Offering a concise lesson on when a moot federal appeal should be dismissed and when it shouldn’t is the Ninth Circuit’s decision in NASD Dispute Resolution, Inc. v. Judicial Council of the State of California, case no. 02-17413 (May 30, 2007). Fearing that new standards for California arbitrators imposed by the Judicial Council would make its arbitrations in California more difficult, NASD and the New York Stock Exchange sought a declaratory judgment that the California standards were preempted by federal securities laws, could not constitutionally be applied to the plaintiffs’ arbitration programs, and were not applicable to those programs as a matter of state law. The district court dismissed the…
-
-
Processing Irony in a Ninth Circuit Equal Protection Case
Circuit Judge Berzon hooked me with this opening paragraph of U.S. v. Trimble, case no. 06-30298 (May 30, 2007): The Bill of Rights was ratified in 1791. The United States produced its first automobile in 1877, and the first traffic ticket issued in 1904. This appeal to the Ninth Circuit was over a traffic ticket. Specifically, the penalty imposed for the violations as a result of the form of ticket used. Notwithstanding the minor nature of the offenses, the case implicates a major constitutional doctrine — equal protection. Trimble was ticketed on a military base. The officer who wrote Trimble’s ticket did so on a brand new form that imposed…
-
Anti-SLAPP Attorney Fee and Costs Application is Timely any Time Prior to Final Judgment
In Carpenter v. Jack in the Box Corp., case no. B188707 (May 25, 2007) the Second District Court of Appeal holds that an application for anti-SLAPP attorney fees and costs under Code of Civil Procedure section 425.16(c) by a plaintiff who prevails against an anti-SLAPP motion is timely so long as it is made before entry of final judgment in the action, even if it is not made until after resolution of the appeal of the order denying the anti-SLAPP motion. Carpenter brought an action for wrongful termination, defamation, and other tort and contract claims related to the termination of employment by Jack in the Box. Jack in the Box…
-
Disrespect . . . With All Due Respect
“I suggest to you with respect, Your Honor, that you’re a few French fries short of a Happy Meal in terms of what’s likely to take place.” This statement to a judge was made by (a) a newly minted, naive lawyer; (b) a renegade solo criminal defense attorney; (c) a criminal defendant; (d) a partner from a prestigious, nationally recognized, Chicago-based law firm. Answer: (d). The remark earned him an order to show cause as to why he should not be suspended from practice before the court and have his pro hac vice admission revoked. See Above the Law for the full story. Some commenters there actually take the judge…
-
Child Pornographer Remains Anonymous In Ninth Circuit Ruling – and Limits His Restitution Exposure by Exploiting Developing World Victims (Updated)
Appellate Law & Practice and Decision of the Day both report on what the latter calls a “remarkable decision” today from the Ninth Circuit. Both write about the fact that in United States v. Doe, case no. 05-50474 (May 29, 2007), the Ninth Circuit allows the defendant — a child pornographer who pleaded guilty to molesting and photographing young teen boys on his trips outside the U.S. — to remain anonymous in the disposition of the appeal. Both bloggers recognize that anonymity was probably a condition of the defendant’s guilty plea (although the decision never says). Decision of the Day is appalled that the circuit judges would allow this, especially…
-
Ninth Circuit Takes Appellate Jurisdiction over Pretrial Stay Orders
A whole lot of insurance companies sue a whole lot of doctors and clinics. The insurers allege that the defendants gave away cash and vacation packages to lure patients into undergoing unnecessary procedures, for which defendants billed the plaintiff insurers, who paid millions on the claims. Several individual defendants are also facing criminal prosecution and move to stay the civil proceedings because discovery would implicate their Fifth Amendment rights. The clinics say they can’t put on an adequate defense if the action is stayed only as to the individuals facing prosecution, so they, too, ask for a stay of the proceedings. The district court obliges the stay requests — apparently…
-
Conflict with Appellate Counsel Doesn’t Merit Habeas Relief
In Foote v. Del Papa, case no. 06-15094 (May 22, 2007), the Ninth Circuit holds that a state criminal defendant’s “irreconcilable conflict” with appellate counsel does not, in itself, entitle the state defendant to habeas relief. Foote filed suit against his assigned attorney and the public defender’s office a month after his arraignment, claiming that his assigned defender’s handling of the case deprived him of his Constitutional rights. The public defender’s office moved to withdraw, claiming the lawsuit created a “clear conflict of interest.” After sentencing, the state trial court granted the request of Foote’s retained counsel to assign the public defender to represent Foote on appeal. Foote’s direct appeal…
-
A Quip Too Far? Update
I’ve updated my May 17 “A Quip Too Far?” post with a link to more recent, and quite excellent, commentary on the unorthodox opinion in Funny Cide Ventures, LLC v. Miami Herald, and am providing this separate post for those who already read my previous post and aren’t likely to see the update in it. Matt Conigliaro of Abstract Appeal promised last week to follow up on his original post, and he delivers a winner with his explanation of why it may be impossible to make judicial opinions understandable to non-lawyers and still have them adequately serve their function as precedent.
-
Effective Cert Petitions in the Absence of a Direct Circuit Split
SCOTUSblog has an update to its earlier post on drafting effective cert petitions in the absence of a direct circuit split. The post links to the most recent podcast and provides all the information you need to get up to date on SCOTUSblog’s coverage of this topic. It also provides instructions for subscribing to SCOTUSblog’s podcasts, several of which have covered other aspects of cert petition drafting.
-
Judge Kozinski’s Nautically Themed Dissent
Twenty-five years after graduating from the Naval Academy, I still call whatever I happen to be walking on — whether a carpet, concrete, a lawn, or bare ground — “the deck.” I like a nautical theme as much as the next guy, maybe more. Maybe that’s why I don’t share Professor Martin’s opinion that Judge Kozinski’s dissent in today’s Ninth Circuit Exxon Valdez decision (Baker v. Exxon Mobile Corp., 04-35182 (May 23, 2007)) is an example of a clerk and/or judge “trying too hard.” Indeed, I thought there were some missed opportunities to use even more nautical turns of phrase — either Judge Kozinski missed them, or he deliberately refrained…
-
Emotional Distress Damages for Statutory Habitability Action
In McNairy v. C. K. Realty, case no. B178918 (May 22, 2007), the Second District Court of Appeal holds that tenants may recover emotional distress damages in an action under Civil Code section 1942.4 against their landlord for breach of statutory habitability standards. Reasoning that the term “actual damages” in the statute (since amended, but still allowing for “actual damages”) has a plain meaning that includes emotional distress damages, the court rejects the landlord’s contention that emotional distress damages in such actions will lead to windfall recoveries. The statute requires severe and prolonged habitability problems, which naturally lead to inconvenience: Generally, the residential tenant who has suffered a breach of…
-
Rockin’ the Boat after a Trademark Settlement
The ephemeral nature of trademark litigation comes out in Abercrombie & Fitch Co. v. Moose Creek, Inc., case no. 06-56774 (May 22, 2007). In 2004, Moose Creek sued Abercrombie, alleging that Abercrombie’s silhouette moose trademark infringed Moose Creek’s moose trademarks. Abercrombie, of course, claimed there was no likelihood of confusion between the marks. The same year, while the action was pending, Abercrombie started using a new “outline” moose trademark in addition to its silhouette moose mark. The parties settled the lawsuit with an agreement that allowed each of them to continue using their marks. After the case settled, Moose Creek started using two new moose trademarks, and now it was…
-
California Supremes Split on when Solicitation to Murder Becomes Attempt
Well, it’s not much of a split. It’s a 6-1 decision with Justice Werdegar dissenting. The California Supreme Court holds in People v. Superior Court (Decker), case no. S130489 (May 21, 2007), that a defendant who hired an undercover detective as a “hit man,” made a down payment, provided the hit man all of the details necessary for him to carry out the killing — including descriptions of the intended victim and her home, car, workplace, and daily routine — and then stated his unequivocal wish that the hit man follow through with the killing, can be charged with attempted murder. The court is forced to draw the line in…
- Appellate Procedure, California Court of Appeal, California Procedure, Judges, Legal Writing, Record on Appeal
Settled Statements, New Trials, and the Languishing Criminal Defendant
When a reporter’s transcript of proceedings is unavailable for appeal, the appeal may proceed by way of a “settled statement.” California Rules of Court, rule 8.130(h). Some pitfalls of this procedure are revealed in People v. Cervantes, no. B183412 (May 16, 2007). On Cervantes’s first appeal, the court reporter advised that a technical malfunction prevented her from transcribing the testimony of the sole prosecution witness. Nearly a year after his conviction, Cervantes moved for summary reversal and a retrial based on the absence of the transcript. The Court of Appeal denied the motion but remanded for the trial court to determine if a settled statement could be obtained. At the…
-
Blogging about Judges Can Be Dangerous
Most lawyers like to know a little about any judge they are going to appear before in a case. If a judge is new to them, they ask around. What do other lawyers think? Does the judge normally permit aggressive discovery? Are her settlement conferences productive? Does he ask a lot of questions, or does he generally leave that to the other judges on the panel? So it’s no surprise to me that a blog to discuss judicial performance has arisen in at least one jurisdiction. Kevin O’Keefe at Lexblog links to a Florida blog to which lawyers posted their opinions regarding judicial performance. Now an ethics complaint against a…
-
On Writing Concisely – Part 2 (Updated)
I think you’ve hit a nerve when Judge Kozinski takes the time to write a dissenting opinion from an order granting your motion to file an oversized supplemental brief. After the moving party filed an opening and reply brief, had two amicus briefs filed in support, and apparently made a successful joint motion for supplemental briefing in which he explicitly agreed to abide by the 14,000 word limit imposed by Fed. R. App. P. 32, an additional motion asking for leave to file an oversized brief of 15,500 words is apparently more than Judge Kozinski is willing to take. He concludes (link added): Not only do we abet the flouting…
-
Helmetless Motorcyclist Equals Broken Taillight . . . Sort of
I remember my motorcycling days fondly, and riding without a helmet was one of the greatest sensations of physical freedom I ever felt. Right up there with skydiving — maybe better. But I also think I was crazy to ride without a helmet. (I still think the skydiving made perfect sense.) Richard Quigley probably doesn’t think I was crazy. He was cited nine times for riding his motorcycle without a helmet and contended that law enforcement officers were required to issue him “fix-it” tickets instead of regular citations because his lack of a helmet was an “infraction involving equipment” that required such treatment. In Department of the California Highway Patrol…
-
Bloggers Beware
Kevin O’Keefe at Lexblog posts a link to an article on twelve laws every blogger should know. According to the bullet points, the article covers such issues as a blogger’s duty to monitor comments, the applicability of journalism shield laws, ownership of user-developed content, and more. The article itself begins: Internet activity, and particular [sic] blogging, is being shaped and governed by state and federal laws. For US bloggers in particular, blogging has become a veritable land mine of potential legal issues, and the situation isn’t helped by the fact that the law in this area is constantly in flux. In this article we highlight twelve of the most important…
-
More Googlelaw
Perfect 10 publishes photographs of nude women and owns the copyrights in those images. Google displays thumbnails of those images in its image search results. Perfect 10 says this is infringement and obtains a preliminary injunction against the practice, but the Ninth Circuit, in Perfect 10, Inc. v. Amazon.com, Inc., case no. 06-55405 (May 16, 2007), reverses. The most written about aspect of the decision is the court’s finding that Google’s display of thumbnail images in its image search results constitutes a non-infringing “fair use” of the images. Since Perfect 10 failed to show that it was likely to overcome Google’s fair use defense, the court reverses the grant of…
-
A Quip Too Far?
The writing style on display in a Florida appellate decision, Funny Cide Ventures, LLC v. Miami Herald, Fourth Dist. Ct. of Appeal case no. 4D06-2347 (May 16, 2007) has attracted some attention today. The actual per curiam decision is run-of-the mill, but one of the judges took it upon himself to write a supplemental opinion that spends its first few pages complaining about the dullness of typical legal writing before launching into an unconventional style that, if read aloud, sounds like a dime store novel detective recounting the events of the case. To be fair, Judge Farmer lays out why he wrote the supplemental opinion: In my view nothing that…
-
On Writing Concisely
The Illinois Trial Practice Weblog asks in a post this morning, “Legal Writing: Is Shorter Really Better?” Tongue in cheek, the writer answers, “Based on the briefs I regularly see in my own practice, many lawyers don’t seem to think so.” The tips for trimming verbose drafts are good. Better yet are the writer’s thoughts on why briefs become bloated in the first place. A legal writing professor commenting on the post is reminded of how her 12-page appellate brief beat her opponent, whose brief went the maximum 35 pages: “I knew as soon as I saw that he took an entire page just to identify the two parties that…
-
Legal Blogosphere Reacts as Ninth Circuit Puts the Brakes on CDA Immunity for Online Services
Yesterday’s Ninth Circuit decision in Fair Housing Council v. Roommates.com, LLC, case no. 04-56916 (May 15, 2007) has the digital legal world abuzz . . . as one should expect of the latest decision on the scope of immunity afforded to online services by the Communications Decency Act (“CDA”), 47 U.S.C. § 230(c). In this case, two municipal fair housing councils sued Roommates.com, an online clearinghouse for those seeking to obtain roommates or move in as one. They alleged that the website published discriminatory roommate preferences in violation of the Fair Housing Act and various state laws. The district court found Roommates immune under the CDA and granted summary judgment…
-
Claim Challenging Removal of Cross from County Seal Fails in Ninth Circuit
In 2004, under legal threat from the American Civil Liberties Union, Los Angeles County removed from its official seal an image of a cross (which shared the seal with the Roman goddess Pamona, engineering instruments, a Spanish galleon, a tuna, a cow, oil derricks, the Hollywood Bowl, and two stars representing the area’s motion picture and television industries). It replaced the cross with a depiction of the first Spanish mission established in the county (which depiction did not include a cross), and made other changes to the seal. Plaintiff Ernesto R. Vasquez, an employee of the County of Los Angeles, filed suit in federal court under 42 U.S.C. § 1983,…
- Appellate Jurisdiction, Appellate Procedure, California Court of Appeal, California Procedure, Elections, Writ Practice, Writ Review
Election Contest Not Appropriate for Writ Review
In Nguyen v. Superior Court, case no. G038475 (May 14, 2007), the California Court of Appeal, Fourth District, holds that a losing candidate’s challenge to a ballot recount that reversed the results of a board of supervisors election “should be heard by the more deliberative and thorough process of appeal, rather than the hastier route of a petition of writ of mandate,” but leaves open the possibility of writ review in other election challenges. In part, the court denies the writ because due deliberation and the procedural safeguards of appeal are especially important in a case that may result in the removal of an elected official that has already been…
-
FRCP Amendments Approved and Transmitted to Congress
The Supreme Court approved amendments to the Federal Rules of Civil Procedure and transmitted those amendments to Congress on April 30. They will take effect December 1, 2007 unless Congress legislates their rejection, modification, or deferral. Rules 1-86 were “restyled” — revised with the intent to make them easier to read and understand without substantively changing them. For example, rule 59, governing new trial motions, is amended so subsection (a) is changed from a single, lengthy paragraph into paragraphs (a)(1)(A), (a)(1)(B), and (a)(2). Not only easier on the eyes, but much easier to comprehend. The amendments contain substantive changes as well, but none directly relating to the rules regarding entry…
-
RSS Feed Issue Resolved
I’ve corrected the RSS Feed link in the right sidebar. The former link was inadvertently set up with an incorrect address for the feed. So, if you have tried unsuccessfully to subscribe to the feed, try again. I’ve also added direct links to subscribe to the feed through a number of services, such as Google, Yahoo, etc., so users of those services no longer have to go to the newsreader link and then click on another link at that page.
-
Blogs First – Wikis Next?
Its old news that courts have cited blogs in their opinions. A compilation of such opinions is posted here by Law Blog Metrics. That list is more than nine months old and lists citations to 27 cases citing blogs a total of 32 times. (I’m having trouble finding anything more recent. If anyone knows of a more current compilation, email the link to me me and I will post it.) Citations to blogs should not be too surprising. Most are, after all, commentary. While not as formal or thorough as a law review article (to put it mildly), the principle behind citing a blog is not, to my mind, much…
-
A Chemistry Lesson Resolves an Issue of First Impression in a Drug Case
In U.S. v. Hollis, case no. 05-30611 (May 7, 2007), the Ninth Circuit holds that under the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), under which “any fact [other than the fact of a prior conviction] that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury, and proven beyond a reasonable doubt,” a defendant charged with distribution of a controlled substance (21 U.S.C. § 841(a)) cannot be subject to the higher sentencing standard for distribution of a “cocaine base” with a prior felony drug conviction (21 U.S.C. § 841(b)(1)(A)) unless the government pleads and proves that the cocaine base…
-
Professor Martin’s Short Lesson on Clarity and Succinctness on Technical issues
Professor Shaun Martin at the University of San Diego School of Law provides a tongue-in-cheek lesson on succinctness and style for otherwise highly technical opinions in this post at his blog, California Appellate Report. It’s an amusing (and itself succinct) post that nevertheless illustrates the larger truth that dense, esoteric issues can be stated with flair and made understandable to non-experts in the field. Technorati Tags: legal writing, judges
-
A Different Kind of Monkey Trial – How Not to Allege Judicial Bias
Monkeys and the law don’t seem to get along. The famous 1925 “Scopes Monkey Trial” was the prosecution of a high school teacher who taught that mankind descended from apes. An article linked here today by Howard Bashman at the How Appealing blog reports that a Delaware attorney was reprimanded by that state’s Supreme Court for writing in a lower court brief that, among other things, the county board whose decision he was disputing might as well have been composed of monkeys: The briefs were part of an appeal to Superior Court disputing a decision by New Castle County Board of License, Inspection & Review, in which he made several…