact, even if they don't always succeed.

Kelly O'Mara is a San Francisco Bay Area writer.

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