More chutzpah on appeal, this time in United States v. Collins, case no. 05-4708 (7th Cir., Dec. 14, 2007). A little out of my usual jurisdiction, but so outrageous I had to tell you about it (and once again sponge off the great work at Decision of the Day). I’ll tell you only that this time the attorney gets spanked for making the exact same argument the court had described as “unbelievably frivolous” in a prior case involving the same attorney. The argument? Go to this post at Decision of the Day, where you’ll also find a link to a page that shows the lawyer in Collins is not alone…
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Chutzpah on Appeal
“Chutzpah” is about the most polite word I could come up with for the appellant’s audacity in United States v. Moreland, case no. 05-30541 (9th Cir., Dec. 13, 2007). Moreland apparently swindled people out of $73 million, so I’m going to assume he had a little bit of money, legitimately earned, set aside for his defense. Yet he fought tooth and nail to proceed pro se, which is where all his problems started. The decision is covered very well, and in some detail, in this post at Decision of the Day, which begins: In my line of work, I see all kinds of appellate arguments: brilliantly creative, colossally stupid, and…
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Supremes Deny Republication of Lockheed Litigation Cases
You might remember my post from early November about the dismissal of Supreme Court review of the Lockheed Litigation Cases. Review was dismissed because a majority of the justices recused themselves due to conflicts of interest created by their ownership of stock in one or more of the oil company defendants. The oil companies, who prevailed in the Court of Appeal, sought to have the Court of Appeal opinion republished. Wednesday, the three non-recused Supremes and one designated Court of Appeal Justice voted 4-0 to deny republication. Those justices that had recused themselves from review likewise recused themselves from the republication decision. I remain baffled by Chief Justice George’s rationale…
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Justice Kennedy on Reading Briefs
If you’re curious about how Justice Anthony Kennedy feels about reading briefs, check out this post at Legal Writing Prof Blog.
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Using the Court of Appeals as a Crystal Ball
“Don’t do it” is the friendly advice from the Ninth in Global Horizons, Inc. v. U. S. Dept. of Labor, case no. 07-15116 (9th Cir. Dec. 13, 2007). At the end of its opinion affirming the denial of a preliminary injunction, the court notes that the appellant, Global Horizons, would have been better off pressing on with its permanent injunction claim while the appeal was pending rather than dragging its feet in the district court while hoping to get the Ninth Circuit’s views on the merits of the case: Finally, we recognize that in the eleven months since Global Horizons filed the present appeal, the company has taken very few…
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Process Serving Gamesmanship
It sometimes surprises me that in this information age, we are still required to make personal service of sumons. But, absent special circumstances, we are. Even when the defendant is overseas. Which was the situation in SEC v. Shaw, case no. 06-15204 (9th Cir. Dec. 11, 2007). The SEC had summons personally served on Shaw in England. Shaw defaulted, then waited more than three years to move to set aside the default judgment on the ground of lack of personal jurisdiction. The Ninth holds that a defendant with actual notice of the proceedings, as Shaw had, bears the burden of proving he was not served with summons. Shaw can’t make…
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We’re #1!
Today’s decision in Dukes v. Walmart, Inc., case no. 04-16688 (9th Cir. Dec 11, 2007), in which a panel of the Ninth, on rehearing, again affirms the class certification in this gender discrimination case, prompts this from Howard Bashman at How Appealing: In the Ninth Circuit, to a degree not seen in any other federal appellate courts, published opinions often resemble works in progress. A three-judge panel will issue an opinion, the losing party will petition for rehearing and/or rehearing en banc, and then months later the panel will withdraw its original opinion and substitute in its place a new and presumably improved decision. Bashman watches courts all over the…
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Thank You to LACBA Appellate Courts Committee
I had the honor of sharing the stage on Monday with Denise Howell of Bag & Baggage fame (not to mention Lawgarithms and other projects) for a presentation on blogging and other internet media to the Los Angeles County Bar Association Appellate Courts Committee. Denise has more than six years of blogging under her belt. I spoke specifically from the “young blogger perspective.” The committee members were quite receptive and interactive, with great questions that were fun to answer. Thanks to all involved, including Denise, and to Ben Shatz for setting it up. By the way, because I expect a few visits from committee members as a result of my…
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The California Appellate Court Legacy Project
From the California Courts website: In 2006, the California Appellate Court Legacy Project was undertaken to interview all retired justices in the state, as well as active justices who may be nearing retirement. Overseen by the Appellate Court Legacy Project Committee (chaired by Associate Justice Judith L. Haller of the Fourth Appellate District, Division One), interviews are videotaped or audiotaped and conducted by interviewers selected from within the appellate branch. Ultimately the tapes will be made available to judicial colleagues, historians, scholars, law students, and members of the public. The resulting archive will be an historical record of both the personal experiences of individual justices and the evolution of the…
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Rare Frivolous Appeal Sanction Levied
A few months ago, I told you how a study by Ben Shatz and Joanne Sweeny in Whittier Law Review disclosed just how rarely sanctions are levied in the Court of Appeal. But “rarely” doesn’t mean “never,” and last Thursday was one of those rare occasions. Legal Pad covers the merits. California Appellate Report tries to get inside the heads of the sanctioned lawyers. The embarrassment must sting as much as the fine.
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The Record is Everything
Tom Caso has this post at The Opening Brief regarding a Ninth Circuit case last week in which Judge Kleinfeld laments his inability to follow his intuition and hold in favor of the government in an environmental case because of the government’s inability to actually support its case from the record. Its hard to tell from Judge Kleinfeld’s comments whether the government was hamstrung by its failure to preserve an adequate record or it merely failed to direct the court to those portions of the record that supported its position. Either way, it’s an embarrassment to have this type of deficiency pointed out by the court, and Tom uses the…
- Appellate Procedure, Constitutional Law, Criminal Procedure, Double Jeopardy, Standard of Review, Waiver of Issues
Double Jeopardy Argument Not Waived by Failure to Object to Multiplicitous Convictions and Sentences
In U.S. v. Zalapa, case no. 06-50487 (9th Cir. Dec. 5, 2007), the Ninth Circuit holds that a defendant can raise a double jeopardy challenge to his multiplicitous convictions and sentences on appeal even if he fails to object to them in the district court. Zapala was charged with two counts — possession of an unregistered machine gun and possession of an unregistered firearm with a barrel less than 16 inches long — under the same statute, 26 U.S.C. § 5861(d). Catch is, those counts were based on possession of the same gun. Zapala did not object to the indictment, pleaded guilty to all charges without a plea agreement, and…
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Death Penalty Odyssey Likely to Fuel Debate
NOTE: This is a re-post of an earlier post that I unwittingly published with the exact same blog title as the below-referenced Decision of the Day post. In a post entitled A “Wholly Discomforting” End To Twenty-Two Years of Death Penalty Appeals, Robert Loblaw at Decision of the Day notes yesterday’s 159-page decision in Cooper v. Brown, case no. 05-99004 (9th Cir. Dec. 4, 2007) and comments on how it is likely to fuel debate on the death penalty. I think I remember hearing about this case on the news the last time Cooper’s execution was stayed, but I sure don’t remember the “discomforting” facts DoD excerpts from the concurring…
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Cyber Law Update
Professor Eric Goldman has a post up at his Technology & Marketing Law Blog with an important update on Perfect 10 v. Amazon.com, which I blogged about last May. Specifically, the Ninth Circuit issued an amended opinion Monday that reverses itself on the issue of which party has the burden of proof on a fair use defense in a copyright preliminary injunction context. As Professor Goldman sums up: In the original Ninth Circuit Perfect 10 v. Amazon ruling, the court put the burden on the plaintiff to disprove fair use as part of its PI obligations. Now, in an amended opinion, the Ninth Circuit has put the burden on the…
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Things You Don’t Want to Read about Your Work
I’ve been working almost non-stop for the last 18 hours, and its 3 a.m. (so pardon any typo’s), so I’m not about to plow through the 82-pages of opinions in Schmidlin v. City of Palo Alto, case no. H026841 (6th Dist. Dec. 4, 2007). But I’m not too sleepy to browse through it, and I happened upon the “bloggable” portion. Or at least one of them. Its a case brought by a plaintiff who alleges various constitutional violations against city cops. The jury finds that the cops used excessive force, but did not unlawfully arrest the plaintiff or fabricate police reports. Both sides appealed. Issue 1: Sufficent evidence of excessive…
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Contract Claims against Public Entities are Governed by Claims Statutes
In City of Stockton v. Superior Court (Civic Partners Stockton, LLC), case no. S139237 (Dec. 3, 2007), the Supreme Court holds that a claim for breach of contract against a public entity is subject to the claims presentation requirements of the Government Code. (Govt. Code, §§ 905, 945.4.) And to help keep people from losing sight of that holding, the court endorses “Government Claims Act” as the shorthand name for the claims statutes in place of the commonly used, and traditional, “Tort Claims Act.”
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It’s Not the 40 Years that Hurts, its the $20 Fee
I had to read the first few paragraphs of People v. Alford, case no. S142508 (Dec. 3, 2007) several times before it sunk in. The defendant was convicted of second degree robbery. The court imposed a $20 court security fee under Penal Code section 1465.8. Oh yeah . . . defendant also got sentenced to 40 years in prison (he had eight prior felonies). Facing 40 years imprisonment, he promptly appealed . . . the $20 fee. At least, that’s how it might appear from reading only the Supreme Court opinion. If you look up the Court of Appeal decision, you’ll see that defendant also appealed on grounds of prosecutorial…
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Explicit Judicial Requests for Supreme Court Review
Legal Pad highlights a couple of very recent cases, in which the published opinions explicitly urge the Supreme Court to reexamine an issue, in a post titled How Do You Make the Supremes Notice You? Do such explicit requests help the parties obtain review of the Court of Appeal judgment? The post turns to Santa Clara University School of Law Professor Gerald F. Uelmen for comment on that issue.
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Split of Authority re Mandatory Relief under CCP § 473(b)
The first time I read Code of Civil Procedure section 473(b) and the practice guides about it, it horrified me. There I was, a very young lawyer at a BigLaw firm, reading that the court must grant relief from a default if the attorney swears by affidavit that the default was due to the mistake, inadvertence, surprise, or neglect of the attorney. I thought that surely, from time to time, some attorney has relied on this provision, admitting fault, only to have the court deny relief because the relief sought did not fall within the mandatory provision of section 473(b). Shudder. But I never read about that actually happening until…
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ABA Journal Blawg 100 Voting
The ABA Journal’s December 2007 issue announces the “ABA Journal Blawg 100,” which it describes as “the 100 best Web sites by lawyers, for lawyers, as chosen by the editors of the ABA Journal.” The list includes three of the blogs that made my top 10 list in this meme about two months ago: WSJ.com Law Blog, Legal Pad, and Wayne Schiess’s legal-writing blog. California lawyer blogs on the list include Pamela Fasick’s California Civil Litigation Quote of the Week and Denise Howell’s Bag and Baggage. I don’t mind telling you I’m jealous as . . . heck. There may be other California lawyer blogs on the list, but I…
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“Restyled” Federal Rules of Civil Procedure Take Effect Today
The new Federal Rules of Civil Procedure go into effect today. Previous posts (here, here and here) have linked to articles about whether the changes, intended merely to “restyle” the rules without substantively changing them, will accomplish that purpose. I guess we’ll find out soon enough if they don’t. In the meantime, AbsTracked has a post with some useful links regarding the changes, including an advisory committee report and a change comparison chart. Thanks to Legal Writing Prof Blog for the link.
- Appellate Procedure, Articles by Greg May, Confrontation Clause, Constitutional Law, Criminal Procedure, Federal Procedure, Standard of Review
“Confronting Confrontation”
That’s the title given by the Los Angeles Daily Journal to my article, which it published in its November 19, 2007 issue, regarding U.S. v. Larson, the en banc Ninth Circuit’s confusing “resolution” of the perceived split of authority on the standard of review in Confrontation Clause challenges based on limitations on cross-examination. The article (PDF link) grew out of this blog post giving my initial impressions about the case on the day it was published. I followed up that post with another providing links to some other blog coverage of the case.
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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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Follow the Rules – A Lesson from the Ninth
Today’s decision in Sekiya v. Gates, case no. 06-15887 (9th Cir. November 29, 2007) is a reminder that the dismissal sanction is lurking out there for any parties to an appeal that fail to follow the rules. The Ninth finds the appellant’s opening brief so deficient that it is “compelled to strike it in its entirety and dismiss the appeal.” The brief wasn’t merely “deficient.” It sounds like it did not resemble a brief at all. The brief fails to provide the applicable standard of review, and makes virtually no legal arguments. Furthermore, it lacks a table of contents, a table of authorities, citations to authority, and accurate citations to…
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Medical Marijuana Buzz . . . and Writ Standing, Too
Looks like the new marijuana radio talk show on Inland Empire radio station KCAA (which is also available via podcast, and which I learned about from this post at Drug Law Blog) will have plenty to talk about tomorrow. Yesterday, in City of Garden Grove v. Superior Court (Kha), case no. G036250 (4th Dist. Nov. 28, 2007) the Court of Appeal denied a writ petition by the City of Garden Grove (joined by 4 law enforcement associations and 15 cities all over the state as Amici Curiae) seeking to vacate a trial court order to its police department to return medical marijuana seized from a person that the DA declined…
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Incomprehensible Silliness in a Document Caption
For an incomprehenible document title that will make you laugh, check this post at the (new) legal writer. It’s funny, but it also refers to a real-life problem.
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Free Online Constitutional and other Federal Research Resources
2/65/17 Update: A reader alerted me that these links don’t seem to work anymore. Sorry! Thanks to Fifth Circuit Blog for this link to The Constitution of the United States of America, Analysis and Interpretation: Analysis of Cases Decided by the Supreme Court of the United States. It is provided by the Government Printing Office at its GPO Access website. The site has a great index page. Took me all of five seconds to find online versions of the Code of Federal Regulations, Federal Register, and United States Code that are searchable, browsable, and have a find-by-citation function. That’s barely scratching the surface. There’s plenty more, and all of it…
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Looking for Help re Anonymous Habeas Case
Howard Bashman at How Appealing is looking for an explanation why the habeas petitioner in yesterday’s Doe v. Woodford, case no. 06-16054 (9th Cir. Nov. 27, 2007) opinion was kept anonymous despite the facts that (1) it appears to be a substitute opinion for an earlier opinion under the same case number, in which the petitioner was identified and (2) the PACER records for the case continue to identify the petitioner by name. The opinion itself is silent on the reason for anonymity. Anyway, Bashman would appreciate it if you can e-mail him with any information that may help explain the anonymity of the habeas petitioner in yesterday’s opinion.
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Judge Kozinski’s Sense of Humor . . .
. . . apparently made its way into the press release announcing this Friday’s ceremonial “passing of the gavel,” when Judge Kozinski assumes chief judge duties. Details at How Appealing.
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My Article in Santa Barbara Lawyer
I am finally able to provide a copy of my article published in the September 2007 issue of Santa Barbara Lawyer. The article, which grew out of this blog post, is an examination of the historical and existing rules regarding the appealability of an order denying a statutory motion under Code of Civil Procedure section 663 to vacate the judgment and enter new judgment. It also proposes a resolution of the confused law on that issue. (Just in case the Supreme Court was looking for my advice.) I know, I know. Geeksville. The magazine still is not available online, but I scanned the article and have posted it for download.…