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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FRAP 4(a)(7)’s 150-day Period Sets Time of Entry of Judgment, not Time to Appeal
Sometimes, the rules seem rather tangled. But go through them slowly, and they usually all “come together.” Such is the case in Menken v. Emm, case no. 05-164637 (9th Cir. Sept. 19, 2007), in which the appellees argued that the notice of appeal was not timely. The district court granted a motion to dismiss for lack of personal jurisdiction but never entered a separate order. The issue thus became when the 30-day deadline for filing the notice of appeal was triggered. The analysis is rather straightforward. The date of entry of a judgment triggers a 30-day deadline to appeal from it. (Fed. R. App. P. (“FRAP”) 4(a)(1).) For this purpose,…
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Your Introduction Shouldn’t be an Introduction
Evan Schaeffer at The Illinois Trial Practice Weblog offers some good advice on how to start a memorandum or brief: At the trial court level, most lawyers begin their briefs with an “Introduction” section. There’s nothing wrong with this approach, but it leads to the mistaken notion that you should actually put an introduction in the introduction. You shouldn’t. And that’s just the “introduction.” Ba-dum-bump. Read the whole thing. I got this link from this post at Legal Writing Prof Blog, which has more.
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Order Enforcing Legislative Subpoena is Appealable
Taxes sure seem to be at the heart of a lot of disputes between citizens and their government. Such is the case in City of Santa Cruz v. Patel, case no. H030689 (6th Dist. Sept. 18, 2007), where wrangling over the right of the government to audit business records to ensure compliance with tax law leads to an opinion on the appealability of orders compelling compliance with legislative subpoenas. The City sent out a notice to hotel operators that it would be conducting audits to determine operators’ compliance with an occupancy tax ordinance under which hotel operators were required to collect a tax on lodging and remit the proceeds to…
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When is an Order not an Order on the Merits?
When it trails the present hearing to another date, for one — at least if it purports to be an order terminating parental rights. Thus, the court of appeal dismisses an appeal from such an order in In re Q.D., case no. G038343 (4th Dist. Sept. 18, 2007). Mother appealed from a purported order terminating her parental rights. Mother, her attorney, and a Vietnamese translator were at the hearing on her behalf. Mother, through her counsel, waived her right to a contested hearing. Only after the court stated its findings and orders from the bench, including an order that parental rights be terminated, did Mother object. She claimed her waiver of a…
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Federal District Court and Bankruptcy Court Transcripts to be Available Online via PACER.
The Judicial Conference of the United States has voted to make transcripts of federal district and bankruptcy court proceedings available online through the PACER system. Transcripts will be available for the same $0.08/page rate as other documents, but there’s a catch: they won’t be available on PACER until 90 days after they have been delivered to the clerk. Until then, you’ll have to view the transcript at the clerk’s office or order a copy from the reporter. The press release doesn’t say when this policy goes into effect. Nor does it say whether the transcripts will be in scanned PDF format like other documents or will instead be text-searchable files.…
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CALCRIM No. 226 Survives Appellate Challenge
In People v. Wamer, case no. F051027 (5th Dist. Sept. 12, 2007), the Court of Appeal holds that CALCRIM No. 226 does not impermissibly lighten the prosecutor’s burden of proof. Wamer, convicted of murder, contended that the last paragraph of the instruction lightened the prosecutor’s burden by its use of the words in bold italics in the below excerpt (emphasis added), the last paragraph of the instruction: If you decide that a witness deliberately lied about something significant in this case, you should consider not believing anything that witness says. Or, if you think the witness lied about some things, but told the truth about others, you may simply accept…
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Mother Ordered to In-Patient Drug Rehabilitation has Standing to Appeal, but Her Kids Don’t
The mother of three minor children is determined to be incapable of providing regular care and supervision for them. (Welf. & Inst. Code, § 300.) The children are placed with their maternal grandmother, with supervised visits from the mother. The juvenile court orders the mother to complete an in-patient drug treatment program as part of the disposition care plan of Austin women’s drug and alcohol treatment, and leaves all prior orders in effect, including the children’s placement and supervised visits from the mother. Do the children have standing to appeal? In In re Neil D., case no. B195487 (2d Dist. August 28, 2007, ordered published Sept. 17, 2007), the Court…
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Ninth Circuit Holds that the Political Question Doctrine is a Jurisdictional Limitation
The Ninth Circuit holds that the political question inherent in Corrie v. Caterpillar, Inc., case no 05-36210 (9th Cir. Sept. 17, 2007) precludes the exercise of Article III jurisdiction. Until Corrie, the Ninth Circuit has not clearly decided whether the political question doctrine is a jurisdictional limitation or merely a self-imposed prudential restraint. The court evaluates competing cases on the issue, and even finds that the six factors used in evaluating whether the case concerns a political question, enumerated in Baker v. Carr, 369 U.S. 186 (1962), are themselves divided into jurisdictional and prudential considerations. It reconciles this dichotomy by deciding that the doctrine’s prudential concerns can help define the…
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Mercedes-Benz Asks for a Low Standard for Assessing the Merchantability of an Automobile
Click on the “Only Mercedes-Benz” link on the home page of the Mercedes-Benz USA website, and you are presented with a new page with the following title: Leadership 120 years later, the legend continues. So I find it rather funny that in Isip v. Mercedes-Benz USA, LLC, case no. B192382 (2d Dist. Sept. 12, 2007), Mercedes-Benz requested the court to instruct the jury that the warranty of merchantability is not breached so long as a vehicle gets you from place to place in one piece. Isip contended she experienced the following problems with her car: The air-conditioning emitted an offensive smell every time it was turned on, giving Isip a…
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Bikers’ Colors — First Amendment Claim Not Dead
The Ninth Circuit has just ordered en banc rehearing in the First Amendment case of the bikers ejected from the Garlic Festival in Gilroy on the ground that the club jackets they were wearing constituted “gang insignia” (Villegas v. City of Gilroy, case no. 05-15725 (9th Cir., Sept. 14, 2007)). I missed covering the original case; it was published on the day I launched this blog and some other cases caught my eye that day instead. Decision of the Day was there. He says that the original panel “blithely affirmed” the dismissal of the bikers’ First Amendment claims because four of them gave four different answers as to what they…
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Plagiarism Sanctions Issue, Blog Readers React, and How this Relates to Value Billing
This post at The Volokh Conspiracy post and this one at Tax Prof Blog both provide extended excerpts from an Iowa bankruptcy case in which the court sanctioned an attorney — quite stiffly — for submitting a brief that was almost entirely (15 of 17 pages) lifted word for word from an article written by two other attorneys, without attribution. The attorney charged the client $5700 for the brief. Both posts have lengthy comment threads (Volokh’s is longer), with a great many defenders of the attorney — not for the billing, but for submitting the brief. Many are also upset (rightfully so, to my mind) with the court’s apparent position…
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Writ Review Appropriate where Discovery Ruling Threatens Privilege
You’ve seen me complain before about the court of appeal reviewing writ petitions on the merits without saying why. After all, there has to be something special in every instance of review, as more than 90% of writ petitions are summarily dismissed. Ombudsman Services of Northern California v. Superior Court, case no. C054737 (3d Dist. Sept. 5, 2007), the court is very explicit about why it reviewed the writ petition on the merits (citations omitted): “Although writ review of discovery rulings is generally disfavored, interlocutory review by writ is the only adequate remedy when, as here, a court compels the disclosure of documents or information that may be subject to…
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You Might Be an Appellate Lawyer and Not Even Know it
At least, that’s one lesson you can take away from Lee v. Blue Shield of California, case no. B190441 (2d Dist. Sept. 7, 2007). Lee alleged that Blue Shield wrongfully suspended him from its network of medical providers for medical incompetence and then illegally terminated his provider contract for failing to cooperate in the administrative process. His suit alleged tort, contract, and declaratory relief theories. The trial court sustained a demurrer brought on the ground that Lee did not exhaust his administrative remedies because the hearing process (commonly called an “809 hearing” because it is set out at Business and Professions Code sections 809-809.9) was terminated by Blue Shield for…
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Failure to Address Contrary Authority Again Draws Fire
Last week, we saw a government lawyer scolded by the Ninth Circuit for making an argument directly contrary to controlling authority without even trying to argue around that authority and without even citing it. This week, it’s the California Court of Appeal’s turn, in a slightly different context. Yesterday, Tom Caso at The Opening Brief posted about Batt v. City and County of San Francisco, case no. A114633 (1st Dist. Sept. 12, 2007), in which he says the court “suggested it was unethical for an attorney to fail to address in your brief cases that, even if not directly on point, ‘clearly are pertinent to any meaningful discussion of the…
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Judicial Self-Promotion
I guess this is what you get when Supreme Court justices have to be re-elected to stay on the bench. A state Supreme Court justice with her own web page. Not her official biography on the court’s website or one of those dry “judicial profile” pages, mind you, but an independent web page promoting her seemingly “rock star” status. I’m not saying its bad, just . . . different. Has anyone seen anything like this from a California judge? Thanks to ElectricLawyer, who was on top of this months ago.
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More on a Proposed End to Life Tenure for Supreme Court Justices
Back in July, I linked to this Law.com post on this topic. Now SCOTUSblog has a very detailed post called Life Tenure, Term Limits, and Supreme Court Justices, in which they critique both the proposals for ending life tenure and a study relied on in support of doing so. The post includes citations to more detailed articles, as well as a few links to other discussions of the topic, including a recent New York Times article.
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Style Tips from Raymond Ward
Raymond Ward of the (new) legal writer has posted a chapter he contributed to A Defense Lawyer’s Guide to Appellate Practice in 2004. The chapter is on writing style. It’s a quick read (seven pages) and offers some great advice.
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Postage Stamp Honoring Jury Duty
Today, the U.S. Postal Service issues a first class (41¢) postage stamp honoring jury duty, which you can buy here. The design is nicely done and eye catching. If courts used the stamp to send jury summonses, perhaps people would be more motivated to serve on a jury. I wonder how many will be used instead to mail jury duty exemption forms in response to jury summonses. And how many people will notice.
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Ninth Upholds Death Penalty Despite Jury’s Reference to Bible during Penalty Phase Deliberations
Stevie Lamar Fields was convicted in California state court of heinous crimes, including murder, which he committed in the course of a three-week spree that he started just two weeks after completing a prison stretch for manslaughter. During the penalty phase of his trial, the jury foreman consulted a Bible, a dictionary, and other reference texts, made notes of points for and against the death penalty, then shared those notes with the jury. The foreman’s notes in favor of the death penalty included Biblical passages. Fields was sentenced to death. The District Court denied habeas relief on the conviction but granted it as to the death penalty. The Ninth Circuit’s…
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Availability of Electronically Filed Briefs in U. S. Supreme Court
SCOTUSBlog has information regarding the upcoming online availability of briefs filed electronically with the U.S. Supreme Court.
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Peremptory Challenges to Appellate Justices and Posting of Draft Appellate Opinions
Don’t get too excited! The title of this post does not reflect changes to the Code of Civil Procedure. Instead, the title summarizes two of Nine Ideas for Improving the Administration of Justice offered by Los Angeles attorney Edwin B. Stegman in his guest column in the September 2007 California Bar Journal. Specifically, Stegman suggests the following: 3. We desperately need a CCP §170.6-type peremptory challenge of incompetent and unreasonable appellate justices and divisions. *** 7. Before oral argument, attorneys should be permitted to review research attorneys’ notes and appellate draft opinions. There is no advantage to secrecy. In some courts, research attorneys make the decisions. Sometimes they make mistakes.…
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Attorneys Can Bind Parties to Change of Jurisdiction under UIFSA
Is a stipulation to a change of jurisdiction from another state to California under the Uniform Interstate Family Support Act effective if it is signed only by the parties’ attorneys and not by the parties themselves? In Knabe v. Brister, case no. C053225 (3d Dist. Sept. 6, 2007), the Court of Appeal says it is. Family Code section 4960, subdivision (a)(2), part of California’s implementation of the UIFSA, requires (among other things) that before a California court can modify a child support order issued in another state, “all of the parties who are individuals have filed written consents in the issuing tribunal for a tribunal of this state to modify…
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A Professor’s Lament and More Legal Writing Resources
Professor Austen Parrish of Southwestern Law School, as a guest writer at Prawfsblawg, laments the poor writing skills of first-year law students, including this comment: “Exam answers (at times written like lengthy text messages) can bring seasoned professors near to tears.” He offers a list of helpful books. The commenters on the post don’t seem particularly optimistic.
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Bankruptcy Court Order Enjoining Arbitration is Appealable
In Solidus Networks, Inc. v. Excel Innovations, Inc., case no. 06-17288 (9th Cir. Sept. 7, 2001), the Ninth Circuit holds that an injunction issued pursuant to 11 U.S.C. § 105(a) to stay arbitration to which the debtor is not a party is an appealable order. The court reasons that the injunction is effectively an extension of the automatic stay (11 U.S.C. § 362). Since the automatic stay itself is effectively an injunction issuing from the bankruptcy court,and orders denying or granting relief from the automatic stay are appealable, the Ninth saw “no reason to treat the instant injunction differently.” The court took up the jurisdictional issue on its own, demonstrating…
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Qui Tam Relator May Not Proceed Pre Se on Behalf of Government
The False Claims Act allows an individual (called a “relator”) to bring a civil action (a qui tam action) “for the person and for the United States Government” against persons who have defrauded the government. 31 U.S.C. § 3730(b)(1). In Stoner v. Santa Clara Office of Education, case no. 04-15984 (9th Cir. Sept. 7, 2007), the Ninth holds that a relator may not proceed pro se on behalf of the United States, anf thus the district court correctly dismissed the claim. The general pro se statute (28 U.S.C. § 1654 [emphasis added]) provides that “parties may plead and conduct their own cases personally,” which the court notes grants only a right…
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Roundup: Skilling’s Brief
Former Enron executive Jeffrey Skilling’s brief in the appeal of his criminal conviction states in support of his request for oral argument that his prosecution was “perhaps the most prominent and publicized white-collar case ever prosecuted.” One might guess he felt that way from the length of his opening brief: 237 pages and roughly 60,000 words. The blog posts I’ve seen on this credit WSJ.com’s Law Blog post as the first. It includes a link to the brief and credit’s Skilling’s lawyers for “some nice rhetorical touches,” two of which it quotes. While that post offers some bullet-point analysis of the arguments made in the brief, those truly interested (but…
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Arguing against Binding Authority
What do you do when your only hope is to take a position that has been soundly rejected by the same appellate court in a prior case? Well, you don’t do it by arguing for that position as if that bad case never happened and without citing it. The Ninth Circuit is clearly a little peeved with the Department of Justice for doing just that in Singh v. Gonzales, case no. 04-70300 (9th Cir. Sept. 7, 2007): It is the responsibility of the Department of Justice and its lawyers to be aware when its positions have been rejected by the court. While it is acceptable to make a rejected argument…
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Nothing Good on TV?
How about watching some depositions and other legal proceedings that will keep you laughing? Just don’t click on crazydepos.com while you’re at work and then blame me when your billables are down.
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Addressing Your Brief To a Specific Circuit Judge . . .
. . . or, at least, to a specific group of circuit judges, may now be possible, if Tom Caso at The Opening Brief is correct. He cites a study covering ten years of federal appellate opinions that concludes “opinion specialization [is an] unmistakable part of every day judicial practice.” In other words, cases of specific types tend to get assigned to certain judges. Says Tom, “If true, this suggests a more focused approach for the federal appellate lawyer.” There’s more, including a link to the study, at his post.