Judge Orders Illinois to 'Pay Up'

After the state of Illinois lost its bid to ban violent games, they were slapped with the legal fees incurred by the ESA, Video Software Dealers Association, and the Illinois Retail Merchants Association. Now, the Judge has come back to collect the tab: "Turns out Judge Kennelly doesn't play chicken. As the Chicago Tribune has recently reported, Illinois has been given an ultimatum: come up with a way to pay back $510,250 by December 18th or we will figure out a way for you ... 'They have answered the plaintiffs' entreaties with what amounts to shoulder-shrugging and finger-pointing,' Kennelly wrote in an opinion. 'Specifically, they have made no real suggestion about what the plaintiffs need to do to collect what they are entitled to, largely leaving that up to one's imagination.'"

Loser Pays

[sporkme]

What a beautiful coup for a loser-pays system! [overlawyered.com] When it comes to matters of frivolity these video game suits are in the top five, and imagine all the money ambulance chasing lawyers wouldn't make under this kind of legal climate. How perfect that a state is the original losing plaintiff! I hope that this judge has drawn an effective line in the sand for these whiny bastards. IANAL; does this constitute a precident?

Re:

[Rakshasa Taisab]

I don't know, but it certainly seems likely to constipate a president.

There are two problems with a "loser pays" system:

[JayBlalock]

1)It would do nothing to change the current situation where, generally, whoever has the most money wins. In fact, in a lot of cases it would add insult to injury. eg, the RIAA sues you for downloading you never did, wins in court anyway due to extended litigation and a far larger lawyer pool, and then gets to hit you with thouands (or hundreds of thousands) MORE in legal fees above the verdict. For the very rich, it could actually become an incentive to launch MORE frivolous/questionable lawsuits. Or at least remove a disincentive. If they were thinking about launching a suit with questionable ground, the idea of being able to recoup all their fees removes a reason not to do it. and 2)it would unfairly punish people in truly contentous situations. The law ALWAYS has grey areas. There are ALWAYS cases where the law is NOT clear and both parties in a suit could legitimately claim to be in the right, depending solely on interpretation of the wording of the law. The only way to make clear those muddy issues is to have a trial and to have a judge or three determine exactly what the scope of the law is. So it would, in effect, punish the public for Congress's failure to write clearly-worded laws. While I know it's a tempting thing to advocate to get rid of "frivolous" suits, there are just too many exceptions. Unless you can come up with a way to remove the power of money in the legal system, and then filter truly "frivolous" suits out from legitimate ones, all this would do is tilt the system even further against the underdogs and the disadvantaged.

Re:There are two problems with a "loser pays" syst

[BlueBlade]

Hum, as I understand it, the "loser pays" thing nearly always apply to the prosecuting party, not the defendant. At least, that's how it works in most European countries. If you sue someone and lose, you have to pay the defendant's legal fees, when it makes sense. The judge has a lot of discretion about when to apply or not this rule. There are also caps, so that an individual isn't going to pay a corporation's team of 26 lawyers. I know where I live, the caps are twice your own legal fees (roughly, lots of exceptions and such). So if you sue a corporation and lose, and you have to pay legal fees, you're only going to pay a maximum of twice your own fees.

It's not perfect, and it can be abused, yes. But there are some fairly good safeguards so that ridiculous situations like the ones you described don't happen.

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[nuzak]

The Bar association would of course claim this would dampen the ability of the little guy to sue, since the big corps could fight it with their army of lawyers, out secure in the knowledge that the little guy will pay dearly for messing with them once they prevail. Scary scary scary. And perhaps even a little bit correct, but another facet of "loser pays" is that it's usually up to the discretion of the judge for "particularly meritless" cases, that the decision itself can be appealed, and so on. Right n

Re:

[John Hasler]

> Right now, the Judges can order court costs paid, which are usually a rather
> piddling percentage of actual legal fees.

Right now judges can order legal fees paid and sometimes they do.

Re:There are two problems with a "loser pays" syst

[rujholla]

There are enough hungry lawyers out there that if the case is really that good, they will be happy to defend you for the promise of payment if they win by the other side. I disagree personally with copyright infringment of music and don't think the case is meritless in most cases, but the few ridiculous examples we've all heard of where they have gone overboard and sued grandmothers etc I should think that if the attorney or firm knew they could collect from the deep pocketed RIAA if they won they would be

Re:There are two problems with a "loser pays" syst

[Maggott]

This completely ignores one fairly well established fact about businesses, and big businesses in particular--they are risk averse. No big company is going to make a habit out of rolling the dice on enormous legal fees, especially when the other side potentially has the stronger case.

Re:

[kpang]

You fail to take into consideration the possibility of Joe Schmoe suing Big Corporation X. Big Corporation X rolls out its team of 50 lawyers, destroys Joe Schmoe because of it, and Joe Schmoe ends up having to pay for an army of lawyers he can't possibly afford. It works in both directions.

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[nomadic]

IANAL; does this constitute a precident?

This constitutes an straightforward application of federal law. Section 1983 of the US Code provides for attorneys' fees in these sorts of cases.

In fact, costs and attorney's fees are often awarded in US courts, both federal and state.

In my state there's a statute that allows the awarding of attorney's fees if the court finds the claims were frivolous. The opposing side doesn't even have to ask for them, the court can order it on their own. I can't speak f

good/bad

[krotkruton]

As an Illinois resident, I'm sad to see the state have to pay such a fine when we, along with most other states, are having budget problems (some caused by the mismanagement, some caused by other factors, but that's not the point).

However, as a gamer and advocate of freedom of expression, I'm glad to see a win for our side. Hopefully this will discourage other states from trying the same thing.

Re:good/bad

[Secrity]

As an Illinois resident, you should be outraged that the state government got itself in the position of having to pay the winning side's legal fees.

It was an outrageous law that the people of Illinois should have objected to.

Re:

[krotkruton]

I was outraged... which is why part of me is glad that they lost. I also sent an email to Blagojevich to let him know I thought he was making a mistake, but I didn't find that information to be relevant to how I feel about the outcome of the situation.

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[nuzak]

Right, because all the Red states are funded by the money fairy.

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[amRadioHed]

Well sure, if by "money fairy" you mean tax payers [washingtonpost.com] in the blue states...

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[soft_guy]

Right, because all the Red states are funded by the money fairy.
 
 

I thought Republicans believed in just borrowing the money the government needs forever because deficits don't matter [pbs.org].

Re:

[Secrity]

Although you are included, I wasn't speaking of you personally, I was speaking of the people of Ohio.

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[mrchaotica]

I also sent an email to Blagojevich to let him know I thought he was making a mistake...

Sounds like now is a great time for a follow-up "I told you so" one!

Re:

[voice_of_all_reason]

Your state legislature attempted to install a law that has already been struck down in other areas on a constitutional level. Therefore, what they did was illegal.

I advise you skip the outrage and go straight to arrest, trial, conviction, and liquidation of assets to pay the fine.

Re:

[Fastolfe]

Just because a law is ruled unconstitutional doesn't mean the lawmakers have done anything "illegal". What crime do you propose to charge them with?

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[montyzooooma]

"However, as a gamer and advocate of freedom of expression, I'm glad to see a win for our side."

Our side? I'm a gamer and advocate of free expression too (though I think if I told my friends I was an advocate of free expression they'd shun me. Honest to god shun me...) but are WE really against selling violent games to minors? I know I'm not. I love my violent games and would rather kids were taken out of the picture so I could enjoy them in peace without some nut job trying to ban them outright every few m

Re:

[jtorkbob]

Somehow I suspect that this law wasn't passed by the US Congress...

Re:

[Anonymous Coward]

The Constitution as amended lays out how the federal government should work and explicitly lists what the federal government should be able to do, and then makes particular promises to people in the united states, and only then does it reserve powers (all other powers and rights, in fact) to the states and people.

Even if you don't read it that way, the 14th amendment made it pretty clear.

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[voice_of_all_reason]

The 14th amendment has been interpreted to apply the Bill of Rights to state governments as well.

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[Duds]

And indeed, the USA's current laws mean games like San Andreas and Indigo Properchy are only available to the US in cut versions, where in the UK where they carried legal 18 and 15 ratings respectively they're available unmolested.

If games would shut the hell up with unconstitutional for 2 seconds they might realise that allowing the adult themed games to be legally protected is in everyone's best interest. The law still allows a parent or guardian to buy for their kid and it's them, rather than anyone els

Re:

[Kazzahdrane]

Indeed, here in the UK the BBFC ratings system seems to work well for games (doesn't stop the tabloids claiming GTA and its ilk will warp the minds of youngsters, but parents have to buy them for their kids for that to even be a possibility). I think the problem isn't making games rating legally binding, but rather that people like Jack Thompson appear to see this as a first step to banning violent games altogether. In the UK BBFC ratings for games has worked, but in the USA there are a lot more Christian c

Re:

[Duds]

True, no even remotely credible source here ever suggests a complete ban, just the Daily Mail, which helps. And also there are no stores that refuse to carry 18 rated games like the problems they have with AO in the US (which probably leads to more cuts than the lack of legal enforcement tbh)

Re:

[Kazzahdrane]

Aside from chains that bow to empty pressure from said Daily Mail, like the Currys group deciding not to stock Canis Canem Edit, a 15 rated game. I mean, for heavens sake, there's more violence and drug use etc in your average episode of Grange Hill or Hollyoaks. Stores doing things like that just makes me sigh, they don't even look into it themselves, just decide not to do anything that might offend anyone, even mad people.

Frankly, I am offended by the high prices of their HDTV sets. Perhaps I should wr

Re:

[Duds]

I didn't realise that had happened (in case anyone wonders we're talking about the game known as Bully). That said, you can still buy it from Game, Gamestation, Tesco and 15,000 others, uncut.

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[Hennell]

I'd guess that the Currys group were less bowing to pressure and more trying for publicity. Most people when buying games would probably not think instantly of Currys, so the amount of units they'd sell of Bully, would likely be minimal. The fact they can get non-gamer readers of the Daily Mail to think they're a reputable store buy not stocking this 'vile and disgusting game' (guessing they said something like that) means they'll probably get more customers over their other items then they lost by not stoc

Re:

[bky1701]

Sounds like you feel for the old trick of asking for the universe and settling for the solar system. If we say "oh, no it's not that unconstitutional" then it's saying "sure, load us up".

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[sesshomaru]

Hmm, why yes, lets ignore the Constitution!

Oh, and since we're going to ignore the supreme law of the land, can I also ignore little laws that I don't feel should apply to me? For example, I'd really like a new laptop but I can't really afford it, I think I'll go steal one.

Of course, a lot of people who don't have a problem with ignoring the Constitution would have a problem with me ignoring some piddling local law against shoplifting. I'll never understand why that is.

Re:

[Duds]

Thanks for entirely proving my point with a kneejerk irrelevent comparison.

By the way, I don't believe the constitution has anything to say about stealing.

Re:

[sesshomaru]

See, this is why I don't like to argue with legal and constitutional scholars like yourself.

You've made a good point about why ignoring the supreme law of the land when we feel like it is a great idea, but ignoring laws that are less important is not.

You've really put me in my place. What a mind you have!

Re:

[Haeleth]

You've made a good point about why ignoring the supreme law of the land when we feel like it is a great idea, but ignoring laws that are less important is not.

The difference between acting in an "unconstitutional" fashion and stealing is quite simple: it is obvious to most right-minded human beings that theft is wrong, but the importance of the specific rights enumerated in your constitution is not so self-evident.

This can be demonstrated simply by looking at the laws of other free and democratic countries.

Re:

[sesshomaru]

Americans get worked up over their constitution because...

.... are you with me here ...

It's the law!

It's not a bunch of nice suggestions that we can take or leave as we feel like it, it's the law. It is possible to change it, but it isn't easy, and has been done very rarely. Sure Amendments are suggested, they mostly fail.

In other words, we are not talking about a holy document here, we are talking about the law. Oh, and at this point it is firmly settled law without even any wiggle room as far

Re:

[Duds]

Oh course for all your hillarious mostly inaccurate racism, you've missed the central point.

Your laws mean games are cut for America but not for Europe.

Who's got the "free speech" again?

And you'd be against changing any law? Interesting. Good thing they didn't enshrine slavery in the constitution isn't it.

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[Sigma 7]

If games would shut the hell up with unconstitutional for 2 seconds they might realise that allowing the adult themed games to be legally protected is in everyone's best interest. The law still allows a parent or guardian to buy for their kid and it's them, rather than anyone else who should make that choice.

There's already adult-themed games - in the US, they appear as the "M 17+" category, since they are not part of the pornographic "AO 18+". Likewise, adult themed movies appear as 'R' in the us, as oppo

Re:

[Mr. Slippery]

If games would shut the hell up with unconstitutional for 2 seconds they might realise that allowing the adult themed games to be legally protected is in everyone's best interest.

The whole fscking point of invoking the Constitution is to point out that games - all games, as well as all books, all films, all media - are legally protected, by Amendment I as extended to the states by Amendment XIV. And there's nothing in there that says "make no law restricting freedom of the press, except that people unde

Re:

[Duds]

Actually there is PRECISELY that restriction, articles deemed indecent can be legally restricted, as much porn is.

Plus you, as so many have it ass backwards. If they're legally restricted parents CAN decided whether their children get them. If the kids are allowed to buy them you've taken that choice away from the parents.

Re:

[joystickgenie]

Just because minors can buy the games does not mean that control was taken away from the parent. The parent is still in charge of the minor.

This is the same as the parents having the control on weather their kids go to the park or not. Sure the park exists and the kids have all legal rights to walk into a park but that doesn't mean that the parents can't tell there kids that they can't go. There doesn't have to be a bouncer outside of all parks to make sure that you are not a minor or you have your parent's

Re:

[RockModeNick]

The problem is the whiney parents that dont' want responsiblity, they want a nanny state where the goverment, the cops, and any authority other than themselves regulates their kids so they don't have to.

Re:

[Mr. Slippery]

Actually there is PRECISELY that restriction, articles deemed indecent can be legally restricted, as much porn is.

If we actually followed Amendment I, we'd see that in fact "indecent" materials cannot be legally restricted, as such restriction would be a violation of the supreme law of the land.

Plus you, as so many have it ass backwards. If they're legally restricted parents CAN decided whether their children get them. If the kids are allowed to buy them you've taken that choice away from the parents

Re:

[Duds]

Once again you misunderstand.

The law in europe DOESN'T make it an offence for them to buy it, but for the retailer to sell it.

And once again, for all the posturing, it's American games that are cut and european ones that are not. So in this case the free speech law has failed in spectaular fashion.

Re:

[sesshomaru]

By the way, I understand the point your are trying to make here. It won't work.

It's sad that games have to be cut for the American market while European countries allow them to be kept intact. But that won't change even if we were to ignore the Constitution and allow them to be legally restricted from minors.

I think the problem here is like a story I once read. These scientists open a portal to an alternate universe that looks like a quaint Victorian version of our universe and they see a cute little

Re:

[spire3661]

'WE' are against legislators trying to pump up their careers by introducing censorship laws against video games that other forms of entertainment are not subject to. (i.e. movies, music, etc.) Those industries are , by and large self-regulated. Movie ratings have no force of law, its up to the individual movie theaters to enforce their industry 'policy' 'We' dont see Illinois passing laws regarding R and NC-17 movies.

Re:

[voice_of_all_reason]

That brings up a good question. I can see how we Americans are striking down these attempts at legislation because the thrust of the law is against violent games (and we love our violence), but for some reason I always thought selling NC-17/X movies to minors was prosecutable under something, simply because We Don't Like It.

If not, why aren't there any stores openly advertising that they'll sell Backdoor Fun 9 to anyone with enough allowance money?

Re:

[amRadioHed]

There actually a difference between obscenity and indecency. I believe pornography is considered obscene and thus there are laws that prevent its distribution to minors where an R rated movie would not have such legal restrictions.

This is just what I think is the case based on what I've heard, I may very well be all wrong.

Re:

[krotkruton]

(though I think if I told my friends I was an advocate of free expression they'd shun me. Honest to god shun me...)

I chose the phrase "freedom of expression" [wikipedia.org] to avoid the "but do you think people should be able to yell FIRE in a crowded theatre" argument that follows when someone compares video game content to free speech. As for your friends, I hope you see the humor in not being allowed to use that phrase around them.

but are WE really against selling violent games to minors? I know I'm not.As most p

Re:

[krotkruton]

I was wrong, I misunderstood the bill based on the horrible write up in both the summary, linked article, and the summary of the other linked slashdot story, which all referred to it as a gaming ban. After I posting, I googled the bill to find a better explanation [videogamevoters.org]. I was not aware that this was a "ban" of selling violent games to minors, not a gan on selling violent games. As you can see, parts of my post no longer apply.

It was much easier to argue for freedom of expression against a ban on a type of g

Re:

[voice_of_all_reason]

"but do you think people should be able to yell FIRE in a crowded theatre" argument



Doesn't matter what anyone thinks, the text is quite clear. Shall pass no law. Fire clause/fighting words/incitement to riot laws are unconstitutional.

Re:

[EvanED]

That was clearly not the founder's intention. If you take your interpretation, also unconstitutional are libel laws, slander laws, and copyright laws, despite the latter being explicitly written into the Constitution.

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[voice_of_all_reason]

Well then we should probably sort that out instead of ignoring it. This is what the amendment system is for.

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[Vengie]

libel and slander are also based in common law. there is a distinction between law and equity. nevermind, this is slashdot.

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[Lost Engineer]

The founders didnt intend a lot of things that happen anyways. Regardless, I think if they had intended for those laws to be constitutional, they would have written the amendment to say so. Copyright is explicit in the constitution and the amendment doesn't specifically mention it, so I'd say copyright is constitutional. On the other hand, I think the first amendment clearly protects libel, slander, and incitement to violence, and the founders intended it this way. They had, after all, just slandered th

Re:

[krotkruton]

I am aware of that and am not trying to contradict you, but that wasn't my point. My point was that when referring to video game content as a free speech issue, the argument tends to boil down to being about whether or not you can yell fire in a crowded theater. There are a intermediate steps before reaching that argument, but that is what I have noticed in the past.

Doesn't matter what anyone thinks, the text is quite clear.

Just because the text is clear, or any idea is clear for that matter, doesn't

Re:

[meridiangod]

are WE really against selling violent games to minors?

I am not against selling games to minors, but I am against people taking away an opportunity to be a good parent.

I would much rather be involved in my child's life by making him or her (I don't have a kid yet) understand the line between fantasy and reality. My mother did that to me when she saw me playing mortal kombat when I was 8 years old and I honestly feel like her taking the time to talk to me about what I was playing and explain to me that

Re:

[cloudmaster]

As an Illinois resident, I'm glad to see punishment being dealt to the idiot administration which brought this lawsuit in the first place. Of course, I'd *prefer* that the fine come exclusively out of the pockets of the people who re-elected the proven-incompetent governor (and any other incumbents), but whatever.

Re:

[JayBlalock]

As an Illinois resident, I'm glad to see punishment being dealt to the idiot administration which brought this lawsuit in the first place. As an Illinois resident, I'd rather it not be my tax dollars going to pay this fine.

Instead of punishing voters for having to make a "lesser evil" choice, I say it comes out of the salaries of the governor and legislators.

Re:

[Skreems]

They don't "have" to make a "lesser of two evils" choice. They COULD push for voting reform at a state level, allowing 3rd parties to have a reasonable chance without tipping the balance between the two major parties in the process. They COULD stand up against gerrymandering and attack ads and general stupidity in government. Don't confuse apathy with lack of options. Their representatives pull crap like this in their name, and they're responsible, whether they got off the couch to vote or not.

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[cloudmaster]

There were more than two candidates for governor on the ballot last month. Unfortunately, the one who won is the one who 1) we all knew was terrible (as opposed to one of three candidates who hadn't proved that yet) and 2) exclusively ran negative ads about the other main candidate. Honestly, if it takes some of my tax dollars to drive home the point to the other voters that this guy is one of the worst governors we've had in years, so be it.

I'm kinda curious, though - what made Mr. B the *lesser* evil in

Re:

[LordKronos]

Hopefully this will discourage other states from trying the same thing.

Yes, hopefully THIS finally does, because the fact that these laws have already been shot down as unconstitutional in several other states hasn't been enough to stop other states from trying.

They tried to pass one here in Michigan (and as I recall, if my memory isn't too fuzzy, it WAS passed but then shot down by a judge). In the process, it was pointed out to our governor and state senate that these laws have been passed in many other s

Re:

[s31523]

As an Illinois resident, I'm sad to see the state have to pay such a fine when we...
And who do you actually think is going to pick up this tab? YOU! That's right, watch out for a "legal defense" tax or something on your new state income tax statement, or at the very least cuts in other programs or increased tax rates. That is the real shame, that these lawmakers have no accountability f or their mistakes and the taxpayers are the ones who pay.. For shame Illinois lawmakers, for shame!

Re:

[nomadic]

Umm, it's only 500k. In terms of a government budget that won't even show up on the radar. If they were to create a tax to gather this money, each person in the state would pay about 4 cents.

Re:

[s31523]

Precisely! I still find it, well, unsettling. The government goes on a crusade, which backfires, and is like "oh well, bill the taxpayers, it's only like 4 cents, no one will miss that". 500k is a lot of money, and it could have been spent on updating a library or something. I know, I know, "get real".

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[blugu64]

You are obviously not one of us who compulsively picks up every spare penny on the ground. I've made some good cash over the years that way! Nothing to write home about but cash is cash.

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[Fastolfe]

This really ought to make people think about who they're electing for office. If you choose a leader or a legislator for yourself, and that person inflicts costs on your community, you have no one to blame but yourself. The voters need to take a little bit of responsibility here. Maybe they'll write more letters to their leaders about things like this in the future to avoid having their community funds go toward compensating someone for their government's stupidity.

proposed compromise

[animaal]

50% of the royalties from Duke Nukem Forever?

Further comments

[Rob T Firefly]

The judge then clasped his hands together, made an imaginary pistol with his index fingers, pointed it at Illinois, and shouted "Boom! Headshot!!" before shoulder-rolling out of the courtroom.

Sovereign Immunity

[jbf]

Whatever happened to sovereign immunity? Costs are typically not awarded against the United States under laws waiving sovereign immunity, and probably shouldn't be against the states either...

Re:

[kahei]

The point of SI is to prevent people from suing the government for profit. That's not what's happening here -- Illinois proactively attempted to do something bad and they, not local merchants, should pay. As an occasional Illinois taxpayer, I can't say I think my money has been well spent here -- but it's Illinois' fault, not the court's.

Re:

[SaDan]

As a full-time Illinois tax payer, I can say that barely ANY of my money is well spent in this state. This place sucks.

However, I'll happily chip in my couple of cents to cover the morons who ended up losing this lawsuit if it means other states get the hint.

Re:

[nomadic]

It wasn't a lawsuit against the state, it was a lawsuit against the governor. Courts have been using that sort of legal fiction for a long time in order to get around sovereign immunity.

Call 911

[BenEnglishAtHome]

1. Call 911.
2. Seize cop car that arrives.
3. Sell cop car.
4. Repeat.
5. Profit.

Re:

[nuzak]

> 2. Seize cop car that arrives.

"You there! Step out of the car! Now step into the car, and drive it into the impound lot!"

In other news...

[VWJedi]

Illinois Teachers' Retirement System goes from underfunded to unfunded .

Re:

[Alsee]

How about instead... legislators go from overpaid to unpaid ?

-

Re:

[VWJedi]

Unfortunately, legislator (and governer) salaries are the one thing Illinois does reliably pay on time.

Three words...

[TheSHAD0W]

...Jack Thompson homeless.