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.

Men Allegedly Behaving Very, Very, Very Badly

Some notes about some cases that came down late last week.

The SJC reversed two rape convictions on Friday in cases where the complainant was intoxicated. The result in Commonwealth v. Blache, No. SJC 9909, may well differ the second time around. The result in Commonwealth v. Urban, No.. SJC 9911, probably will not.

The First Circuit, in Billings v. Town of Grafton, No. 06-2145, reached the sensible conclusion that staring at a female coworker's breasts for minutes at a time can form the basis for a hostile work environment claim. How weird is it that this was even in doubt?

And Gary Crossen was disbarred. The opinion is long because the record is thorough. The record is thorough because the hearing officer was Ellen Carpenter, who was taken from us far too soon. It’s interesting that this case would feature attorneys at such opposite ends of the spectrum. One so excellent, so dedicated to promoting honor in the profession. The other, not so much.

Cosmic Absurdity Watch: Super-Duper Tuesday Ed.

The SJC released one decision today, in a juvenile case. The case?

In the Matter of Hilary, SJC No. 10036.

Weird, eh?

First Circuit Friday Tidbits

Two interesting opinions from the First Circuit on Friday that may help you begin to forget about yesterday’s widely watched sporting event:

• United States v. Hatch, No. 06-1902, is the Richard Hatch tax case. Remember Richard Hatch? Apparently his reality show success went to his head and he decided to take on the IRS. With predictable results. (Hat tip: Lon Sobel)
  

• In Bohne v. Computer Assocs. Int’l, No. 06-1745, the First Circuit reversed a district court judge for the second time in a month after the judge tried to give a plaintiff who was representing himself a little too much help. How so? The trial judge attempted to give the plaintiff the benefit of an employment claim that has “no basis in Massachusetts law . . . .” While they did not quote Lee Corso explicitly, the First Circuit may as well have said “not so fast, my friend.” (Hat tip: anonymous McCain supporter who may as well live in New Hampshire)

Shine A Light On Me (Swift River Boat Ramp Ed'n)

The Widget:

Court: Appeals Court
Judge: Dreben
Topic: Law enforcement lighting practices
Tone: A tad perfunctory
Importance: 3.2

There’s an interesting little fiction lurking in a pretty important element of search and seizure law. Police need a “reasonable suspicion” to “seize” people who they think might be criminals. A seizure occurs if the person being seized has a reasonable belief that he or she would not be free to leave.

So here’s the question, if a police officer pulls up behind you and shines some really bright lights in your direction, would you feel like you were free to leave?

According to the Appeals Court in Commonwealth v. Briand, No. 07-P-606, a reasonable person would feel free to leave. One would suspect that they don’t really believe that, though.