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.

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.

An Important Case

The Widget:

Court: First Circuit
Judge: Lynch
Subject: Recruitment fantasies
Tone: Patient and thorough
Importance: 6.6

Remember a couple of years ago when some parents in Lexington sued the school district because they didn’t want their kids exposed to favorable perspectives on gay marriage and homosexuality. Well, they lost in the trial court and today, in Parker v. Hurley, First Cir. No. 07-1528, they lost in the First Circuit.

As morally repugnant as we might find these plaintiffs’ positions to be, it took the First Circuit 44 pages of precise and careful analysis to dispose of their claims. Between Roberts, Alito, Scalia, and Thomas, there may be enough votes for the U.S. Supreme Court to give this a look. Given Kennedy’s performance of late, though, it’s difficult to see a different result there.

Hide Your Swords And Home-Made Ninja Weaponry

The Widget:

Court: Appeals Court
Judge: Vuono
Subject: Suppression of freaky ninja weapons
Tone: Slightly rushed
Importance: 3.2

In Commonwealth v. Bush, No. 06-P-323, the Appeals Court today affirmed a trial judge's decision not to suppress evidence obtained during a Brockton apartment police raid. The evidence in question: “crack cocaine and weapons, including a three and one-half foot sword, knives, homemade nunchucks, and mace[.]”

Sounds like a charming place to hang out where absolutely nothing illegal was going on. All just a big misunderstanding. The sword was so they could cut the gouda, you see.

Another issue: is the sword possession protected by the Second Amendment under an individual rights interpretation?

Real Estate Brokers Stem The Tide, For A Day

The Widget:

Court: Appeals Court
Judge: Kantrowitz
Subject: Real estate broker blunders
Tone: Even-handed
Importance: 5.2

An old saying in Alabama goes “Thank God for Mississippi!” As professions go, it would not be surprising if lawyers started declaring “Thank God for real estate brokers!”*

Today offered a respite from brokers’ well publicized tales of woe. In Quinlan v. Clasby, No. 06-P-1500, the Appeals Court decided that a broker could not be liable under the Commonwealth’s unfair business practices statute for getting a South Boston four family’s zoning classification wrong in advertisements.

Cosmically, the plaintiffs sure deserved to lose. Though this was a pretty straightforward dispute, they included an emotional distress claim. Emotional distress? Because you sold an investment property for less than you thought you could? A novel theory.

*For the record, Decisionism thinks that like (ahem) most other professions, a few bad apples give the vast majority of real estate brokers – an honest, diligent, pleasant bunch – a bad rap.

And He Couldn't Beat Michigan, Either!*

Some poor pro se schlep named John Cooper lost a case in the SJC today. It’s Cooper v. CVS Pharmacy, No. SJC 10003. This post could be about all of the ways that the Superior Court could improve the way it deals with pro se plaintiffs. Or it could be about what a pain it is that CVS doesn’t carry more fifteen packs of their generic Claritin-equivalent.

But it’s actually just going to be about the fact this guy’s name is John Cooper. How incredibly cool would it be if this was the selfsame John Cooper who coached THE Ohio State University to a 2-10-1 record against the University of Michigan? Pretty cool, right? We may never know . . . .

*New Rule: no Widgets for rescript opinions of one page or less.

Today in Bruce Selya

The Widget

Court: First Circuit
Judge: Selya
Subject: ERISA
Tone: Not jerry-built at all
Importance: 3.9

Judge Selya once again shows us how it’s done in Alexander v. Brigham & Women’s Physicians Org., Inc., No. 07-1443:

EXEGETIC
DOUBLED IN BRASS
PELLUCID
CALUMNIZE
CAVIL
GET THE GREASE FROM THE GOOSE (Maybe Cooking the Books can help with this)
ADUMBRATE
JERRY-BUILD

Just When You Think You Have It All Figured Out

The Widget:

Court: U.S. Supreme Court
Judge(s): Thomas (majority); Kennedy (dissent)
Subject: Tort claims against the government
Tone(s): Self-assured
Importance: 4.0

A prisoner was moving to a new correctional facility. In the process, the guards at the old facility confiscated his Qur’an and a prayer rug. He sued under the tort claims act. Today, in Ali v. Federal Bur. of Prisons, No. 06-9130, the Supreme Court held that his claims were barred under an ambiguously-worded exception to the act.

Think for a second about whether this case would have been resolved differently if guards had confiscated a bible. Are you convinced it comes out the same way? If so, you have a lot more faith in this Court than some of the rest of us.

What’s more interesting about this case, though, is the split. The majority is Thomas, Roberts, Alito, and Scalia.

And Ginsburg? Excuse me?

Kennedy goes over with the liberals, writing a pretty forceful dissent in the process.

This blog’s opinion? The weirdness of the fracture is a function of the weirdness of the statutory language. This was a very tough issue. Though you would have expected Ginsburg to side with the prisoner and Kennedy to side against him, right?

Apology To The Blog's Three Readers

Blogging was admittedly light last week. The combination of a fried modem, then a fried wireless router, and then two new clients (bless them) will do that to you.

Two pieces of somewhat big legal news:

• In Stoneridge Investment Partners, LLC v. Scientific-Atlanta, Inc., No. 06-43, The Supreme Court surprised not a single person on Earth by deciding to make it harder still to win securities cases. Dont' be shocked to see some congressional (and presidential veto) action on this. Which leads to another question: when is this Court going to get around to reconsidering its 1937 disavowal of Lochner? Because you know they (well, five of them) want to.
  

• In Caplan v. Donovan, No. SJC 9933, The SJC decided that district courts can enter Chapter 209A abuse prevention orders against nonresident defendants even if the said courts have no personal jurisdiction over said defendants. Which made a lot of people scratch their heads.

RIAA As Quasi-governmental Entity

The Widget:

Court: Appeals Court
Judge: Cypher
Subject: Pirated music
Tone: Unremarkable
Importance: 2.2

Did you know that the Recording Industry Association of America provides assistance to local law enforcement when they happen upon stashes of pirated CDs? That’s what happened in Commonwealth v. Pierre, No. 06-P-768, which the Appeals Court decided today. A Cambridge police detective found the loot while searching the defendant’s apartment on a drug-related warrant. An RIAA consultant then assisted the detective “in inventorying the counterfeit CDs.”

It seems strange that police would involve a special interest group in an ongoing investigation like this. What’s next? Bringing in the NRA for help with gun cases? Though if the NRA took pirated merchandise as seriously as the RIAA, that might not be a bad thing.

Wacky Air Travel Case

The Widget:

Court: First Circuit
Judge: Lynch
Subject: Our glorious system of commercial air travel
Tone: Not happy
Importance: 5.9

Winning in the trial court is great, but it doesn’t guarantee anything. That, in part, is what this blog about. And it’s a lesson that the plaintiff learned today in Cerqueira v. American Airlines, First Cir. No. 07-1824.

The case, which relates to the removal of an individual from a Logan-Ft. Lauderdale flight in December 2003, is a good deal more engrossing than you’d expect. There are two perspectives here. The plaintiff’s perspective is this: he was yanked off the flight because he looked like he was Middle Eastern (he was not). The airline’s perspective, adopted by the court, is that the plaintiff was yanked off the flight because he was abusive during the boarding process, disappeared into the restroom for an extended period while the plane was sitting at the terminal, and the goofed off during the exit row safety briefing. These are not things to do in a post-September 11 world, apparently.

There’s a lesson. Be relentlessly normal and polite when you fly. Especially if you look Middle Eastern. Even if you graduated from Stanford.

There’s other interesting stuff in here too, especially toward the end. It’s a bit unusual to see this degree of perturbation about a trial court’s handling of its business. Including, in a final footnote, stating that certain evidence allowed by the trial judge was not relevant. That happens from time to time in state courts here in Massachusetts. But it’s rare in the First Circuit.

Finally, thanks to an unnamed McCain supporter who might as well just live in New Hampshire for flagging this case.

Gastronomic Interlude

Cooking the Books* asks if it’s difficult to win a case of cookbook copying. The answer is YES. In Publications Int’l v. Meredith Corp., 88 F.3d 473 (7th Cir. 1996), the Seventh Circuit held that recipes in a cookbook didn't even qualify for copyright protection. It did allow that some recipes might be copyrightable. The Sixth Circuit agreed with the Seventh Circuit in an unpublished opinion, Lambing v. Godiva Choclatier, 142 F.3d 434 (6th Cir. 1998). A lower federal court in Texas disagreed, however, in Barbour v. Head, 178 F. Supp. 2d 758 (S.D. Tex. 2001). But a judge faced with these conflicting opinions is most likely going to find the United States Court of Appeals for the Seventh Circuit more persuasive than a single trial court judge in the Southern District of Texas. Not that there’s anything wrong with Texas, or this particular judge, or trial court judges in general. Just sayin'.

It’s surprising that there isn’t more out there on this. Perhaps culinary types aren’t so litigious.

*Why the affiliation with a cooking blog? Because olive oil is thicker than water.

The Profession’s Finest On Display

The Widget:

Court: U.S. Supreme Court
Judge: Unsigned
Subject: Effective assistance of counsel
Tone: Understated and illogical
Importance: 5.3

The Second Widget:

Court: First Circuit
Judge: Unsigned
Subject: Dismissal for failure to respond to discovery requests
Tone: Unsympathetic
Importance: 3.4

Two unsigned opinions today remind us that there are a lot of lawyers out there who do lousy work. In Wright v. Van Patten, U.S. Supreme Court No. 07-212, the Court reverses the Seventh Circuit and determines that a defendant is not deprived of his right to effective counsel when his lawyer participates by telephone at a plea hearing. He literally phoned it in. The Court helpfully notes that “a lawyer present will perform better than one on the phone . . . .” And yet they find that phoning it in passes constitutional muster.* Thank you, George W. Bush. This is your Court.

In Malloy v. WM Specialty Mortgage LLC, First Cir. No. 07-1026, the court affirms dismissal of a case in which the plaintiffs’ attorney failed to respond to discovery requests. His excuse? “[P]laintiffs' counsel attributed his delay to his inexperience practicing law, the incompetence of his support staff, and his own deliberate decision to direct his attention to cases of paying clients instead of this pro bono matter.” The plaintiffs’ attorney was somebody named Laird J. Heal. Just so you know.

*Does anybody remember the last time the Court found a lawyer’s conduct violated the Sixth Amendment? Shoot us an e-mail.

MBTA Incompetence That May Actually Amaze You

The Widget:

Court: SJC
Judge: Cordy
Subject: Religious discrimination
Tone: Patiently incredulous
Importance: 3.6

So it goes deeper than just not being able to run the trains on time. On Friday the SJC decided Massachusetts Bay Transp. Auth. v. Massachusetts Comm’n Against Discrimination, SJC No. 9893. A Seventh Day Adventist applied for a job driving buses for the MBTA. When he applied, he told them that his religion prohibited from working on Friday after sundown or during the day on Saturday. And it doesn’t look like he slipped this in somewhere – the Court says he informed them of this fact “[t]hroughout the application process.” He was given a conditional offer of employment.

Can you guess what our fine MBTA did next? They tried to make this guy work on Friday nights and Saturdays. They wouldn’t provide him with an accommodation even though he could work every hour of every other day. And then they revoked his job offer. The SJC affirmed the discrimination commission’s finding that this violated the Commonwealth’s discrimination laws.

A point about the wheels of justice. The events in question took place in 1997. That means it took ten full years for the Commonwealth’s justice system to resolve this dispute. As Jeremy Piven would say: “Ten YEARS!”

Cape & Islands Insurance Donnybrook Resolved

The Widget:

Court: SJC
Judge: Cordy
Subject: Home insurance
Tone: Waterfront-covering
Importance: 4.2

What’s interesting about Commonwealth v. Commissioner of Insurance, SJC No. 09966, is the players involved (Former Superior Court Judge Nonnie Burnes, Attorney General Martha Coakley, and Cam Kerry for the intervening insurance companies). The SJC affirms a sizeable home insurance rate increase for the Cape, Martha’s Vineyard, and Nantucket.

You have to wonder how much the Attorney General’s decision to pursue this was based on politics. Massachusetts politicians sure do seem to devote a disproportionate share of hand-wringing to issues affecting the Cape and islands. Think about the amount of time and money expended by opponents of Cape Wind, and imagine if they’d channeled that time and money toward something more substantial than preserving water views and recreational boating opportunities.

As for this case, is deciding that people who live in areas specially affected by hurricanes should have to pay higher home insurance premiums than the rest of us really that controversial? It looks like the answer is yes. Isn’t that slightly depressing?

Death: A Strong Defense

The Widget:

Court: Appeals Court
Judge: Grasso
Subject: Premises liability
Tone: Ipse dixit
Importance: 4.0

So it turns out that a failsafe way to avoid liability for a dangerous condition on your property is to die before it injures someone. That’s the Appeals Court’s holding in Sullivan v. Rich, Mass. App. Ct. No. 07-P-109.

The plaintiff fell into a hole and injured himself. “The hole, which was covered with a piece of wood and topped with dirt and leaves, was indistinguishable from the surrounding area. It contained a buried fifty-five gallon drum.” With that in mind, a fitting New Year’s resolution might be to watch your step. Or is that too callous? Perhaps the better resolution is do a better job burying stuff in your yard. Even better than that: just don't bury stuff in your yard to begin with.

Yesterday In Bruce Selya

The Widget:

Court: First Circuit
Judge: Selya
Subject: Drug trafficking
Tone: Unconvinced
Importance: 3.2

Today’s additions, from United States v. Jimenez, 1st Cir. No. 06-1533, to our ever-growing lexicon:

IMMUREMENT
ALLOCUTION
PINNACLE (non-metaphoric iteration)
ANIMADVERSION
SOCKDOLAGER
TIMEOUS
PERIPETEIA

SJC: You Can't Win If You Don't Play (Thank Goodness . . .)

The Widget:

Court: SJC
Judge: Greany
Subject: Employment discrimination
Tone: Unremarkable
Importance: 4.2

Does an employer discriminate against someone it doesn't hire who missed an application deadline and, in fact, didn’t even apply for a job? In Nguyen v. William Joiner Ctr. for the Study of War and Social Consequences, SJC No. 09848, the SJC says no.

That a case like this one can make its way all the way to any high court in the Union (let alone get filed in the first place) buttresses the argument of those who say there are too many lawyers and too many lawsuits.

UPDATE: Spelling of the Joiner Center is corrected above. William Joiner is apparently not related to Wally Joyner, which is too bad for both of them. But this raises another question: what does a "Center for the Study of War and Social Consequences" study? War's social consequences? Or war, in general, and social consequences, in general? Consequences of what? The Center's website doesn't provide much assistance: "It provides educational and other services to veterans, conducts research and makes policy recommendations on issues relating to veterans, and encourages teaching and scholarship on the Vietnam War and social consequences."

Barney Alert: Did The SJC Just Send A Signal That It’s About To Get Easier To Dismiss Civil Suits?

The Widget:

Court: SJC
Judge: Greany
Subject: Motions to dismiss
Tone: Hedging
Importance: ?

Our first Barney Alert in a while. Last term the U.S. Supreme Court decided Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007) and civil litigators scratched their heads. The Court said that the old standard for determining whether or not to dismiss a complaint under Rule 12 (“a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief”) leads to too many groundless lawsuits gaining too much traction. The Court suggested replacing the old standard with something different: “whether facts alleged in the complaint raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact).”

Now there are two distinct schools of thought on whether this is a meaningful change. In Eigerman v. Putnam Investments, Inc., No. SJC 07-9854, the SJC today spends a moment considering the issue and punts. “In a future case,” Justice Greany says, “we may consider whether we should adopt the Bell Atlantic standard for application to complaints that are the subject of a motion to dismiss pursuant to Mass. R. Civ. P. 12(b)(6).” Two things to take away from this equivocation: (1) the SJC thinks the Twombly case did lower the bar that must be hurdled before a case can be dismissed under Rule 12; and (2) the SJC did not reject the Twombly standard out of hand as being totally preposterous. Expect plaintiffs and defendants to grapple clumsily (and expensively) with this issue until the SJC resolves it.

Things You Don't Want The First Circuit Saying About You On The Record

The Widget:

Court: First Circuit
Judge: Stahl
Subject: ERISA*
Tone: Justifiably ornery
Importance: 3.9

Credibility is precious in this line of work. So the First Circuit’s statement on page 13 in Gillis v. SPX Corp. Individual Acct. Retirement Plan, No. 07-1777, has to make you cringe just a little bit:

[The appellant’s ] argument on appeal that the district court should have somehow made this comparison itself, without [the appellant] providing the court with the relevant argumentation and data, betrays a misapprehension of our adversarial system and the burden he carried as a plaintiff opposing summary judgment before the district court.

The “comparison” referenced here is the difference between the retirement payout the plaintiff claimed he was owed and what he actually received. But that’s not so significant. What’s significant is that the First Circuit accuses the appellant’s counsel of misunderstanding a bedrock rule of civil procedure and, indeed, the entire system of American civil litigation itself. As Instapundit would say, “Ouch.”

*For the uninitiated (thank your lucky stars), the “Employee Retirement Income Security Act”.

Suffolk County Sheriff Weirdness Update

In response to this post, we get a comment:

When the Sheriff's Department terminated the lease, it didn't do so because of the missing auditor's certification. It terminated for a much more pedestrian reason: the landlord had not completed construction work required under the lease within the time permitted. The landlord had a creative lawyer who argued, the first time the case went up on appeal in 2004, that in light of a statute applicable only to Boston and Suffolk County contracts, the time for construction had not begun to run until the mayor approved the contract, which, if true, would mean that the Sheriff's termination was untimely and improper.

Only on remand did the Sheriff's Department raise the statute's requirement of an auditor's certification. So the landlord was hoist by its own petard.

Fascinating. There are two responses. First, this happens all the time. Lawyers get cute ideas, employ them to get out of small messes, and create much bigger messes in the process. Exhibit A would be Vice President Cheney’s contention that he’s not a member of the executive branch. Cute. But when David Addington came up with it, did he realize that Larry King would ask his boss about it on national television?*

Second, the comment still doesn’t explain Auditor’s nonsensical certification: “APPROVED AS TO AVAILABILITY OF APPROPRIATION OR PURSUANT TO ARTICLE 12.2 OF THE GENERAL CONDITIONS IN THE AMOUNT OF $0.00.” What does that even mean? Any ideas?

*Aside: maybe he did and he didn't he care. This administration has really changed how we’re all going to think about political courage. There’s a difference, after all, between taking an unpopular and unbending stand in support of a demonstratively failed policy and taking an unpopular and unbending stand in support of a policy that history ultimately proves right. Cheney, Addington et al. still, admittedly, have a chance of being absolved by history. But it’s a very slim chance.

Now If Only This Post Could Have A Mike Rowe Voiceover . . .

The Widget:

Court: DC Circuit
Judge: Williams
Subject: The Bering Sea
Tone: Acronym-happy
Importance: 5.0

Anybody who watches Deadliest Catch knows that crab fishing in the Bering Sea is one of the more terrifying enterprises devised by the human species (“I have a GREAT idea: let’s wait until it gets really cold! Then we can take tiny boats out in twenty foot seas with a bunch of 900 pound steel cages that we’ll call crab pots flying around the deck! And do some fishing! Fun!”). So giving these guys less to worry about in the environmental regulation department, which is what the D.C. Circuit did today in Fishing Co. of Alaska, Inc. v. Gutierrez, No. 07-5153, probably evens things out in at least a cosmic sense.*

*The fish no doubt disagree. And they may have a valid point.

Great Moments In This Administration

The Widget:

Court: D.C. Circuit
Judge: Brown
Subject: Veterans
Tone: Unremarkable
Importance: 5.5

Given the way the Bush Administration has gone about its business, you have to wonder what they have against veterans. Today, in Cody v. Cox, D.C. Cir. No. 06-5253, the D.C. Circuit reversed a trial court’s dismissal of claims brought by residents of the Armed Forces Retirement Home – Washington, D.C. These veterans claimed that the ingrates – er, the Administration – violated their statutory right to high quality care when the Home’s chief operating officer imposed draconian cost saving measures. Their specific complaints related to “unavailability of physicians and dentists, neglect of patients, and delays in obtaining prescription drugs.” So not very important stuff.

In response, Congress passed a statute that gave the veterans additional detailed rights beyond their generalized entitlement to “high quality” healthcare. The ingrates’ – sorry, the Administration’s – response to that was to say to the trial court “OK! Awesome! Problem solved!” The trial court agreed. But today the D.C. Circuit, that bastion of left wing activism, said “Not so fast.”

What Is It About Dissents And Concession Speeches?

They’re just a lot more lyrical.

The Widget:

Court: First Circuit
Judge: Lipez (dissenting)
Subject: First Amendment
Tone: Thorough, elegant
Importance: 5.3

Judge Lipez writes a gorgeous dissent (starting at page 63) in Sullivan v. City of Augusta, First Circuit No. 06-1177. The issue is whether a parade fee without an indigency exception violates the First Amendment. The majority says no and Judge Lipez disagrees.

One of the issues to consider here is whether there are reasonable alternatives to street marches for people who can’t afford the parade permit. Lipez says no, and he focuses for a bit on the internet. “Although the internet has provided new for a for communicating with large numbers of people,” Lipez writes at page 83, “websites, blogs and other publicly accessible online opportunities are not substitutes for face-to-face experiences . . . .”

We sort of know this already, but it’s an awfully good point. Example: Remember when the Deaniacs thought they could win a presidential election on the internet? Well, they learned that you need more than orange stocking caps and righteousness to finish better than third in the Iowa caucuses. This may not have anything to do with anything. But it's worth noting!

South End Biolab: Flawed Review Process

The Widget:

Court: SJC
Judge: Spina
Subject: South End Biolab
Tone: Academic
Importance: 2.3

Big news! In Allen v. Boston Redevelopment Auth., SJC No. 09960, The SJC today holds that the Secretary of Environmental Affairs blew it in the review of BU’s proposed South End biomedical research complex.

Or is it big news? Probably not. The Secretary had already agreed with the trial court’s determination and directed preparation of a supplemental environmental impact report. So not a lot was decided today, as Justice Cordy appropriately notes in his concurrence.

Justice Spina tries to address the mootness problem in his footnote 20. His point is that the issue is important and the Court has papers on it. But this is the second opinion in less than a week that’s involved a high court making an unnecessary pronouncement on a public policy question. Which isn’t really their job.

Suffolk County Sheriff’s Office Weirdness

The Widget:

Court: Appeals Court
Judge: Mills
Subject: Municipal law
Tone: Befuddlement-inducing
Importance: 1.2

Okay. We’re about to get hypertechnical and then confused. Be warned.

The Suffolk County Sheriff tried to enter into a ten year, $7 million lease for office space. In order for the lease to be enforceable, the City of Boston (which controls the Suffolk County Sheriff’s office) needed to have its auditor “certif[y] thereon that an appropriation is available therefor or has cited thereon the statute under authority of which the contract is being executed without an appropriation.”

This lease incorporated the following imprimatur from the auditor’s office: “APPROVED AS TO AVAILABILITY OF APPROPRIATION OR PURSUANT TO ARTICLE 12.2 OF THE GENERAL CONDITIONS IN THE AMOUNT OF $0.00.”

Pardon? $0.00?

And so, of course, the Sheriff broke the lease and the landlord sued. And the landlord, of course, lost. Because, as the Appeals Court held today in Bradston Assocs., LLC v. Cabral, Mass. Appeals. Ct. No. 06-P-1844, the lease was not enforceable to begin with. Why didn’t the landlord catch this? Why did the auditor include an utterly inscrutable certification on the contract? It almost looks like the city tried to fool somebody who was willing to be fooled.

This may just be what happens when turnout is fourteen percent.

Today In Bruce Selya

The Widget:

Court: First Circuit
Judge: Selya
Subject: “The overarching themes are chicanery and greed”
Tone: Bemused disappointment
Importance: 4.2

Why does he get his very own feature on this blog? Because he writes paragraphs like this:

The circus impresario, P.T. Barnum, is famously reputed to have said that “there’s a sucker born every minute.” That droll commentary on the human condition, whether or not fairly attributed to Barnum, appears to be as insightful in cyber-commerce as in face-to-face business transactions. This conclusion is borne out by the case at bar, which involves an Internet fraud.

And while the opinion in United States v. Deppe, No. 07-1048, adds just a single entry to the roster of Selya-esque words and expressions (COMPRISE MORE CRY THAN WOOL*) it provides another great moment in the history of the lawyer-client relationship:

When the district court held a sidebar conference to discuss its further [jury] instructions, the appellant injected himself into the conversation[**], bypassing his counsel and explaining how he thought the instruction should be worded. The court then asked defense counsel whether appellant’s objection was counsel’s objection. Counsel equivocated; he disavowed the objection but then enigmatically observed that, whatever he happened to think, “it’s Deppe’s life.”

Lawyers: we love our clients so much.

*Note, incredibly, that this definition references a judicial opinion from the First Circuit. Wonder who wrote that.

**What the heck he was doing there is anyone’s best guess.

Elementary

The Widget:

Court: U.S. Supreme Court
Judge: Souter
Subject: Guns, drugs
Tone: Subliminally persuasive
Importance: 5.5

A couple of years ago, the Supreme Court held that a defendant who traded his gun for drugs “used” the gun during the transaction for sentencing purposes. Today, in United States v. Watson, U.S. Supreme Court No. 06-571, the Court held that a defendant who traded his drugs for a gun had NOT “used” the gun during the transaction for sentencing purposes.

At first glance, these two decisions seem wacky and irreconcilable. But then you look at them for a couple of minutes, and kind of like this famous E.G. Boring thing, you start to see that they’re compatible.

Professor Reynolds says he sees no Second Amendment implications and then implies that there are Second Amendment implications.

That Sound You Heard This Morning Was The Plaintiffs’ Bar Celebrating*

The Widget:

Court: SJC
Judge: No majority opinion
Subject: Physicians’ duty to third parties
Tone: Multiple (see above)
Importance: 7.4

Get ready for a noticeable health insurance premium increase. And also crocodile tears from Republicans and the insurance industry.

In Coombes v. Florio, SJC No. 09869, The SJC announced today that third parties injured by patients suffering from side effects of medications prescribed by doctors can sue the doctors for failure to warn. There was no majority opinion, which is rare on this Court.

Chief Justice Marshall, not especially known for being all that pro-business or all that anti-plaintiff, dissented. She writes: “I respectfully disagree with the opinion of Justice Ireland (and the two Justices who join him) that would establish for the first time in this Commonwealth a physician's duty to prevent harm to nonpatients, and would do so in sweeping terms.”

This seems like an awfully big expansion of physician liability. In light of the fractured nature of the opinions and the importance of the health care industry in the Commonwealth, it would be surprising (and disappointing) if the legislature didn’t get involved with this.

*No, not because the sidewalks in Boston were extra icy. These lawyers are enterprising. Not evil.

Oh, Come On

The Widget:

Court: Rhode Island Supreme Court
Judge(s): Robinson (majority); Suttell (dissent)
Subject: Gay marriage
Tone(s): Mulish (majority); devastating (dissent)
Importance: 6.7

So here’s the Rhode Island Supreme Court’s decision in Chambers v. Oriston, No. 2006-340. The Court holds that a lesbian couple is not entitled to a divorce in Rhode Island because Rhode Island doesn’t recognize Massachusetts gay marriages.*

The heart of the opinion is the conclusion that since Webster’s defines marriage as “the state of being united to a person of the opposite sex”, the couple never was really married. In a footnote, the Court states “We are in no sense disregarding Judge Learned Hand’s advice that ‘courts should not make a fortress out of the dictionary.’” Which is a great point! Even though that’s really exactly what the Court is doing.

The dissenting judges, who begin their comprehensive response at page 17, make a lot of persuasive points. But the most persuasive is their invocation of Loughran v. Loughran, 292 U.S. 216 (1934). There, the Supreme Court said “Marriages not polygamous or incestuous, or otherwise declared void by statute, will, if valid by the law of the State where entered into, be recognized as valid by every other jurisdiction.”

An effective majority opinion would have somehow anticipated this argument and countered it. This majority opinion, however, does no such thing. But they do have Webster’s on their side. And that’s not nothing. It’s just next to nothing.

*Neither party actually raised this argument, leading to a fair inference that the Court went out of its way to hold as it did. Why would it do that?

Decisionism Is Also About Decisions That Haven’t Been Made Yet

The Widget:

Court: Appeals Court
Judge: TBD
Subject: “Good government and transparency”
Tone: TBD
Importance: 5.1

Massachusetts has an incredible open meeting law that basically prohibits public bodies from holding anything even approaching private deliberation sessions. A couple of years ago, some interested Boston citizens filed suit against the City Council for violating the open meeting law.

And they won. Which bothered then City Council President Michael Flaherty ''given that the Boston City Council stands for good government and transparency."*

So the City Council appealed and the Appeals Court heard the argument today. We’ll see what happens.

*Yes. That is an actual quote. From Michael Flaherty. Perhaps he's talking about the city council of some town named Boston in another state. Like Boston, Missouri. Maybe?

Barb Dissed

The Widget:

Court: SJC
Judge: ?
Subject: Professional, uh, responsibility(?)
Tone: Exhausted
Importance: 2.1

Andover’s most awesome attorney, Barbara Johnson, was disbarred today, in part because she’s the proprietor of an unusual website. Johnson ran for governor in 2002. Surprisingly, she lost. It would be mischaracterizing things to say that her star has fallen since then because, well, her star never really seems to have been all that high.

Fickle Justices Turn Backs On Gun-Toting Career Criminals

The Widget:

Court: U.S. Supreme Court
Judge: Ginsberg
Subject: Guns
Tone: Dubious
Importance: 6.7

A felon who possesses a firearm commits a federal crime. “Career criminals” get fifteen automatic years in federal prison if they’re caught with a gun.

In a unanimous opinion today, the U.S. Supreme Court refused to tinker with the underlying statute, which includes exceptions if the convictions have been expunged or civil rights have been “restored.” There were no separate concurrences by any of the conservative justices raising the possibility that this statutory scheme might cause problems under the Second Amendment. Can we read anything into this?

Well, if Profs. Volokh and Reynolds can waste our time touting a Pennsylvania Supreme Court decision that assumes without deciding (and thus says effectively nothing about whether) the Second Amendment protects individual gun owners, it’s at least worth noting that there are no Printz-type dissents in today’s decision.

Decisionism's One Punch

The Widget:

Court: SJC
Judge: Cordy
Subject: Appalling parenting
Tone: Revolted
Importance: 5.6

What does it really mean to be insane? We can all agree that a father who killed his ten month-old son after depriving him of solid food and mandating that the baby could only drink breast milk and water because he’d heard that proverbial message from God, we can all agree that this guy was just way out of his right mind. But can he be held criminally responsible for his actions?

The SJC decided today in Commonwealth v. Robidoux, No. SJC-09758 that he could, leading any sentient being to breathe a gargantuan sigh of relief. It did so in spite of the fact that insanity is a defense to first degree murder? What does it mean to be insane? As the Court states, “A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality wrongfulness of his conduct or to conform his conduct to the requirements of law.” Mr. Robidoux’s actions after murdering his son sort of cut both ways here:

Robidoux placed Samuel's remains in a homemade casket and stored the casket in the bulkhead of a home belonging to one of his sisters for several months. On October 11, 1999, Robidoux [and some friends] went hiking in remote Baxter State Park in Maine, carrying a plywood casket that contained the remains of Samuel. After hiking for about seven hours, the group left the trail where they “felt comfortable.” There, 300 or 400 feet off the trail, they buried the caskets.*

Again (and either way): CRAZY, CRAZY MAN.

Decisionism’s college roommate often asked this hypothetical question: if you had one free punch that you could use on any human being without any repercussions, what would you do with it? Decisionism hereby reserves its one punch for Joel Robidoux.

*Yes, caskets. As in the plural of casket. Go read the decision if you want to learn more. Blecch.

Slightly Less Exciting Than The Night Before Christmas

If you’ve been wondering why Decisionism hasn’t been covering the U.S. Supreme Court, well, it’s because the Supremes have not yet released a single signed opinion during this term.* That all changes tomorrow (Tuesday) morning.

Bated breath, etc., etc.

*Tradition mandates that the Supreme Court begin its term on the first Monday of October. This year's term began on the earliest possible calendar date, October 1.