The Outer Reaches

Did you know that it's illegal for a Massachusetts tavern to serve alcohol to an intoxicated person? That's what G.L. c. 138, § 69 says. The statute plays a supporting role in Justice Cordy's concurrence today in Commerce Ins. Co. v. Ultimate Livery Serv., Inc., SJC No. 10149.

So now you know that (whether you believe/agree with it or not is your own business).

The decision is more interesting than all that, though, because it delivers us to the way-outer penumbra of negligence liability. The Court reverses a trial judge and holds that a livery service can be liable if it drops off a drunk person, has reason to think that the drunk person is going to get in a car and drive somewhere, and said drunk person does just that and causes harm.

This is a very hard call. Any time you see a court state that its "finding of possible liability in this case is limited to the facts described above", you can bet there's some discomfort with the ramifications of the holding. And you can bet that blue-faced law students will argue this issue into the ground for years to come.

High Steaks (Sorry . . .)

If you've ever driven past the Hilltop Steakhouse in Saugus, this case, Giuffrida v. High Country Investor, Inc., Appeals Court No. 07-P-751, might interest you. Or make you hungry.

But if you have anything to do with business deals of any stripe, whether as a litigator, a transactional attorney, or as a businessperson, the case will definitely interest you.

The Appeals Court holds that liability is possible under the Commonwealth's unfair business practices statute, Chapter 93A, where a party fails to follow through on oral promises made in the context of a pretty sophisticated business deal that are either contrary to the deal documents or not incorporated in the deal documents. Some might quibble with this interpretation of the case and say that it's not controversial since people often get tagged for making (and breaking) promises they don't intend to keep.

Still, doesn't this add a thick layer of stickiness to virtually every deal? Doesn't this case mean that the black and white of the deal documents can be negated by the spoken words of one of the principals? Isn't it usually the other way around?

There will be a predictable rush to limit this case to its facts, on one side of the bar, and an equally predictable rush to expand the scope of its holding, on the other. If it stands, the Giuffrida case and its implications will be briefed if not to death, then very close to it. With triple damages and attorneys' fees in the balance, you can count on that.

If You're Going To Tell A Story, Tell The Whole Story

George Lardner, Jr. had an op-ed on the Marc Rich pardon in Saturday's New York Times. Jonathan Adler apparently thought it was awesome.

The obvious reason for the op-ed is that Eric Holder, Barack Obama's possible nominee for attorney general, had a role in the pardon.

This blog has no truck with Marc Rich, but the op-ed is woefully incomplete. In February 2001, Bill Clinton felt the heat on the Rich pardon enough to write an op-ed (or, more likely, have an op-ed written) in the Times explaining the eight separate reasons that he granted the pardon.

Mr. Lardner assesses one or two of the former president's justifications at least a little bit, but he doesn't look at the one reason that President Clinton identifies as being important:

[M]any present and former high-ranking Israeli officials of both major political parties and leaders of Jewish communities in America and Europe urged the pardon of Mr. Rich because of his contributions and services to Israeli charitable causes, to the Mossad's efforts to rescue and evacuate Jews from hostile countries, and to the peace process through sponsorship of education and health programs in Gaza and the West Bank.

There's a passing reference to Ehud Barak toward the end of Mr. Lardner's piece. But that's all. If you're going to say someone "brokered one of the most unjustifiable pardons that an American president has ever granted", assessing major counterarguments should be on your agenda, too.

Predators Everywhere: Rejoice!

Think about this.

You have a daughter. She is fourteen. She works at a mall. As she is leaving her job one day, a guy in a red truck drives up next to her in the parking lot. He asks her if she needs a ride. She says no. The guy raises his voice. He says "Get in the truck." She flees.

The red truck guy has broken the law somehow, right?

In Commonwealth v. LaPlante, No. 07-P-1541, the Appeals Court says no. The Court states that the evidence "was insufficient to prove intent forcibly to confine the victim . . . ." As a matter of law, that is, meaning no reasonable jury could find that Mr. Red Truck intended forcibly to confine your daughter.

There's a conspicuous absence in this case of the panel having any notion that their result is even the slightest bit problematic. Not that they need to agonize or anything. Just a slight nod, maybe. To those of us who look at the facts of this case and say: "What else is Mr. Red Truck trying to do other than kidnap the girl?"

What Actual Judicial Activism Looks Like

Commonwealth v. Ross, No. 07-P-1183, is an Appeals Court case that came down a couple of days ago. It's a simple case about a guy who fled from a police officer, which is not something this blog endorses. He was convicted, he appealed, and he lost.

He shouldn't have.

The criminal statute that governs in situations where someone fails to stop for a police officer is simple. It punishes those who fail to "stop when signalled to stop by any police officer who is in uniform or who displays his badge conspicuously on the outside of his outer coat or garment." G.L. c. 90, § 25.

So that's the law. The police officer must be in uniform or display the badge conspicuously. If you fail to stop at that point, you get to go to jail.

In this case, though, the police officer was not in uniform and did not display a badge. Game over, right? Wrong. Though there is nothing in the statute providing them with the latitude to do so, the Court disregarded the uniform/badge requirement because the officer was in hot pursuit.

Will conservatives raise holy hell about this? Probably not, since the bad guy lost. But if people think that police shouldn't always have to flash a badge as a prerequisite to a failure to stop charge, they should talk to their legislators about it. Changing the statute would be easy enough. It would probably pass on a voice vote.

Is the badge requirement objectively absurd? Maybe. But absurdity, like so much else, is relative.

Conservative Win In The SJC

Commonwealth v. Santiago, SJC No. 10117, is significant insomuch as it is a decision by the highest court in Massachusetts about search warrants. The issue is whether the 4th Amendment requires police to knock when they know their target has a BB gun and pit bulls. The majority held that the 4th Amendment does not require police to knock.

But what is far more interesting is that this is the first case since Justice Botsford joined the Court in which the conservative-leaning wing of the Court can claim a clear victory. Chief Justice Marshall, Justice Ireland, and Justice Botsford all dissented in this case. And dissents are a relative rarity in the SJC. Dissents by any of those three justices are very, very rare.

For those who care, this probably doesn't portend a massive shift rightward by our high court. But it does remind us that yes, there are some more conservative justices sitting on the SJC and every now and then they're going to have enough votes to win. This isn't necessarily bad news for those of us who lean left. It's just what a healty justice system looks like.

Were There Any Whales In Grant Park Last Tuesday Night?

Two things leap to mind after skimming the Supreme Court's decision in Winter v. National Resources Defense Council, No. 07-1239.

First: if there was any doubt about how beaked whales would have voted (if, that is, they had hands) last Tuesday, this opinion puts that doubt to rest. The conservative majority basically threw our marine mammal friends under the bus so that the Navy could train for enemy submarine invasions.

Second: enemy submarines? Does Al Qaeda have submarines? We know North Korea does. That hasn't worked out so well for them. Is China an "enemy"? If so, point taken.

Questions, Answers, Preparation

Our Attorney General, Martha Coakley, learned yesterday that arguing before the United States Supreme Court is really, really hard. The issue in the case is whether the government needs to make the person who prepares a lab report in a criminal case available for cross examination. That, it seems, is the way they do it in California.

So Justice Kennedy asked how that's been working out in the Golden State. Good question, right? Especially when one of the arguments against requiring live testimony is that it wouldn't be workable.

Attorney General Coakley didn't have an answer to Justice Kennedy's question.

One of the keys to oral argument in appellate courts is coming up with an exhaustive list of potential questions from the judges and, of course, answers to those questions that help (or at least don't hurt) your case. A good way of filling in gaps in your list is to have a moot court. Or, if you're arguing before the United States Supreme Court, a *bunch* of moot courts.

Did that just not happen here? Or did the moot court judges not think of this question?

Dept. Of Maybe Understandable Shamelessness

It's been a good week for the excessive fines clause in the 8th Amendment. In Maher v. Retirement Bd. of Quincy, No. SJC 10182, the Supreme Judicial Court determined that the clause did not bar forfeiture of the former Quincy plumbing and gas inspector's pension. The amount of the forfeiture? $576,000.

The inspector broke into the office where Quincy's personnell files were stored and stole a portion of his own file. It seems there were some things in that file that Mr. Maher didn't want Quincy's new mayor to know when he was deciding whether to keep Mr. Maher in his inspector post.

Mr. Maher pled guilty to breaking and entering etc. in July 2003. The following month, the Quincy retirement board commenced an administrative proceeding to determine whether Mr. Maher would have to forfeit his retirement allowance. In December 2003, the board informed him of the bad news.

He sued. And made the shameless but not necessarily frivolous argument that the forfeiture was an excessive fine under the Eighth Amendment. With more than a half a million dollars on the line, can you really blame him?

In Case You Were Wondering

For your information and contemplation on this Wednesday morning unlike any other, the age of each member of the United States Supreme Court:

Roberts: 53
Stevens: 88
Scalia: 72
Kennedy: 72
Souter: 69
Thomas: 60
Ginsburg: 75
Breyer: 70
Alito: 58

This is all fine and good. But the real issue is how much each of these justices like their work and their colleagues. For pretty much each of these nine, the answer is "a lot" and "a lot".* So don't go expecting five SCOTUS retirements or anything.**

*Totally uninformed guess!
**Expecting one or two retirements? More reasonable.