Make It Easy

An appellant has the opportunity to make it easy for the appellate panel to locate the relevant documents in the record.  GavelIf you have the responsibility to create part of the record, select a page numbering system that makes sense so no pages have the same number.  Create a meaningful index to the record.  For example, if a document has an odd or misleading title, provide that title and, in brackets] a few accurate, neutral, descriptive words.  Identify the declarant or witness if that information is not in the title.  Provide copies of the index in the brief and in each volume of the record, marking which documents are in which volume.

Cite to the record for every point.  Dominguez v. Financial Indemnity Co., 183 Cal.App.4th 388, 392 n.2 (2010) (“because FIC’s brief fails to provide a citation to the appellate record for these facts, we do not consider them”); AdvanceMe, Inc. v. Finley, 275 Ga. App. 415, 620 S.E.2d 655, 657 (2005) (“It is not the function of this court to cull the record on behalf of a party”).  It almost goes without saying that you should cite accurately to the page with the relevant material.  Scott v. Bank of America, 292 Ga. App. 34 , 663 SE 2d 386, 387 (2008) (“while the parties cite to the appellate record, many of the page numbers cited are incorrect”).  Cite to the record by page and line, if the lines are numbered, even if that specificity is not required.  Skinner v. State, 83 Nev. 380, 432 P.2d 675, 384 & n.4 (1967); Anderson v. Meyer Broadcasting Co., 630 N.W.2d 46, 50 (N.D. 2001).  Cite by page and paragraph or use terms like “start,” “middle,” and “end” if there are no line numbers. Continue reading

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:court collumn

Ninth Circuit

Eleventh Circuit

  • West v. Davis, No. 13-14805 (Sept. 8, 2014): The court found that district court improperly granted summary judgment for security guard in case in which West challenged the actions of a security guard at courthouse security checkpoint; district court should have applied standard for “seizures” under the Fourth Amendment.

D.C. Circuit Continue reading

 

Supreme Court and Local Governments: What Will the Court Accept Next?

While the Supreme Court’s next term officially begins on October 6, its “long conference” is September 29.  At this conference the Court will review a backlog of petitions that have been piling up over the summer.  SCOTUSblog complies a list of petitions that it thinks have a reasonable chance of being granted.  Eight of the petitions the Court will consider either during the “long conference” or at a later conference directly involve or impact local governments.5554035521_f6b59ccafa_n

Public nuisance.  A Brighton, Michigan, ordinance presumes that an unsafe structure will be demolished as a public nuisance if the cost of repairing it exceeds its value.  The owner has no right to repair the structure.  Brighton property owners wanted to repair two unsafe structures even though Brighton estimated it would cost almost double the property value do so.  In Bonner v. City of Brighton, Michigan, the property owners claim the ordinance violates substantive and procedural due process.

Employment.  Under federal employment law to bring a discrimination claim a plaintiff must prove that an “adverse action” occurred, and to bring a retaliation claim a plaintiff must prove a “materially adverse action” occurred.  The question in Kalamazoo County Road Commission v. Deleon is whether either can be proven when an employer grants an employee’s request for a job transfer (and the new position turns out to be less desirable than the old position).  The International Municipal Lawyers Association (IMLA) filed an amicus brief in this case. Continue reading

 

Use Block Quotes Carefully and Sparingly

Format selected block quotes for easy reading. Many readers find the dense text of standard block quotes tiresome enough to read that they may skip over the blocks entirely. Istvan & Ricks, Top 10 Ways to Write a Bad Brief, N.J. Law. (2006).  Add extra leading between the lines to reduce that tendency. If there are paragraphs in the block quote, retain that formatting fountain peninstead of substituting a paragraph mark.

Choose block quotes carefully and sparingly.  Judge Alex Kozinski remarked: “Whenever I see a block quote I figure the lawyer had to go to the bathroom and forgot to turn off the merge/store function on his computer.” Kozinski, The Wrong Stuff, B.Y.U.L. Rev. 325, 329 (1992). Given the danger that long block quotes may not be read, paraphrase the less critical material to shorten the block.  Write the lead in to the block to reveal its importance.  If the block is important because it states the three elements of this or the five tests for that—then add letters or numerals in brackets or otherwise format to assist the reader.  Although a textual repetition of the content immediately following the block is likely to offend the reader, the points can be worked into the text at a later opportunity. Continue reading

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:court collumn

Sixth Circuit

Eighth Circuit Continue reading

 

Baby Steps

One successful approach to the preparation of opening briefs is to assume the court knows nothing of the subject and is uncomfortable making a decision that no judge has made before.  Each step in the argument must then be accompanied by citation to relevant precedent reflecting the wisdom of the that step and, overall, of the decision you seek.  The key is to 8122523_ab151ea98b_zidentify the right starting place and the steps required to travel from the starting point to the desired end, avoiding the tendency to slide over or combine them.

Briefs using this model should provide all forms of authority needed to convince the judge to take the next step.  Possible evidentiary issues need to be resolved; substantive questions need to be answered or shown to be inapplicable.  As each step is explained and answered, the next step can be introduced and its issues and questions answered.  At the end, the table of contents alone can walk the reader through the points to the desired ruling.

Once the steps are identified, the writer may elect to address evidentiary issues as a group, at the beginning or end of the brief.  Alternatively, a writer may prefer to brief all issues presented by one step before turning to the next step.  No matter which technique is adopted, work on later steps will often turn up cases and points that can strengthen the earlier steps.  As work progresses, a single step may be perceived as comprising several steps, requiring additional reworking. Continue reading

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:court collumn

First Circuit

  • Town of Johnston v. Fed. Housing Finance Agency, No. 13-2034 (Aug. 27, 2014): The court affirmed the dismissal of the municipalities’ claim that Fannie Mae and Freddie Mac failed to pay taxes on property transfers; the court found that statutory exemptions from taxation applied. As the court put it: “Six other circuits have recently considered this attempt to shoe-horn a transfer tax into a real property tax, and they have unanimously rejected the argument.”

Second Circuit

Third Circuit Continue reading

 

IMLA Files Brief in Wyatt v. Gonzalez

On Friday, IMLA filed its brief in Wyatt v. Gonzalez,judicial bench a petition stage Supreme Court case, which involves a question of whether immaterial discrepancies in a police officer’s recollection of a stressful event amounted to a “genuine issue for trial” where the plaintiff offered no contradictory evidence.  In this case, the police officer was trapped inside a vehicle controlled by someone who had already committed several dangerous felonies.  The officer shot and killed the driver of the van, after he resisted verbal commands and non-lethal force.  The plaintiffs did not dispute that the driver of the van “stomped” on the accelerator with the officer trapped inside.  Nonetheless, the Ninth Circuit ruled that summary judgment on the plaintiffs’ Fourth Amendment claim was inappropriate because the parties disputed how fast the van was traveling at the time the officer employed deadly force.

IMLA’s brief argues that the Ninth Circuit’s focus on the speed of the van is misguided, as that particular fact is not material for the purposes of the summary judgment analysis.  Continue reading

 

Can You Hear Me Now? If Not, Read This

In T-Mobile South v. City of Roswell, the Supreme Court will decide whether a letter denying a cell tower construction application that doesn’t explain the reasons for the denial meets the Telecommunications Act of 1996 (TCA) “in writing” requirement. CellTower The State and Local Legal Center’s (SLLC) amicus brief, which IMLA joined, argues it does.

T-Mobile applied to construct a 108-foot cell tower in an area zoned single-family residential.  The City of Roswell’s ordinance only allowed “alternative tower structures” in such a zone that were compatible with “the natural setting and surrounding structures.”  T-Mobile proposed an “alternative tower structure” in the shape of a man-made tree that would be about 25-feet taller than the pine trees surrounding it.

After a hearing, where city councilmembers stated various reasons for why they were going to vote against the application, Roswell sent T-Mobile a brief letter saying the application was denied and that T-Mobile could obtain hearing minutes from the city clerk. Continue reading

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Apologies that this edition is delayed. I was tied up with a significant filing for the past week. The courts were busy too. Here are the last two weeks’ published decisions involving local governments:court collumn

First Circuit

  • Penn v. Escorsio, No. 13-2309 (Aug. 22, 2014): The court affirmed the district court’s denial of qualified immunity at the summary judgment stage to corrections officers alleged to be deliberately indifferent to risk that detainee could commit suicide.  The court found that the issues presented on appeal were purely factual, and the court had no jurisdiction to decide them on interlocutory appeal.

Second Circuit Continue reading

 

People v. The McGraw-Hill Companies, Inc. et al

[Editor's Note: My colleague, Gary Schons, contributed this post. We hope to have more posts from Gary in the future. --Matt Schettenhelm]

One thing common to all appellate lawyers— they love to appeal.Gavel But, as all appellate lawyers know, the right to appeal is fixed by statute. (Trede v. Superior Court (1943) 21 Cal.2d 630.) Thus, our ability to practice our craft is dependent on the leave granted by the legislature. In this case, the issue before a California appellate court was whether a specific provision of the anti-SLAPP statute granting the right to an immediate appeal of an order granting or denying a special motion is effectively nullified by a separate provision of the statute making it wholly inapplicable to enforcement actions brought by state, county or city prosecutors. As the appellate court noted in the preamble to its decision, this issue was “thoroughly briefed,” and perhaps ominously, oral argument was “vigorous indeed.” I’ll bet it was. Continue reading

 

Supreme Court Preview for Local Governments

Even though the Supreme Court’s next term won’t officially begin until October 6, the Court has already accepted about 40 of the 70 or so cases it will decide in the upcoming months.

For a more detailed summary of all the cases the Court has accepted so far affecting local government, read the State and Local Legal Center’s Supreme Court Preview for Local Governments.Supreme Court3

Here is a quick highlight of what is on the Court’s docket right now that will affect local government: Continue reading

 

IMLA Files Amicus Brief in Schultz v. Wescom

On Monday, IMLA filed its brief in Schultz v. Wescom, a petition stage Supreme Court case, which involves a question of whether a municipality/police officer may immediately appeal a decision by a district court to defer the issue of qualified immunity until NinthCircuitthe completion of discovery.  The Ninth Circuit held on appeal that there is no appellate jurisdiction of a rule 56(d) deferral for a limited time to conduct discovery as it does not amount to a denial of qualified immunity. The Circuit Courts are split on this question with the Seventh and Ninth Circuits holding that such a decision is not appealable on an interlocutory basis, while the majority of the other Circuit Courts hold that such a decision is immediately appealable.

IMLA’s brief argues that the purpose of qualified immunity is to shield officers from the costs of having to go through the litigation process, particularly costly discovery, and the Ninth and Seventh Circuits’ approach effectively denies police officers in those jurisdictions the benefits of qualified immunity and goes against Supreme Court precedent.  To read IMLA’s amicus brief in this case click here.

Image courtesy of Flickr by Ken Lund (creative-commons license, no changes made).

 

IMLA Files Amicus Brief in City of Newport Beach v. Pacific Shores Properties, LLC

On Monday, IMLA filed its brief in City of Newport Beach v. Pacific Shores Properties, LLC, a petition stage Supreme Court case, which involves questions of discrimination under the Fair Housing Act (FHA) and the Americans with Disabilities Act (ADA). Specifically, the issue before the Supreme Court is whether a disparate-treatment claim under the FHA and/or the8122523_ab151ea98b_z ADA that challenges a facially nondiscriminatory law on the ground that the law nevertheless intentionally discriminates on the basis of disability can prevail absent proof of discriminatory effects.

In this case, the Ninth Circuit held that the plaintiffs had created a triable issue of fact as to whether the City had violated the ADA and FHA when it enacted the zoning ordinance restricting the areas of the City in which group homes for recovering addicts, as well as other group residential living facilities, can be located. According to the Ninth Circuit, Continue reading

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:court collumn

Fourth Circuit

  • Cherry v. Mayor and City Council of Baltimore City, No. 13-1007 (Aug. 6, 2014): In case brought by active and retired Baltimore police officers and fire fighters who participate in City’s pension plan, reversing district court’s decision that the City had violated the Contract Clause and affirming that the City had not violated the Takings Clause by changing how it calcualtes pension benefits.

Fifth Circuit

  • Thompson v. Mercer, No. 13-10773 (Aug. 7, 2014): In 1983 action against officer who shot and killed individual who had stolen vehicle and led police on a two-hour, high-speed chase, affirming grant of qualified immunity to officer because use of deadly force was not a constitutional violation.
  • Sullo & Bobbitt v. Milner, No. 13-10869 (Aug. 6, 2014): In unpublished decision, affirming dismissal of case brought by attorneys claiming First-Amendment right to access misdemeanor court records within one day of their filing.

Continue reading

 

Overtaxed? The SLLC and IMLA File Supreme Court Amicus Brief in Comptroller v. Wynne

Every Supreme Court tax case comes down to an argument perhaps most familiar to small children6355404323_cf97f9c58e:

“It isn’t fair.”

The State and Local Legal Center (SLLC)/International Municipal Lawyers Association (IMLA) amicus brief in Comptroller v. Wynne argues that the tax policy choice the Maryland legislature made is fair (or at least fair enough) and that state and local governments should be able to devise tax schemes without judicial interference.

In Comptroller v. Wynne the Supreme Court will determine whether the U.S. Constitution requires states to give a credit for taxes paid on income earned out-of-state.

Continue reading

 

Legal Ethics Resources

Substantial information on legal ethics is available on the Internet, including:

  • http://www.law.georgetown.edu/library/research/guides/legal_ethics.cfm, a broad-based Legal Ethics Research Guide offered by Georgetown Law Library with links to substantial material. Many of the links are to Lexis and Westlaw, but there is an extensive list of available resources, and some Internet links.legal ethics
  • http://legalethics.com/, which focuses on a variety of specific topics, including ethical walls, blogs, ethical issues associated with use of technology by legal professionals, use of the cloud, and a state by state directory.
  • http://www.freivogelonconflicts.com/, described as “A Guide to Conflicts of Interest for Lawyers,” which gathers material into multiple topics such as Co-Counsel/Common Interest, Corporate Families, Enjoining Conflicts, Investing in Clients/Stock for Fees, Lawyers Representing Lawyers.

Continue reading

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:Alexandria-court

Second Circuit

Continue reading

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:

SCT stairs[Update: I added the Ninth Circuit's Daubert decision. (7/31)]
Second Circuit

Carter v. Inc. Vill. of Ocean Beach, No. 13-815 (July 21, 2014): Affirming award of attorney’s fees to County defendants in case brought by former police officers alleging wrongful termination and defamation.

Cox v. Onondaga Sheriff’s Dept., No. 12-1526 (July 23, 2014): Affirming dismissal of complaint alleging Title VII retaliation for racial-harassment claims.

Reyes v. New York City Dept. of Ed., No. 13-158 (July 25, 2014): Finding that under IDEA, proposed IEP and school placement failed to provide student with free appropriate public education.

Fourth Circuit Continue reading

 

Not Represented by the Same Counsel in This Court

Trial and appellate counsel may differ for a variety of reasons, not all of which reflect poorly on one or the other.Gavel  On occasion, however, trial counsel may have acted so unprofessionally or ignorantly as to be the target of strong remarks by the appellate court.  In this case, the appellate court should and often does inform readers of its decision that the same attorney did not appear in both courts. Continue reading

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:judicial bench

First Circuit

Merit Construction Alliance v. City of Quincy, No. 13-2189 (July 16, 2014): The court concluded that the district court: (1) properly determined that ERISA preempts a City ordinance mandating a specific apprentice-training program; and (2) erred by awarding attorney’s fees under ERISA’s fee-shifting statute.

Third Circuit

Batchelor v. Rose Tree Media Sch. Dist., No. 13-2192 (July 17, 2014): The court found that retaliation claims related to enforcement under the Indviduals with Disabilities in Education Act must be exhausted before a court may assert subject-matter jurisdiction. Continue reading

 

Supreme Court Didn’t Overrule Abood

Supreme Court cases are usually known for what they hold.5554035521_f6b59ccafa_n  Harris v. Quinn will forever be known for what it did not hold.  The Court did not overrule Abood v. Detroit Board of Education, a 35-year old precedent that is a cornerstone of public sector collective bargaining.  But it certainly foreshadowed its demise.

In Harris v. Quinn the Supreme Court held 5-4 that the First Amendment prohibits the collection of an agency fee from home health care providers who do not wish to join or support a union.  Continue reading

 

Birth Control Mandate Case Also a Land Use Case?

As usual, on the last day of the Supreme Court’s term it released its opinion in the biggest case of the term:  Burwell v. Hobby LobbyGavel The Court held 5-4 that the Affordable Care Act’s birth control mandate violates the Religious Freedom Restoration Act (RFRA), as applied to closely held corporations.

Though not obvious, this case may have a significant impact on land use regulation.  For this reason, the State and Local Legal Center (SLLC) filed an amicus brief, which Justice Ginsburg quoted in her dissenting opinion. Continue reading

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments, a couple days late this week:Alexandria-court

Second Circuit

E.M. v. New York City Dept. of Ed., No. 11-1427 (July 11, 2014) (in IDEA case, concluding that district court improperly concluded that IEP was adequate by relying on retrospective evidence extrinsic to the IEP).

Fourth Circuit

Lefemine v. Wideman, No. 13-1629 (July 11, 2014) (reversing determination that successful plaintiff in 1983 First-Amendment case was not entitled to attorney’s fees). Continue reading

 

Do Buffer Zones Survive After McCullen?

In a unanimous opinion in McCullen v. Coakley,Supreme Court3 the Supreme Court held that a Massachusetts statute making it a crime to stand on a public road or sidewalk within 35 feet of an abortion clinic violates the First Amendment.

Massachusetts adopted this statute because protesters routinely violated a previous statute.  Petitioners were “sidewalk counselors” who claimed the buffer zones prevented them from having personal interactions with those entering the clinics which they viewed as essential to their “sidewalk counseling.”

The State and Local Legal Center’s (SLLC) amicus brief points out that cities frequently use buffer zones in numerous contextsFor example, prior to McCullen, lower courts upheld buffer zones to prevent congestion at special events and places that regularly draw crowds and near funerals to protect vulnerable mourners. 

McCullen begs an obvious question:  will any buffer zone statutes and ordinances survive constitutional scrutiny now? Continue reading

 

Take the High Road

Litigation offers attorneys many opportunities to choose how they will behave and what they will say. youre it The best course is to take the high road at every opportunity.  Rudeness, profanity, throwing things, hitting people, we all know how the ugliness starts and how far it can progress.  A small meanness may be reciprocated, then followed by an escalation and tit for tat.  Once it starts, unprofessional behavior may be very difficult to stop or to confine to one specific case.

All attorneys are held to a high standard by the law and the rules of professionalism and civility. Continue reading

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:law books

Sixth Circuit

Hescott v. City of Saginaw, No. 13-2103 (July 2, 2014) (ruling that district court erred denying attorney’s fees to Hescotts in their successful 1983 action claiming that the City had unconstitutionally seized their personal effects by demolishing their property).

Seventh Circuit

Scherr v. City of Chicago, No. 13-1992 (July 2, 2014) (affirming that 1983 suit against officer based on alleged Fourth-Amendment violation was properly dismissed). Continue reading

 

Supreme Court To Hear Sign-Ordinance Case

This morning, the Supreme Court granted cert in Reed v. Town of Gilbert, a case in which the Ninth Circuit upheld the Town of Gilbert’s sign ordinance against a First-Amendment challenge.SupremeCourt2 The case could directly impact local governments nationwide, particularly those that have adopted sign ordinances with exemptions.

The Court could use this case to clarify when a local ordinance is “content-based” or “content-neutral,” a key inquiry under the First-Amendment analysis. A number of law professors filed an amicus brief authored by Professor Eugene Volokh arguing that the Ninth Circuit erred by treating the Town’s ordinance as content-neutral. In their view, the ordinance is content-based because it expressly distinguishes the following classes of signs: Continue reading

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:SCT pillars

First Circuit

Snyder v. Gaudet, No. 12-1422 (June 25, 2014) (In 42 U.S.C. 1983 action alleging violation of equal protection because city applied zoning restriction differently to Snyder than to prior owner, granting qualified immunity to defendants because right was not clearly established): Continue reading

 

Third Circuit: Establishment-Clause Challenge To Existing Display Not Time-Barred

Bible Baptist Church Welcomes You!  1 Block –>

So reads the sign—decorated with a gold cross and white Bible—that the Borough of Shickshinny, Pennsylvania, allowed to be placed on its right-of-way.church-state

A nearby resident, Francene Tearpock-Martini, objected. She sued the Borough under 42 U.S.C. § 1983, alleging that the sign violates the Establishment Clause.

Tearpock-Martini’s lawsuit had a problem though.

Tearpock-Martini had commenced the suit more than two years after the church sign was installed. Under Pennsylvania law, tort actions generally must be brought within two years. And 1983 actions often borrow the statute of limitations from state law.

Is her suit time-barred? In a decision this week, the Third Circuit said that it is not: Continue reading

 

The Supreme Court Strikes Down Buffer Zone Law

BarricadeA local government can create a 35-foot buffer zone to restrict speech on a public street only if it has first made a serious effort to address the issue in other ways.

That’s the lesson of McCullen v. Coakley, the Supreme-Court decision today that strikes down a Massachusetts statute that makes it a crime to knowingly stand on a public way or sidewalk within 35 feet of a location where abortions are performed.

Although the Court found that the law is content-neutral—and therefore not subject to strict scrutiny—the Court ruled that the Commonwealth had “too readily foregone options” that would not substantially burden speech.

What are those options? Continue reading

 

Can You Hear Me Now: Supreme Court Rules Cell Phone Privacy Isn’t Dead

Supreme Court watchers love technology cases.Supreme Court Technology is for the young, so the cliché goes, and the youngest Justices are middle age.  Court watchers speculate, will the Justices even understand the technology they are ruling? Justice Robert’s 28-page opinion in Riley v. California, discussing encryption, apps, and cloud computing, reads like a primer on how cell phones work. The Court held unanimously that generally police must first obtain a warrant before searching an arrested person’s cellphone. Continue reading

 

Plagiarism

Judicial opinions enjoy no copyright, so some may contend that copying from judicial opinions without attribution may not be plagiarism. paperThey would be wrong. Copying another’s writing is plagiarism even if there is no copyright and even if some sentences are added or deleted. Moreover, even copying multiple citations from another’s work is plagiarism.  In re Burghoff, 374 B.R. 681, 685 (Bankr. N.D. Iowa 2007), following Frith v. State, 263 Ind. 100, 325 N.E.2d 186, 188 (1975).

Plagiarism in brief writing is disfavored at best, and there are multiple examples of judicial displeasure. Continue reading

 

Utility Air Regulatory Group v. EPA: One Less Thing for Cities To Worry About

Had Utility Air Regulatory Group v. EPA gone the other way, it would be a big deal for cities.352250460_ee2f9e5565  But it didn’t. Cities own many small stationary sources that emit greenhouse gases and will benefit from not having to obtain permits for them.

The Clean Air Act regulates pollution-generating emissions from stationary source (factories, power plants, etc.) and moving sources (cars, trucks, planes, etc.).  In 2007 Continue reading

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:Alexandria-court

First Circuit

Second Circuit Continue reading

 

Lane v. Franks: The Good, the Bad, the Ugly

The Supreme Court held unanimously that the First Amendment protects a public employee who provides truthful sworn testimony, compelled by a subpoena, outside the course of his or her ordinary responsibilities.5554035521_f6b59ccafa_n

The good:  The Court was clear that if employees admit to wrongdoing while testifying they can still be disciplined and that false or erroneous testimony or testimony that unnecessarily discloses sensitive, confidential, or privileged information may balance the Pickering scale in the employer’s favor.

The bad:  The Court read “official job duties” narrowly to exclude speech about information merely learned at the job.

The ugly:  The Court doesn’t decide the obvious next question:  is an employee’s truthful sworn testimony, which is part of an employee’s ordinary responsibilities, protected by the First Amendment? Continue reading

 

Ninth Circuit: Ordinance Criminalizing Living in Car Is Unconstitutionally Vague

If you eat, talk on the phone, and escape the rain in your car, are you using the car “as living quarters either overnight, day-by-day, or otherwise?”Homelesscar

What if you load up the car with personal belongings for a camping trip? Or drive an RV to go on vacation?

In the Ninth Circuit’s view, a City of Los Angeles code provision designed to outlaw sleeping in a vehicle on City streets and parking lots may or may not criminalize all these activities and could lead to other selective enforcement—particularly against the homeless and poor. The court therefore ruled that the provision is unconstitutionally vague. The decision is Desertrain v. City of Los Angeles, No. 11-56957 (June 19, 2014).

Los Angeles Municipal Code Section 85.02 outlaws Continue reading

 

Mandatory Notice to Attorney General on Appeal

A variety of federal and state laws require that notice of an appeal be given or that a copy of the appellate brief be served on the U.S. Attorney General or the applicable state attorney general.OAG  Failure to comply may delay the appeal or result in other sanctions.  For example, California provisions declare: “No judgment or relief, temporary or permanent, shall be granted or opinion issued until proof of service of the brief or petition on the Attorney General and district attorney is filed with the court.”  Cal. Bus. and Prof. Code §§17209, 17536.5; accord, id. §16750.2.

Federal law also requires notice and grants a right of intervention to the United States Attorney General or the California Attorney General, respectively, when the constitutionality of federal or state statutes affecting the public interest is challenged in federal litigation to which the federal or state government or their agencies or employees are not already parties. Continue reading

 

Supreme Court Decides Employee-Speech Case

This morning, the Supreme Court decided Lane v. Franks, a case that this blog previously covered here.7432008582_3c5d6429f6_n The Court ruled unanimously that the First Amendment protects a public employee who provided truthful sworn testimony, compelled by subpoena, outside the course of his ordinary job responsibilities.

Image courtesy of Flickr by Mark Fischer (creative-commons license, no changes made).

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:SCT pillars

Third Circuit

  • Rosano v. Township of Teaneck, No. 13-1263 (June 10, 2014) (in action by current and former police officers against Township alleging violation of Fair Labor Standards Act because it did not pay proper overtime and provide compensation for attending daily roll calls and putting on and taking off uniforms, affirming grant of summary judgment for Township).

Seventh Circuit

Continue reading

 

Read the Rules

Judges are substantially governed by rules—local rules, rules of evidence, state or federal rules for trial courts or appellate courts.FedPrac  Rules do not normally determine the merits, although rules provide the structure or framework within which the merits can be considered fairly to both sides.  Not surprisingly, judges typically know the applicable rules quite well.  The judge may have drafted the local rule specifically to address an issue arising with some frequency in that judge’s courtroom.  Or the judge may have been reversed for failure to enforce the rule.

Judges expect attorneys to know the rules.  Attorneys who practice in multiple courts may need to learn and use many sets of rules.  Just do it.  The alternative is to be sorry.  Courts are not gentle with attorneys who fail to read and follow the rules, as reflected in the following, drawn from a wide variety of available examples.  In some instances, the court decision effectively sets up a malpractice action against the careless attorney. Continue reading

 

Will Statutes of Repose Make a Come Back?

If preemption is your passion, this Supreme Court term has been a disappointment.Supreme Court3 CTS Corp. v. Waldburger is one of just two preemption cases this term. To the extent local governments benefit from decisions finding no preemption, this case is a victory. But practically speaking, it is probably a Pyrrhic one.

In CTS Corp. v. Waldburger, the Supreme Court held 7-2 that the federal Superfund statute, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), does not preempt state statutes of repose. Continue reading

 

Adopt a Consistent Cite-Checking Approach

A primary brief author may work over a number of days on the brief, followed by review and alteration by other attorneys and the client.fountain pen  Sections of the brief may be emailed to others for comment.  It can be hard to remember which case and statutory cites have been checked thoroughly. Even aside from cites that may be added by others, an attorney may run across a case supporting point X while focused on point Y. If the attorney adds the case to the draft brief in progress and returns to point Y, there may be nothing to distinguish that citation from the cites that have been checked.

Those who use Google Scholar and other imperfect sources of law need to track the cases located through that research to check them on Westlaw or Lexis because reconsideration may have caused alteration of the relevant paragraph.  Subsequent history may turn a good cite into a bad one. Annotations may reveal a good or bad construction of a statute not shown by Internet sources for the statutes.  Although the issue is especially acute with Google Scholar, the problem exists with every cite.

One solution to this recurring problem is Continue reading

 

Paid to Wait: Supreme Court to Decide

Imagine yourself going through a security screening. Annoying, right?  securityNow imagine yourself getting paid to go through a security screening.  Better, right?  But what if you are a city with a security screening process that as a result of a court decision must now pay employees to go through security screenings?  Sometime in the next year, the Supreme Court will affirm or reverse the Ninth Circuit’s decision to this effect in Integrity Staffing Solutions v. Busk.

In this case the Supreme Court will decide whether hourly employees must be paid for time spent in security screenings under the Fair Labor Standards Act (FLSA).  Continue reading

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:NinthCircuit

First Circuit

Fifth Circuit

Continue reading

 

California Supreme Court: No Special Rules to Authenticate Red-Light-Camera Evidence; Evidence Is Not Hearsay

In a unanimous decision published yesterday,camera the California Supreme Court concluded that the evidence generated by an automated traffic enforcement system (ATES) was adequately authenticated by the testimony of a city officer, and that the ATES evidence did not constitute hearsay.

The defendant in People v. Goldsmith was cited for failing to stop at a red traffic light at an intersection located in the City of Inglewood. The evidence presented against her included several photographs and a 12-second video, all of which were generated by an ATES. Only one witness testified at the defendant’s trial, Continue reading

 

Multiple Taxation Vexation

Taxpayers X and Y live in the same state and have the same income but Taxpayer X earns all of her income in-state while Taxpayer Y earns all of her income out-of-state.Supreme Court  Taxpayer Y pays more in taxes because she pays income taxes out-of-state and pays a county income tax in her home state.  Unfair?  (Not necessarily.  After all, Taxpayer Y receives government services in the county where she resides.)  Unconstitutional?  The Supreme Court will decide.

The Supreme Court hasn’t decided a state and local government tax case since Armour v. Indianapolis, during the Court’s 2011 term.  In Comptroller v. Wynne it will decide an issue of first impression:  whether a state must offer a credit to its residents for all income taxes paid to another jurisdiction.  A decision against Maryland’s Comptroller would limit state and local taxing authority nationwide. Continue reading

 

Seven Deadly Sins

In Seven Sins of Appellate Brief Writing and Other Transgressions, 34 U.C.L.A.L. Rev. 431 (1986), fountain penNinth Circuit Judge Harry Pregerson identified seven deadly sins of appellate briefing:

  • Long boring briefs
  • Incoherent, unfocused, disorganized briefs
  • String cites and other poor use of authority
  • Briefs with abusive language
  • Briefs that ignore the standard of review or attempt to relitigate the facts
  • Briefs that ignore jurisdiction
  • The last minute emergency motion—usually filed at 4:00 p.m. on a Friday before a holiday

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Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:SCT stairs

Sixth Circuit

  • Robertson v. Lucas, No. 12-3877 (May 28, 2014) (in case arising out of corrupted drug-trade investigation, affirming award of qualified immunity on malicious prosecution and false arrest claims, and affirming dismissal of Monell claim against Richland County and City of Cleveland).

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String Citations

String cites are almost universally condemned.  paperJudges at all levels criticize string cites.  Minority and dissenting judges criticize majorities that use string cites, and vice versa but to a lesser extent.  Attorneys criticize the string cites in their opponents’ briefs.  Law reviews insult string cites routinely.

What distinguishes a string cite from a list of cases that support the stated proposition? Continue reading

 

Unqualified Win in Qualified Immunity Cases

On Tuesday the Supreme Court issued two unanimous opinions granting law enforcement officers qualified immunity.highway stop  These ruling were unsurprising; the lower court errors in both cases were obvious.

In Plumhoff v. Rickard the Sixth Circuit did not so much as discuss the qualified immunity standard when denying qualified immunity.  In Wood v. Moss the Ninth Circuit viewed the qualified immunity question at a high level of generality causing dissenting Judge O’Scannlain to (accurately) warn:  “Our court’s track record in deciding qualified immunity cases is far from exemplary, and with this decision, I am concerned that our storied losing streak will continue.”

But at least Plumhoff v. Rickard contained a surprise. Continue reading

 

Tuesday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:Alexandria-court

First Circuit

  • Gericke v. Begin, No. 12-2326 (May 23, 2014) (affirming denial of qualified immunity for police officers on First-Amendment retaliatory prosecution claim where plaintiff was arrested after she attempted to film a traffic stop).

Eighth Circuit

  • Walton v. Dawson, No. 12-4000 (May 20, 2014) (affirming in part and reversing in part denial of qualified immunity in failure-to-train claims against officers arising out of jail-cell attack that occurred after officers did not lock cell doors).

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Address Cases That Hurt

Almost all legal positions that matter to one side in a dispute have contrary law supporting a different legal position.8122523_ab151ea98b_z  I’ve got some cases on my side and you’ve got some cases on your side.  One of the serious mistakes I can make is to focus so greatly on the good cases that I fail to distinguish and destroy your cases that hurt my position.  In Coghlan v. Starkey, 852 F.2d 806 (5th Cir. 1988), the court awarded sanctions for frivolous appeal for that mistake.  “Here, the appellate brief indicts counsel as having recognized that no authority supports the claim. Not only was there scant discussion of adverse decisions cited by the magistrate, but only two cases were even named in the brief. This is poor appellate practice and an abuse of the appellate process.” Id. at 816 (footnote omitted).

What are some ways to address the cases that hurt?  Continue reading

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:Gavel

Second Circuit

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Appellate Advice from an Appellate Court

The Bankruptcy Appellate Panel of the Ninth Circuit has adopted some materials designed to assist attorneys and litigants involved in a bankruptcy appeal before the BAP.law books Although many of the excellent materials address the peculiarities of bankruptcy appeals, Appendix I has advice for all attorneys in any court.

Do’s and Don’ts for an Effective Appeal

DO:

1. Know what relief you want (and why).

2. Know your audience. BAP judges generally possess a level of expertise in bankruptcy matters superior to that of most district court judges and their law clerks.

3. Understand the role of the appellate court. While its dominant role is to assess whether the trial court reached the correct result, Continue reading

 

Five Writing Tips That I Wish I Knew Earlier — Tip # 1: Stress Positions

I wish I had learned some things earlier.

That’s especially true when it comes to my writing.

So I thought I’d share five writing tips that I wish I had known earlier.

The first tip concerns an edit at the sentence level. Other tips will address changes at the paragraph and word levels.

Tip # 1: Place important and new information at a sentence’s ending.

This one is counterintuitive: a sentence’s most valuable real estate is not where it starts but where it finishes. At the sentence’s ending, a reader naturally stops — it’s sometimes called a “stress position.” These natural pauses give a writer an opportunity: Continue reading

 

Reply to a Terrible Brief

After filing an opening brief,edits you have a month or more to see what your opponent has to say.  The day finally arrives, and you snatch up your opponent’s brief and read it only to discover that your opponent has filed a truly bad brief, an extraordinarily poor piece of work that makes you laugh and cringe at the same time.  How do you respond in your reply brief? Continue reading

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:Alexandria-court

First Circuit

  • Jones v. City of Boston, No. 12-2280 (May 7, 2014) (in suit challenging police department’s drug-testing program as causing disparate impact based on race, reversing denial of summary judgment for plaintiffs on whether they had proved a prima facie case of disparate impact under Title VII).

Sixth Circuit

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A Case to Watch: City of San Jose v. Office of Commissioner

If you spend your time following baseball, local governments, and appellate litigation (as I do),Baseball the Ninth Circuit case of City of San Jose v. Office of the Commissioner of Baseball, No. 14-15139, is one to watch.

The issues are simple: the City of San Jose would like the Oakland A’s to relocate there, but MLB has refused to permit it.

Why?

According to the City, another team, the San Francisco Giants, “owns” the exclusive rights to San Jose. The City explained that MLB teams have an “exclusive territorial rights agreement,”one that the City claims “constitutes a blatant market allocation scheme that is illegal under the American antitrust laws in all other professional sports.”

The district court found that Continue reading

 

Res Judicata and Full Faith and Credit Across State Lines and in Federal Court

When is a judgment a judgment for purposes of res judicata or the doctrine of full faith and credit when the judgment is obtained in one court and sought to be enforced in a different court?  Dictionary

Many possible answers come to mind: when the judgment is entered, when the time for appeal has elapsed, during the pendency of an appeal for which no supersedeas bond was provided, when any appeal of the judgment is finished, when the judgment is final in the court that entered it, when the judgment is final in the court in which enforcement is sought.

There may be a State and a circumstance in which every one of these possible answers is the right answer. Continue reading