SBM Blog

Apologies To The President Are In Order

Three years ago SBM Blog reported that President Obama's rate of judicial confirmations was significantly behind his two immediate predecessors' rates. We just reported it straight, ignoring the many posts (yes, we're talking about you, Jeffrey Toobin) decrying the President's apparent indifference to this important Presidential function. Now, Politico reports that President Obama has nominated 301 judges and gotten 237 confirmed, and that at the same point in his presidency, President Bush had nominated 267 judges and had 234 of them confirmed. Although President Obama's first term judicial nominations were indeed both notably slow in coming and unsuccessful, filibuster changes have allowed the Administration to overcome its record slow start.

 

How Obama's Judicial Confirmation Record Compares to Bush's and Clinton's - See more at: http://sbmblog.typepad.com/sbm-blog/2011/07/how-obamas-judicial-confirmation-record-compares-to-bushs-and-clintons.html#sthash.MsMxsisn.dpuf

Penn State: We Told You So

SBM Blog saw this coming over two years ago. Remember "Who's the Client? Penn State General Counsel and PSU Employees" from February 2012? We described howPenn State's Athletic Director and its senior vice president for finance and business both mistakenly thought they were being represented by Penn State's general counsel when they testified before the grand jury in the Jerry Sandusky sex abuse investigation. Now the Philadelphia Inquirer reports that Graham Spanier, Penn State's former president, is asking a federal judge to throw out misconduct charges against him because, he says, the prosecutor knew that Penn State's general counsel was representing Penn State, not Spanier, during the President's grand testimony, but allowed Spanier to testify anyway.

"Truthiness, Insinuations, And Allegations Are Protected By The First Amendment"

On April 22 (Earth Day and the birth of V. I. Lenin and death of Richard Nixon, probably just a coincidence), the U.S. Supreme Court will hear oral argument in Susan B. Anthony List v. Driehaus, a constitutional challenge to an Ohio law that criminalizes false statement during an election campaign about the voting record of a candidate or public official, and the dissemination of any false statement about a candidate, either knowing it is false or with reckless disregard for whether it is true, with the goal of electing or defeating the candidate. Or, to put it more drily and precisely, the Supreme Court will consider:

(1) Whether, to challenge a speech-suppressive law, a party whose speech is arguably proscribed must prove that authorities would certainly and successfully prosecute him, as the Sixth Circuit holds, or should the court presume that a credible threat of prosecution exists absent desuetude or a firm commitment by prosecutors not to enforce the law, as seven other Circuits hold; and (2) whether the Sixth Circuit erred by holding, in direct conflict with the Eighth Circuit, that state laws proscribing “false” political speech are not subject to pre-enforcement First Amendment review so long as the speaker maintains that its speech is true, even if others who enforce the law manifestly disagree.

As reported in the New York Times, which makes it official, to aid the Court the Cato Institute and humorist P.J. O'Rourke ("America's leading political satirist"¹ and an H.L. Mencken Research Fellow at the Cato Institute) have submitted an amicus brief in support of the constitutionality of the law. Its main assertions are:

• Truthiness, Insinuations, And Allegations Are A Vital Part Of Political Speech
• Truthiness, Insinuations, And Allegations Are Protected By The First Amendment
• The Public Interest In Political Honesty Is Best Served By Pundits And Satirists

In a Daily Beast essay, O'Rourke has disavowed authorship of the brief:

Cato did not ask me to write their brief for the same reason that you do not ask me to perform your appendectomy. … I was asked to read it and give it my endorsement because I am an expert on being run out of Ohio. Ask my mother.

¹ Example of truthiness?

Florida Supreme Court Says Med-Mal Caps Unconstitutional

In a 5-2 opinion issued today, the Florida Supreme Court held that a statutory cap on wrongful death noneconomic damages violates the Equal Protection Clause of the state constitution:

[W]e conclude that section 766.118 violates the Equal Protection Clause of the Florida Constitution under the rational basis test. The statutory cap on wrongful death noneconomic damages fails because it imposes unfair and illogical burdens on injured parties when an act of medical negligence gives rise to multiple claimants. In such circumstances, medical malpractice claimants do not receive the same rights to full compensation because of arbitrarily diminished compensation for legally cognizable claims. Further, the statutory cap on wrongful death noneconomic damages does not bear a rational relationship to the stated purpose that the cap is purported to address, the alleged medical malpractice insurance crisis in Florida.

From the dissent:

McCall contends that the cap at issue in this case violates Florida’s equal protection guarantee because it applies on a per incident, rather than a per claimant, basis. However, the Legislature could have reasonably believed that a per incident cap would more effectively reduce noneconomic damages awards and create more stability in the insurance market than a per claimant cap would. A per incident cap leads to more predictability in the insurance market since the noneconomic damages cannot exceed the cap in any particular instance of malpractice regardless of the number of individual claimants. And the Legislature could have reasonably believed that this increased predictability would more effectively decrease medical malpractice insurance rates, thereby keeping more physicians in Florida to provide more access to quality health care (including high-risk procedures) at a lower cost to Floridians.

New York's Top Judge On Non-Lawyer Legal Assistance

Another sign for lawyers everywhere that the world is changing. The chief judge of New York's top court, the New York Court of Appeals, delivered an address this week at NYU Law School on "The Judiciary as the Leader of the Access to Justice Revolution that says this:

[N]ot every new idea receives a universally warm welcome – - especially if we think more creatively about ways to solve the justice gap. And that’s exactly what we are doing when we venture into areas that seemed off limits in the past. One such area for the New York Judiciary is the work of non-lawyer advocates in our courtrooms to support unrepresented litigants. We know that there are many functions that only a lawyer is qualified to perform. Only lawyers have the education, training, examination standards, and ethical mandates that go hand in hand with full legal representation. But there are people without a law degree who nonetheless are more than capable of assisting unrepresented litigants. At a time when millions of litigants can neither afford to pay a lawyer nor are fortunate enough to have the services of a legal services provider, we need to look to others to step in. This is already done in the medical profession. There is no substitute for a medical degree, but that community has recognized for many years that people with health care needs can be served in some measure by practitioners with lesser qualifications – like midwives or home health care aides — providing specified services at lower rates.

The Next Time Someone Asks You What It Means To Be A "Rule of Law" Judge

Do all lawyers get asked by their non-lawyer relatives during election season, "What is a 'rule of law" judge, anyway?" For what it's worth, my stock answer is that all judges are constitutionally required to be "rule of law" judges, and that to me the phrase means that sometimes the law requires judges to make rulings that they would rather not make. It's hard to think of a case that illustrates the point better than Law v. Siegel, a case decided unanimously last week by the U.S. Supreme Court in favor of a cheating bankrupt debtor (Law) over a conscientious attorney.  On the facts, it sure seems like all nine Justices would have been inclined to decide the other way -- but for the (rule of)law.  Volokh Conspiracy's Eugene Volokh agrees, calling the case " a small counter-illustration to the cynical assumptions about the Justices just voting their ideologies." Ronald Mann at SCOTUSblog describes the facts this way:

The case involves a bankrupt (Law) who tried to keep money from his creditors by claiming that his home was subject to a fictional lien.  Law’s activity in support of this fiction was remarkable; as the Court’s opinion notes, it extended (according to the courts below) to the filing of fictitious pleadings that he forged in the name of the fictitious lienholder.  By the end of the day, the trustee in the bankruptcy proceeding (Siegel) spent several hundred thousand dollars proving that Law’s claim was wholly fabricated. Outraged by the conduct, the bankruptcy court (following established Ninth Circuit precedent) held that the trustee could collect the expenses of that litigation out of the funds Law received from the sale of his homestead. Ordinarily, those funds would have been exempt under California’s homestead exemption (which differs in no material way from the homestead exemptions of every other state).

Mann says the case presented a stark choice between the plain language of the Bankruptcy Code and  the "understandable impulse" to affirm the capacity of the bankruptcy courts to dole out stern punishment for such remarkably deplorable conduct. Plain language won.

So the next question that the relatives will ask is something like, "You mean the rule of law and justice are not necessarily the same thing?"  Time to pop open another cold one.

If I Wanted To Do This Job, I Would Have Gone To Med School

Andrew Cohen at The Atlantic writes about the ethical dilemma posed by an 8th Circuit case, Baze v. Rees, that suggests that in order to challenge a method of execution, defense lawyers must propose an alternative means to execute their clients.  Read "Should a Defense Lawyer Have to Decide How His Client Should Die?"

Free Speech and Judicial Bias Free-for-All On Idaho Supreme Court

A medical malpractice case in Idaho has caused a justice of that state's Supreme Court to pointedly question his colleague's impartiality in a dissent to the Court's decision in favor of the plaintiff. Justice Daniel Eismann :

Courts decide cases in one of two ways: (a) they apply the law to the facts and thereby arrive at the result or (b) they determine the desired result and then twist the law and/or the facts to justify it. The error made by the district judge was applying the law to the facts, which produced a result that the majority does not like.

A dissenting colleague who "entirely concurs" with the Eismann's legal reasoning nevertheless writes:

I am sad that Justice Eismann’s dissenting opinion lowers itself to personal attacks more suited to a school yard argument among teenagers than to a professional legal discourse that should be expected in a judicial opinion.

All of this prompts an Idaho lawyer who has just filed to run for a seat on the Supreme Court to note in an Idaho Statesman guest opinion that Justice Eismann had accused three other justices of being “untruthful” and questioned their impartiality and that the Idaho Supreme Court has sanctioned at least one attorney for far less offensive statements:

Make no mistake about it; the heat that is obvious from reading the Nield opinion smolders beneath every medical negligence case. The Topp case and Idaho’s ethical rules prevent judicial candidates from discussing their views on how special interests may have an effect on the outcome of medical negligence cases as a result of subtle political influence exercised upon the judicial appointment process.

Similarly, judicial candidates would risk sanctions under Idaho’s Code of Judicial Conduct by questioning whether the Nield dissenters’ interpretation of the law violates the Idaho and United States constitutions by applying an arbitrary and unreasonably strict standard to the admissibility of expert testimony that infringes upon the role of the jury. What constitutes the “appearance” of a “commitment” to a position is clearly in the mind of the beholder, adding vagueness to the constitutional problems with Idaho’s “announce clause.”

Meanwhile, it's interesting that the Court's opinion is a "substitute" opinion, and that the original issued the same day was "withdrawn."  One can't help but wonder, what it more -- or less-- provocative?

Read more here: http://www.idahostatesman.com/2014/03/02/3057494/free-speech-rules-cost-ua-good.html#storylink=cpy

Meanwhile, it's interesting to note that the opinion prompting the furor is a "substitute" opinion, and that the original issued on the same day has been "withdrawn." One can't help but wonder -- was the original more, or less, controversial?

 

What, No Courthouse Drive-Through Window To Pay Tickets In California?

The story in Courthouse News says a new walk-up window on the outside of one the nation's busiest courthouses (Pasadena) has cut wait times by as much as two hours.  Query how long it takes to find a parking place.

Fraternities and Lawsuits

A noose placed around the neck of a statue of James Meredith at the University of Mississippi on February 16 has led to the suspension of the university's chapter of Sigma Phi Epsilon and the expulsion of three of the chapters members. The noose probably also prompted The Atlantic blog to run "The Dark Side of Fraternities"  which talks about why "the fraternity lawsuit is a lucrative mini-segment of the personal-injury business."  In it, Douglas Fierberg (Michigan '80), labelled as "the best plaintiff’s attorney in the country," says of fraternities:

Until proven otherwise, they all are very risky organizations for young people to be involved in.  [They] are part of an industry that has tremendous risk and a tremendous history of rape, serious injury, and death, and the vast majority share common risk-management policies that are fundamentally flawed. Most of them are awash in alcohol. And most if not all of them are bereft of any meaningful adult supervision.

 

The Indiana Supreme Court may not agree with that assessment, but on February 13 the court did agree that a former student could sue a fraternity at Wabash College for serious injuries he said he suffered as a result of hazing at one of the college's fraternities, Phi Kappa Psi. At the same time, the court dismissed claims against Wabash College and the national fraternity. Here's the opinion, and a story in the Indianapolis Star.