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.