Friday, December 28, 2007

Death: A Strong Defense

The Widget:

Court: Appeals Court
Judge: Grasso
Subject: Premises liability
Tone: Ipse dixit
Importance: 4.0

So it turns out that a failsafe way to avoid liability for a dangerous condition on your property is to die before it injures someone. That’s the Appeals Court’s holding in Sullivan v. Rich, Mass. App. Ct. No. 07-P-109.

The plaintiff fell into a hole and injured himself. “The hole, which was covered with a piece of wood and topped with dirt and leaves, was indistinguishable from the surrounding area. It contained a buried fifty-five gallon drum.” With that in mind, a fitting New Year’s resolution might be to watch your step. Or is that too callous? Perhaps the better resolution is do a better job burying stuff in your yard. Even better than that: just don't bury stuff in your yard to begin with.

Yesterday In Bruce Selya

The Widget:

Court: First Circuit
Judge: Selya
Subject: Drug trafficking
Tone: Unconvinced
Importance: 3.2

Today’s additions, from United States v. Jimenez, 1st Cir. No. 06-1533, to our ever-growing lexicon:

PINNACLE (non-metaphoric iteration)

Saturday, December 22, 2007

SJC: You Can't Win If You Don't Play (Thank Goodness . . .)

The Widget:

Court: SJC
Judge: Greany
Subject: Employment discrimination
Tone: Unremarkable
Importance: 4.2

Does an employer discriminate against someone it doesn't hire who missed an application deadline and, in fact, didn’t even apply for a job? In Nguyen v. William Joiner Ctr. for the Study of War and Social Consequences, SJC No. 09848, the SJC says no.

That a case like this one can make its way all the way to any high court in the Union (let alone get filed in the first place) buttresses the argument of those who say there are too many lawyers and too many lawsuits.

UPDATE: Spelling of the Joiner Center is corrected above. William Joiner is apparently not related to Wally Joyner, which is too bad for both of them. But this raises another question: what does a "Center for the Study of War and Social Consequences" study? War's social consequences? Or war, in general, and social consequences, in general? Consequences of what? The Center's website doesn't provide much assistance: "It provides educational and other services to veterans, conducts research and makes policy recommendations on issues relating to veterans, and encourages teaching and scholarship on the Vietnam War and social consequences."

Thursday, December 20, 2007

Barney Alert: Did The SJC Just Send A Signal That It’s About To Get Easier To Dismiss Civil Suits?

The Widget:

Court: SJC
Judge: Greany
Subject: Motions to dismiss
Tone: Hedging
Importance: ?

Our first Barney Alert in a while. Last term the U.S. Supreme Court decided Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007) and civil litigators scratched their heads. The Court said that the old standard for determining whether or not to dismiss a complaint under Rule 12 (“a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief”) leads to too many groundless lawsuits gaining too much traction. The Court suggested replacing the old standard with something different: “whether facts alleged in the complaint raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact).”

Now there are two distinct schools of thought on whether this is a meaningful change. In Eigerman v. Putnam Investments, Inc., No. SJC 07-9854, the SJC today spends a moment considering the issue and punts. “In a future case,” Justice Greany says, “we may consider whether we should adopt the Bell Atlantic standard for application to complaints that are the subject of a motion to dismiss pursuant to Mass. R. Civ. P. 12(b)(6).” Two things to take away from this equivocation: (1) the SJC thinks the Twombly case did lower the bar that must be hurdled before a case can be dismissed under Rule 12; and (2) the SJC did not reject the Twombly standard out of hand as being totally preposterous. Expect plaintiffs and defendants to grapple clumsily (and expensively) with this issue until the SJC resolves it.

Wednesday, December 19, 2007

Things You Don't Want The First Circuit Saying About You On The Record

The Widget:

Court: First Circuit
Judge: Stahl
Subject: ERISA*
Tone: Justifiably ornery
Importance: 3.9

Credibility is precious in this line of work. So the First Circuit’s statement on page 13 in Gillis v. SPX Corp. Individual Acct. Retirement Plan, No. 07-1777, has to make you cringe just a little bit:

[The appellant’s ] argument on appeal that the district court should have somehow made this comparison itself, without [the appellant] providing the court with the relevant argumentation and data, betrays a misapprehension of our adversarial system and the burden he carried as a plaintiff opposing summary judgment before the district court.

The “comparison” referenced here is the difference between the retirement payout the plaintiff claimed he was owed and what he actually received. But that’s not so significant. What’s significant is that the First Circuit accuses the appellant’s counsel of misunderstanding a bedrock rule of civil procedure and, indeed, the entire system of American civil litigation itself. As Instapundit would say, “Ouch.”

*For the uninitiated (thank your lucky stars), the “Employee Retirement Income Security Act”.

Suffolk County Sheriff Weirdness Update

In response to this post, we get a comment:

When the Sheriff's Department terminated the lease, it didn't do so because of the missing auditor's certification. It terminated for a much more pedestrian reason: the landlord had not completed construction work required under the lease within the time permitted. The landlord had a creative lawyer who argued, the first time the case went up on appeal in 2004, that in light of a statute applicable only to Boston and Suffolk County contracts, the time for construction had not begun to run until the mayor approved the contract, which, if true, would mean that the Sheriff's termination was untimely and improper.

Only on remand did the Sheriff's Department raise the statute's requirement of an auditor's certification. So the landlord was hoist by its own petard.

Fascinating. There are two responses. First, this happens all the time. Lawyers get cute ideas, employ them to get out of small messes, and create much bigger messes in the process. Exhibit A would be Vice President Cheney’s contention that he’s not a member of the executive branch. Cute. But when David Addington came up with it, did he realize that Larry King would ask his boss about it on national television?*

Second, the comment still doesn’t explain Auditor’s nonsensical certification: “APPROVED AS TO AVAILABILITY OF APPROPRIATION OR PURSUANT TO ARTICLE 12.2 OF THE GENERAL CONDITIONS IN THE AMOUNT OF $0.00.” What does that even mean? Any ideas?

*Aside: maybe he did and he didn't he care. This administration has really changed how we’re all going to think about political courage. There’s a difference, after all, between taking an unpopular and unbending stand in support of a demonstratively failed policy and taking an unpopular and unbending stand in support of a policy that history ultimately proves right. Cheney, Addington et al. still, admittedly, have a chance of being absolved by history. But it’s a very slim chance.

Tuesday, December 18, 2007

Now If Only This Post Could Have A Mike Rowe Voiceover . . .

The Widget:

Court: DC Circuit
Judge: Williams
Subject: The Bering Sea
Tone: Acronym-happy
Importance: 5.0

Anybody who watches Deadliest Catch knows that crab fishing in the Bering Sea is one of the more terrifying enterprises devised by the human species (“I have a GREAT idea: let’s wait until it gets really cold! Then we can take tiny boats out in twenty foot seas with a bunch of 900 pound steel cages that we’ll call crab pots flying around the deck! And do some fishing! Fun!”). So giving these guys less to worry about in the environmental regulation department, which is what the D.C. Circuit did today in Fishing Co. of Alaska, Inc. v. Gutierrez, No. 07-5153, probably evens things out in at least a cosmic sense.*

*The fish no doubt disagree. And they may have a valid point.

Monday, December 17, 2007

Great Moments In This Administration

The Widget:

Court: D.C. Circuit
Judge: Brown
Subject: Veterans
Tone: Unremarkable
Importance: 5.5

Given the way the Bush Administration has gone about its business, you have to wonder what they have against veterans. Today, in Cody v. Cox, D.C. Cir. No. 06-5253, the D.C. Circuit reversed a trial court’s dismissal of claims brought by residents of the Armed Forces Retirement Home – Washington, D.C. These veterans claimed that the ingrates – er, the Administration – violated their statutory right to high quality care when the Home’s chief operating officer imposed draconian cost saving measures. Their specific complaints related to “unavailability of physicians and dentists, neglect of patients, and delays in obtaining prescription drugs.” So not very important stuff.

In response, Congress passed a statute that gave the veterans additional detailed rights beyond their generalized entitlement to “high quality” healthcare. The ingrates’ – sorry, the Administration’s – response to that was to say to the trial court “OK! Awesome! Problem solved!” The trial court agreed. But today the D.C. Circuit, that bastion of left wing activism, said “Not so fast.”

Sunday, December 16, 2007

What Is It About Dissents And Concession Speeches?

They’re just a lot more lyrical.

The Widget:

Court: First Circuit
Judge: Lipez (dissenting)
Subject: First Amendment
Tone: Thorough, elegant
Importance: 5.3

Judge Lipez writes a gorgeous dissent (starting at page 63) in Sullivan v. City of Augusta, First Circuit No. 06-1177. The issue is whether a parade fee without an indigency exception violates the First Amendment. The majority says no and Judge Lipez disagrees.

One of the issues to consider here is whether there are reasonable alternatives to street marches for people who can’t afford the parade permit. Lipez says no, and he focuses for a bit on the internet. “Although the internet has provided new for a for communicating with large numbers of people,” Lipez writes at page 83, “websites, blogs and other publicly accessible online opportunities are not substitutes for face-to-face experiences . . . .”

We sort of know this already, but it’s an awfully good point. Example: Remember when the Deaniacs thought they could win a presidential election on the internet? Well, they learned that you need more than orange stocking caps and righteousness to finish better than third in the Iowa caucuses. This may not have anything to do with anything. But it's worth noting!

Thursday, December 13, 2007

South End Biolab: Flawed Review Process

The Widget:

Court: SJC
Judge: Spina
Subject: South End Biolab
Tone: Academic
Importance: 2.3

Big news! In Allen v. Boston Redevelopment Auth., SJC No. 09960, The SJC today holds that the Secretary of Environmental Affairs blew it in the review of BU’s proposed South End biomedical research complex.

Or is it big news? Probably not. The Secretary had already agreed with the trial court’s determination and directed preparation of a supplemental environmental impact report. So not a lot was decided today, as Justice Cordy appropriately notes in his concurrence.

Justice Spina tries to address the mootness problem in his footnote 20. His point is that the issue is important and the Court has papers on it. But this is the second opinion in less than a week that’s involved a high court making an unnecessary pronouncement on a public policy question. Which isn’t really their job.

Wednesday, December 12, 2007

Suffolk County Sheriff’s Office Weirdness

The Widget:

Court: Appeals Court
Judge: Mills
Subject: Municipal law
Tone: Befuddlement-inducing
Importance: 1.2

Okay. We’re about to get hypertechnical and then confused. Be warned.

The Suffolk County Sheriff tried to enter into a ten year, $7 million lease for office space. In order for the lease to be enforceable, the City of Boston (which controls the Suffolk County Sheriff’s office) needed to have its auditor “certif[y] thereon that an appropriation is available therefor or has cited thereon the statute under authority of which the contract is being executed without an appropriation.”

This lease incorporated the following imprimatur from the auditor’s office: “APPROVED AS TO AVAILABILITY OF APPROPRIATION OR PURSUANT TO ARTICLE 12.2 OF THE GENERAL CONDITIONS IN THE AMOUNT OF $0.00.”

Pardon? $0.00?

And so, of course, the Sheriff broke the lease and the landlord sued. And the landlord, of course, lost. Because, as the Appeals Court held today in Bradston Assocs., LLC v. Cabral, Mass. Appeals. Ct. No. 06-P-1844, the lease was not enforceable to begin with. Why didn’t the landlord catch this? Why did the auditor include an utterly inscrutable certification on the contract? It almost looks like the city tried to fool somebody who was willing to be fooled.

This may just be what happens when turnout is fourteen percent.

Tuesday, December 11, 2007

Today In Bruce Selya

The Widget:

Court: First Circuit
Judge: Selya
Subject: “The overarching themes are chicanery and greed”
Tone: Bemused disappointment
Importance: 4.2

Why does he get his very own feature on this blog? Because he writes paragraphs like this:

The circus impresario, P.T. Barnum, is famously reputed to have said that “there’s a sucker born every minute.” That droll commentary on the human condition, whether or not fairly attributed to Barnum, appears to be as insightful in cyber-commerce as in face-to-face business transactions. This conclusion is borne out by the case at bar, which involves an Internet fraud.

And while the opinion in United States v. Deppe, No. 07-1048, adds just a single entry to the roster of Selya-esque words and expressions (COMPRISE MORE CRY THAN WOOL*) it provides another great moment in the history of the lawyer-client relationship:

When the district court held a sidebar conference to discuss its further [jury] instructions, the appellant injected himself into the conversation[**], bypassing his counsel and explaining how he thought the instruction should be worded. The court then asked defense counsel whether appellant’s objection was counsel’s objection. Counsel equivocated; he disavowed the objection but then enigmatically observed that, whatever he happened to think, “it’s Deppe’s life.”
Lawyers: we love our clients so much.

*Note, incredibly, that this definition references a judicial opinion from the First Circuit. Wonder who wrote that.

**What the heck he was doing there is anyone’s best guess.

Monday, December 10, 2007


The Widget:

Court: U.S. Supreme Court
Judge: Souter
Subject: Guns, drugs
Tone: Subliminally persuasive
Importance: 5.5

A couple of years ago, the Supreme Court held that a defendant who traded his gun for drugs “used” the gun during the transaction for sentencing purposes. Today, in United States v. Watson, U.S. Supreme Court No. 06-571, the Court held that a defendant who traded his drugs for a gun had NOT “used” the gun during the transaction for sentencing purposes.

At first glance, these two decisions seem wacky and irreconcilable. But then you look at them for a couple of minutes, and kind of like this famous E.G. Boring thing, you start to see that they’re compatible.

Professor Reynolds says he sees no Second Amendment implications and then implies that there are Second Amendment implications.

That Sound You Heard This Morning Was The Plaintiffs’ Bar Celebrating*

The Widget:

Court: SJC
Judge: No majority opinion
Subject: Physicians’ duty to third parties
Tone: Multiple (see above)
Importance: 7.4

Get ready for a noticeable health insurance premium increase. And also crocodile tears from Republicans and the insurance industry.

In Coombes v. Florio, SJC No. 09869, The SJC announced today that third parties injured by patients suffering from side effects of medications prescribed by doctors can sue the doctors for failure to warn. There was no majority opinion, which is rare on this Court.

Chief Justice Marshall, not especially known for being all that pro-business or all that anti-plaintiff, dissented. She writes: “I respectfully disagree with the opinion of Justice Ireland (and the two Justices who join him) that would establish for the first time in this Commonwealth a physician's duty to prevent harm to nonpatients, and would do so in sweeping terms.”

This seems like an awfully big expansion of physician liability. In light of the fractured nature of the opinions and the importance of the health care industry in the Commonwealth, it would be surprising (and disappointing) if the legislature didn’t get involved with this.

*No, not because the sidewalks in Boston were extra icy. These lawyers are enterprising. Not evil.

Saturday, December 8, 2007

Oh, Come On

The Widget:

Court: Rhode Island Supreme Court
Judge(s): Robinson (majority); Suttell (dissent)
Subject: Gay marriage
Tone(s): Mulish (majority); devastating (dissent)
Importance: 6.7

So here’s the Rhode Island Supreme Court’s decision in Chambers v. Oriston, No. 2006-340. The Court holds that a lesbian couple is not entitled to a divorce in Rhode Island because Rhode Island doesn’t recognize Massachusetts gay marriages.*

The heart of the opinion is the conclusion that since Webster’s defines marriage as “the state of being united to a person of the opposite sex”, the couple never was really married. In a footnote, the Court states “We are in no sense disregarding Judge Learned Hand’s advice that ‘courts should not make a fortress out of the dictionary.’” Which is a great point! Even though that’s really exactly what the Court is doing.

The dissenting judges, who begin their comprehensive response at page 17, make a lot of persuasive points. But the most persuasive is their invocation of Loughran v. Loughran, 292 U.S. 216 (1934). There, the Supreme Court said “Marriages not polygamous or incestuous, or otherwise declared void by statute, will, if valid by the law of the State where entered into, be recognized as valid by every other jurisdiction.”

An effective majority opinion would have somehow anticipated this argument and countered it. This majority opinion, however, does no such thing. But they do have Webster’s on their side. And that’s not nothing. It’s just next to nothing.

*Neither party actually raised this argument, leading to a fair inference that the Court went out of its way to hold as it did. Why would it do that?

Thursday, December 6, 2007

Decisionism Is Also About Decisions That Haven’t Been Made Yet

The Widget:

Court: Appeals Court
Judge: TBD
Subject: “Good government and transparency”
Tone: TBD
Importance: 5.1
Massachusetts has an incredible open meeting law that basically prohibits public bodies from holding anything even approaching private deliberation sessions. A couple of years ago, some interested Boston citizens filed suit against the City Council for violating the open meeting law.

And they won. Which bothered then City Council President Michael Flaherty ''given that the Boston City Council stands for good government and transparency."*

So the City Council appealed and the Appeals Court heard the argument today. We’ll see what happens.

*Yes. That is an actual quote. From Michael Flaherty. Perhaps he's talking about the city council of some town named Boston in another state. Like Boston, Missouri. Maybe?

Wednesday, December 5, 2007

Barb Dissed

The Widget:

Court: SJC
Judge: ?
Subject: Professional, uh, responsibility(?)
Tone: Exhausted
Importance: 2.1
Andover’s most awesome attorney, Barbara Johnson, was disbarred today, in part because she’s the proprietor of an unusual website. Johnson ran for governor in 2002. Surprisingly, she lost. It would be mischaracterizing things to say that her star has fallen since then because, well, her star never really seems to have been all that high.

Tuesday, December 4, 2007

Fickle Justices Turn Backs On Gun-Toting Career Criminals

The Widget:

Court: U.S. Supreme Court
Judge: Ginsberg
Subject: Guns
Tone: Dubious
Importance: 6.7
A felon who possesses a firearm commits a federal crime. “Career criminals” get fifteen automatic years in federal prison if they’re caught with a gun.

In a unanimous opinion today, the U.S. Supreme Court refused to tinker with the underlying statute, which includes exceptions if the convictions have been expunged or civil rights have been “restored.” There were no separate concurrences by any of the conservative justices raising the possibility that this statutory scheme might cause problems under the Second Amendment. Can we read anything into this?

Well, if Profs. Volokh and Reynolds can waste our time touting a Pennsylvania Supreme Court decision that assumes without deciding (and thus says effectively nothing about whether) the Second Amendment protects individual gun owners, it’s at least worth noting that there are no Printz-type dissents in today’s decision.

Decisionism's One Punch

The Widget:

Court: SJC
Judge: Cordy
Subject: Appalling parenting
Tone: Revolted
Importance: 5.6
What does it really mean to be insane? We can all agree that a father who killed his ten month-old son after depriving him of solid food and mandating that the baby could only drink breast milk and water because he’d heard that proverbial message from God, we can all agree that this guy was just way out of his right mind. But can he be held criminally responsible for his actions?

The SJC decided today in Commonwealth v. Robidoux, No. SJC-09758 that he could, leading any sentient being to breathe a gargantuan sigh of relief. It did so in spite of the fact that insanity is a defense to first degree murder? What does it mean to be insane? As the Court states, “A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality wrongfulness of his conduct or to conform his conduct to the requirements of law.” Mr. Robidoux’s actions after murdering his son sort of cut both ways here:

Robidoux placed Samuel's remains in a homemade casket and stored the casket in the bulkhead of a home belonging to one of his sisters for several months. On October 11, 1999, Robidoux [and some friends] went hiking in remote Baxter State Park in Maine, carrying a plywood casket that contained the remains of Samuel. After hiking for about seven hours, the group left the trail where they “felt comfortable.” There, 300 or 400 feet off the trail, they buried the caskets.*

Again (and either way): CRAZY, CRAZY MAN.

Decisionism’s college roommate often asked this hypothetical question: if you had one free punch that you could use on any human being without any repercussions, what would you do with it? Decisionism hereby reserves its one punch for Joel Robidoux.

*Yes, caskets. As in the plural of casket. Go read the decision if you want to learn more. Blecch.

Monday, December 3, 2007

Slightly Less Exciting Than The Night Before Christmas

If you’ve been wondering why Decisionism hasn’t been covering the U.S. Supreme Court, well, it’s because the Supremes have not yet released a single signed opinion during this term.* That all changes tomorrow (Tuesday) morning.

Bated breath, etc., etc.

*Tradition mandates that the Supreme Court begin its term on the first Monday of October. This year's term began on the earliest possible calendar date, October 1.