New Jersey v. Delaware -- Well, They Weren't Fighting About How Awesome They Are

One of the neatest aspect's of the U.S. Supreme Court's docket is that it is the court of first impression for disputes between the states. This is generally pretty high stakes stuff. And if you put to one side the fact that these nine justices are not so well-suited to the machinations of trial practice, it sort of makes sense. The constitutional intellectual smell test is this: if you were a state and you were sued by another state, where would you want the case to be heard. Your instinctual reaction (after you think "in my own darn courts") is probably the Supreme Court. So there you go.

Today, the U.S. Supreme Court decided New Jersey v. Delaware, No. 134 Orig. New Jersey and Delaware have basically been fighting about who controls the Delaware River since they entered the Union. And before you make snide remarks about the Delaware River, remember that it's the one that Washington crossed on a cold morning all those years ago. We will stipulate, however, that jokes about both Delaware and New Jersey can be funny under the right circumstances.

Now the issue in today's case was whether New Jersey gets to build a big liquified natural gas (LNG) facility that pokes out onto the Delaware side of the river. We Bostonians know all about LNG and how awesome it is. The case is full of juicy tidbits, like the fact that an unnamed New Jersey legislator "looked into recommissioning the museum piece battleship U.S.S. New Jersey, in the event that the vessel might be needed to repel an armed invasion by Delaware." (Page 12)

The Court ruled for Delaware (and therefore against the LNG facility). Justice Scalia dissents, which is, of course, a shock. Especially because when you think of the Supreme Court justices that are going to be concerned about the construction of a big industrial facility in a riparian area, doesn't Antonin Scalia just leap to mind?

Jonathan Saltzman, Call Your Office

The Boston Globe has decided to cover the First Circuit's dismissal of the Michael Moore defamation suit. How this week-old story counts as news is not clear. Maybe the Globe's news chops are a little rusty, though, given that they've rented out ninety percent of their front section to the wire services and the few remaining national papers that still do some actual national and international news reporting.

SLAPP Happy

A few years ago, big real estate developers realized that a great way to limit public discussion of contemplated developments was to sue people that criticized said developments. Legislatures in various of the fifty states, including Massachusetts, responded by enacting Anti- SLAPP (Strategic Lawsuits Against Public Participation) statutes. The Massachusetts statute protects "petitioning", an activity that courts have interpreted with astonishing inconsistency. And to qualify for the statute's protection, defendants have to establish that their petitioning activity wasn't a sham. Lawsuit plaintiffs who violate the statute have to pay defendants' attorneys' fees, which is a big deal.

Today the Appeals Court and the SJC each decided SLAPP cases.

In Wenger v. Aceto, SJC 10065, the SJC applied the statute to a lawsuit filed by a client against his former attorney. This case is more interesting for its facts than anything else; it's basically a road-map for how not to conduct an attorney-client relationship. The client bounced a $10,000 check to his lawyer. So the lawyer upped the ante and swore out a criminal complaint against his former client in Dedham District Court. The district court looked at the case and politely sent the attorney on his way. And then his client sued him. The SJC held that even though the criminal complaint lacked merit, the attorney still could use the SLAPP statute to dismiss two of the three claims against him.

Moriarty v. Town of Holyoke, 06-P-1554, is more interesting from a legal perspective. There, the issue was whether government employees could qualify for the statute's protection since the statute aims to protect citizens who petition the government. The Appeals Court today said no. The decision's logic is not so easy to follow, and it would not be surprising if this case is distinguished by courts more often than it is followed.

Michael Moore Call Your Office (Part 2)

How is it possible to root against an American hero who has had both hands and most of one arm blown off in Iraq?

When he files a lawsuit against Michael Moore because there's a clip of him in Fahrenheit 911 talking to NBC News about how much it sucked to have his hands blown off. Because if you're talking about how much it sucks to have your hands blown off -- and I think Peter Damon gets a free lifetime pass to talk about this for as long as he wants with anybody who the thinks needs to hear it -- you must be harboring malicious thoughts with respect to our illustrious Commander-in-Chief. Right?

The First Circuit said "Wrong" today in Damon v. Moore, First Cir. No. 07-1365.

Things That Get You Killed In Jail

A good friend used to work for Super Shuttle in Los Angeles. Apparently the Super Shuttle folks spent a lot of time playing dominoes while they waited around to drive people from the Southwest terminal at LAX to strip clubs. This friend, we'll call him "JG", came to visit when we lived in D.C. and he brought his dominoes. There were certain tactical indiscretions that were not permitted. After committing such an indiscretion, JG would tell us "That's the sort of thing that gets you killed in jail." This was what his Super Shuttle coworkers told him, at least.

This case, Commonwealth v. Perkins, SJC No. 07-8448, involves things you shouldn't do when you're in jail.* When folks from the cold case squad want to interview you and they offer you a soda and a cigarette, SAY NO. Because the cold case guys could use the fingerprints on the soda can and the DNA from the cigarette butts to nail you with a murder charge. And there won't be very much you can do about it.

*It's also just a really freaking scary case. If some guy helps you carry your groceries home and then starts showing up at random hours looking to chat with you, do whatever you have to do to make it stop. Call the cops, the Guardian Angels, your brother, your sister, buy a gun (the Supreme Court would wholeheartedly approve!). Just make it stop before something bad happens.

Giveth, Taketh, Etc.

The reporters are just littered with suits claiming that lenders are violating federal statutes governing disclosure and reporting requirements. Plaintiffs win on occasion, but they probably lose more often. Such is the case in Sullivan v. Greenwood Credit Union, First Cir. No. 07-2354.

If you look at this case, you'll notice two things. First: the plaintiff's claims clearly don't mesh with the statute under which he sued the lender. It's almost as if the plaintiff's lawyer didn't read the statutory provision under which he was suing before he filed suit. Stranger things have happened.

Second: the statute doesn't mesh with itself. It's complicated, but the essence of it is that Congress creates a cause of action with one hand and then yanks it off the table with the other. The statute prohibits conduct, but then it defines the conduct such that nobody could ever conceivably violate it.

Good to know that Congress continues to spend the people's time so wisely.

Phew!

We're back from a two-day mediation. And thanking goodness that the current U.S. Supreme Court has finally found a liberty in the Bill of Rights that it considers worthy of protection! After all, the last ten years have established that state and federal legislators are far too willing to throw the gun industry under the bus. If there's one group of Americans whose interests need to be protected by the courts, it's those 55 million gun-owning households.

Right?

One Time is a Blip . . .

Two times is a pattern. Could three times (or more?) be a trend?

If you’ve ever wanted to know the ins and outs of staffing at the U.S. Marshal’s office here in Massachusetts, DeCaire v. Mukasey, First Cir. No. 07-1539, is the case for you. Today the First Circuit reversed the trial court’s finding for the defendant in this employment discrimination case. Apparently, the trial judge ruled against the plaintiff based on a view of the evidence for which the defense had not advocated, nor, it seems, even suggested.

There’s some language in here that would seem unusual were it appearing in a different context. “We have great concern,” they state at page 43 of the opinion, “over the district court’s utilization of a theory not advanced by either party to the case. Fairness alone requires that the parties have notice of the theories so that the parties can gear their evidence toward what is at stake.”

Not so strange here.

Or What?

Want to vote on an initiative guaranteeing universal health care coverage? Too bad.

In Committee for Health Care for Massachusetts v. Secretary of the Commonwealth, SJC No. 10021, the SJC again tells the legislature that it has a duty to vote on all pending initiative amendments before it recesses.

Yet again, however, the SJC refuses to enforce the law based on a respect for the concept of separated powers.

The whole thing feels very passive aggressive. But it also feels right: if you don’t like what your legislator is doing, or don’t think she’s doing what she’s supposed to be doing, vote for somebody else and convince your friends and neighbors to do the same. Or run against her yourself.

Before You Cut Down Your Neighbor's Trees . . .

. . . For the love of Pete, read this case, Glavin v. Eckman, Appeals Ct. No. 07-P-383.

Carnival Of Buffoonery

A very smart rule of thumb for consumer class actions: unless the facts make you say (preferably out loud) that’s unconscionable, it’s probably not a case that’s worth a whole lot.

So.

Remember a couple of years ago when Listerine said that it was “as effective as floss.” Pretty silly, right? Not as silly as filing a class action lawsuit and claiming that the ad campaign duped you. Those are the facts in Kwaak v. Pfizer, Inc., Appeals Court No. 07-P-317. The issue in the case relates to whether the plaintiffs should be entitled to proceed with a class action, rather than pursuing their claims individually. The Court held that they’d have to do it individually.

The plaintiffs’ lawyer does have a blog, which is interesting.

On Obama And Judges

Some awfully smart people are going after Barack Obama for saying (gasp!) that a good judge has to be able to do the empathy thing. They claim that empathetic judges pose a risk to the rule of law.

Well, smart folks are occasionally wrong and this is such an occasion.

A good judge has to be able to see, understand, and sink his or her teeth into multiple perspectives in just about every case. Some people call this empathy. Some people call it judiciousness. It ain’t liberal or conservative per se.

The larger point is that Profs. Kerr and Bainbridge really aren’t concerned about the rule of law in this context; they’re concerned about the likelihood that a President Obama would appoint judges with whom they disagree. Liberal judges.

The Federalist Society has done a great job over the last 25 years convincing everyone that it’s liberal judges who are sacrificing the rule of law, who are the activists. This discourse has been politically successful, but it’s raised the stakes in an irresponsible manner.

We should all just get over ourselves. Republican presidents are supposed to appoint qualified conservative judges.* Democratic presidents are supposed to appoint qualified liberal judges. That’s just politics, not Armageddon.

*Our current President, regardless of how much you despise him, has been quite successful in this regard.

Department Of Things To Be Determined (Part II)

So you know, Justices Roberts and Alito went with Justices Kennedy, Stevens, Souter, Breyer, and Ginsburg in allowing an age discrimination case to proceed against Fedex. They did so over Justice Thomas's dissent, which Justice Scalia joined. The case is Federal Express Corp. v. Holowecki, No. 06-1322.

Just sayin'.

Major Charitable Institutions Can Be Petty, Too!

The Widget:

Court: Appeals Court
Judge: Sikora
Subject: Will contest
Tone: Thorough
Importance: 2.8

Few things on earth stir up as much unpleasantness as will contests. So you would think that institutions as luminous as Beth Israel and the Perkins School for the Blind (Helen Keller’s alma mater) would have better judgment than to get involved in one unless it was really, really necessary.

But get involved, they did. And lost, as they should have, in today’s Appeals Court decision, Maimonides School v. Coles, No. 06-P-1304.

They challenged a dying man’s decision to disinherit them and instead give a large gift to his neice, who visited him regularly and took great interest in his care. The contestants’ principal argument was that the man was depressed because he was dying and thus not thinking straight. They also argued that his decision to provide his neice with a large inheritance was “unnatural” because it would have generated significant tax liability. What’s interesting about this is that the older cases all held that a gift could not be unnatural if it was made to a blood relative. For some reason, the Court couldn’t find its way to those cases. In the end, though, it gets to the right place: “The evidence here does not create a genuine issue whether Brener's gift to the Rosens was unnatural. In the final stage they functioned as his closest family. They comforted him through the bleakness of terminal illness. His gratitude would be natural.” Yes, it would.

Rare Bird Sighting In First Circuit

The Widget:

Court: First Circuit (en banc!)
Judge: Boudin
Subject: Sentencing guidelines
Tone: Different
Importance: 5.0

En banc opinions* are very rare treats. And we get one today in United States v. Vega-Santiago, No. 06-1558.

There’s all kinds of interesting stuff in this opinion. The case is about whether a trial judge must provide notice to the parties before imposing a sentence that is harsher than what’s suggested in the federal sentencing guidelines. Right on page one, you can see that the appellant criminal defendant was able to get the brilliant Walter Dellinger to represent him. He still lost, though.

The issue itself would seem to be addressed by the text of Fed. R. Crim. P. 32(h), which requires notice before the court engages in a “departure” from the sentencing guidelines. The Court, however, says that imposing a harsher sentence is called a “variance” and not a “departure”. In the discussion of the difference between a sentencing “variance” and a sentencing “departure” (pp. 4-5), there isn’t a whole lot of – well, any – caselaw cited. That’s strange.

There’s a dissent from Judge Torruella. He says (p. 14) that “[t]he convocation of this particular en banc proceeding highlights the whimsical and uneven manner in which this circuit often applies the rehearing rules. Indeed, both the granting and denying of petitions for these extraordinary proceedings evince a double-standard with respect to which issues are deemed meritorious of such review.” Though your eyes may have glazed over the first time you read it, if you read it again, you’ll see language that’s a bit more acerbic than the usual appellate exposition.

*Opinions where larger panels of federal appellate courts reconsider holdings of three judge appellate panels.

Department Of Things To Be Determined

The U.S. Supreme Court released five opinions today. Things shook out this way:

Rowe v. New Hampshire Motor Transp. Ass’n, No. 06-457

Majority: Everybody but Scalia (in part)
Concurrence: Ginsburg
Concurrence (in part): Scalia

Preston v. Ferrer, No. 06-1463

Majority: Everybody but Thomas
Dissent: Thomas

Riegel v. Medtronic, Inc., No. 06-179

Majority: Everybody but Stevens (in part) and Ginsburg
Concurrence: Stevens (in part)
Dissent: Ginsburg

Danforth v. Minnesota, No. 06-8273

Majority: Everybody but Roberts and Kennedy
Dissent: Roberts (with Kennedy)

LaRue v. Dewolf, Boberg & Assocs., No. 06-856

Majority: Stevens, Souter, Ginsburg, Breyer, and Alito
Concurrence: Roberts (with Kennedy)
Concurrence: Thomas (with Scalia)

What does this tell us? It tells us that Souter, Breyer, and Alito were together in all five cases. Not sure what that means, if anything. And Roberts and Kennedy were together in all five cases. Not sure what that means, either.

The various members of the Roberts Court might still be figuring out who their allies are.

Michael Moore, Call Your Office

The Widget:

Court: Appeals Court
Judge: Cypher
Subject: Health insurance
Tone: Slightly baffled
Importance: 4.1

So it turns out that state-run health insurance can be as illogical and infuriating as private health insurance. Go figure.

In Shaw v. Secretary of the Executive Office. of Health & Human Servs., No. 06-P-1599, the Appeals Court reverses a Superior Court judge’s decision that had the effect of denying a medically necessary procedure to a teenage girl. A doctor requested authorization to perform the procedure, which MassHealth refused to provide (without stating why). This prompted the girl’s mother to say that the procedure was necessary so the doctor should proceed. This, in turn, prompted MassHealth to reject her claim because the procedure was performed without MassHealth’s authorization.

There’s an overwhelming stench of bureaucratic laziness pervading this decision. It's sad how little that surprises anybody anymore.

Not Taking No, No, No, No, No, No, Or No For An Answer

The Widget:

Court: SJC
Judge: Cowin
Subject: Procedural chaos
Tone: Weary
Importance: 3.1

The Marina Bay complex in Quincy has spawned quite its share of litigation. A developer’s plans to build in the area were at issue today in Elles v. Zoning Bd. of Appeals of Quincy, No. SJC 10031. Actually, what was really at issue was a messy donnybrook involving the plaintiffs’ attorney, the defendants’ attorney, and the trial judge. So much the better!

The plaintiffs live in the area and sued to stop the development because it would be loud and increase traffic. The defendant filed a motion claiming that the plaintiffs wouldn’t suffer legal injury as a result of the development and so they did not have what fancy-pants lawyers call “standing” to sue. The plaintiffs responded that oh yes they did.

The trial judge said that there’d need to be a trial on the issue. Standard operating procedure here would be to just try the thing and deal with legal issues on an appeal. The plaintiffs, though, decided to be way more aggressive. First they filed a motion for reconsideration. This was denied. Then they went a bit nuts and filed what fancy-pants lawyers a notice of an “interlocutory” appeal. That is, an appeal before it’s really time for such things.

The trial judge then took the rather severe step of striking the notice of interlocutory appeal. The plaintiffs’ priceless response was to file a notice of interlocutory appeal of the judge’s order striking the first interlocutory appeal. The judge struck that, too, and went even further. He instructed the clerk’s not to do what it always does when there’s an appeal, which is to put the papers together and get them ready for transmission to the appellate court.

We’re treading precariously close to Barney Alert territory here. But let’s proceed.

The plaintiffs then petitioned the Supreme Judicial Court directly. And today they won a somewhat hollow victory. The Court found that the trial judge should not have engaged in the odd practice of striking the notices of appeal. But it went on to hold that, yes, there really needed to be a trial to determine whether the plaintiffs would be injured by the proposed development.

This summary is admittedly confusing, but it’s also incomplete. Though the opinion is short, it contains even more procedural wrangling for those interested in such perversity. What a great case, though.

Tracking Homeless Sex Offenders Is Hard

The Widget:

Court: SJC
Judge: Ireland
Topic: Homeless sex offenders
Tone: Clinical
Importance: 4.0

If you’ve ever wondered how we keep track of sex offenders who are homeless, the SJC resolves an issue related to that in Commonwealth v. Rosado, No. SJC 9982. A frustrating aspect of this case is that it could have been avoided had the Sex Offender Registry Board complied with the legislature’s directives on registration of homeless offenders. But getting the bureaucracy moving in the Commonwealth can be a challenge.

It’s reasonable to expect that there will be a disproportionately large number of homeless sex offenders. Landlords and employers running background checks are going to get skittish, which might bother some extremists and abnormally forgiving people, but ought not surprise anybody.

Some Lessons Are More Expensive Than Others

The Widget:

Court: First Circuit
Judge: Boudin
Subject: Judgments
Tone: Not buying it
Importance 3.2

Indianapolis Life Ins. Co. v. Herman et al., No 07-1797, is an interesting little First Circuit case. A defendant blew an answer deadline and judgment entered against her for more than a million dollars. She appeared, argued that the judgment should only apply to her in her capacity as a trustee, lost that argument, and appealed to the First Circuit.

Today the First Circuit affirmed, and stated at the conclusion of the opinion that “Justice be done though the heavens may fall (“Fiat justitia, ruat coelum”) is an admirable maxim, but in practice it is hedged by requirements that litigants make reasonable efforts to answer complaints, read documents served on them, obey court orders and seek corrections in a timely manner.”

In other words, be careful.