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.

Cautionary Tales About Indecisive Real-Life Events

Every litigator ought to be compelled to read Peter Boyer's recent piece (abstract only, unfortunately) about Dickie Scruggs* in the New Yorker. The unstated conclusion of the piece is that Scruggs brought about his own demise because he wanted to win every case, no matter how small. Which also happens to be a rather important attribute in most successful litigators you may know. So there you go, counselors. Kick some butt!

For the less faint of heart, check out this string of comments at Universal Hub about the horrific trolley crash in Newton yesterday. It gets messy when the lawyers start posting their phone numbers. Adam Gaffin smacks one of them down, thank goodness. If you still feel like you need a shower after taking a look this, that's completely understandable. Yuck. Just . . . yuck.

*"This is the sovereign state of Mississippi's proceeding. WIPE THAT SMIRK OFF YOUR FACE! Dr. Wigand's deposition will be part of this record. And I'm going to take my witness's testimony whether the hell you like it or not."

Decisionism Eats Some Crow

If you had predicted that this Supreme Court, this nine, would adopt an expansive view of permissible employment discrimination claims, Decisionism would have mocked you to no end. And yet that's exactly what happened today in two cases, Gomez-Perez v. Potter, No. 06-1321, and CBOCS West, Inc. v. Humphries, 06-1431.

Justice Thomas dissented in both cases -- not a big shock -- but his dissent in the Humphries case does provide us with one of the most curiously reasoned passages by any justice in recent memory:

Retaliation is not discrimination based on race. When an individual is subjected to reprisal because he has complained about racial discrimination, the injury he suffers is not on account of his race; rather it is the result of his conduct.

The italics, well, those are all Justice Thomas. Screwing around with this passage is unnecessary. It barks for itself.

Again? Really?

So here's another lesson: there are some contexts in which lawyers can rightly celebrate trial court victories and others in which a bit more circumspection is required. Sourcing Unlimited, Inc. v. Asimco Int'l Inc., First Cir. No. 07-254, decided yesterday, is a case in the latter category.

This is a case you should take a look at if you arbitrate. At all.

If You Want To Send Him To Jail, You Should Probably Take Some Testimony

This blog has devoted a lot of oxygen to criticizing lawyers who do a poor job for their clients. Sometimes the fault lies in, er, a different direction.

In Commonwealth v. King, Appeals Ct. No. 07-P-397, the District Court sent the defendant back to jail for 18 months for a probation violation. At the hearing the Court took no testimony, instead choosing to rely on a police report. Making this approximately the ten zillionth instance in which a court has misapplied, overlooked, or plain disregarded the hearsay rule.

The Appeals Court took a look at the record and noted that the defendant quite possibly did engage in some bad conduct, but said, in essence, NSFMF.

Two Lessons

Keep your promises. And read the contract. That's what we learn from NPS, LLC v. Minihane, SJC No. 10134, which the SJC handed down today.

Will this alleviate some of the sting from losing the Super Bowl? Hey, every little bit helps. And a win is a win.

**Disclosure: A few years ago, I was an insignificant member of a team of lawyers representing the plaintiff in this case.

Nonmutual Collateral Estoppel In The Criminal Context

Is that the best headline you've ever seen, or what?

So here's the situation: you and your pal are stopped by the police and they find drugs in the car. You and your pal hire separate lawyers. Your pal's lawyer moves to suppress the drug evidence because it was based on an illegal search. He wins and walks. You then file a similar motion, claiming that the Commonwealth is bound by the earlier determination that the search was illegal. Must the judge find in your favor?

Yesterday, in Commonwealth v. Stephens, SJC No. 9943, the Supreme Judicial Court said no. Interestingly, if you'd been pulled over in New York, the answer would have been yes.

Given that there are two schools of thought on this, don't be surprised if it goes all the way.

Open Meeting Plaintiffs Prevail (Sort Of) In Appeals Court

Today the Appeals Court ruled against Michael Flaherty and his compatriots in McCrea v. Flaherty, No. 07-P-224. The Court held that the defendants violated the Open Meeting law.

The victory for the plaintiffs, including Kevin McCrea, was not unequivocal, however. The Court sent the case back to the Superior Court for a determination of some factual issues. So Mr. Flaherty could still eke out a victory of sorts.

Still reading through this; updates possible.

Must-Read For Commercial Litigators

Our old friend, the Reverend Wright supporter -- kidding -- the McCain supporter who might as well live in New Hampshire alerts us to today's First Circuit decision Trans-Spec Truck Serv. v. Caterpillar Inc., No. 07-1476. And if you practice commercial litigation in the Commonwealth, you really ought to read it.

Why?

Because it's rare to have the benefit of an appellate court's detailed views on how it looks at practicing before magistrates, how it looks at motions to dismiss, when it is willing to convert a motion to dismiss into a motion for summary judgment, how it looks at motions for summary judgment, whether to permit a pleading to be amended. But there's more! The court considers substantive questions of unconscionability, waiver, and warranties.

The afore-mentioned McCainiac thinks that the law firm representing the appellant may have more to worry about than just losing this appeal. As if they didn't have enough to worry about already.

Tom Cruise, John Travolta, Beck, Call Your Office

Via Ron Newman at Universal Hub, this is just sickening. Scientologists, using a Boston lawyer who this blog will not name, have sworn out a criminal complaint against the guy who pulled a protest permit for a gathering at their Beacon Street facility. The charge is harassment.

What, you ask, is the problem? Harassment is illegal! And scary!

Well, the problem is that they can't finger this particular guy for any specific harassing activity. So why are they picking on him? Because they can't identify any of his compatriots. They were all wearing masks, see. So they decided to go after this particular guy because, well, he pulled the protest permit. So his was the only name they could find.

The most shameful aspect of this is that the very same constitutional freedom that enables this organization to operate with almost no government interference in this country is the one they're trying to take away from those who disagree with them. That's bad P.R. And it's bad citizenship, too.

Political? Wha?

There's some discussion in an earlier post about Supreme Court justices' political predilections and whether those predilections affect how they decide cases. So let's do a crude thought experiment.

Today the Supreme Court decided a case involving Indiana's photo ID requirement for voters. Conservatives generally embrace the requirement. Liberals generally do not. Which justices do we think would uphold and which would strike down the ID requirement? Here's this blog's guess:

Uphold: Roberts, Scalia, Kennedy, Thomas, Alito
Strike down: Stevens, Souter, Ginsburg, Breyer

The answer is here, in Crawford v. Marion County Election Bd., No. 07-21. And it's not surprising.

Eh?

There's a lot here that's defensible. But the idea that Bush v. Gore was not a political decision is based either on dishonesty, delusion, or some blinder-inducing cocktail that combines the two.*

*This thought violates the Eleventh Commandment of Legal Academia and Appellate Commentary ("Thou shalt not criticize Scalia"), which is fine. Let's stipulate that Justice Scalia is way, way smart. But (thus?) pretty much every single opinion he writes includes some degree of prestidigitation. And rather than admire that prestidigitation as part of academic intellectual calisthenics, shouldn't we call it out? At least every now and then?

Not Hiding/Hiding The Ball

The First Circuit occasionally tips its hand and lets you know what it's going to do in the very first sentence of an opinion. Such is the case in Ramos-Santiago v. UPS, First Cir. No. 07-1024. The Court begins today's decision by noting the the plaintiff in this employment case "was a driver with the United Parcel Service when he failed to deliver thirty-seven packages over the span of two business days in 2003."

Weird unexplained twist: all 37 packages were addressed to a single recipient. The plaintiff apparently delivered all of his other packages without a problem on the dates in question.

Some Tea Leaves

If you want to know why it will be more or less impossible to succeed in bringing claims against U.S. government employees for based on being tortured while in U.S. custody, read Harbury v. Hayden, D.C. Cir. No. 06-5282. The case stems from U.S. meddling in Guatemala in 1992.

Key takeaway: regardless of what the law says, regardless of what the cases say, courts are going to resolve every question in favor of letting the government off the hook. Noted, as they say, without comment.

"You keep using that word. I do not think it means what you think it means."

Inigo Montoya would have been all over Reliance Ins. Co. v. City of Boston, No. 07-P-066, a case decided today by the Appeals Court.

A statute requires performance and payment bonds on public construction projects. Performance and payment bond companies (a/k/a sureties) occasionally step in to take over for general contractors that can't get their acts together. As a stop-gap, the sureties require the contractor to assign any rights they might have against the owner of the project (though these probably automatically pass to a surety when they step in for general contractors that can't get their acts together).

In this case, the City of Boston included a provision in the contract forbidding the general contractor from assigning any of its rights or duties under the contract to anybody else.

The Appeals Court, in a decision that feels right, essentially reads additional language into this provision to the effect of "but assignment to a performing surety is okay."

If you wait around long enough, you'll find that sometimes common sense rears its head in the courtroom. Just don't hold your breath while you wait.

Two Things A Lot Of People Love

Nudity and Harvard Square. Together in this interesting case, Commonwealth v. Ora, SJC No. 10019.

The SJC affirms the constitutionality of the statute barring public nudity "done in such a way as to produce alarm or shock." Somehow, the SJC concludes that "[n]either the language of the statute nor its legislative history suggests that the statute targets any expressive message contained in any display of nudity."

Why is that important?

Because if the statute aims at an expressive message, it's going to be a lot tougher for it to pass muster. But this statute does target an expressive message, the message I WANT TO SHOCK AND ALARM YOU SO I'M GOING TO TAKE OFF MY CLOTHES! This is a messy reality of First Amendment jurisprudence. Courts are very likely to find that a statute or rule doesn't target a certain kind of expression if the expression that it's targeting (either implicitly or explicitly) offends their puritanic or patriotic sensibilities. We tolerate such obvious illogic because the logical approach would probably result in the invalidation of vast swaths of the American statutory landscape.

Universal Hub, as in Adam, is all over this.

The Big Dig Claims Another Victim

This is actually useful information.

Let's say you're a construction foreman and you supervise a concrete pour that takes 27 hours -- 27 straight hours (in case you were wondering, contractors do really really miss the Big Dig). You didn't really have to stay, in the sense that you could have gone to your boss and whined about having to work for 27 straight hours. But instead of whining, you suck it up. And then you fall asleep at the wheel on the way home from said 27 hours of concrete pouring and slam into a utility pole.

Now let's say you make a workers' comp claim for the injuries you suffered thanks to that effing utility pole with which you're now intimately familiar. Well, today the SJC said "Too bad. Nope. No workers' comp for you."

The next time somebody talks about the SJC being too hard on insurance companies, employers, our capitalist masters, etc., tell them to take a look at Haslam's Case, SJC No. 9915. That's the moral of this story.

Another Justification For Lawyer Jokes

. . . Because we, in our warped skulls, are able to perceive a difference between delivery that's "by hand" and delivery that's "in hand." The Appeals Court's decision today in McMann v. McGowan, No. 06-P-1562, turns on that very issue. And a $760,000 lawsuit hangs in the balance.

FACE-book

Yesterday the First Circuit reinstated the case brought by the Harvard guys who claim they invented Facebook against the guy who they claim stole their idea. The case is ConnectU, LLC v. Zuckerberg, First Cir No. 07-1796. Because it involves Facebook, which is cool, this decision may be of some interest to non-lawyers. Because it involves a complicated jurisdictional question, those of us who litigate should also take note. And because it is written by Judge Selya, we get sentences like this: "Harvard's traditional school color is crimson but the Founders saw red." What more, at long last, can we ask for?