Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Tuesday, January 26, 2021

Meaningful Statements of Rejection?

 

Meaningful statement of rejection?

What does it mean when the Supreme Court declines to hear a case? Seasoned observers might advise against reading into such decisions, but many members of the public read such decisions as an expression, even preliminarily, of the Court’s views on the merits of the case. Those judicial tea leaves can be confounding, especially when the Court's decision is not accompanied by any explanation. But on rare occasions, the Justices will issue brief statements of their thoughts on the case they have decided not to hear. Though one might assume that such statements clarify the Court’s true intentions, often they can be just as mystifying as the thunderous silence of a denial of certiorari. Two recent cases demonstrate that when the Court seeks to offer clarity when denying review, it can often have confusing or even counter-productive results.

In October, the U.S. Supreme Court denied certiorari in Bovat v. Vermont, a case of little note except perhaps to criminal procedure enthusiasts.[1] The case concerned officers who approached a suspect’s home believing he had violated deer hunting regulations. The officers proceeded past the front door towards the suspect’s detached garage, peered in the window, and spotted apparent evidence of the crime.[2] The Vermont Supreme Court suggested this search was permissible under the “plain view”doctrine—officers need not shield their eyes to criminal activity they observe from an area they are legally entitled to access, after all.[3] The Vermont Supreme Court claimed that driveways are only “semiprivate areas,” not the kind of “curtilage” to a home that receives greater protection under Supreme Court precedents like Florida v. Jardines.[4]

The Supreme Court denied certiorari in Bovat, but not without a detailed statement from Justices Gorsuch, joined by Justices Sotomayor and Kagan, respecting the denial. In the statement, Gorsuch explained the flawed reasoning of the Vermont Supreme Court that would allow “meandering searches” on citizens’ property.[5] But Gorsuch also acknowledged that the Court had good reason to “let this case go,” given the lack of evidence that many other state or federal courts had similarly misunderstood or misapplied Jardines.[6] Gorsuch felt compelled to write a statement, though, in order to “highlight” the error and “ensure it does not recur,” even if Bovat was just a “stray mistake.”[7]

What should observers, and the Vermont Supreme Court, take from this statement? Some members of the Court seemed to strongly disagree with its reasoning, but even they did not have enough conviction about the apparent error to deem the case worthy of review. Though the Court issued a verbal slap on the wrist, nothing compelled the Vermont Supreme Court to change its interpretation of driveways as non-curtilage that can be subject to extended police exploration without a warrant. And certainly nothing compelled the Court to revisit the results of the petitoner’s case. One might argue that the Court’s statement, far from establishing that the Vermont Supreme Court was in the wrong, actually encouraged it to continue its practice, at least until enough other courts joined its interpretation that the Supreme Court would be willing to hear an appeal to resolve any split in interpretation.

Less detailed statements by the Court upon a decision to decline review can be similarly counter-productive. Consider the Court’s approach in the much higher profile case of Texas v. Pennsylvania. The case did not arise through the usual vehicle of a petition for certiorari; Texas sought leave to file a lawsuit directly in the Supreme Court, relying on the court’s original jurisdiction to resolve interstate disputes. Texas claimed that unconstitutional irregularities in the 2020 election caused it significant damage, including a lack of clarity over the election’s winner.[8] The filing was panned by legal experts and many political actors alike, with Pennsylvania’s Attorney General Josh Shapiro claiming it was a “seditious abuse of the judicial process.”[9]

Despite the heated rhetoric and national attention, the Court rather quietly denied the State of Texas leave to file its complaint. The Court’s order stated simply that the “complaint is denied for lack of standing” because Texas had “not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.”[10] 

However, Justice Alito, joined by Justice Thomas, added a short statement that seemed to give hope to the case’s supporters. Alito contended that the Court lacked “discretion to deny the filing of a bill of complaint in a case that falls within our original jurisdiction,” and thus added that he “would therefore grant the motion to file the bill of complaint but would not grant other relief,” all while claiming to “express no view on any other issue.”[11]

The effect of Alito’s subtle statement was to give hope to many fervent believers in the election fraud hoax. Conservative commentators, with President Trump’s support, touted that two Justices would have allowed the lawsuit to proceed, and that the remainder of the Court simply lacked the “courage” to hear the case on the merits.[12] Alito’s academic position, announced cryptically in the Court’s order, was useful fodder for further conspiracy theories.[13]

In the end, neither Alito’s subtle approach nor Gorsuch’s broader explanation was effective in conveying the Court’s intentions. Justice Gorsuch’s statement was a fuller explanation of the reasons for denying review to a case it plainly viewed as meritorious. Yet Gorsuch could only speculate as to why a majority of the Court would not grant review, and his words seemed to give the Vermont Supreme Court a free pass to continue pressing its understanding of the plain view doctrine and cases like Jardines. Justice Alito’s statement was subtler and perhaps even more confusing. While it adheres to Alito’s long-held academic belief that the Court must accept cases that properly invoke its original jurisdiction,[14] doing so only fueled the flames of conspiracy theorists who suggested that their arguments were not universally rejected by the Court, giving energy to Donald Trump’s supporters to press on with their efforts longer than they might have otherwise.

The Court has long exercised restraint in issuing explanations for its rejection of a case. I’ve argued in the past that the Justices’ statements in dissent or dicta suggesting a detailed structure of arguments they would like to see in a future appeal are dangerous.[15] Perhaps cryptic messages of the Justices’ views in statements accompanying a refusal to review a case are similarly dangerous. Anything short of a full explanation of the reasoning of all Justices can be deceptive, with negative consequences both large and small. The most meaningful statement of rejection may be the simplest one possible.

 

[1] Bovat v. Vermont, 592 U.S. ___ (2000), https://www.supremecourt.gov/opinions/20pdf/19-1301_5iel.pdf.

[2] Bovat v. Vermont, 592 U.S. ___ (2000), https://www.supremecourt.gov/opinions/20pdf/19-1301_5iel.pdf.

[3] Bovat v. Vermont, 592 U.S. ___ (2000), https://www.supremecourt.gov/opinions/20pdf/19-1301_5iel.pdf.

[4] Bovat v. Vermont, 592 U.S. ___ (2000), https://www.supremecourt.gov/opinions/20pdf/19-1301_5iel.pdf; 569 U.S. 1 (2013).

[5] Bovat v. Vermont, 592 U.S. ___ (2000), https://www.supremecourt.gov/opinions/20pdf/19-1301_5iel.pdf.

[6] Bovat v. Vermont, 592 U.S. ___ (2000), https://www.supremecourt.gov/opinions/20pdf/19-1301_5iel.pdf.

[7] Bovat v. Vermont, 592 U.S. ___ (2000), https://www.supremecourt.gov/opinions/20pdf/19-1301_5iel.pdf.

[8] Amy Howe, Justices throw out Texas lawsuit that sought to block election outcome, SCOTUSblog, Dec. 11, 2020, https://www.scotusblog.com/2020/12/justices-throw-out-texas-lawsuit-that-sought-to-block-election-outcome/.

[9] Amy Howe, Justices throw out Texas lawsuit that sought to block election outcome, SCOTUSblog, Dec. 11, 2020, https://www.scotusblog.com/2020/12/justices-throw-out-texas-lawsuit-that-sought-to-block-election-outcome/.

[10] READ: Supreme Court order on Texas election case, CNN.com, Dec 11, 2020, https://www.cnn.com/2020/12/11/politics/supreme-court-order-texas-election-case/index.html.

[11] READ: Supreme Court order on Texas election case, CNN.com, Dec 11, 2020, https://www.cnn.com/2020/12/11/politics/supreme-court-order-texas-election-case/index.html.

[12] Josh Blackmun, Making Sense of Texas v. Pennsylvania, The Volokh Conspiracy, Dec. 12, 2020, https://reason.com/volokh/2020/12/12/making-sense-of-texas-v-pennsylvania/ (quoting Sean Hannity and Donald Trump).

[13] Mark Sanger, “Standing” – if a State has no standing in the US Supreme Court, who does?, wsicweb.com, Dec. 13, 2020, https://www.wsicweb.com/wsicnews/standing-if-a-state-has-no-standing-in-the-us-supreme-court-who-does/ (“If you are a true thinker like Justice Alito and Justice Thomas, you are asking, “If a state has no ‘standing’ to bring a suit about another state’s potential false elections, who does?’”).

[14] READ: Supreme Court order on Texas election case, CNN.com, Dec 11, 2020, https://www.cnn.com/2020/12/11/politics/supreme-court-order-texas-election-case/index.html.

[15] See Michael Gentithes, Check the Invitation: The Trouble with Appeals Invited by Supreme Court Justices, 82 Mo. L. Rev. 339,  (2017)

January 26, 2021 | Permalink | Comments (0)

Saturday, January 23, 2021

A New Example of a Persuasive Introduction and Statement of Facts

Many 1L legal writing professors begin the second semester using their favorite examples of persuasive writing.  In addition to exercises on CRAC for crafting persuasive Argument sections, I use samples to show my students two key persuasive techniques:  (1) catching a reader’s interest with a “hook” in the Introduction; and (2) using persuasive subheadings and fact presentations in the Statement of Facts.  I have several great samples, including the well-known example from skater Tonya Harding’s International Olympic Committee filing.  Harding’s lawyers introduced her request to be allowed to skate in the Olympics in three compelling words:  “Tonya Harding skates.”   

Of course, I am always looking for new samples.  Many thanks to Professor Sarah Ricks, Distinguished Clinical Professor of Law at Rutgers Law School, for recently suggesting Legal Writing Institute List-Serv members read the beautifully-written Statement of Facts in an Opposition filed on behalf of Amazon Web Services in the Parler matter.  In the Opposition to Parler’s Motion for a TRO, counsel for AWS, Davis Wright Tremaine LLP, uses plain language to engage the reader in the first line, and follows the Introduction with a truly persuasive Statement of Facts.  See AWS Opp. to Parler's TRO Request.  The Introduction and Statement of Facts from this January 12, 2021 filing are excellent examples of persuasive writing, albeit based on extremely troubling fact allegations.

Just as we instruct our students to do, the AWS Opposition begins its Introduction with short persuasive sentences catching the reader’s interest and summarizing AWS’s arguments in a straightforward matter:

This case is not about suppressing speech or stifling viewpoints.  It is not about a conspiracy to restrain trade.  Instead, this case is about Parler’s demonstrated unwillingness and inability to remove from the servers of Amazon Web Services (AWS) content that threatens the public safety, such as by inciting and planning the rape, torture, and assassination of named public officials and private citizens. 

Id. at 2.  The Introduction then presents AWS’s claims without hyperbole, and distills the heart of AWS’s argument to one sentence, arguing Parler attempts to compel “AWS to host content that plans, encourages, and incites violence.”  Id.

The Opposition continues with a Statement of Facts deftly using subheadings to summarize the facts and its overall argument.  As we know, judges are incredibly busy, and advocates should use persuasive subheadings in Statements of Facts as a way to help busy judges understand the key facts from reading the Table of Contents or from skimming the brief.  See generally https://legalblogwatch.typepad.com/legal_blog_watch/2012/02/federal-judges-want-you-to-spare-them-the-rhetoric-and-get-to-the-point.html (noting a Bankruptcy Court judge’s complaint judges “don’t have time for rhetoric” as they are “really, really busy”).  The AWS Opposition Statement of Facts uses four brief subheadings to paint an overall picture of Parler as unwilling to limit disturbing content in violation of its contract with AWS:

  1. Parler Conducts the “Absolute Minimum” of Content Moderation.
  2. Parler Enters an Agreement with AWS for Web Hosting Services.
  3. Parler Repeatedly Violates the Agreement.
  4. AWS Exercises Its Right to Suspend Parler’s Account.

AWS Opp. to Parler's TRO Request at 2-5. 

Finally, the Statement of Facts employs bullet points and quotes from the record to show Parler’s alleged abuses with precision.  It takes only a few minutes to read the Statement of Facts, but AWS’s summary of the underlying matter stays with the reader.  While some of the impact is no doubt based on the quoted Parler posts inciting sedition, rape, and murder, the calm, plain English structure and direct word choice also convey credibility and tell a compelling story.  For example, under the subheading about content moderation, the Statement of Facts explains, “Parler prides itself on its hands-off approach to moderating user content,” followed by six supporting quotes from Parler executives.  The quotes include sentences like, “’what we’ve decided to do is, let’s just not do any curation, no fact checking, let people do that on their own.’”  Id. at 2-3.  This method paints a clear picture of AWS’s fact contentions and persuades the reader AWS has accurately and carefully given us the whole story.

As appellate practitioners and writing teachers, we all benefit from reading each others’ work.  I appreciate the suggestion from Prof. Ricks that we read the Statement of Facts in the AWS Opposition to Parler’s Request for a TRO, and I hope you also enjoy the brief’s persuasive writing. 

January 23, 2021 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing | Permalink | Comments (0)

Monday, January 18, 2021

Vol. 21, Issue 1 of the Journal of Appellate Practice & Process

I have been an errant blogger.  Of the many projects occupying my time, getting out the most recent issue of The Journal of Appellate Practice & Process has been near the top of the list.  I am happy to say that the issue is almost done and will hopefully be online this week.

When the University of Arizona James E. Rogers College of Law acquired the Journal, one of our goals was to make it a free online resource. The Journal will be available at www.appellatejournal.com. At that site, you can sign up to receive email notifications about new issues. While we don't yet have the full archives up, we hope to have them soon.

What can you expect in the first digital issue of the Journal? Well, the articles are pretty exciting and timely.  Here is a sneak peak at the table of contents:

 

Jon O. Newman

On Reasonableness: The Many Meanings of the Law’s Most Ubiquitous Concept             

Thomas L. Hudson

Structuring Appellate Briefs                            

Luke Burton

Less is More: One Law Clerk’s Case Against Lengthy Judicial Opinions               

Timothy R. Johnson

Maron W. Sorenson

Maggie Cleary

Katie Szarkowicz

COVID-19 and Supreme Court Oral Argument: The Curious Case of Justice Clarence Thomas                                             

Margaret D. McGaughey

Remote Oral Argument in the Age of Coronavirus: A Blip on the Screen or a Permanent Fixture?                                       

Pierre H. Bergeron

COVID-19, Zoom, and Appellate Oral Argument: Is the Future Virtual?                

ESSAY

 

Michael Daly Hawkins

Clerks in the Time of Coronavirus (With Apologies to Gabriel García Márquez)        

I plan on blogging about the articles once the issue is published.  Keep a lookout on the website and watch your email for an announcement that the issue is online.

January 18, 2021 | Permalink | Comments (0)

Saturday, January 16, 2021

It’s Time to Address the Death Penalty's Constitutionality

It’s no surprise that opinions regarding the constitutionality – and wisdom – of the death penalty vary greatly among judges, legal scholars, commentators, and the public.

Arguments concerning the death penalty consist primarily of the theoretical and the practical. Regarding the theoretical component, some may argue that the death penalty rightfully expresses society’s moral condemnation of and outrage toward heinous criminal acts, such as domestic terrorism (e.g., Timothy McVeigh’s bombing of a federal building in Oklahoma, which killed over 160 people) and premeditated murder, particularly murders that involve torture, children, and multiple victims (e.g. Ted Bundy’s premeditated killings of dozens of women). Others may argue that the intentional murder of an individual by the government, particularly where less severe measures can ensure public safety and exact severe punishment (e.g., life imprisonment), is inherently wrong.  Certainly, theoretical disagreements involve a variety of religious, philosophical, and moral perspectives, all of which lead to reasonable disagreements concerning the death penalty’s theoretical justifications.

The practical component, however, reveals facts that cannot arguably be disputed. For example, although the Supreme Court held decades ago that the death penalty must be reserved for the “worst of the worst,” the evidence suggests that executions do not even remotely adhere to this principle. First, innocent individuals have been executed; if there is any doubt about this fact, one need only consider the hundreds of death row inmates who, after convictions and pending execution, were freed when evidence surfaced to demonstrate their innocence. Second, many individuals who have been executed suffered from severe mental health issues, intellectual disability, and brain damage. Third, many individuals on death row were raised in horrifically abusive and impoverished families. Fourth, many young people, whose brains had not yet fully matured, have been executed. Fifth, the likelihood of receiving the death penalty depends in substantial part on a defendant's socioeconomic status, a defendant's state of residence, the quality of a defendant’s attorney, and a defendant's (and victim's) race. Sixth, empirical evidence suggests that the death penalty does not deter crime; in states that outlaw the death penalty, the murder rate is lower than in states that authorize the death penalty. Seventh, substantial evidence exists that the most common method of execution – lethal injection – leads to intolerable suffering.

The United States Supreme Court is well aware of these problems and the Court has repeatedly strived to limit the death penalty's application. For example, in Furman v. Georgia, the Court recognized that the death penalty was often arbitrarily imposed and required states to develop criteria that would lead to fairer and more standardized decisions regarding when and under what circumstances the death penalty would be imposed.[1] Likewise, in Roper v. Simmons, the Court held that the Eighth Amendment prohibited the execution of individuals for crimes committed while under the age of eighteen.[2] Additionally, in Atkins v. Virginia, the Court held that the Eighth Amendment prohibited the execution of intellectually disabled defendants.[3] And in Hall v. Florida, the Court held that a defendant’s IQ score alone could not be the basis for determining intellectual disability.[4]

However, the practical problems regarding the death penalty remain. As Justice Stephen Breyer emphasized in his noteworthy dissent in Glossip v. Gross, the death penalty continues – for a variety of reasons related to race, socioeconomic status, and geography – to be unfairly and often arbitrarily imposed.[5] Justice Breyer was correct. These problems render the death penalty's administration troubling as a matter of law and policy.

Indeed, the time has long passed for the United States Supreme Court to address the death penalty’s constitutionality. But the Court has repeatedly refused to do so, whether through denying certiorari or refusing last-minute petitions to stay executions despite evidence that, at the very least, warranted further review. Nowhere was this more evident than recently, when the Court, over the vigorous dissents of Justices Sonya Sotomayor and Stephen Breyer, allowed the federal government to execute the thirteenth death row inmate in the last six months.[6] In so doing, the Court made no attempt to address the persistent and ongoing issues relating to the fairness of imposing the death penalty. These issues exist – and they aren’t going away.

After all, if the likelihood of receiving the death penalty depends in substantial part on race, socioeconomic status, and geography, how can the death penalty be anything but arbitrary? And if the individuals executed are overwhelmingly poor, mentally ill, or cognitively impaired, how can we plausibly claim that they are the worst of the worst? We can’t.

Until the Supreme Court addresses these issues, the death penalty will be administrated under a cloud of illegitimacy and injustice. And when the Court finally does confront such issues, the death penalty will likely be relegated to the “graveyard of the forgotten past.”[7]

 

[1] 408 U.S. 238 (1972).

[2] 543 U.S. 551 (2005).

[3] 536 U.S. 304 (2002).

[4] 572 U.S. 701 (2014).

[5] 576 U.S.             , 135 S. Ct. 2726 (Breyer, J., dissenting).

[6] See James Romoser (Jan. 16, 2016), available at: Over sharp dissents, court intervenes to allow federal government to execute 13th person in six months - SCOTUSblog

[7] In re Gault, 387 U.S. 1 (1967) (internal citation omitted).

January 16, 2021 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Legal Ethics, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Appellate Advocacy Blog Weekly Roundup Saturday, January 16, 2021

WeeklyRoundupGraphic

 

Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News

  • This week, the Supreme Court allowed the current administration to carry out three final federal executions, including the first woman to be executed by the federal government since 1953. This administration resumed federal executions after seventeen years without one and has executed thirteen people since July. Justice Sotomayor’s dissent in US v. Higgs, the final case, begins:

After seventeen years without a single federal execution, the Government has executed twelve people since July. They are Daniel Lee, Wesley Purkey, Dustin Honken, Lezmond Mitchell, Keith Nelson, William LeCroy Jr., Christopher Vialva, Orlando Hall, Brandon Bernard, Alfred Bourgeois, Lisa Montgomery, and, just last night, Corey Johnson. Today, Dustin Higgs will become the thirteenth. To put that in historical context, the Federal Government will have executed more than three times as many people in the last six months than it had in the previous six decades.

See reports in The Wall Street Journal, The Poughkeepsie Journal, CNN, The Washington Post, and The Associated Press

  • In the first abortion decision since Justice Barrett joined the court, the Supreme Court reinstated a requirement that women appear in person to pick up the pill required for medication abortions. The FDA rule had been waived during the pandemic, allowing the medicine to be distributed via mail. See the opinion and reports from The Associated Press, Bloomberg News, and Politico.

  • Taylor Swift became the subject of oral argument this week when the Justices discussed the singer’s request for nominal damages in a sexual assault suit. The discussion occurred during oral argument in Uzuegbunam v. Preczewski, a case asking whether students may sue their college for First Amendment Violations and seek nominal damages.  See reports in The New York Times and The Washington Post.

Federal Appellate Court Opinions and News

  • The Ninth Circuit will allow a SWAT officer’s First Amendment suit against the Las Vegas Police Department (LVPD) to proceed after he was penalized for a Facebook post. The LVPD claimed that the post incited violence but the court stated that the post “could be objectively interpreted as a provocative political statement against police officers being shot in the line of duty.” The decision comes in the wake of the violence at the US Capitol and amid debate about the line between free speech and inciting violence.  See opinion and report in the San Francisco Chronicle.  

  • The Third Circuit ruled that Philadelphia’s plan to open the nation’s first safe-injection site would violate federal law. The ruling is another barrier for the nonprofit Safehouse, which hoped to open the site to combat fatal drug overdoses. The site would have offered support to drug users, including providing intervention for overdoses. The court ruled that the site would violate a federal law making it illegal to knowingly host illicit drug use and drug related activity.  According to the court, only a change in federal law would sanction the site. “[Safehouse’s] motives are admirable. But Congress has made it a crime to open a property to others to use drugs.” See the order and reports from The Wall Street Journal and The Associated Press.  

State Appellate Court Opinions and News

The Colorado Supreme Court updated its common-law marriage standard, which was established in 1987, to better account for same-sex couples. The new standard follows from three rulings and creates a more flexible and gender-neutral test that looks only to whether the couple mutually intended to enter a marital relationship and whether the couple’s subsequent conduct supported that decision. See the rulings here, here, and here and a report in The Denver Post

January 16, 2021 in Appellate Advocacy, Appellate Justice, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Monday, January 11, 2021

Self Over State: Republican Attorneys’ General Supreme Court Briefs Show the Need for Accountability

This is a guest post by Lisa F. Grumet, Visiting Associate Professor of Law at New York Law School.


The events of this past week have shown the importance, and vulnerability, of the rule of law in the United States. These events have also shown the dangers when public officials who are responsible for upholding the law prioritize their own perceived self-interest over their institutional roles and professional responsibility. While the horrific events of January 6, 2021 were incited by President Donald Trump, as well as members of Congress who supported his efforts to nullify millions of votes, it’s important to remember the antidemocratic efforts of other public officials who also sought to overturn the election outcome. These officials included Republican State Attorneys’ General in Texas and 17 other states who pursued frivolous litigation asking the U.S. Supreme Court to invalidate the election results in four states. President-elect Joe Biden observed that they had adopted a “position so extreme we’ve never seen it before.”

In their enthusiasm to invalidate other states’ votes for Biden, some Republican AGs endorsed legal arguments that put their own states’ elections at risk. The briefs failed to disclose that some of their states had election practices that were similar to the practices they challenged in Pennsylvania, Georgia, Michigan, and Wisconsin. In particular, the briefs questioned the integrity of mail-in voting procedures, and challenged the alleged issuance of “new rules” for the 2020 election. However, as noted in an opposing amicus brief filed by 23 Democratic and Independent AGs, some of the Republican AGs’ states had similar election practices, and some of the states had election rules changed by state executive officials because of COVID-19. For example, Utah had voting by mail options for several years before the pandemic; and Texas’s Governor suspended election laws in October 2020 to extend the early voting period for the November election.

The practice of AGs challenging other states’ laws before the Court, while ignoring similar laws in their own states, is not new. Since lawsuits between states are rare, this dynamic usually arises in the context of amicus briefs. When one state is sued and the state’s AG defends its law before the Supreme Court, sometimes AGs from other states will file an amicus brief supporting the other side. In these partisan times, it’s not uncommon for large coalitions of Democratic and Republican AGs to file briefs on opposite sides in significant cases. When they file or sign on to amicus briefs, they are not required to disclose how the outcome of the case will affect laws in their own states. While some briefs might offer such detail, others do not, making it difficult to assess the potential impact of the litigation on laws in the AGs’ own states.

I have previously described this practice as “hidden nondefense.” “Nondefense” typically refers to an AG publicly declining to defend a state’s law; for example, before Obergefell v. Hodges, some AGs declined to defend laws prohibiting same-sex marriage in their states on the ground that the laws were unconstitutional. “Hidden” nondefense is different: it occurs when an AG ignores the substance—or even the existence—of a law in the AG’s own state, while making legal arguments that may ultimately undermine it. For example, some Republican AGs endorsed arguments that contradicted laws in their own states in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, challenging Colorado’s enforcement of a nondiscrimination law against a bakery, and in Janus v. AFSCME, Council 31, challenging an Illinois law permitting government employee unions to collect “agency fees” from non-members. Also, some Republican AGs have opposed the City of Philadelphia in Fulton v. City of Philadelphia, pending litigation about enforcement of a nondiscrimination ordinance against publicly funded private foster care agencies that refuse to work with same-sex couples. There, two Republican AG briefs discuss the U.S. Constitution and state laws concerning religious freedom, but do not discuss the potential impact of their position on enforcement of laws prohibiting discrimination in public accommodations in some of their own states.

AGs are their states’ chief legal officers. It is because of their institutional role that they are privileged to speak for their states before the Court. The Republican AGs’ actions in Texas v. Pennsylvania and other significant cases show the need for transparency and accountability in the way AGs represent their states before the high court. Hidden nondefense transforms the state AG’s role: when an AG’s brief disregards the state’s own laws and practices, the AG represents the state in name only. This is dangerous and subverts democracy and principles of separation of powers.

One practical solution that I have previously recommended would be to simply amend the Supreme Court's Rules to require all AGs to disclose in Supreme Court briefs whether any laws in their own states could be impacted by the position they are taking before the Court. Members of the press and public should scrutinize AG briefs to ensure that AGs are held publicly accountable for the positions that they take.
Another approach, which could provide for greater accountability, would be to strengthen state professional responsibility codes. Rule 3.3 of the Model Rules of Professional Conduct (“Candor Toward the Tribunal”) provides that attorneys shall not knowingly “fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.” For AGs, the “controlling jurisdiction” should include their own state. Although state law may not be “controlling” for the U.S. Supreme Court, it should at least be mentioned by the AG charged with upholding state law. If the AG has determined that the state’s law is unconstitutional, the AG should say so and explain this position to the Court and the public, rather than ignoring the law’s very existence.

Absent a requirement for disclosing the impacts on their own states’ laws, AGs are seemingly free to use the Supreme Court as a forum for achieving personal or partisan goals, without regard to their professional responsibilities to their constituents and the Court. Change is needed so that our states’ chief legal officers are held accountable when they use Supreme Court litigation to promote partisan politics or personal interests over the rule of law. I am hopeful that the 2020 election results represent a turning point for restoring confidence in our legal system and our governing institutions. Enhancing accountability for state AGs should be one part of this process.

January 11, 2021 | Permalink | Comments (1)

Friday, January 8, 2021

Appellate Advocacy Blog Weekly Roundup Friday, January 8, 2021

WeeklyRoundupGraphic

Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter (@Daniel_L_Real) or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

U.S. Supreme Court News:

As discussed by Bloomberg Law this week, the Court's practice of "relisting" cases can give insight into which cases the justices are interested in hearing.  The article explains the process, how it works, and what it might mean to see a case relisted.

Federal Appellate Court Opinions and News:

One of the biggest areas of interest to watch during President-Elect Biden's next couple of years is what happens with the federal judiciary.  There has been much discussion of how the makeup of the judiciary has been shaped over the last several years by Republican control of the Senate and President Trump's nominations.  Now, with a Democratic President and Senate, much attention is being paid to how Biden might make his mark on moving the balance of the judiciary.

    • Bloomberg Law had an article discussing how the outcome of the special runoff election for Georgia's two Senate seats has opened a path for Biden to make a bold push, if he wants it.  Law 360 had an article diving into potential nominees that Biden might tap for vacancies.

This week, the Fourth Circuit Court of Appeals ruled that an automatic life sentence without parole is cruel and unusual punishment for intellectually disabled adults.  See the opinion in Avalos v. Texas HERE.

This week, the Seventh Circuit Court of Appeals ruled that Indiana's practice of requiring sex offender registration for people who move into the state in situations where it would not require registration of Indiana residents is unconstitutional.  See the opinion in Hope v. Commissioner HERE.

Appellate Practice Tips and Pointers:

See this article from Eugene Volokh at The Volokh Conspiracy, from June 2007, about breaking into appellate law.

January 8, 2021 | Permalink | Comments (1)

Sunday, January 3, 2021

Appellate Advocacy Blog Weekly Roundup Sunday, January 3, 2021

Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

 

Happy New Year from the Weekly Roundup!

In the spirit of welcoming in a new year and reflecting on the old one, here are a few links doing just that: 

  • Chief Justice Roberts's 2020 year-end report on the Federal Judiciary is available here
  • Erwin Chemerinsky offers a year-end review of the Supreme Court in 2020. 
  • Mark Walsh and Nina Totenberg offer separate previews of the remainder of the 2020-2021 term. 

 

We look forward to bringing you appellate advocacy news in 2021.  

January 3, 2021 in Appellate Advocacy, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Saturday, January 2, 2021

More Support for Oxford, or Serial, Commas

Many of my younger students come from collegiate writing programs which do not use Oxford commas.  These students sometimes need convincing they should add what seems like an “extra” comma between the last two items in a series of three or more.  This comma, known as a serial or Oxford comma, can change meaning.  Therefore, I include the comma on my grading rubric and try to make my lessons about the comma connect to real-world examples as much as possible.

The dairy delivery drivers who won overtime pay because of a missing Oxford comma provide a great example of the comma’s utility.  See https://www.cnn.com/2017/03/15/health/oxford-comma-maine-court-case-trnd/index.html.  Many of us are familiar with the dairy drivers’ case, and their 2018 $5,000,000 settlement.  The dairy's delivery contract clause on overtime wages did not include a serial comma, and thus did not limit the drivers' eligibility for some overtime pay.  Along with a few fun, albeit morbid, memes about eating children and other relatives—"Let’s eat children” vs. “Let’s eat, children,” for example—I use the dairy case to help show the need for precision and punctuation.  (For more laughs, really, I highly recommend one of my family’s favorite books:  Lynne Truss, Eats, Shoots and Leaves:  The Zero Tolerance Approach to Punctuation (2003), https://www.lynnetruss.com/books/eats-shoots-leaves/.)

Recently, Kelly Gurnett, an admitted “diehard Oxford comma loyalist,” updated her piece on the dairy drivers.  Kelly Gurnett, A Win for the Oxford Comma: This Lawsuit Shows Why It’s So Important (updated Nov. 2, 2020), https://thewritelife.com/is-the-oxford-comma-necessary/.  As Gurnett explains, “For anyone who’s ever wondered what all the fuss is about over Oxford commas, the circuit judge’s [dairy drivers’ pay] opinion says it all: ‘For want of a comma, we have this case.’”  Id. 

While modern courts sometimes say they want to use more holistic and less formal language, we still must be precise and clear in contracts and legal writing.  As Gurnett concludes:  “if there’s one thing writers can agree on, it’s the importance of clarity. In some cases, an extra comma matters.”  Id.

Last week, Pocket republished Chris Stokel-Walker’s article on serial commas.  Chris Stokel-Walker, The Commas That Cost Companies Millions (July 22, 2018), https://getpocket.com/explore/item/the-commas-that-cost-companies-millions?utm_source=pocket-newtab.  In the BBC Worklife piece, Stokel-Walker discusses the dairy drivers and other historic Oxford comma litigation, and notes the often-debated meaning of commas in insurance policies.  As Stokel-Walker says, “for some, contentious commas can be a path to the poor house.”  Id.  He provides great examples to remind us about the need for precision.

First, Stokel-Walker cites the United States Tariff Act.  As originally drafted in 1870, the Tariff Act exempted “fruit plants, tropical and semi-tropical for the purpose of propagation or cultivation,” from import tariffs.  However, “for an unknown reason, when revised two years later, a stray comma sneaked in between ‘fruit’ and ‘plants,’” and “[s]uddenly all tropical and semi-tropical fruits could be imported without any charge.”  Id.  Congress ultimately revised the language, but the US lost $2,000,000 in tariffs (now about $40,000,000) in the meantime.  Id.

Unlike my memes showing the errors in comma-less clauses about eating children or cooking grandpa, in the most extreme example Stokel-Walker cites, debate over comma placement was at the heart of a real-life death-penalty trial.  Id.  In 1916, the British government hanged Roger Casement, an Irish nationalist, under the 1351 Treason Act.  Casement “incited Irish prisoners of war being held in Germany to band together to fight against the British.”  Id.  As Stokel-Walker explains, the case revolved around “the wording of the 14th Century Treason Act and the use of a comma: with it, Casement’s actions in Germany were illegal,” but if the court would read the act without the possibly-mistaken comma, Casement would be free.  Id.  Casement’s argument at trial was that “'crimes should not depend on the significance’” of commas, and if guilt for a hanging offense really depended on a comma, then the court should read the statute for the accused, and not the Crown.  Id.  Unfortunately for Casement, the court applied the comma and ordered him executed.

Whether we use the dairy drivers, memes, or Roger Casement’s matter, those of us teaching and mentoring new legal writers should do our best to convince them the Oxford comma is not “extra,” and can dramatically change meaning.

Happy new year!

January 2, 2021 in Appellate Advocacy, Appellate Practice, Law School, Legal Writing | Permalink | Comments (0)