May 10, 2007
California Legislature Rejects Class Action "Reform." There's an article here. I've never been a fan of any effort to have juries limited, and this "don't trust yourself, trust us in Washington or some other far away place to know what's right" advertising always makes me laugh, but they're winning. You can read an analysis here.
And on that note... This isn't an example of statutory interpretation, as such, but I ran across it and lived in Houston for a long time, and so the Enron fiasco always strikes a chord, as did this op ed piece about the Fifth Circuit's 2-1 split finding many third party defendants as morally bankrupt as they left Enron literally so, but finding no legal liability. It ends with a quote from someone only literally bankrupt: "I cannot understand judges who would look at the people who designed the theft, provided the money to do it and drove the getaway car, and say that they didn't do anything. This country boy," he says, "has a hard time interpreting these things."
And still related to that: Texas Supremes Reach Overturn Jury Verdict Quite Easily. Okay, I'm obviously just finding a theme when I'm reading this morning, but it came sort of naturally by flipping through the headlines. It ends with: “I don’t understand the legal system where good people in Daingerfield, Texas, sat on a jury for six weeks, heard mounds of evidence, testimony from retailers and parent company people and everyone, make a decision in our favor, and that decision could go to the appeals court and get a unanimous decision in our favor, then all of a sudden the Supreme Court just null-and-voids everything these people saw and heard, and what they said,” Dudley says. “It seems like there’s something wrong with it.”
And on an Unrelated Note: DC Gun Statute Unconstitutional. You can read about the decision here. The original panel decision is here, but I couldn't find online the order denying en banc consideration.
May 9, 2007
North Carolina Supreme Court on Teen Sex: It's a Crime Against Nature
Twelve year old and 14 year old have oral sex. He later is convicted of a "crime against nature." The statute says: "If any person shall commit the crime against nature, with mankind or beast, he shall be punished as a Class I felon.” N.C.G.S. § 14-177 (2005). But other statutes outlaw specific sexual activity between minors, thus presenting an in pari materia issue.
The majority held in In the Matter of R.L.C. __ S.E.2d __, 2007 WL 1299443 (N.C. May 4, 2007) that because the acts weren't covered by the statutes governing juvenile behavior, they *did* come within the general statute!
Whatever happened to specific controls over the general?
The dissent argued that was the key, and he lost.
May 7, 2007
Border Patrol Agents are "Police Officers"?
Here's an interesting one. New York adopted a statute that makes it a crime for a person to intentionally injure or put in reasonable apprehension of beng injured someone the person knows or should know is a "police or peace officer." (It's called "menacing a police or peace officer," under New York Penal Law Section 120.18.) The defendant was indicted under this statute for actions related to a border patrol agent. The term "police or peace officer" is not defined in the state.
The court, though recognizing that normally the inclusion of certain things in a list excludes others (and, here, there was no "and other similar law enforcement officials") nonetheless construed the statute to apply to border patrol agents. It's remarkable. Even though it recognized the interpretive rule that applies to all statutes would result in no crime, it relied on the fact that New York has a no-strict construction statute for criminal laws, reasoning: "it is also true that Penal Law 5.00 explicitly states that, contrary to the common law, 'the general rule that a penal statute is to be strictly construed does not apply to this chapter [the Penal Law], but the provisions herein must be construed according to the fair import of their terms to promote justice and effect the objects of the law."
As a result, the court, though holding the act was not a "model of clarity" upheld the indictment on a "close question of law."
It's remarkable. The court used the "no strict construction" statute to give a criminal statute broader meaning than a civil statute would have been given, by its own admission!
The case is People v. Brenno, 2007 WL 1288353 (N.Y. County Court May 2, 2007). I couldn't find it online.
May 6, 2007
California Appellate Court Splits on Vexatious Litigant Statute
California has a statute that permits judges to certify someone as a vexatious litigant. As a consequence, she can't file any "new litigation" without first getting a judge's permission. More specifically, under California Code of Civil Procedure 391.7, “the court may, on its own motion or the motion of any party, enter a prefiling order which prohibits a vexatious litigant from filing any new litigation in the courts of this state in propria persona without first obtaining leave of the presiding judge of the court where the litigation is proposed to be filed.” Disobedience of a prefiling order is punishable as contempt. (§ 391.7, subd. (a).)
Litigant A gets declared a "vexatious litigant" and then files another suit while being represented by counsel. Counsel then withdraws. The district court relies on the statute above to dismiss the suit. The appellate court affirms, with one judge dissenting, in Forrest v. State, __ P.3d __ (Cal. App. 2d Dist. Apr. 25, 2007). The majority held that the statute meant that, after the declaration of "vexatious litigant," the person could only file a suit if either (a) she gets permission if unrepresented or (b) she is represented throughout the subsequent litigation by a lawyer. The dissent strongly disagreed, focusing in on the plain meaning of "file" and chastising the majority for reading the statute to say what they wanted it to say, rather than what it did say:
Because the statute did not seem to address the facts at hand (surely, it did not), the dissent turned to various public policy arguments to conclude that it did not apply. Quite an interesting read, and a close question, I think, overall. The majority clearly did not adequately address the lack of textual support for their conclusion, but whether the balancing of public policies -- if appropriate -- performed by the dissent is correct is also, itself, a closer question.
The applicability of section 391.7 to this case is anything but clear. The statute refers to the “fil[ing]” of “litigation.” The term “file” is not defined in the vexatious litigant statutory scheme. “File” has been defined as “[t]o deposit in the custody or among the records of a court. To deliver an instrument or other paper to the proper officer or official for the purpose of being kept on file by him as a matter of record and reference in the proper place.” (Black’s Law Dict. (6th ed. 1990) p. 628, col. 1.) “Filing with court” is defined as “[d]elivery of legal document to clerk of court or other proper officer with intent that it be filed with court.” (Black’s Law Dict., supra, p. 628, col. 2.) “Litigation” is defined in section 391, subdivision (a), as “any civil action or proceeding, commenced, maintained or pending in any state or federal court.” Simply put, the narrow definition of filing is incongruous with the broad definition of litigation; i.e., “litigation” encompasses much more than things that are filed. But the Legislature referred to the filing of “litigation,” a word it defined broadly in section 391. This creates an ambiguity as to whether the Legislature intended a prefiling order to curb just the filing of a new case, or also the continuing litigation of a case.