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.

Barney Alert: Summary Judgment Escape Route

This post won't be of much interest to non-lawyers, though if you do find this interesting and you're not a lawyer, law school might be a good option for you.

Those who litigate with any frequency have probably moved for summary judgment (or been served with a motion) before discovery is complete. One somewhat risky way to defeat such a motion without meeting it head-on is to file an affidavit under Rule 56(f), saying, in essence: "I could beat this motion if you gave me discovery on the following issues." In Alphas Co. Inc. v. Kilduff, Mass. App. Ct. No. 07-P-157, the Appeals Court spells out what you need to put in that Rule 56(f) affidavit to stave off the summary judgment bludgeon. It's helpful stuff.

First Circuit Hearts Intellectual Property

June, apparently, is intellectual property month in the First Circuit. Today's decision in Warren Freedenfeld Assocs., Inc. v. McTigue, First Cir. No. 07-1602, concerns application of a statute of limitations defense in the copyright context and other matters. It's also a relatively rare First Circuit reversal of a trial court's decision to allow a Rule 12 motion to dismiss.

The Winner: Duck Tours!

A bad day for Boston Duck Tours, this. The First Circuit has reversed the trial court's issuance of an injunction barring Super Duck Tours from using the "Duck Tours" mark. The case is Boston Duck Tours, LP v. Super Duck Tours, LLC, First Cir. No. 07-2078. This is another really long decision, but it's like catnip for intellectual property nerds.

Divergent Dissents

Another majority opinion in a 5-4 (actually, 5 to 3 to 1) case by Justice Kennedy today in Dada v. Mukasey, USSC No. 06-1181. And another opinion in which the interesting action is found in the dissents.

The case presents a relatively complex immigration law question. This blog doesn't discuss immigration law all that often, for the obvious reason that its author doesn't want to look any more stupid than he looks already. In any event, the issue, stated simply, was whether an alien could back away from a promise to leave our fine country voluntarily so that he could challenge immigration authorities' order that he leave with the Board of Immigration Appeals.

Stripped to the crass essentials -- a particular strength of this little blog -- the question was whether you wanted to give an illegal immigrant another shot or hold him to his promise to leave. Justice Kennedy (and the others who you'd expect) decided to give him another shot. Justice Scalia (and the others who you'd expect) dissented and said that the petitioner should have kept his promise and gotten the heck out of here.

Except for Justice Alito. He chose a middle ground, which you may want to keep in mind. His conclusion was that both the majority and the dissent were wrong. Justice Alito said that the Board of Immigration Appeals didn't think it could give the alien another shot, but it could have if it had wanted to (though it didn't have to). He would have sent the case back so that the Board could figure it out. This frustrated Justice Scalia enough that he put a gratuitous footnote at the end of his dissent tweaking Justice Alito a tiny bit. Again, something you may want to keep in mind.

Ford Gets Away With . . . Well . . . Nothing, Actually

The SJC issued a fascinating consumer protection decision today, Iannacchino v. Ford Motor Co., SJC No. 10059. The plaintiffs alleged that Ford had violated the Commonwealth's consumer protection law, known as Chapter 93A. They alleged that door latches on certain Ford models were defective when subjected to government-mandated testing. This ended up to be incorrect. And the plaintiffs did not allege they'd been hurt by the supposed defect.

Not surprisingly, the plaintiffs lost.

The reasonably groundbreaking aspect of this case is that it happened at a very early procedural stage. The SJC has now adopted the U.S. Supreme Court's new standard for dismissing complaints on Rule 12 motions, discussed earlier here. Supporters of this approach say that it's protecting defendants who have not done anything wrong from having to pay significant legal fees and engage in expensive discovery. The competing view is that courts are moving away from the simple notice pleading requirements of the Federal Rules of Civil Procedure and injecting unnecessary layers of procedural technicality into the process.

It's a close call.

History Shall Not Absolve Him

Today, in Boumediene v. Bush, USSC No. 06-1195, the United States Supreme Court held that enemy combatants held at Guantanamo Bay can employ the constitutional privilege of habeas corpus to challenge their detention there in the federal court system. The privilege of habeas corpus is pretty significant: it was one of the only individual rights enumerated in the Constitution before the states ratified the Bill of Rights. Justice Kennedy's majority opinion is long.

The real fun in this case can be found in the breathless dissents. Justice Scalia's* dissent is the most breathless of all, maybe the most breathless dissent in the history of the Court. He closes with a bang: "The Nation will live to regret what the Court has done today." Ominous.

You just have to wonder about what would motivate him to write that sentence. What has the Court done today? Affirmed the importance of an individual right enumerated in the Magna freaking Carta, that's what. Rejected an incredible argument by the worst President in modern American history that the habeas privilege doesn't apply at Gitmo because Gitmo isn't technically America -- even though Gitmo is under America's complete control.

Jeez.

You just have to wonder: is there any act at all that the Republic could take in the name of the war on terror that Justice Scalia would reject? Other than, of course, confiscating our guns?

*Stipulation: Justice Scalia is way, way, way smarter than the humble author of this little blog.

First Circuit Hearts Oprah

So a woman from Saugus named Darlene Tracy filed a lawsuit against Oprah Winfrey a while back, claiming that Oprah had stolen her idea for a television show called "The Philanthropist" when she put Oprah's Big Give on the air. The trial court ruled against Ms. Tracy and she took an appeal in the First Circuit. Yesterday the First Circuit affirmed the dismissal of Ms. Tracy's claims in Tracy v. Winfrey, First Cir. No. 07-1630.

The First Circuit's decision is brief, but it's interesting that they make no mention of a bedrock principle of copyright law: that you can't copyright an idea. And if you think about this notion for even a second or two, it makes quite a bit of sense.

Is This Heaven? No, It's Everett.

Everett. Our own little slice paradise. Right here in Massachusetts.

The First Circuit takes a look at a problem that's not unique to Everett in Boston Gas Co. v. Century Indem. Co., First Cir. No. 07-1452. Boston Gas Company used to operate a ton of manufactured gas plants. At the plants, they'd heat coal in large ovens.

This generated gas, which was good. But it also generated some wonderful byproducts. Like ash, drip oil, tar, and coke. As the opinion states, "Many are non-biodegradable and some are carcinogenic, and they now contaminate the ground and water around many former MGP sites; further MGPs were often sited near waterways, which were contaminated in turn." Think about that the next time you're thinking about taking a dip in the Mystic River.

The rest of the case is not hugely interesting. Unless, that is, you want to explore the relative rarity of a federal appellate court certifying an uncertain legal issue to a state supreme court. That's in there, too.

Don't Ask Don't Tell Probably Headed To Supremes

Today the First Circuit affirmed the trial court's dismissal of a challenge to the "Don't Ask, Don't Tell" policy. The case is Cook v. Gates, First Cir. No. 06-2313.

The plaintiffs filed their challenge based on the 2003 Supreme Court decision, Lawrence v. Texas, holding that criminal prohibition of sodomy violates the Constitution's due process protections.

The First Circuit decision conflicts with the Ninth Circuit's decision from a couple of weeks ago. That decision is Witt v. Dep't of the Air Force, Ninth Cir. No. 06-35644. So this is probably headed to the U.S. Supreme Court, where the result will depend almost entirely on what Justice Kennedy is thinking. His opinion in the Lawrence case provides some hints. The critical portion is at pages 17 and 18. It's resounding, but it also gives him some avenues of escape if he's looking to affirm the statute. We'll see.

**Obligatory point about political courage and the power of representational democracy**: Aren't the House and Senate controlled by Democrats? What exactly is stopping them from trying, really trying, to send a bill to the President that ends this nonsense? And, if they don't have the backbone to do it, should we really get all upset if the Supreme Court doesn't either?

Another Must-Read For Business Litigators

If you litigate business disputes, it's in your interest to take a look at Jasty v. Wright Med. Tech., Inc., First Cir. Nos 07-1743, 07-1744. There's quite a bit packed into this thirty page opinion, and it covers issues that seem to come up all the time.

The First Circuit also slaps the appellants' counsel on the wrist for including evidence in the record that the trial court had refused to consider. The Court found that doing so was "inappropriate" but not "vexatious." Either way, not a great thing to have that on the record in a United States Court of Appeals decision.