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.