Your Government At Work

There’s great interest in the Vith Ly decision yesterday from the SJC. The legal principles and precedential effects are interesting, but the case once again raises one of the most urgent and least sexy issues facing the Commonwealth and the nation: the basic diligence and competence of our government.

This is simple stuff, isn’t it? If we can’t manage to order a convicted rapist to jail for a period of sixteen years – during which time he’s twice brought before the courts for other serious charges – if we can’t manage that, should we be surprised when tunnels and bridges collapse, when restaurant venting systems go uninspected, or when giant pallets of cash disappear in the Green Zone? Maybe, though, this is just the kind of stuff that happens when turnout is fourteen percent.

My Kind Of Water-Borne Parasite

On environmental issues, the conventional wisdom is probably that big liberal cities like New York and Portland are more aggressively regulatory than the Bush administration or the judges sitting on most circuit courts of appeal.

How to explain this, then? New York and Portland unsuccessfully challenged an EPA rule that will require them to take additional steps to reduce the amount of cryptosporidium in public drinking water. The Court helpfully reminds us that cryptosporidium “is a parasite found in human and animal feces.”

New York and Portland also win the award for most cringe-inducing argument of the day: claiming that “sensitive subpopulations (e.g., AIDS patients) . . . tend to drink more bottled water than normal.” If you’re going to make an argument like that to smart fellas like Messrs. Ginsburg, Tatel, and Sentelle, you might want it to, er, have at least some factual support.

Paul Bunyan Is Smiling Somewhere

The legal profession is as guilty as any logger when it comes to deforestation. The Appeals Court today reminds us why this is so.

The Court determined that a nonparty to an arbitration doesn’t have to pay damages awarded at the arbitration. There’s a (weak) argument that things were slightly complicated because the nonparty was a surety and there were punitive damages involved. But this really looks more like something that the Appeals Court could have dealt with in one or two pages and not ten. Alas.

The Mass Pike Might Want To Revisit Its Budget Numbers

Most adults have jobs, and this is a good thing. Most employers, on other hand, think they can fire their non-union, non-contract employees at any time for any nondiscriminatory reason, freely alter plans for bonus compensation and sick leave, and the like. And they’re usually right about this.*

Today, however, the Appeals Court in LeMaitre v. Massachusetts Tpk. Auth, Mass. App. Ct. No. 06-P-0455, held that a personnel manual can give an employee a contractual right to get paid for sick leave. And this isn’t the first such case – legal authority on this question goes back quite a ways. You’d think employers in Massachusetts would have quit issuing personnel manuals a while ago, right? Not the Mass Pike.

Think about the number of Pike employees who will take advantage of this decision for their own benefit. This case might be a bigger deal that one engineer's sick pay.

* Whether you think this is a good thing depends on where you sit.

Today in Bruce Selya

What better day than today to begin an occasional feature: TODAY IN BRUCE SELYA? Known for his preposterous vocabulary, this First Circuit luminary is equally notable for the rarity with which he reverses summary judgment decisions. Today is no different. But the words, the words. They fill us with glee, especially those of us who feel we underperformed on the English SAT. In any event, some highlights from the opinion:

BREVIS
EXEGETIC
TAMISAGE
CARTING COAL TO NEWCASTLE
FLOGGING A MORIBUND MARE

November 1, 2007

Now You Know!

Been wondering why the named defendant in immigration cases is some person named Keisler?* Because: “On September 17, 2007, Peter Keisler was named Acting Attorney General.” That’s why. If this Mukasey madness continues, Mr. Keisler’s fifteen minutes may last a bit longer than anyone expected.

*Not wondering about this means that you are completely normal.

October 31, 2007

If He Had A Hammer

Some cases are notable merely because there are lawyers out there willing to take them.

In this case, the plaintiff decided that he wanted to kill himself.* So he tried to goad the police into shooting him to death, which is less uncommon than one might think. What makes this case strange, though, is that the police did shoot him, he survived, and then found a lawyer willing to sue the police for violating his constitutional rights by using excessive force to subdue him. Excessive force? Given his goal, isn’t the problem that the force was insufficient?

*There is no doubt that this extremely sad.

October 30, 2007

Show Your Work, Please

Appellate Courts occasionally leave critical logical steps unexplained.

When you get beyond the titillating facts, this case presents an interesting question of logic. Officer X did not have an adequate basis for conducting a search of the Suspect. Officer Y may or may not have had such a basis, but did not communicate that basis to Officer X. The trial court suppressed evidence recovered from a search based on Officer X’s inadequate basis, but did not consider Officer Y’s basis. The First Circuit vacates the trial court’s decision, saying that the trial court should have considered Officer Y’s basis for conducting the search, Officer Y hadn’t provided sufficient testimony about the facts supporting his basis, but – and this is the key – leaves it to the trial court to determine whether such additional evidence is necessary.

Forget about Officer X. Officer Y has not provided enough testimony to support the search. But the First Circuit leaves it to the trial court to determine whether even to take evidence regarding Officer Y’s basis for wanting to conduct the search in question. That doesn’t make sense. The First Circuit should have either affirmed the trial court or vacated its decision and ordered the trial court to take more evidence from Officer Y. That is, unless the First Circuit is implicitly telling the trial court that it can disregard Officer Y’s testimony based on his lack of credibility. But if that’s what it’s staying, why doesn’t it say that?

October 29, 2007

Hard Questions

How does a court decide whether to take a child from an uncle and aunt who are doing a fantastic job and give her to a father who isn’t horrific but isn’t great? The answer, of course, is “it depends.”

This Appeals Court decision, in In re Estelle, Mass. App. Ct. No. 06-P-1612, is interesting for another reason. It’s an example of an appellate court reversing a trial court while simultaneously giving the trial judge thinly veiled instructions for how to do what it was trying to do in its original decision.

Finally, it’s difficult to see how the law can play any effective role in an arena that is so intensely personal and emotional. For some, the notion of voluntarily relinquishing the right and immeasurable joy of raising a daughter is unimaginable. For others, it appears, not so much. But for these latter folks, maybe there ought to be an irrefutable presumption that you’re not a fit parent. That would certainly make cases like this one a lot easier to decide.

October 26, 2007

The Beast's Nature, Etc.

Perhaps the least fun aspect of the profession is its necessary proximity to intense human suffering. Every now and then, as in this decision, the enormity of that suffering completely overshadows the legal issues that arise.

Yet another example, by the way, of how easy access to personal firearms is one of this nation’s great ever-unfolding tragedies.

October 25, 2007

Covered

One thing that some insurance companies are very good at is getting in fights with people they insure. And they’re good at it in the sense that, regardless what you think of them, they tend to win. Not so today, in Utica Mut. Ins. co. v. Fontneau, Mass. App. Ct. No. 06-P-930.

A property owner guy owned two parcels of land right next to each other. He had liability insurance for one but not for the other. His policy for the insured parcel covered him for losses that happened on that parcel and on parcels used in connection with it. The property owner stored antique cars and other personal items on the adjacent parcel. A police officer came by to investigate vandalism complaints at the adjacent parcel and hurt himself on a path connecting the two parcels. The insurance company, Utica, refused to cover the loss, sued the property owner, and lost at trial and in this appeal.

The crux of the Court’s rationale was that the insurance company didn’t introduce evidence it was surprised it had to cover the loss on the path. What’s interesting here is that in a different case three years ago, the Appeals Court held that a regularly used private beach was not “used in connection” with the owner’s main parcel 500 feet away. Which means that Utica is probably shaking its head in disbelief at this point.

October 24, 2007

There Are Limits Out There Somewhere

In the current political and constitutional climate, it’s easy to forget on occasion that we have some fairly significant protections, at least nominally, within the bill of rights. One of these protections, found in the Fourth Amendment, is the right to be free from unreasonable searches and seizures. That right applies to good folks and bad folks, alike. And it makes everybody uncomfortable.

Earlier this week, three judicial celebrities on the D.C. Circuit (Ginsburg, Sentelle, and Tatel, JJ.) reversed the gun charge conviction of Ronnell Holmes. D.C. police officers saw Holmes visiting with an unsavory member of the opposite sex in a dark alley in the middle of the night. They detained him after a brief foot pursuit, took his car keys from him, handcuffed him, and then, after obtaining his permission, searched his car and found a gun under the front seat. The problem with the government’s case was the decision to take Mr. Holmes’s car keys from him. They weren’t a weapon and they weren’t contraband, so under the caselaw interpreting the Fourth Amendment, the police had no business with them.

The prosecution argued that the taint on the keys issue was mitigated by Holmes’s consent to the search. But the Court held that Holmes’s consent to the search had been coerced, that he’d only agreed to let them search the car (which they located by clicking the little remote unlock button) because he thought it was his only way of avoiding an arrest.

So Holmes, who admitted that he had been offering to pay his female friend for her entertainments, ran away from police when they approached him, and kept a gun under the front seat of his car, goes free. Imagine this though, what if instead of finding a gun under the front seat, the police found a dirty bomb? Same result? If the answer is no, that’s a problem. Isn’t it?

Not Enough Information

A mind-numbing decision from the Supreme Judicial Court concerning the appropriate price Cambridge should pay NStar for lighting equipment. What’s missing? The amount of money at stake, that is, the difference between what Cambridge says it should have to pay and what the Court ultimately decided it has to pay. Admittedly, the amount in controversy has nothing to do with the decision or the application of the law to the facts. But isn’t it important nonetheless?

October 22, 2007

In Other News, It’s Monday

The least surprising development of the day is another First Circuit case in which an official in Puerto Rico’s government alleges employment termination based on political beliefs. The Court seems to be good for at least one of these per week. What in the world is going on down there?

October 19, 2007

Ouch

Sometimes it’s just pretty clear that a guy’s habeas petition isn’t going to be granted and he’s going to have to stay in jail. As in, when the First Circuit includes this sentence in its decision: “There is no doubt that [aforementioned habeas guy] killed Tyrone Davis outside a bar in 1999 by stabbing him in the head.”

Habeas guy might have had some hope if the First Circuit had concluded the previous sentence after “1999” or “by stabbing him”, but they had to add that critical, visceral, honking detail: “in the head.”

October 18, 2007

Hire the Frickin’ Expert

If a case is going to require expert testimony, or even if the other side is going to put an expert witness (or, say, six expert witnesses) on the stand to testify about a critical aspect of the case, it’s going to be a good idea to hire an expert witness. In this arson case, a lawyer did not hire an expert witness to rebut arson allegations against his client or to help him cross examine the state’s expert witness. He just poked around the site of the fire and decided to go along with the state’s determination that the fire in question had been set intentionally.

His reward? Public statements in federal courts that his performance as an attorney had been “deficient.” That’s like getting a gold star, except the complete opposite.

October 17, 2007

Every Great Once in a While . . .

Appeals don’t succeed all that often. Appeals by folks convicted of murder, based on an unscientific reading of the appellate cases reported in the Commonwealth, are successful even less often. But today, in Commonwealth v. Morales, 70 Mass. App. Ct. 526 (2007), the Appeals Court ordered in a new trial for Arcangel Morales. He was convicted of murdering a homeless man during a confrontation in 2002.

The victim approached Morales after a female companion complained that Morales had struck her on the chin with a beer bottle a few months earlier. Morales and the victim had words, and the next thing the assembled gaggle knew, the victim had been stabbed twice in the chest and once in the arm. Morales hopped on a bus to visit relatives in Pennsylvania later on that night.

Morales succeeded on his appeal because the trial judge didn’t give a correct instruction on voluntary manslaughter. Boiled to its essence, Morales was claiming he was provoked and stabbed the victim in “the heat of passion.” The judge wasn’t willing to let that happen because nobody had seen Morales and the victim physically touch one another. The Appeals Court said that physical contact wasn’t a necessary prerequisite for Morales to claim he was provoked.

There’s a weird footnote in here, though, that highlights often confusing distinctions between necessity and sufficiency. It’s footnote five, which reads in part: “We are also aware of decisions in which the court has held that physical contact by victims was insufficient to justify such an instruction.” So if physical contact is insufficient, and there was no evidence of physical contact, it seems initially strange that a murder conviction would be overturned because the judge held that physical contact was necessary for Morales to win his manslaughter argument. If you look hard, though, you can see it: physical contact is neither necessary *nor* sufficient for a defendant to avoid a murder conviction. Why the Appeals Court determined that this was better left unexplained is unclear.

October 16, 2007

Stealing From Special Olympics = Evil

A few years ago, there were stories about students at Pepperdine Law School who determined that if they represented criminal defendants, they would not try to employ technicalities to get them off the hook. The lawyer in this case, who represented someone accused of embezzling money from the Special Olympics, must not have a very large fan club chapter at Pepperdine. He argued that his client should get off because she hadn’t actually stolen from the Special Olympics, she’d stolen from the people who wrote checks to the Special Olympics. It’s all good, in other words.

Stealing from the Special Olympics is evil, by the way, but it’s always interesting to see how embezzlers set up their enterprises. The defendant in this case was a bookkeeper for the Special Olympics. She set up a false telemarketing operation and a separate bank account, and she was off to the races. Yet another reason that being intensely skeptical of any telemarketer is a very good way to be.

October 12, 2007

Use it Or Lose it

One would suppose that Merrill Lynch cringed just a tiny bit when it received bills from Eugene Volokh related to his First Amendment work on this case decided today by the First Circuit. That is, assuming that Prof. Volokh billed his time; he could just have a deep and abiding interest in the ability of big financial services companies to exercise First Amendment rights when firing employees. Or not. Everyone’s got to eat, in any event.

Learning that they’d lost the ability to even raise the First Amendment issue because they hadn’t raised it in the trial court? Merrill can’t have been too happy about that.

It’s always interesting to see what constitutional causes the assorted right-leaning members of the legal academy tend to espouse. The ability of big companies to make false statements about former employees seems a bit less urgent than others.

October 11, 2007

Obviously!

Every few weeks or so, a loopy Appeals Court decision causes members of the bar to collectively shake their heads across the Commonwealth. This is such a case. There’s a regulation governing administrative procedure stating that documents are deemed filed on the day that they are postmarked. The Division of Unemployment Assistance follows this regulation. An employee must “file” his or her appeal of an adverse unemployment decision within thirty days of receiving it. But for some odd reason, the “postmark” rule doesn’t apply to these appeals. Why? Apparently because “file” means “file” unless it means “file” in which case it doesn’t mean “file”.

Perhaps the most emblematic passage of the entire decision appears in footnote 6: “Rule 3 states, in relevant part, that ‘[a] civil action is commenced by (1) mailing to the clerk of the proper court by certified or registered mail a complaint and an entry fee prescribed by law, or (2) filing such complaint and an entry fee with such clerk.’ At least for the purposes of this rule, mailing and filing are obviously not the same thing.” Obviously!