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Pearce hopes fiction mirrors reality as he advocates Prop. 114

Russell Pearce hopes fiction mirrors reality as he advocates Prop. 114

Russell Pearce (Photo by Ryan Cook/RJ Cook Photography)

Former Senate President Russell Pearce is citing an urban legend that was a punch line in a Jim Carrey comedy to rally support for a ballot measure that bars criminals from suing their victims.

Pearce is telling the state’s 3 million registered voters that Proposition 114 would prevent lawsuits such as one in which a burglar successfully sued a homeowner after he fell through a skylight and impaled himself on a knife on a kitchen counter.

The story appears in Pearce’s “pro’’ arguments in the Secretary of State’s Publicity Pamphlet, which has been sent to 1.2 million households, and is very similar to dialogue in the 1997 comedy “Liar Liar.”  Pearce told the Judiciary committees of the House and Senate in 2011 the same story when the referral he sponsored was before them.

He said his source for the story was the Arizona Citizens Defense League, the Second-Amendment advocacy group pushing the measure.

“I was told it was accurate,” Pearce said.

He said he should have perhaps used a better example, but the real issue is protecting victims from being sued by criminals.

The measure would provide an exception to state constitutional provisions that prohibit restrictions on lawsuits.  It is necessary because criminals have successfully sued victims in Arizona, said Charles Heller, spokesman for the Arizona Citizens Defense League.

Heller said Pearce speaks for himself.

“I’m not refuting Russell, but we’re not aware of the case he’s talking about,” Heller said. “But it’s not germane to the issue of whether or not people vote for it. This is called right versus wrong. It’s right for people to defend themselves, it’s wrong for criminals to attack them.”

A professor and a lawyer, both from Washington, said the story has a basis in truth, but it most likely was based on a case that was legendary and far more tragic.  The case became an advocacy tool for tort reform in California in the 1980s.

It involved a Redding, Calif. teenager who was trespassing and stealing a floodlight and then fell through a school’s skylight that had been painted the same color as the roof. The fall left the athletic 19-year-old a quadriplegic and he settled for $260,000 and a monthly $1,200 stipend. His fall came eight months after another mischievous teen died from a fall through a painted over skylight at a nearby school in the same school district.

Seattle attorney Wendy Lilliedoll wrote a research paper as a law student in 2004, “An Unexpected Windfall for California’s Tort Reform Movement: Bodine v. Enterprise High School,” detailing the case and how its facts were distorted by California lawmakers to push tort reform on different occasions for years.

Lilliedoll found that lawmakers would drum up support for their cause by saying the teenager, Ricky Bodine, was awarded damages when he actually settled and that he was a burglar when he had no intention of breaking into the school. She said in an email they also omitted the sad background of Bodine’s catastrophic injuries at a young age.

“When I spoke to him twenty years later, he was clearly a very unhappy man, dependent on caregivers and socially isolated,” she said.

William Haltom, a University of Puget Sound professor co-authored a 2004 book called Distorting the Law: Politics, Media and the Litigation Crisis,” which details several so-called “tort tales,” or cases where the facts are stretched through retellings to become lore of justice gone wild by unreasonable litigants, unscrupulous attorneys and outlandish jury awards.

Haltom is familiar with the Bodine case and the story of the burglar.

“The version the senator is citing comes from a Jim Carrey movie,” Haltom said.

In the 1997 movie “Liar Liar,” Carrey’s character is a lawyer magically forced to tell the truth. Another character recounts a story nearly identical to Pearce’s and asks whether justice was served when the burglar was awarded $6,000. Unable to lie, Carrey’s character says justice was not served because he could have gotten the burglar $10,000.

One of the California reforms in which the Bodine anecdote was used was the Personal Responsibility Act of 1996, a ballot measure similar to Arizona’s Proposition 114. The California proposition won approval with 77 percent of the vote.

Since the Arizona and California measures both applied to felonies and not misdemeanors, it is questionable whether they could have stopped Bodine from suing.

Proposition 114, or the Crime Victims Protection Act of 2012, proposes to add exceptions to two constitutional provisions that protect the right to recover damages without limitation. The exceptions would ban criminals from suing their victims if they were injured while committing felonies or running from their felonies.

Heller said the constitutional change became necessary after a 2006 Court of Appeals decision invalidated protections in two statutes for crime victims.

The 2006 case, Sonoran Desert Investigations v. Miller, involved a security guard who killed a shoplifter with a choke hold. Lorna Hernandez, the widow of the shoplifter, Frank Hernandez, sued the security firm, alleging its negligence caused her husband’s death.

She argued that a statute granting immunity to crime victims whose perpetrators were harmed while committing or attempting to commit a misdemeanor was unconstitutional.

Hernandez relied on a constitutional provision that requires juries to sort out questions of negligence.  A unanimous three-judge panel agreed with her.

The Legislature overhauled the statute in 2008 and made it so a jury “may find” the defendant not liable if he can prove the criminal was committing a felony or a misdemeanor.

The Pearce-sponsored referral sailed through the Legislature in 2011 on partisan votes and got minimal opposition from the Arizona Trial Lawyers Association, whose members are plaintiff’s attorneys.

The group’s executive director, Janice Goldstein, said it is not mounting a “no’’ campaign either

Joel Robbins, a Phoenix trial lawyer, said he understands why the Trial Lawyers Association isn’t spending any capital fighting the measure.  The measure is essentially a public relations stunt with little practical effect, he said.

“It’s like your constituency is really criminals who are intending to sue, who really have never been over-represented by lawyers because most lawyers won’t take a case where this would have any effect on it,” Robbins said.

Heller said the problem is very real and points to Roger Barnett, a Cochise County rancher who was sued in federal court after apprehending a group of illegal immigrants on his land in 2004.

“The Border Patrol never showed up. They looked cold so he gave them a blanket and he fed them and he let them go and they turned around and sued him,” Heller said.

A jury in U.S. District Court in Tucson awarded four of the illegal immigrants, who alleged he mistreated them, $77,800 in actual and punitive damages in 2009.

“Don’t tell me this doesn’t happen, it does,” Heller said.

Excerpt from Russell Pearce’s Proposition 114 Pro Argument in voter Publicity Pamphlet

“Here is one true story – a burglar fell through a kitchen skylight of a home, landing on a knife that was left on the kitchen counter. The burglar impaled himself on the knife, and then sued the homeowner for an ‘unsafe condition;’ the court awarding him damages for his injuries. That is not justice.”

Scene from “Liar Liar” starring Jim Carrey.

Greta: Mr. Reede, several years ago a friend of mine had a burglar on her roof, a burglar. He fell through the kitchen skylight, landed on a cutting board, on a butcher’s knife, cutting his leg. The burglar sued my friend. And because of guys like you, he won. My friend had to pay the burglar $6,000. Is that justice?

Reede: No! I’d have got him ten.

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