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The QueQue

 

The cavalier calvary

Texas Supreme Court Justice Nathan Hechtsupplied late reinforcements for the City of San Antonio last week, and though he rode in on a questionable steed long after the battle’d been fought, he threw the balance of power to our City Attorney’s office in City of San Antonio v. Charles Pollock and Tracy Pollock, etc., saving COSA a $7-million lesson in landfill maintenance and trial law.

COSA’s head attorney sounded relieved. “I like to point out that this case wasn’t tried on my watch,” said Michael Bernard.

The Pollocks sued the City in 2000, arguing that benzene leaked from the defunct and poorly maintained West Avenue Landfill into their home while Tracy Pollock was pregnant, causing their daughter Sarah Pollock’s leukemia.

Scientific studies cited at the trial showed that exposure to benzene can cause leukemia, and that Sarah’s chromosone map displayed key markers of benzene exposure. An engineer with expertise in landfills explained how methane from the landfill, carrying benzene and other noxious “extras,” could have migrated into the Pollocks’ yard and basement. The plaintiffs’ attorneys uncovered a stack of the City’s own documents that showed they knew about problems at the landfill for 20 years before the Pollocks bought their home, and were specifically warned about the dangers of toxins such as benzene and TCE leaking into adjacent properties. COSA did not fully address the landfill’s problems until 1998, four years after Sarah was born, and the year she was diagnosed with leukemia. Following intensive treatment, Sarah is today a healthy teenager, but as the court’s opinion notes, there is a 20-percent chance of a recurrence.

The paper trail and testimony was enough to convince a jury that the City knew of the problem, was aware of the potential damage and danger, and ought to pay for it — to the tune of $23 million. The Court of Appeals upheld the judgment, although it reduced the payout considerably.

Which brings us to the Texas Supremes. The lawyers for the defense didn’t object to key expert-witness testimony at trial, which means — or rather, meant — that the Justices could only ask whether the testimony was sufficient on its face. Justice Hecht spent some 2,300 words — and at least two footnotes referencing a legal opinionand an OSHA standard from 2008 — characterizing the oncologist’s and engineer’s opinions as “conclusory” and naked conclusion,” respectively. This caused Justices Medina and O’Neill to worry in a dissenting opinion that, “The Court’s decision today is not only wrong, it is also unfair and may encourage gamesmanship in the future. Why ... make a reliability objection during trial and run the risk that the proffering party may fix the problem, when the expert’s opinion can be picked apart for analytical gaps on appeal?”

“It is frustrating that after an appeal that pended at the Texas Supreme Court for four years, the majority opinion fails to consider the entire trial record, testimony, and exhibits that were admitted before the trial judge and jury,” said the Pollocks’ attorney, Sylvan Lang, “but instead relies on sources and statistics that were not published, presented, or admitted at the time of trial.” Lang plans to file a motion for rehearing this month.

What other worrisome precedent might this opinion stick us with? Justice Hecht seems to be saying that as long as a City is screwing up a government function it could theoretically get right, it can’t be held liable for damages under the Texas Constitution’s takings clause — the clause that says if the government “takes” your property for a purpose benefitting the public good (or knowingly creates such a nuisance that it effectively takes it), they must compensate you.

Limited liability for well-documented screwups could come in handy for municipalities, because the Court didn’t address the issue that the State of Texas, the City, and the attorneys thought was the biggie: Assuming a plaintiff can get over the pretty high bar of governmental immunity, is s/he entitled to recover for personal injury as well as property damages? It’s an expensive question, since the only other avenue to get the government to pay for its bad behavior is via the Tort Claims Act, which is also quite narrow and limits awards to $250,000. More on the Tort Claims Act angle online at sacurrent.com.

Shortsighted

The City signed away its digital-billboard soul in late 2007 — doling out the rights to 15 permits, including a dozen for SA-based digital-billboard pioneer Clear Channel — but a new study commissioned by the Association of State Highway and Transportation Officials suggests it’d be worth the effort to get it back. The report, authored by traffic-safety expert Jerry Wachtel, summarizes data here and abroad, as well as the current crop of local and state regulations that bear on the safety of those variable-message signs, from advertising-industry-commissioned whitewash papers to European examinations of our weakness for shiny objects.

San Antonio, it appears, got it wrong in two key respects: 1. The 10-second dwell time — the amount of time an advertisers’ message must remain on the screen before the next one is displayed — may not be long enough for certain stretches of highway. And 2. We shouldn’t have allowed digital billboards to be erected at busy interchanges, such as the Highway 281/IH-37/IH-35 spaghetti bowl in front of Pearl Brewery.

“That’s exactly the place where the advertisers want the signs, and the safety people would say you shouldn’t have the signs,” says Wachtel.

As for the dwell time, he recommends a formula based on speed and location that would make it likely that most drivers passing a given sign would see only one sign change, because we’re just like magpies. “Our eyes are reflexively drawn to [the image change] and we are in essence powerless to stop it,” says Wachtel, summing up some fresh Netherlands research.

“If you’re going to establish a single standard — and I think from a practical point of view that’s what you really need to do ... then it seems to me you shoud take the most conservative value ... and set that to be the standard for all of the signs.”

On the impractical end of things, digital-billboard companies elsewhere have threatened to sue over any increase in dwell time, calling it an effective government taking, prompting a California legislator to file a preemptive bill to block such suits. QueQue wonders how Justice Hecht would view the argument in Tejas?

Got no ID

Clock’s ticking toward the May 11 deadline to vote bills out of committee at the lege, and SB 362, the Voter ID bill, which passed the Texas Senate this week, has ignited a furious round of negotiations.

Compromises in House Election Committee Chairman Todd Smith’s version reportedly include a “provisional ballot” for ID-less voters whose polling-place signature either matches the one on their voter-registration application, or on another public record.

This might sound like a fair compromise on the surface, but as journalist Greg Palast maintains, casting a provisional ballot and having it counted are two separate matters: “In 2004, a third of all provisional ballots — as many as 1 million votes — were simply thrown away …” Palast has reported.

Points of contention for the current bill include whether two forms of non-photo ID suffice, and when the new law would take effect. Fifty-two House Republicans signed a Statement of Principles early last week requiring photo ID and demanding that the law take effect at the next election. By Wednesday, 71 of 76 House Republicans had signed it.

Smith’s version of the bill, on the other hand, reportedly delays implementation until 2013, after a scheduled 2011 redistricting, and would only take effect if lawmakers earmark $7.5 million in the 2010-11 state budget for voter-registration efforts.

“[Smith’s version] is not palatable to the right-wing Republicans,” says insider contact “Deep Longhorn.”

EEven if SB 362 passes the House, it has another hurdle to clear: Texas, with our checkered civil-rights history, must receive Justice Department approval before changing voting procedures, per Section 5 of the 1965 Voting Rights Act.

Roadblock

Here’s QueQue’s definition of political cyanide for a city councilmember: being forced to cut $14 million in planned street repairs a week before election day. That was the conundrum faced by the Council last week after enduring some bitter fiscal medicine from Management and Budget Director Peter Zanoni. Zanoni’s presentation confirmed universal suspicions that the City is facing revenue shortfalls this year and must make some tough choices to maintain a balanced budget.

Lourdes Galvan, facing a tough re-election contest in District 5, and chronically frustrated at the City’s poor record of handling infrastructure problems on the West Side, balked at the street-repair provision (which would defer scheduled 2009 repairs to next year).

“These streets are in disarray and many of them have been started and haven’t been finished,” she said.

Mayoral candidate Sheila McNeil and District 3’s Jennifer Ramosalso expressed concerns about the infrastructure cuts. Ramos moved that the Council vote on the rest of Zanoni’s suggested adjustments and put off a vote on street improvements until they had a better sense of what CPS revenues might look like this summer. Galvan even suggested that Councilmembers whose districts didn’t face urgent street problems could agree to the recommended cuts and allow the most needy districts to proceed with their repairs this year. Mayor Phil Hardberger supported Ramos and Galvan in their request for more time to consider the issue, but warned that if the Council didn’t defer street improvements this year, they’d probably be looking at cutting libraries, parks, summer youth programs, or Project Quest. “You cannot cut without bleeding,” he said. “So it’s going to happen, and it’s going to be painful.” The Council unanimously voted to defer their vote on the deferment until May 14. Why then? It’ll be the first Council meeting after the election, of course.

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