Some lawyers not well-versed in appellate jurisdiction may find themselves fighting against one of two extremes when it comes to interlocutory decisions: the impulse to appeal everything (appealable or not), or failing to evaluate interlocutory orders for possible exceptions to the “final judgment rule,” figuring “why bother” until a final judgment is entered. Then there are those in the middle who recognize opportunity in interlocutory orders, and seize it. Such were the lawyers representing the appellants in Lazy Y Ranch Ltd. v. Behrens, case no. 07-35315 (9th Cir. Sept. 26, 2008). Lazy Y sued, alleging a violation of equal protection, after its bids for grazing on state land were rejected…
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The Results of the Shootout at the Amicus Corral
In a case that attracted amicus participation of noteworthy proportions, the California Supreme Court holds that a medical provider has no constitutional defense, based on freedom of religion and freedom of speech, to a claim for sexual orientation discrimination under California’s Unruh Act (Civ. Code, § 51). The doctor defendants had refused artificial insemination services to a lesbian and contended that they did so for religious reasons. The Supremes find no such exception under the federal or state constitutions. The court finds that because the Act is a facially neutral and valid law of general applicability, the incidental infringement on religious liberty that compliance requires cannot sustain a constitutional defense…
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Don’t Ask, Don’t Tell . . . and Don’t Dismiss
The military’s “Don’t Ask, Don’t Tell” (“DADT”) policy on homosexual service members is put through the wringer in Witt v. Dept. of the Air Force, case no. 06-35644 (9th Cir. May 21, 2008). The Ninth reverses the district court’s Rule 12(b)(6) dismissal of Major Witt’s complaint alleging that her impending discharge on the ground of homosexuality violates substantive due process, procedural due process, and equal protection. The key to the ruling was the Supreme Court’s decision in Lawrence v. Texas (2003) 539 U.S. 558, On substantive due process, the court determines that Lawrence requires more careful scrutiny of DADT than the Ninth’s previous standard of rational basis review, even though…
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Reasonableness Governs Accidental Shooting Inquiry
Image via Wikipedia There’s an important legal point in Torres v. City of Madera, case no. 05-16762 (9th Cir. May 7, 2008). But before I could get to it, I had to get by my amazement at the facts, which are horrifying. This Section 1983 action was brought by survivors of an arrestee who, while handcuffed and in the rear seat of a patrol car (and screaming and kicking at the back window), was shot and killed by a police officer who mistakenly unholstered and fired her Glock semi-automatic pistol instead of her Taser M26 stun device. The Court of Appeals called her Glock (a Glock is pictured right, though…
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Sufficient Merit to Proceed
When does an appeal or petition have “sufficient merit to proceed” so that a vexatious litigant subject to a pre-filing review order can move forward with it without counsel and without a certification of good faith from the district court? The Ninth realizes in In re Keith Thomas, case no. 01-80091 (9th Cir. Nov. 29, 2007) that it has never quite made it clear: Because our decisions pursuant to a pre-filing review order are rarely published, we have not yet clarified the standard for determining whether an appeal or petition has sufficient merit to proceed. We take the opportunity to do so now. The court examines standards in cases of…
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When Good Law Goes Bad
Not generically bad, but bad for you. The plaintiff in Acosta v. Hill, case no. 05-56575 (9th Cir. Oct. 17, 2007), claimed in her Section 1983 case that the force used by city security guards and police while ejecting from a San Diego stadium violated her civil rights. Indeed, she claimed she had been subjected to deadly force, and that the trial court erred by giving an instruction on excessive force under a reasonableness standard without giving a separate instruction on deadly force. She had a shot. Ninth Circuit precedent at the time of her appeal drew a distinction between instructions for excessive force and instructions for deadly force. Her…
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IDEA Rights not Enforceable under Section 1983
In Blanchard v. Morton School District, case no. 06-35388 (9th Cir. Sept. 20, 2007), the Ninth Circuit becomes the fifth federal appellate circuit to hold that rights under the Individuals with Disabilities Education Act (IDEA) are not enforceable by an action under 42 U.S.C. section 1983. The court acknowledges that two circuits have gone the other way and that the Eighth Circuit has an intra-circuit split on the issue. The case arose when the mother of a disabled child sued to recover damages for lost earnings and suffering endured during her eventually successful drive to obtain benefits for her son under the IDEA. The district court granted summary judgment, finding…
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Federal Vexatious Litigant Designation not Immediately Appealable
When a party and his attorney are sanctioned as vexatious litigants and ordered not to file additional complaints without court approval, must they immediately appeal from those orders (the “pre-filing orders”) or appeal instead from the subsequent entry of final judgment? That was the procedural question posed in Molski v. Evergreen Dynasty Corp., 05-56452 (9th Cir., Aug. 31, 2007). Evergreen moved to dismiss the appeals, contending that Molski and his lawyers’ joint notice of appeal, filed within 30 days of entry of the judgment, was filed more than 30 days after entry of their respective pre-filing orders. The Ninth says the appeals are timely. The order against the attorneys is…