Tuesday, February 3, 2015
The Nebraska Supreme Court recently issued an opinion concerning the Keystone XL oil pipeline proposed in 2008 by TransCanada Keystone Pipeline, L.P., to carry crude oil products from Canada to the Texas coastline. The opinion is not interesting because of any actual resolution of the highly charged political questions surrounding the pipeline. Rather, the opinion, found at https://supremecourt.nebraska.gov/sites/supremecourt.ne.gov/files/sc/opinions/s14-158.pdf, is interesting because of the highly unusual interplay between jurisdictional standing requirements and constitutional limitations on the authority of the Court to declare legislative action unconstitutional.
Background of the Lawsuit:
TransCanada's original proposal called for the pipeline to pass through Nebraska's Sandhills, which raised concerns about potential environmental damage. At least partly in response to those concerns, Nebraska's Governor in 2011 called a special session of the Nebraska Legislature to discuss enacting siting legislation to specify standards to govern eminent domain power for oil pipelines. The Nebraska Legislature responded in the special session by enacting legislative bills that amended existing Nebraska law regarding approval of proposed pipeline routes crossing Nebraska.
Without detailing all of the legislative procedural history, it suffices to note that the Nebraska Legislature eventually passed a legislative bill that allowed a pipeline carrier to seek approval of a proposed pipeline route from the Governor or to comply with other legislative provisions requiring approval through the Nebraska Public Service Commission. The legislation also included provisions appropriating funds from the state's general fund to the Nebraska Department of Environmental Quality to carry out various duties related to the approval process.
TransCanada eventually submitted for approval a proposed route for the pipeline that would have avoided the Nebraska Sandhills. TransCanada submitted its request through the Nebraska Department of Environmental Quality and sought approval from the Nebraska Governor, rather than through the Nebraska Public Service Commission. In January 2013, the Nebraska Governor approved the proposed route.
In March 2013, a group of Nebraska landowners filed an operative complaint seeking a declaratory judgment that the legislative bill allowing the Governor, rather than the Nebraska Public Service Commission, to approve a proposed pipeline route was unconstitutional. The taxpayers alleged that the bill violated equal protection, due process, and separation of powers provisions of the Nebraska Constitution; unlawfully delegated to the Nebraska Governor powers exclusively belonging to the Nebraska Public Service Commission and/or to the Nebraska Legislature; and unlawfully allocated taxpayer money to implement unconstitutional laws. In response, the State alleged in part that the taxpayers lacked standing to bring the action.
The trial court concluded that the taxpayers bringing the action had failed to demonstrate that their property was located in the path of the proposed pipeline and that, accordingly, they had failed to establish traditional standing to bring the lawsuit. The court concluded, however, that they had established taxpayer standing and that the challenged legislation was unconstitutional. The State appealed the ruling to the Nebraska Supreme Court.
Nebraska Supreme Court's Decision:
The Nebraska Supreme Court's decision in this case did not ultimately resolve the question of whether the underlying legislative bill was constitutional. Rather, the Supreme Court's decision ended up turning on the result of an unusual interplay between state law requirements concerning the Supreme Court's ability to rule legislative action unconstitutional and determinations of standing. In essence, the Court was split on the matter of whether the taxpayers had standing to challenge the legislative bill's constitutionality and, although a majority of the court ruled that there was standing, the majority was not sufficient in number to rule on the constitutionality of the legislation. As a result, because a minority of the Court concluded that there was a lack of standing and refused to consider the constitutionality of the legislation, the Court was unable to issue a ruling one way or the other on the matter.
The first issue that the Nebraska Supreme Court had to resolve was the specific challenge to the taxpayers' standing to bring the suit in the first place. On that issue, a majority of the court concluded that the taxpayers had standing; a minority of three justices disagreed.
The second issue, then, to be addressed was the challenge to the constitutionality of the legislation. It is at that point that the Nebraska Supreme Court's opinion takes some unusual and interesting twists and turns.
Nebraska Constitution article V, section 2, provides in relevant part that "[a] majority of the members [of the Nebraska Supreme Court] sitting shall have authority to pronounce a decision except in cases involving the constitutionality of an act of the Legislature" and that "[n]o legislative act shall be held unconstitutional except by the concurrence of five judges."
The three justices who concluded that the taxpayers lacked standing concluded that their decision with respect to the standing issue prevented them from expressing an opinion, one way or the other, on the constitutionality claim. Their reading of the Nebraska Constitutional provision noted above was that it required at least five members of the Court to (1) conclude that the Court had jurisdiction to hear the case (including that the parties had standing to bring the case) and (2) determine on the merits that the legislative action is unconstitutional.
The four judges and justices who concluded that the taxpayers had standing concluded that the justices who disagreed were "out-voted" on the jurisdictional question of standing and could, as a result, express an opinion on the underlying substantive issue of the constitutionality of the legislation. The majority's reading of the Nebraska Constitutional provision noted above was that it required a supermajority only on the actual issue of constitutionality, not on the preceding issue of jurisdiction.
The unusual result is that, in this case, four members of the Court believed that the Court had jurisdiction to act and expressed an opinion that the underlying legislation was unconstitutional. The remaining three members did not suggest that the legislation was constitutional, but, rather, refused to express an opinion at all, believing that a supermajority was required to even have jurisdiction to consider the merits of the constitutional challenge. So, at the end of the day, three members of the Court concluding that there was a want of jurisdiction were able to preclude any substantive ruling on the merits of the action.
Sunday, November 9, 2014
Following up on my earlier post regarding the Nevada ballot question regarding the addition of an intermediate appellate court in Nevada, voters in that state approved the measure by only a slight margin. Ballotpedia has this summary. This move leaves only nine states without an intermediate appellate court.
Seah Whaley of the The Las Vegas Review Journal reports that legislative appropriation is underway and seems uncontroversial. Applications for newly created judgeships are being taken by the Nevada Commission on Judicial Selection with interviews planned for early December and appointment by the Governor in early 2015. The court will sit in both Carson City and Las Vegas.
Appeals will apparently still be filed with the Nevada Supreme Court, which will then assign some cases to the intermediate appellate court. This strikes me as an unusual arrangement.
Sunday, September 28, 2014
Brown Bettman on Ohio v. Quarterman on Failure to Preserve Constitutional Issues for Appellate Review
The Ohio Supreme Court issued an opinion last week in State v. Quarterman regarding the failure to preserve constitutional issued for appellate review. Marianna Brown Bettman (University of Cinncinnati) has this post detailing the decision on Legally Speaking Ohio. She does an excellent explication of the case: describing the details of the case, the arguments at both levels of appellate review, and the Ohio Supreme Court's decision.
The case involved serious issues regarding Ohio's mandatory bind-over statutes for juveniles - statutes that allegedly conflict with growing state and U.S. practice regarding the treatment of juveniles. That the Ohio Supreme Court rejected the appeal on procedural grounds should warn trial and appellate advocates about the importance of preserving issues on appeal and raising issues (such as alleging plain error) early and clearly.
Brown Bettman's post provides a valuable and detailed discussion of the case with several useful citations and links. It's worth a read by appellate advocates.
Wednesday, September 24, 2014
My experience with Nevada courts is limited to involvement with some cert petitions from the Nevada Supreme Court to the U.S. Supreme Court, but my sense is that the Nevada Supreme Court is overworked and could use the relief and reflection that an intermediate appellate court could provide. I'd be interested in opinions of Nevada appellate attorneys.
Friday, September 12, 2014
Professor Joel Schumm noted on The Indiana Law Blog that the Indiana Supreme Court recently rejected a proposal to permit citation of memorandum decisions for as "persuasive precedent." The Indiana high court rejected even this compromise position without a single dissenting vote, making this the official Indiana position for the foreseeable future.
The proposal, which had the support of three sections of the Indiana Bar, is consistent with the modern trend of allowing citations of all court opinions. For example, Federal Rule of Appellate Procedure 32.1 permits citation of all opinions issued after its passage. By rejecting the proposal, the Indiana Supreme Court continues to support "a rule that defies the modern reality of 'memorandum decisions' being easily accessible." I would add that it defies the historical reality: denying precedential value to some of a court's decisions flies in the face of the common law system. It also denies the practical reality that both judges and lawyers recognize the value of all decisions and will find ways to cite them regardless of the written rules. The federal appellate system's experience with a citation bar should be Exhibit A.
Joel Schumm's blog post offers Indiana lawyers some creative ideas for how to deal with the restriction. I find all of them to be fair game, but then, I question whether any U.S. court has the authority to: 1) bar citation of its own opinions or 2) strip a decision of precedential value at the time of its issuance. Such actions seem to run afoul of various constitutional provisions and the fundamental nature of judicial power.
The late Judge Richard S. Arnold predicted that the federal rule against citation was doomed to fail. He recognized, long before others did, that judicial decisions were the very stuff of our system of justice. There is no substitute for them, and they are the kind of information that even a gag rule cannot fully suppress. He was right. In the federal system, unpublished opinions were routinely cited by both advocates and courts, and ultimately, the citation ban was abolished as untenable and undesirable.
One can hope that Indiana's Supreme Court will come to a similar conclusion the next time it confronts the issue. For now, however, Indiana appellate advocates will have to contend with Appellate Rule 65. I predict that Indiana appellate decisions marked "not for publication" will continue to be cited by advocates and judges alike, and the more that courts decide to sanction lawyers for violation of Appellate Rule 65, the louder opposition to the rule will grow.
Saturday, September 6, 2014
Appellate practitioners know the more common exhaustion and abstention doctrines, such as exhaustion of administrative remedies. Few are aware, however, that similar concepts operate between federal and tribal courts and even between state and tribal courts, and that they can arise out of comity, court rule, or other sources, depending on the jurisdiction. Ignorance of those concepts can sometimes lead to inadvertent or even open disregard for tribal judicial systems.
Turtle talk reports this week on a current example from the Tenth Circuit, which deferred to the Muskogee Tribal Court when litigants in an election dispute tried to jump ship to federal court. See the post regarding Thlopthlocco Tribal Town v. Stidham on Turtle Talk.
Wednesday, September 3, 2014
There is an interesting post today at Legal Research & Writing Pro Blog about how judges read appellate materials in the ever-expanding age of electronic resources. As the post notes, as federal courts and an increasing number of state courts have moved to electronic filing, judges have also moved toward reading materials, including briefs, on electronic devices such as laptops and iPads.
The post notes that changes in how judges are reading briefs -- from paper to electronic -- comes with a potential for real differences in impact. There are studies suggesting that readers tend to skim electronic materials more than they do paper materials, but also that active engagement with the electronic material can substantially improve comprehension.
As the post suggests, there are also some potential new advantages to the prevalence of electronic resources in appellate practice. Citations can be hyperlinked to research sources so that judges can quickly and effectively jump right to the authority; similarly, annotations to the appellate record can be hyperlinked to the relevant part of the record in jurisdictions that have invested in the necessary software. An April post on Cite Blog included thoughts about those kinds of hyperlinks.
A couple of years ago I presented at a symposium at Washburn Law School where there was a presentation from an attorney who did a great deal of practice in various federal courts across the country. He talked about embedding digital information in briefs, including hyperlinks to video excerpts from video depositions, hyperlinks to exhibits, etc., in addition to the more conventional hyperlinks that could appear to authorities. It certainly seems that the continuing development of digital practice would point to a future with vast opportunity to connect the appellate materials in profound ways.
For some additional thoughts, see a post from back in January over at Volokh Conspiracy, with additional discussion in the comments.
Thoughts? Is the increased use of digital resources by courts impacting the way you present arguments in your appellate briefs? Have you seen this as a good development, or one with significant pitfalls? And is legal education keeping up with these kinds of trends? Share your thoughts in the comments!
September 3, 2014 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Law School, Legal Profession, Legal Writing, State Appeals Courts, Web/Tech | Permalink | Comments (1)
Friday, August 1, 2014
Helen A. Anderson at University of Washington Law has a new article on SSRN: Frenemies of the Court: The Many Faces of Amicus Curiae. Given the rise in the number of amicus briefs, the phenomenon seems ripe for closer scrutiny. Anderson does just that by breaking up the singular concept of an amicus curiae brief into types that can be examined separately.
Amicus curiae occupy a unique place in the courts: non-parties who are nevertheless advocates, who are not bound by rules of standing and justiciability, and who can present the court with new information and arguments. Amicus participation has increased dramatically in recent years, and threatens to alter the adversarial process. Yet scholars and courts treat amicus curiae as a single category, not fully recognizing that this friendly term actually covers several very different types, ranging from court appointed advocates of a particular position, to friends of a party (sometimes paid by the party), to persons or groups who just missed qualifying as interveners.
To understand the reality of amicus practice, this article develops a taxonomy of amicus based on the relationship to the court and the parties. The article supports this taxonomy with a look at the history of amicus, and a survey of the rules and judicial attitudes in different jurisdictions. I also explore the persistence of a myth that amicus should be “disinterested,” a myth that has led to confused reasoning about the proper role of amicus.
The modern increase in friend of a party amicus has taken us far from the origins of amicus as one with special expertise or knowledge relevant to the litigation. The article concludes that the Supreme Court’s open-door amicus policy should not be mindlessly copied by our other courts. Friend of a party briefs by ambitious law reform and business advocates may exert great influence, particularly on elected courts. The growth in amicus briefs can lead to distorted views of appellate decision-making, so that a court’s work is seen more like legislation and amicus briefs more like lobbying. To preserve the usefulness of the amicus institution, courts should exercise their gatekeeping authority.
What do you think? Is the increasing amicus briefing giving appellate courts a more legislative, lobbying-susceptible character?
August 1, 2014 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Appellate Procedure, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)
Wednesday, May 28, 2014
Saturday, March 1, 2014
Last week, the Ohio Supreme Court issued a 6-1 decision in a public records access case that has left some scratching their heads. This is not to say the decision in DiFranco v. City of South Euclid is flawed, but that the state statute can create a problematic outcome.
The issue involved DiFranco seeking public records. After she made the request, the City stalled two months and then provided only partial records after she hired an attorney and filed a mandamus action (the City moved to dismiss the action, which the court later converted to a motion for summary judgment). Aware that the records were deficient, Emilie DiFranco produced an expert affidavit. This eventually prompted the City to finally turn over the public records, albeit about four more months later. After the affidavit was filed, the court required the City to respond to the affidavit's allegations. However, by the time the court issued this order, the City had just provided the deficient documents - making the court order moot.
Upset that she had to hire an attorney in order to get the requested public records, DiFranco moved for attorney fees. The request was denied and that denial subsequently affirmed by the appellate and Supreme Court of Ohio.
The reason: O.R.C. 149.43, as written, does not mandate the payment of attorney fees if the records are produced prior to a court order compelling production.
The reality: Public entities have an incentive to withhold key public documents until the requesting party proves he/she is serious enough to sue for the records. And if the suit occurs, the public entity can avoid paying attorney fees, and essentially penalize the requesting party by requiring him/her to incur such attorney fees, simply by providing the public records before being forced to do so by the court.
The result: Thousands of dollars is lost by people requesing public records by either the intentional or inadvertent acts of the public entity records custodian. So now that we know where the money is lost due to this legal loophole, where is it made? By the attorneys unnecessarily involved in the case, where else?!
This is a case where bad statutory law begets bad case law.
Thursday, February 13, 2014
Just over a year ago, Steve Wisotsky and I published an article documenting, and to be frank, bemoaning, the decline of oral argument in the federal courts of appeals. The Decline of Oral Argument in the Federal Courts of Appeals: A Modest Proposal for Reform, 13 J. App. Prac. & Process 119 (2012). Oral argument is just one of a number casualties of the caseload crunch of the 1970s and 80s. Oral argument has gone from being routinely granted and thirty minutes per side to rarely granted and often fifteen minutes or fewer per side. This dramatic reduction coincides with an increase in early tracking of cases into those that receive more appellate process and those that recieve less. The decline oral argument also coincides with a significant decline in reversal rates across all categories of federal appeals. Sacrificing oral argument on the altar of efficiency both reveals and causes a significant diminishment of appellate values. Or so Steve and I argue.
So it was with great interest that I read Joshua Stein's article, Tentative Oral Opinions: Improving Oral Argument Without Spending a Dime, 14 J. App. Prac. & Process 159 (2013), in which he offers an idea for improving the quality of oral arguments. The abstract:
This article explores use of the tentative opinion, two types of which were pioneered by California appellate courts. In 1990, the Second Division of California’s Fourth District Court of Appeal (which sits in Riverside) began disseminating written draft opinions in advance of oral argument. The measure received acclaim from appellate advocates, but did not beget imitation by other courts. In late 2011, however, an appellate court in Los Angeles (the Eighth Division of the Second District) began issuing tentative opinions orally at the beginning of argument. This approach, referred to here as the “oral tentative,” represents an attractive alternative to the written version, which has failed to catch on in other courts.
I was only passingly familiar with this practice, so it was interesting to read about its use in two districts within the California appellate system. I'm not persuaded that it could, or should, be adopted more widely, though. Issuing a tentative opinion a week or so before the oral argument offers advocates the opportunity to tailor their oral arguments to the judge's concerns at cost of requiring courts to review the case in advance and write a tentative opinion. I understand how this benefits the advocate, and perhaps improves the quality of the oral argument, but it does so by shifting the cost of assessing the most important and persuasive arguments to the courts.
An oral tentative opinion, offered immediately prior to the argument, comes too late to offer advocates an ability to focus their oral arguments. I fail to see how a tentative opinion offered in the moments prior to the argument offers any significant advantage over a judge asking questions or even offering such opinions during argument. The only one that comes to mind is that the oral tentative time doesn't come out of the advocates' very limited oral argument time.
I come away thinking that these practices are a result of the California system's requirement that appeals be resolved within ninety days of submission. This "ninety-day rule" forces judges to issue opinions close on the heels of oral argument. Because the system forces judges to prepare a nearly final draft prior to the oral argument, there is little additional cost to distributing that in some form to the advocates. But for any system without such a built-in requirement, I'm skeptical of its utility or desirability. Still, I recommend Stein's article and invite your opinions on the practice.
February 13, 2014 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Oral Argument, State Appeals Courts | Permalink | Comments (0)
Monday, February 3, 2014
Is link rot destroying stare decisis as we know it? That's a great question. If appellate courts are citing to internet sources and those sources are disappearing (link rot), often within just a few years, that does seem to pose a problem for future litigants and courts in determining the basis for the earlier courts' decision.
Arturo Torres, Associate Dean for Library and Information Technology and Professor of Law at the Texas Tech University School of Law, tackled this issue in: Is Link Rot Destroying Stare Decisis as We Know It? The Internet-Citation Practice of the Texas Appellate Courts, 13 J. App. Prac. & Process 269 (2012). The abstract:
In 1995 the first Internet-based citation was used in a federal court opinion. In 1996, a state appellate court followed suit; one month later, a member of the United States Supreme Court cited to the Internet; finally, in 1998 a Texas appellate court cited to the Internet in one of its opinions. In less than twenty years, it has become common to find appellate courts citing to Internet-based resources in opinions. Because of the current extent of Internet-citation practice varies by courts across jurisdictions, this paper will examine the Internet-citation practice of the Texas Appellate courts since 1998. Specifically, this study surveys the 1998 to 2011 published opinions of the Texas appellate courts and describes their Internet-citation practice.
While it appeared in the Journal's Fall 2012 issue, it just popped up on SSRN last month, which makes it current enough to discuss I suppose. The article does a careful and detailed empirical analysis of Texas Supreme and intermediate appellate courts' use of internet citations, citations to publicly available URLs, by court and overall. It then follows up on the internet citations used in these opinions and determines that, of internet citations used in the period between 1998 and 2011, nearly 40% of them no longer function. Table 10 on page 294 documents the link rot year over year, with citations in the late 90s and and early 2000s being mostly non-functional. In addition to documenting the link rot, the article also parses the data in a couple other interesting ways, showing us which courts are more likely to use internet citations and which domains (such as .com, .gov, etc.) are most cited.
In my estimation, the article doesn't really answer whether this admittedly frequent link rot does destroy stare decisis. To answer this question would require examining how the citations were being used and whether their absence affects our ability to understand and apply the cases. The answer may well be "yes," and its a problem that should be addressed regardless, but it may well be that a qualitative analysis of internet citation use proves the loss of these links to be insignificant. For example, if the appellate court gives the substance drawn from the source before citing it, it may often be the court's own adoption or application that matters, and not the availablility of the underlying source. For this or other reasons, link rot may have only a de minimis affect on stare decisis.
Finally, the author's data sorting methodology strikes me as a bit ironic, although this might just be my sensitivity to the issue of unpublished opinions in appellate courts. But given this article's concern with stare decisis, and its conclusion that link rot a priori erodes stare decisis, I was surprised that it completely omits unpublished decisions from the data set. It would seem to me that wholesale elimination of entire appellate opinions (especially in the large volume designated as unpublished) represents a more blatant affront to stare decisis.