This blog has permanently relocated to http://www.calblogofappeal.com. (For those of you who already thought you were accessing us at that URL, see this post.) Please reset your bookmarks, blogrolls, etc. accordingly, then go sign up for the feed from the new site. See you there!

Barring any unforeseen difficulties, it looks like the move to the self-hosted blog will go ahead on schedule on Monday, June 11.  I will post instructions here when the move is complete.

Most parties faced with an adverse discovery ruling have to grin and bear it.  Discovery orders are not generally appealable, and a writ petition is such a longshot that unless the ruling threatens a trade secret or similarly sensitive confidential information, the writ petition hardly seems worthwhile.  In H.B. Fuller Co. v Doe, case no. H030099 (May 31, 2007), California’s Sixth District Court of Appeal reminds us of a rare occasion when a discovery order is appealable. 

Doe sought to quash a subpoena directed to an internet company.  The subpoena sought information that would identify the person (Doe) who posted Fuller’s confidential company information on internet message boards.  No lawsuit was pending in California, and Doe’s identity was apparently necessary before Fuller could commence suit in its home state of Minnesota.

In a decision limited to Doe’s motion to unseal the record and briefs on appeal, the court first addressed the issue of appealability.  It found this discovery order was appealable because “the order is ancillary to litigation in another jurisdiction and operates as the last word by a California trial court on the matters at issue.”  Thus, even though the court could readily have chosen to construe the appeal as a writ petition, it found it unnecessary to do so.

This is a great case to remember.  Dire circumstances justifying writ review won’t always be present when a client gets hit with an unfavorable discovery order arising from litigation in another jurisdiction.  Being able to appeal greatly expands the cases in which review may be invoked.

In Roddy v. Superior Court, case no. D049796 (decision filed May 16, 2007, ordered published on June 7, 2007) the jury commissioner sought writ review of a trial court order enforcing a subpoena duces tecum served on him.  The suboena sought DMV information in the jury commissioner’s possession.  It was served on behalf of criminal defendants who were challenging the constitutionality of the procedures employed by the jury commissioner.  The Fourth District Court of Appeal summarizes its conclusion this way in the introduction:

We conclude Defendants have not shown the DMV information subject to the subpoena is relevant under the applicable standard for disclosure of information necessary to their investigation of their reasonable belief that underrepresentation of cognizable groups may be the result of improper jury selection practices.

Usually I am quite impressed by how a court succinctly sums up its holding.  But this seems to me like too many long, complicated words in a single sentence.  It’s grammatically and substantively correct, but I might have broken it into two or more sentences, even if it made the summary longer.

A site that tracked back to this post of mine looks like it might be of interest to my trial lawyer readers.  The site juryexperiences.org subheads its page, “What Really Happens On Juries.”  It opens to a “News & Opinion” section that is headed “Selected clippings from blogs and the press, with links to sources” (which is where they linked to me).  The most intriguing area, at first glance, appears to be this link: Read, post and discuss jury experiences on our discussion forum!

That might be worth exploring!

In Claiborne v. U.S., case no. No. 06–5618 (June 4, 2007), the U.S. Supreme Court decided that the death of the petitioning criminal defendant rendered the case moot, and thus it vacated the judgment of the Eighth Circuit Court of Appeals that had reversed the district court’s downward adjustment from the federal sentencing guidelines.  The order itself tells you nothing about the case, so I suggest you start with Kimberly A. Kralowec at The Appellate Practitioner, who provides a brief rundown, from which it makes sense next to check this SCOTUSBlog post from before the ruling, describing efforts by a similarly situated petitioner to save the Claiborne case despite its technical mootness.

Columbia law professor Michael Dorf uses the Claiborne case as a starting point for a short Findlaw article on the wider subject of the role of the Supreme Court and tensions in justiciability doctrine, A Mootness Dismissal Illustrates the Supreme Court’s Split Personality: Is it a Constitutional Court or a Court of Error?  The article describes the underlying issue in Claiborne, examines whether other rules might have saved the Claiborne case, argues that the Supreme Court should not be subject to the same strict justiciability standards of lower federal courts, and compares the more liberal justiciability standards of courts of last resort in some other countries.  All this in a very readable 1900 or so words.

My work on moving to a self-hosted blog is ramping up.  Until further notice, please use the WordPress URL — http://calblogofappeal.wordpress.com — to access this blog.  While I am fiddling with the future host domain, forwarding from http://www.calblogofappeal.com will NOT work.  I’m hoping to have this move wrapped up within a week.  I’ll let everyone know when to change over to the new, permanent URL, http://www.calblogofappeal.com.

In addition to the three proposals I posted about today, the Judicial Council is soliciting comments on several other proposals.  They are consolidated here.  There is also a downloadable fact sheet on “How a Proposal Becomes a Rule.”

Parties to an appeal are currently required to serve the Supreme Court with four copies of the briefs they file in the Court of Appeal.  A proposed change to rule 8.212, California Rules of Court, would allow the parties to submit a single electronic copy to the Supreme Court instead.  Good idea, and the technical requirements in the proposed rule seem to make sense.

The California Judicial Council is seeking comments on the proposed rule change.  Go here for a link to the proposed changes, a link for the on-line submission of comments, and information for submitting comments by mail.  The deadline for submissions is July 13, 2007.

The California Judicial Council is seeking comments on proposed changes to the rules governing appeals to the appellate division of the Superior Court, which hears appeals from limited civil cases and misdemeanors.  I haven’t had a chance to look at the proposals yet, but here’s the description from the Judicial Council’s website:

This proposal would completely revise all of the rules relating to the superior court appellate divisions to place the rules in a more logical order, reflect current practices, fill in gaps in the rules, eliminate outdated language, and update the remaining language so it is similar to the recently revised rules for the Courts of Appeal. A complete package of new forms for civil and criminal appeals and writ proceedings in the appellate divisions are also proposed to assist litigants, particularly self-represented litigants, in these proceedings.

Go here for a link to the proposal, a link for submitting comments on-line, and information for submitting comments by mail.  The deadline for submissions is July 13, 2007.

The Judicial Council of California is seeking comments on proposed changes to civil jury instructions regarding punitive damages.  The proposed changes are intended to bring the instructions in line with the U. S. Supreme Court’s 5-4 decision last February in Philip Morris USA v. Williams, which held that the imposition of punitive damages to punish a defendant for harm to non-parties is unconstitutional because it is a taking of property without due process.

Go here for a link to the proposed changes, a link for the on-line submission of comments, and information for submitting comments by mail. The deadline for submissions is July 13, 2007.

An order denying a motion to vacate usually isn’t appealable unless the motion is a statutory motion under Code of Civil Procedure section 663.  But in Carr v. Kamins, case no. B191247 (May 31, 2007), the California Court of Appeal reminds us of an exception.

The plaintiff in this adverse possession suit served the defendants by publication, after which default and default judgment were entered.  Four years later, one of the defendants later moved to vacate the default judgment on the ground that plaintiff committed fraud in procuring the order for service by publication and that the default judgment was obtained in violation of her right to due process.  The trial court denied the motion, and defendant appealed.

The court rejected the plaintiff’s contention that the order was not appealable.  The reason: the order gave effect to a void judgment, and any order doing so is itself void and appealable as a special order after judgment under Code of Civil Procedure section 904.1, subd. (a)(2), even if no appeal is taken from the underlying judgment.

Professor Martin jokingly pleaded with the Ninth Circuit and California Court of Appeal to “slow down last” week.  The California Court of Appeal issued 32 decisions in a 3-day span starting on May 29.

I know Professor Martin was reacting to a rather short-term spike, but could it be that the liberalized rule for publication, which only recently went into effect, is starting to show results?

Since April 1, 2007, publication of appellate opinions has been subject to more liberal standards of publication under rule 8.1105(c).  The changes are summarized by the advisory committee at p. 57 of its report.  They:

(a) Replace the presumption against publication with a presumption in favor of publication if the opinion meets one or more of the criteria specified in the rule;

(b) Clarify and expand the criteria that the Courts of Appeal and the appellate divisions of the superior courts should consider when deciding whether to certify an opinion for publication; and

(c)  Identify factors that should not be considered in deciding whether to certify an opinion for publication.

A press release from the Supreme Court last December also summarizes the changes and provides a comparison of the old and new rule, and quotes from the report in stating that the changes should:

clarify the criteria for publication for both justices and attorneys, better ensure the publication of all those opinions that may assist in the reasoned and orderly development of the law, and improve public confidence in the publication process.

Whether a recent spike in opinions reflects these changes or not, we should certainly see an increase in the percentage of published opinions over time.

Last week saw several published decisions with good discussions of appellate procedure and jurisdiction.  The most in-depth is the Ninth Circuit case I blogged about here, but there are several California decisions to note.  I finally got a chance to catch up on some of them over the weekend, and will post about them in the next few days. (They ought to remain good law for at least that long!) They are great reminders of some lesser-known rules applicable in unusual situations.

Let me join Appellate Law & Practice in welcoming the Military Justice Blog to the legal blogosphere. According to the blog’s subheading, the Military Jusice Blog will include miltary appellate issues. It appears to be an anonymous blog with the profile name “Sacramentum,” which, according to the profile, “was an oath taken by all Roman legionaries on entering the Roman army and was the foundation of military discipline.”

AL & P’s post also referenced CAAFlog, a well-established blog by seven contibutors following developments in the United States Court of Appeals for the Armed Forces (CAAF).

I remember reading while I was a Marine Corps officer (in fact, it might have been asigned reading) about a newspaper columnist who wrote that “Military justice is to justice what military music is to music.” Call me a cynic, but I’m pretty sure he wasn’t paying a compliment.

I only served on one court martial. Other than that, I didn’t have much exposure to the military justice system. But I know there are some talented, dedicated lawyers in the military. They do tough work under difficult conditions, and my hat’s off to ‘em.

I’m in the process of setting up my own web host for The California Blog of Appeal. Right now, the blog is hosted on WordPress.com. at the URL http://calblogofappeal.wordpress.com.

Those of you who have found the blog through a link from another site already know this. But those of you accessing the blog through the URL http://www.calblogofappeal.com may not. I have domain forwarding set up on the calblogofappeal.com domain name and, until tonight, also had domain masking enabled. That means that if you typed in the URl http://www.calblogofappeal.com, you were forwarded to the WordPress URL but it was hidden from you.

The chief drawback to this domain forwarding and masking scheme is that if you then click on a specific post title or the link to its comments, the URL in your address bar still says calblogofappeal.com, which means you can’t identify the specific URL of the post for trackbacks or linking. Tonight, I disabled the masking, so as soon as you reach the site, you’ll see the wordpress URL in the address bar.

When I move the blog to my host, the actual address of the bog will be calblogofappeal.com. If you subscreibe to the RSS feed, you will probably have to resubscribe after the move.

I’m trying to get this done while the blog is still young (it’s 32 days old today) and before it gets too many followers (being optimistic — except for the three-day weekend, I’ve enjoyed a boost in traffic most of the last week or so, creating a greater sense of urgency to get set up as a self-hosted blog). And since I’m not sure I can resume my blog stats where they leave off when I move from WordPress, I do not want to let a large number of hits build up just top start at zero again. Finally, I’ve been holding off on many of the SEO (Search Engine Optimization) and other steps for increasing theblog’s visibility until it moves to its own host.

I plan to keep the same general look on the blog (the maroon-to-black banner, fonts, etc.), though I may have to make some changes in the course of switching to the new host.

This won’t happen for a while, but I wanted to give everyone fair warning and explain what I will be doing and why I will be doing it. I also want to mininmize any loss of readership due to the transition. My target date to complete this process is June 18, but that’s likely to slip. I will post updates as the project progresses.

Have fun reading Professor Martin’s teasing about a grammatical error repeated in two recent Ninth Circuit opinions. I agree with the professor. A mitigating circumstance, however, is that the mistake relates to a homonym pair for which I’d venture one word or the other is present in almost every legal opinion, so the odds of a mistake once in a while are high, even though the overall error rate might be low.

While on the grammar front, here’s a pet peeve. Every time I see a reference to a “sole practitioner,” I think of someone who’s the only lawyer in town. Or maybe a shoe repairman. Judging by most of the bar-related publications I read, “sole practitioner” seems to be the term of choice for identifying lawyers who practice on their own.

But shouldn’t we refer to these lawyers as SOLO practitioners — like we did when I was in law school?

Granted, “sole” may be technically correct according to these definitions of the word (my favorite: “without company or companions; lonely”), but compared to the definition of “solo” (among them: “a person who works, acts, or performs alone”), it certainly seems the less accurate. Besides, you never hear of anyone “flying sole.” Jazz musicians don’t break into “soles.” And would Harrison Ford’s Star Wars character have had the same roguish swagger if he were named “Han Sole?” I don’t think so!

If anyone cares to differ . . .well, that’s what the comments section is for. Have at it. Then again, if it turns out most of you agree with me, I think we should start a movement to banish the use of “sole practitioner” — unless, of course, one really is referring to the only lawyer in town.

Bibliography: Dictionary.com Unabridged (v 1.1). Random House, Inc. (accessed: May 31, 2007).

The Ninth Circuit tackles a question of appellate jurisdiction in Gupta v. Thai Airways International, case no. 04-56389 (May 30, 2007).  The riddle — which the majority overlooks until it responds to the dissent — arises from the intersection of res judicata and the “collateral order” exception to the final judgment rule.

Thai Airways contended in its motion to dismiss for lack of subject matter jurisdiction in the district court that it was immune from suit under the Foreign Sovereign Immunities Act (the airline is 76% owned by the Thai government) .  The airline contended that an identical state court action brought by Gupta was res judicata on this issue because it was dismissed for lack of subject matter jurisdiction on FSIA immunity grounds.  It also argued the merits of FSIA immunity independently of its res judicata argument.  The district court rejected both arguments, finding that the prior ruling was not res judicata because it did not go to the merits of the dispute and that an exception to the FSIA applied.

On appeal, however, the airline did not assert the district court erred in its determination that an exception to the FSIA applied.  It relied exclusively on its res judicata argument. 

This turns out to be what splits the dissent from the majority on appeal.

The Ninth Circuit (and its sister circuits) have long recognized the appealability of an order denying a motion to dismiss based on FSIA immunity.  The majority classifies this as such an appeal, and thus asserts jurisdiction under this well-established exception to the final judgment rule.

The issue becomes thornier when you read the dissent, in which Judge Tashima argues that the court must examine “each claim or issue presented separately to determine their jurisdiction on interlocutory appeal.”  Conceding that he would find jurisdiction over the issue of whether the district court erred in finding that the FSIA exception applied, Judge Tashima contends that the res judicata issue is sufficiently distinct to take it outside the rule allowing review of orders denying FSIA immunity:

While it is true that our case law permits an immediate interlocutory appeal from an order denying a motion to dismiss based on foreign sovereign immunity, it is equally well-settled that the denial of a motion to dismiss based on res judicata grounds is not immediately appealable.

***

Although the cases discussing the collateral order doctrine sometimes loosely refer to interlocutory orders as being appealable, in fact, the cases actually analyze the specific claim or issue presented in determining the scope of their jurisdiction on an interlocutory appeal. And each claim presented must independently meet the requirements of the collateral order doctrine in order for it to be considered on interlocutory appeal. Appellate jurisdiction over one claim rejected in a district court order does not confer jurisdiction over all other claims rejected in the same order.(Citations omitted, emphasis in original.)

It seems clear that had the airline appealed on both grounds, Judge Tashima would assert jurisdiction over the merits of the FSIA immunity claim but not over the res judicata argument for the same claim of immunity. 

This is too much hair-splitting for the majority, which responds in a footnote to its statement that “It is from this order that Thai Airways is appealing.”  (Emphasis in original.) The majority contends that the dissent relies on a false premise that the FSIA immunity issue and res judicata issues are distinct.  It says that since the res judicata issue involves and is based solely on FSIA immunity, and is indeed determinative on the issue, the appeal falls within the rule of appealability under the collateral order doctrine for orders denying FSIA immunity.

Whatever the asserted ground of error, the majority has a point that in the end, the order appealed from determined that there was no FSIA immunity.  And that is all they needed to bring it within the well-established exception to the final judgment rule.

Offering a concise lesson on when a moot federal appeal should be dismissed and when it shouldn’t is the Ninth Circuit’s decision in NASD Dispute Resolution, Inc. v. Judicial Council of the State of California, case no. 02-17413 (May 30, 2007). 

Fearing that new standards for California arbitrators imposed by the Judicial Council would make its arbitrations in California more difficult, NASD and the New York Stock Exchange sought a declaratory judgment that the California standards were preempted by federal securities laws, could not constitutionally be applied to the plaintiffs’ arbitration programs, and were not applicable to those programs as a matter of state law.  The district court dismissed the suit on the ground that the defendants were state entities with Eleventh Amendment immunity from suit in federal court.

The plaintiffs appealed. In an intervening decision in another case the Ninth Circuit held that the California standards were preempted by federal securities law, and the California Supreme Court reached a similar holding in yet another case involving different parties.  These intervening cases rendered the present appeal moot.

The issue before the court was whether, in light of the appeal’s mootness, the court should vacate the trial court’s dismissal of the case or instead let the trial court judgment stand and dismiss the appeal.  The state defendants did not want the trial court ruling disturbed, since it held that the Judicial Council and its members were immune from suit in federal court. 

The usual action in the event of a moot appeal is to vacate the decision below with a direction to dismiss, which is what the court does here.  Generally, only when mootness is the result of conduct by the party seeking appellate relief — such as by settling on appeal — should the court dismiss and leave the judgment below intact.  This sufficiently serves the public interest by protecting the district court decision against “a refined form of collateral attack” — an appellant settling on appeal so as to have the judgment below vacated.

The Judicial Council urged that equity and public policy weighed against vacatur because NASD and NYSE were unlikely to sue the Council or its members again, and the public has an interest in preserving judicial precedent.  The court spends a short time on the value of district court opinions as “precedent” and the effect of a “vacated on other grounds” history for a district court case. Since the district court decision will remain in the Federal Supplement and is useful only as persuasive authority anyway, the public interest in preservation of precedent does not require that the ruling remain intact.

This last point is especially sensible and relevant to the discussion in this earlier post regarding the utility of citing district court decisions.

Circuit Judge Berzon hooked me with this opening paragraph of U.S. v. Trimble, case no. 06-30298 (May 30, 2007):

The Bill of Rights was ratified in 1791. The United States produced its first automobile in 1877, and the first traffic ticket issued in 1904.

This appeal to the Ninth Circuit was over a traffic ticket. Specifically, the penalty imposed for the violations as a result of the form of ticket used. Notwithstanding the minor nature of the offenses, the case implicates a major constitutional doctrine — equal protection.

Trimble was ticketed on a military base. The officer who wrote Trimble’s ticket did so on a brand new form that imposed a $25 processing fee in addition to any fine. Because of a shortage of the new forms, other officers at the exact same time were still writing tickets on the old form of ticket, which made no mention of a processing fee. At her court appearance, the fine imposed on Trimble included the processing fee on three violations (for a total of $75). She appealed, claiming that the imposition of the processing fee based solely on the form of ticket written violated the equal protection clause. The court agrees.

The irony? The $25 processing charge was instituted, according to the court, “to offset the costs of managing petty offense cases in the federal courts.” Yet Trimble invoked the appellate jurisdiction of the Ninth Circuit, and successfully avoids the fee that was intended to offset the costs of routine federal court management.

On the equal protection issue, the court finds no rational basis for allowing different penalties despite its “excursion into imaginative recreation of possible justifications.”

Professor Shaun Martin isn’t sure the court exhausted the possibilities and is taken aback at the resources poured into an appeal over $75. His post at California Appellate Report ends (emphasis in original):

But let me add one more thing. Seventy five dollars. For that we appoint a public defender and have a U.S. attorney and the P.D. brief and argue an entire appeal? We can’t just save some money by confessing error and refunding the piddly seventy-five bucks?

Perhaps in the long run it will turn out to be money well spent. Professor Berman at Sentencing Law and Policy thinks the case may have broader implications:

Based on a quick read, I am not entirely sure whether the Trimble holding might provide a basis for questioning other sorts of criminal justice “injuries large and small.” Any readers have any suggestions or creative litigation thoughts?

Anyone who wants to respond to Professor Berman should go to his post.

Howard Bashman at How Appealing suggests that “the Administrative Office of the U.S. Courts might wish to adjust its revenue projections to reflect that it won’t be receiving a $25 processing fee” for tickets issued at the base.

Small stakes, big issue, interesting case.

UPDATE: (5/31/07): A short post on this case at the Volokh Conspracy gathers some interesting comments. Decision of the Day also wrote up this one, and follows up with a post today that suiggests the first circuit isn’t so solicitous of small cases.

Technorati Tags: Equal Protection

In Carpenter v. Jack in the Box Corp., case no. B188707 (May 25, 2007) the Second District Court of Appeal holds that an application for anti-SLAPP attorney fees and costs under Code of Civil Procedure section 425.16(c) by a plaintiff who prevails against an anti-SLAPP motion is timely so long as it is made before entry of final judgment in the action, even if it s not made until after resolution of the appeal of the order denying the anti-SLAPP motion.

Carpenter brought an action for wrongful termination, defamation, and other tort and contract claims related to the termination of employment by Jack in the Box.  Jack in the Box brought an anti-SLAPP motion (special motion to strike) under Code of Civil Procedure section 425.16, claiming that plaintiff’s claims targeted Jack in the Box’s actions in the course of an investigation into allegations that plaintiff had sexually harassed another employee and that such actions were protected under the First Amendment.  The trial court denied the special motion to strike, and the Court of Appeal affirmed.

After remittitur to the trial court, plaintiff filed his application for fees and costs under section 425.16(c).  The court held that the trial court did not lose jurisidction over the aplication simply because the remittitur of the case after the denial of the anti-SLAPP motion did not include instructions to determine attorney fees and costs.  The trial court retains jurisdiction to decide a motion for fees and costs even while the appeal is pending, and a statute authorizing an award of attorney fees in the trial court includes appellate fees unless the statute explicitly states otherwise.

Finding jurisdiction, the court next turned to the issue of whether the application was timely under rules 3.1702 and 8.104 of the California Rules of Court.  After a rigorous and complicated analysis of the rules to resolve a facial ambiguity, the court concludes that an application for fees under section 425.16(c) is timely so long as it is brought any time before final judgment in the action.

Technorati Tags: California attorney fees, Anti-SLAPP

“I suggest to you with respect, Your Honor, that you’re a few French fries short of a Happy Meal in terms of what’s likely to take place.”

This statement to a judge was made by (a) a newly minted, naive lawyer; (b) a renegade solo criminal defense attorney; (c) a criminal defendant; (d) a partner from a prestigious, nationally recognized, Chicago-based law firm.

Answer: (d).

The remark earned him an order to show cause as to why he should not be suspended from practice before the court and have his pro hac vice admission revoked.

See Above the Law for the full story.  Some commenters there actually take the judge to task.  There are also some reasonable explanations offered for the lawyer’s statement, suggesting that the judge misunderstood the comment.  But I don’t know if any of them are right.

UPDATE (5/31/07): Is it possible I show too much deference for authority? Carolyn Elefant of the My Shingle blog really made me think with this post taking the judge to task for sandbagging the lawyer and overreacting by issuing the OSC and copying every judge on the court. Unlike most of the snarky commenters at Above the Law, she explains her position. If you’re a solo, you may also want to go to her main page and scroll through some of her posts about the special burdens of solos when it comes to sanctions and ethics charges.

Technorati Tags: legal ethics

Appellate Law & Practice and Decision of the Day both report on what the latter calls a “remarkable decision” today from the Ninth Circuit.  Both write about the fact that in United States v. Doe, case no. 05-50474 (May 29, 2007), the Ninth Circuit allows the defendant — a child pornographer who pleaded guilty to molesting and photographing young teen boys on his trips outside the U.S. — to remain anonymous in the disposition of the appeal.

Both bloggers recognize that anonymity was probably a condition of the defendant’s guilty plea (although the decision never says).  Decision of the Day is appalled that the circuit judges would allow this, especially in light of their reputations:

Shame on the prosecutors and the courts for allowing a criminal defendant to remain anonymous, especially in light of the fact that this was his fourth time getting caught with kiddie porn. Neither the district judge - GWB appointee Klausner - nor the three appellate panelists - Reagan appointees O’Scannlain and Hall and GWB appointee Callahan - have a reputation for being generous with criminal defendants.

“S. COTUS” at Appellate Law & Practice takes a slightly different view —

Perhaps these appointees wanted to make things easier for a prosecutor, or the so-called “victims.”  In reality, there are a lot of sealed proceedings out there, but usually both sides agree to it, and I suspect that these judges were well-aware of this, and didn’t want to rock the boat.

The so called victims?  I’ll get to that later.  Back to anonymity for now.

The court notes that allowing the use of a pseudonym is reserved for “exceptional cases where necessary to protect a person from injury or harassment.”  But the judges never tell us how that standard applies in this case.  In fact, the whole issue of anonymity rates no more than a footnote in the opinion.  The defendant made a motion for the disposition to be filed using a pseudonym, and instead of explaining why this was necessary, the court merely continues the sealed nature of the proceedings begun in the district court.  Unless they could not discuss this without imposing the harm they sought to avoid through use of the synonym, why did they avoid this discussion?  The docket shows no separate order on the motion.

The defendant’s anonymity seems especially inappropriate in light one of his assertions of error: that the victim statements in the pre-sentencing report were anonymous!  He loses on this issue, though.

While he also loses on the issue of whether he should have to pay the restitution ordered by the district court, it’s somewhat shocking to see that the restitution the court affirms amounts to $16,475 total for eight victims - about $2,060 per victim.  Amazingly, this includes two years of monthly counseling, vocational training (to make up for some of the victims having to leave school), and a management fee to the organization coordinating the services.  For traveling abroad to an unnamed “developing world” country, Doe gets bargain basement restitution costs — then complains about them.

Doe is sentenced to 204 months.  As for “S. COTUS’s” reference to “so-called ‘victims’ ” — read the excerpt from the plea agreement, then see if you agree.

UPDATE (5/30/07): “S. COTUS” at Appellate Law and Practice has updated his post to explain why he used the term “so-called ‘victims.’ ” He concedes that the children in this case were genuine victims. He makes a decent case for attributing it to carelssness, and I take him at his word.

A whole lot of insurance companies sue a whole lot of doctors and clinics. The insurers allege that the defendants gave away cash and vacation packages to lure patients into undergoing unnecessary procedures, for which defendants billed the plaintiff insurers, who paid millions on the claims. Several individual defendants are also facing criminal prosecution and move to stay the civil proceedings because discovery would implicate their Fifth Amendment rights. The clinics say they can’t put on an adequate defense if the action is stayed only as to the individuals facing prosecution, so they, too, ask for a stay of the proceedings. The district court obliges the stay requests — apparently in multiple orders, as the plaintiff insurers take three appeals and one writ petition from the same underlying case. Blue Cross and Blue Shield v. Rubin, case no. 05-56261 (May 25, 2007).

The Ninth Circuit holds it has appellate jurisdiction notwithstanding the lack of a final judgment because the stay orders, all of which are indefinite in duration and could last for years, place the plaintiff insurers “effectively out of court.” In doing so, the Ninth joins a majority of other circuits finding appellate jurisdiction in such circumstances, and explains that the indefinite delay poses threats of “denying justice by delay,” lost evidence and faded witness recollections, and irreparable harm to the business plaintiffs, including the risk of going out of business in the interim.

A second lesson for counsel lies in the decision on the merits. The court neither affirms nor reverses, but vacates the stay orders and remands for further consideration by the district court because there is an inadequate record to review the court’s exercise of discretion.

In Foote v. Del Papa, case no. 06-15094 (May 22, 2007), the Ninth Circuit holds that a state criminal defendant’s “irreconcilable conflict” with appellate counsel does not, in itself, entitle the state defendant to habeas relief.

Foote filed suit against his assigned attorney and the public defender’s office a month after his arraignment, claiming that his assigned defender’s handling of the case deprived him of his Constitutional rights. The public defender’s office moved to withdraw, claiming the lawsuit created a “clear conflict of interest.” After sentencing, the state trial court granted the request of Foote’s retained counsel to assign the public defender to represent Foote on appeal. Foote’s direct appeal to the Nevada Supreme Court was dismissed, and that court also declined his state habeas petition, characterizing the alleged conflict of interest as a potential conflict only.

Foote’s federal habeas petition alleged ineffective assistance of counsel as a result of th conflict of interest. He claimed the public defender failed to raise meritorious appellate issues and never responded to his demand to withdraw and ask for the appointment of independent counsel counsel.

The Ninth Circuit denies the petition because it is an “open question” whether the defendant’s conflict of interest with appellate counsel violates the Sixth Amendment. Under the Anti-Terrorism and Effective Death Penalty Act, 28 U.S.C. § 2254(d)(1), habeas relief cannot be granted unless the decision of the state court is “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” Since the Supreme Court has never held that a conflict with appellate counsel violates the Sixth Amendment, habeas relief is denied.

This is an unsettling decision because the Ninth Circuit’s reasoning denies relief even assuming the alleged conflict of interest actually exists. Though it recognizes that an “irreconcilable conflict” between defendant and trial counsel may entitle the defendant to new trial counsel, the lack of a comparable Supreme Court holding with respect to appellate counsel means that habeas relief must be denied.

Is this distinction between trial counsel and appellate counsel splitting hairs?

The Ninth Circuit Blog says that “This “Foote-note” to the Sixth Amendment seems too narrow as it is not a large step from trial counsel to appellate counsel.”

Likewise, anonymouos blogger “J” at the The AEDPA Law and Policy Blog says:

I’m not an expert on this particular area of the 6th Amendment. That being said, isn’t there an argument that the 6th Amendment rights of a defendant at trial are the same as his 6th Amendment rights during his first appeal as of right vis-a-vis the right to conflict-free representation? If that is correct, then wouldn’t the failure to provide conflict-free counsel based on the difference between the trial and the first appeal implicate the “unreasonable application of” prong? (Emphasis in original.)

I tend to agree. Why should a distinction be drawn between trial counsel and appellate counsel in this situation? The Ninth Circuit doesn’t even attempt to draw one, even though it relies on the distinction to establish the lack of controlling Supreme Court precedent.

I’ve updated my May 17 “A Quip Too Far?” post with a link to more recent, and quite excellent, commentary on the unorthodox opinion in Funny Cide Ventures, LLC v. Miami Herald, and am providing this separate post for those who already read my previous post and aren’t likely to see the update in it.  Matt Conigliaro of Abstract Appeal promised last week to follow up on his original post, and he delivers a winner with his explanation of why it may be impossible to make judicial opinions understandable to non-lawyers and still have them adequately serve their function as precedent.

SCOTUSblog has an update to its earlier post on drafting effective cert petitions in the absence of a direct circuit split. The post links to the most recent podcast and provides all the information you need to get up to date on SCOTUSblog’s coverage of this topic. It also provides instructions for subscribing to SCOTUSblog’s podcasts, several of which have covered other aspects of cert petition drafting.

Twenty-five years after graduating from the Naval Academy, I still call whatever I happen to be walking on — whether a carpet, concrete, a lawn, or bare ground — “the deck.” I like a nautical theme as much as the next guy, maybe more.

Maybe that’s why I don’t share Professor Martin’s opinion that Judge Kozinski’s dissent in today’s Ninth Circuit Exxon Valdez decision (Baker v. Exxon Mobile Corp., 04-35182 (May 23, 2007)) is an example of a clerk and/or judge “trying too hard.” Indeed, I though