Common Sense Alert

The result in United States v. Levesque, 1st Cir. No. 08-1344, feels like it's right. A woman who drove marijuana shipments all over the Eastern seaboard was hit with a $3 million dollar forfeiture order because that's what the stuff she shipped was worth. The woman told the district court that she had made $37,000 on her illegal activities. The court said, in essence, that's great but you might do well in the future and be able to pay the government back.

The First Circuit reversed, in no small part based on the Magna Charta (!) and the excessive fines clause of the Eighth Amendment (remember that?).

Just at a really basic level, didn't the First Circuit do the right thing? How can a person who made $37,000 on drug transactions worth $3 million be put on the hook for the whole $3 million?

This one could go all the way. The holding is based in no small part on a fractured Supreme Court decision where Justices Scalia and Breyer broke with their usual allies and did exactly the opposite of what the conventional wisdom would have them do. So as much as this blog has beaten the drum of result-based decision-making, there are exceptions out there. Not enough. Better not to be greedy, though.

Splitting The Difference

There's a fascinating instance of the First Circuit attempting to do something that all clients hate (until, that is, they benefit from it): split the baby. The case is Jensen v. Phillips Screw Co., First Cir. No. 07-2766.

The parties were fighting about a $9,000 sanction order imposed by the district court judge on plaintiffs' counsel in a class action. Now $9,000 isn't a lot of money. That's true. But getting sanctioned is a pretty big deal and will at the very least hurt the feelings of even the most thick-skinned table-thumper. So plaintiffs' counsel fought the ruling. And the First Circuit largely agreed with them, reversing the award.

The most interesting portion of the decision is the last paragraph. This is the kind of thing that every lawyer always suspects that a judge or arbitrator is thinking. It's rather momentous to see it actually committed to writing:

The battle that is presently being fought is obviously about principle, not money (experience suggests that each side has spent more than the dollar amount of the sanction in briefing and arguing this appeal). As a matter of mutual interest, the time may have come for the protagonists to call it quits. On the one hand, Phillips prevailed in the district court and can credibly claim a moral victory. On the other hand, SE&D has prevailed in large part on this appeal and, at that point, has erased the stain on its escutcheon.

Tales From The Cryptic

The Supreme Court has reversed the 6th Circuit's determination that the Secretary of State of Ohio had to match voter registration rolls with department of motor vehicles records under a federal statute. The case is Brunner v. Ohio Republican Party, No. 08A332. This makes Democrats happy, because it probably means more people will be able to vote. It makes Republicans less happy, because they think that more people being able to vote means a greater chance of voter fraud.*

The decision is short and a little bit cryptic. But its basis is that the Ohio Republican party, nor any private person, can file suit under the statute in question. Helpfully, the Supreme Court provided no guidance on who or what can file such a suit. Maybe the Department of Justice?

*Like wolf attacks on humans since 1900, Republicans can point to precious few (any?) instances of actual fraudulent votes being cast.

Decisions That Have Not Yet Been Made, Etc.

This seems slightly problematic. A question to think about: might this testimony "have a prejudicial effect on the administration of the business of the courts, including a substantial and widespread lowering of public confidence in the courts among reasonable people"? It just might.

AIG Off The Rails

This hasn't been the best couple of weeks for AIG. Today, in Maxwell v. AIG Domestic Claims, Inc., No. 07-P-1858, the Appeals Court lays into the crippled insurance giant. And it seems that this laying-into is entirely justified. AIG denied workers' comp benefits to the plaintiff because he was doing volunteer work as part of a community service program -- a program in which he had to participate to keep his spot at a YMCA homeless shelter. And then it got the Suffolk County District Attorney to institute charges against him for insurance fraud.* Shortly thereafter, the plaintiff tried to kill himself. The Commonwealth pursued the charges for a time and then dropped them when it became clear that AIG's fraud contentions were not based on, well, actual facts.

Maybe AIG thought it had a blank check to browbeat homeless people since it put cute kids in its advertisements. Who knows? But if you can't believe an insurance company's advertising campaign, you just have to wonder what you can believe.

*Charges to which he initially pled guilty and then withdrew the plea given his precarious mental state.

Another Reason Sarah Palin Is Glad She's From Alaska

In Cachopa v. Town of Stoughton, No. 07-P-1247, the Appeals Court today held that political infighting, if it's too aggressive, can be actionable. Given what we know about politics as practiced in the Commonwealth, it would not be surprising to see a noticeable surge in civil case filings. As if Sarah Palin needed another reason to thank her stars that she doesn't live in Massachusetts.

Trend vs. Blip Dept.

Again? Yes, again. We may be reading more into this than we should, but isn't the First Circuit's tone in McGill v. U.S. Express Truck Co., No. 08-1101, a little bit exasperated?

Suffolk County Sherriff Weirdness Update Number Two

You may remember several months ago a weird case involving a lease and the Suffolk County Sheriff's office. The idea was that the lease wasn't enforceable because the auditor had approved the lease but not issued a document certifying that there were funds available to make rent payments. There was even a comment, probably by someone involved in the case, that included the landlord being derivatively "hoist by its own petard."

Well, today in Bradston Associates, LLC v. County Sheriff's Department, No. SJC 10139, the SJC issued its own decision in the case. It held, contrary to the Appeals Court, that the lease was enforceable even accounting for the auditor's bizarre certification.

"To hold otherwise," the Court stated, "would sacrifice substance to form and perpetrate an unfairness . . . ." Petard, consider yourself unhoisted.

Decisionism's Newest Reader*

Beatrice Sobel Klein! Born August 15, 2008 at 1:33 a.m.

*Also the reason for recent light posting, along with the lack of interesting stuff happening because everybody is on vacation.

Not Every Day? Who Is This Guy?

Yesterday, this blog included a post stating that it's really rare for appellate courts to reverse a trial judge who is trying to control his or her docket. So rare, in fact, that it's happened two straight days in two separate appellate courts located in the Commonwealth.

Today, it's Wilkins v. Cooper, No. 07-P-26. The procedural history here is Byzantine. But the nut of the issue is whether a trial court can dismiss a case where one attorney misses a status conference and, at that very same status conference, the Court can decide on its own to convert the status conference into a motion hearing and toss the case. The answer is no.

One other interesting fact here: there was at least one motion in this case on which the Superior Court held a hearing and then failed to issue an order for four years. The Appeals Court calls this a "remarkable delay." The Court, generously,* does not identify by name the judge who held these motions under endless advisement.

*Don't you want to know who it was?

Not Something You See Every Day

Appellate courts tend to give trial courts a lot of leeway when it comes to controlling their dockets. The only way a trial court will be reversed in this context is if the judge abuses his or her discretion. And appellate courts, especially the First Circuit, are very reluctant to find that a federal trial judge has abused that discretion. When they do make such a finding, they usually explain themselves in quite a bit of forceful detail.

So Beetz v. Ambrosi, First Circuit No. 07-2449, is just weird. The essence of it is that the trial judge allowed a motion to withdraw that also sought a 30-day extension of the time in which to file an amended complaint, then dismissed the case 23 days later. The First Circuit didn't call the trial judge onto the carpet, however. It just sent the case back.

Two other odd aspects of this case:

1. The plaintiff claimed that he'd filed an amended complaint in a timely fashion, the First Circuit believed him, but there was no electronic record of the filing. As most folks who practice in federal court will tell you, that doesn't happy very often. If ever.

2. The defendant claimed that since the trial judge had not explicitly allowed the original attorney to withdraw and stated that the time for filing the amended complaint was extended, that the order should only be interpreted as allowing the withdrawal. Some would call this argument "creative." Others would call it "stupid."

Loss Of A Less Than Even Chance

The SJC expanded medical malpractice liability today. The significance of the expansion remains to be seen.

In Matsuyama v. Birnbaum, SJC No. 9964, the Court holds that a patient whose chances of survival decrease from less than fifty percent to something less than that has suffered a compensable injury. This is a tough problem, and whether it challenges a lot of notions about tort law probably depends on how you feel about tort law as a general matter. If you have no thoughts about tort law as a general matter, you are either (a) sane, (b) not a lawyer, or (c) both.

But the logical problem, the conundrum, boils down to this: (1) you are more likely than not to die because of a certain medical condition; (2) a doctor is negligent in her treatment of you; (3) because of that negligence, it becomes even more likely that you'll die. In other words, the doctor's negligence itself hasn't caused the person to die. The SJC considers this issue in the context of someone who has passed away, but expressly leaves open the possibility that this claim can be pursued by a person who is still alive. See n. 33. Another interesting question is whether this theory would cover a plaintiff whose chance of survival decreased, but only by a small amount. The Court outlines a five step process for calculating damages, but you probably haven't seen the last of that issue.

The health care sector is, um, a bit of a big deal in Massachusetts. And the presence here of some of best medical minds on the planet means that a lot of very sick people come seeking help. Whatever you think of the result, it must be acknowledged that this case will affect the willingness of practitioners to pursue innovative solutions. And that's not a good thing.

Thrown To The Dogs, Er, The Voters

You may remember that eight years ago, voters in the Commonwealth narrowly defeated an initiative to ban dog racing here. Some folks who like dogs tried to place a similar initiative on the ballot in 2006. In response, some folks who like dogs, but especially when they're chasing a mechanical lure and running really fast, sued and got that initiative stricken from the ballot.

The people who like dogs as a general matter tried to get another initiative on the ballot this year. In response, the people who like dogs that chase mechanical lures sued again to keep the initiative off the ballot. Today in Carney v. Attorney General, SJC No. 10158, the SJC ruled for the people who like dogs as a general matter.

So we get to vote on dog racing this fall. Suggestion: let's just flip a coin and then have the people on each side of the issue donate the money they would have spent on consultants, mail, and advertising to nonprofits that help low-income kids in Revere (or Lynn or Chelsea or Everett, for that matter).

A Pesky Claim

With some frequency, enterprising plaintiffs include in their complaints claims for violations of the Massachusetts Civil Rights Act. The Act provides a cause of action when someone -- anyone: government, civilian, whatever -- interferes with another person's exercise of his or her constitutional rights. The SJC has been quite clear that the Act does not create a "vast constitutional tort", but it sort of, well, does just that.

Yesterday, in Kennie v. Natural Resource Dept. of Dennis, SJC-10052, the SJC reversed a trial court's summary judgment dismissal of a claim under the Act. The Act requires a plaintiff to establish that the interference with the constitutional right have been carried out by means of physical threats, physical intimidation, or coercion (which need not be physical). It's this last prong that makes claims under the Act so pesky.

Kicking claims like the one in this case to the jury gives plaintiffs a pretty formidable weapon. We each have an expansive collection of constitutional rights. And there are an expansive number of ways in which another person could interfere with those rights via moral or economic coercion. Most civil complaints filed in the Commonwealth probably include a claim for violation of the unfair business practices statute, Chapter 93A. Might we be entering an era where plaintiffs also, as a matter of course, also include claims for violation of the Civil Rights Act? Time will tell.

UPDATE: HT BB.

Unsolicited Observation

Not that any of the observations are solicited, but, well, you know.

The case, Commonwealth v. Smith, Appeals Ct. No. 07-P-446, is from last week.

But the question it raises should be asked every single day: what the hell does it say about us that there are metal detectors at the entrance to Brighton High School?

Retired Supreme Court Justices Don't Even Fade Away

There had been rumors out there that Former U.S. Supreme Court Justice Sandra Day O'Connor was sitting on panels of various Circuit Courts of Appeal. The rumors are true. And we are fortunate enough to have Justice O'Connor delivering opinions in our very own First Circuit.

Her decision in United States v. Novak, First Cir. No. 07-1826, is really interesting. The First Circuit was reviewing the trial court's decision to exclude recorded conversations between an attorney and a client. Writing for a unanimous panel, Justice O'Connor reversed the trial court's decision.

What is so interesting about this decision is that it's clear that Justice O'Connor didn't want to rule as she did. She is quite transparent in her belief that the recording of the conversations between an attorney and a client violates the Sixth Amendment to the U.S. Constitution. But the defendant had not relied upon a Sixth Amendment argument in the trial court; he'd used the Fourth Amendment protection against unreasonable searches and seizures and the trial court had agreed. And since we're engaged in what is at least nominally an adversarial process, the First Circuit didn't feel that it could step in for the defendant and make an argument that he, for some reason, had chosen not to make.

It all goes back to issue spotting in the end, doesn't it?

If You Don't Have Anything Nice To Say . . .

. . . Say it in an Appeals Court opinion.

Today, in Booth v. Augis, Appeals Court No. 07-P-238, the Court opens up a small can on the attorneys involved. "As a threshold matter," the Court states, "we note that our review has been significantly hampered by the state of the record and the attorneys' disregard of our procedural rules." And if that wasn't clear enough, the Court drops a footnote: "Parties are well advised not to pursue an appeal if they do not know the rules of the road. Unsupported statements of fact in briefs and the omission of pleadings necessary for our review are not acceptable."

By the way, the case involved a dispute over an arbitration award. The amount of the award: $2,290.76.

When A Win Is Not A Win

As just about every sentient being expected it would, the U.S. Supreme Court today held in District of Columbia v. Heller, 07-2901, that the Second Amendment confers an individual right to possess a firearm. Given that this amendment was tucked in, oh, the Bill of Rights, this should really not be a controversial conclusion. It's slightly amazing that this was even an issue.

The opinion, on page 57, contains a massive qualification, however. The Court says that "Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." And then, in the next paragraph on page 58, the Court says that the Second Amendment doesn't protect possession of "dangerous or unusual weapons." Justice Scalia's example of a "dangerous or unusual weapon"? An M-16. Wow.

Thus the title of this post: When a win is not a win. The Court today may have struck down the DC handgun ban, but it signaled that it would uphold many of the laws that gun enthusiasts have claimed violate their Second Amendment rights. So if the celebration seems muted today, this post should help explain why.

A Question While We Wait

So here's a question this morning while we all wait for Justice Scalia to confirm that the 2d Amendment confers an individual right: if you're going to squawk relentlessly about judicial activism, shouldn't that squawking extend to cases in which the Supreme Court sets aside jury determinations on punitive damages (as it did in Exxon Shipping Co. v. Baker, USSC No. 07-219)?

That is, unless you only complain about judicial activism when it suits your purposes. Is a tiny little bit of intellectual honesty too much to ask?

A Tough Call

Today, in Sheriff of Suffolk County v. Jail Officers & Employees of Suffolk County, SJC No. 9974, the SJC shows why being a judge can be a really hard job. At issue were two competing public policies: our preference for letting arbitration awards stand without judicial interference vs. our preference for employing jail officers who don't allegedly enable other jail officers to beat the tar out of inmates.

The problem the Court faced was that the arbitrator's finding as to whether the officer in question had actually enabled other officers to assault an inmate and then impeded the ensuing investigation were "far from a model of clarity." The arbitrator had let the officer in question come back to work after a suspension, which prompted the Sheriff to ask the Superior Court to set aside the arbitrator's decision. Complicating matters further, the arbitrator passed away while the case was pending on appeal.

The Court's decision is refreshingly short and self-aware. It holds that it can't figure out what the arbitrator decided, that it would impractical to send the case back to a new arbitrator, and so it lets the original award stand. But the Court also makes it clear that "where a jail officer actually witnesses fellow officers assault an individual who is held in the sheriff's custody, and then lies about this fact and files false reports that memorialize the falsity, we have little doubt that established public policy would condemn such conduct and would require the discharge of such an officer." This is a tough balance to have struck. And it's bound to make everyone a little bit unhappy.