Appellate Advocacy Blog

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

Saturday, November 19, 2022

Western Justice Center Gives Ninth Circuit Senior Judge Dorothy Nelson a Lifetime Achievement Award

Many years ago, I was a lucky law clerk working for a wonderful judge at the Ninth Circuit’s  Pasadena courthouse.  One early morning, as I was admiring the flowers growing at the entrance to the gorgeous courthouse, I saw Judge Dorothy Nelson tending to the roses.  She took a moment to chat with me about the roses and litigation, and I have always remembered her kindness and wit.  During my year in Pasadena, I became friendly with Judge Nelson’s law clerks, and learned how much they admired her work for justice and dispute resolution.  See generally Selma Moidel Smith, Oral History of Judge Dorothy Nelson (1988) (interesting interview of Judge Nelson for the Ninth Circuit Historical Society).

Therefore, I was not surprised to see the Ninth Circuit’s recent press release announcing that the Western Justice Center (WJC) honored Judge Nelson “for her vision and dedication in founding the center and decades of visionary work in conflict resolution.”  October 23, 2022 Press Release.  The WJC works to “find innovative ways to handle conflict” by using alternative dispute resolution techniques in and beyond the court system.  The WJC especially focuses on “development of conflict resolution skills and capacity of youth, educators, schools and community partners,” and has trained over “1,000 students, educators and volunteers with the conflict resolution skills they need to transform” schools and “impact . . . youth across” the Los Angeles area.  Id.

As the press release explained, Judge Nelson believes “[e]ighty-five percent of cases could be mediated,” saving the time and money of traditional litigation.   She explained she “want[s] to bring people together, in a collaborative, unifying system,” and she “find[s] there are a lot of people open to that.”  Id.  

Before her nomination to the bench, Judge Nelson served as the Dean of USC’s Gould School of Law.  She was the “first woman dean of a major American law school,” where she “focused on training future lawyers in restorative justice and mediation as an alternative to litigation.”  Id.  Once she joined the Ninth Circuit, she “initiat[ed] one of the first mediation programs for a federal appellate court,” which we use in many circuits today.  See id.

As a past mediator for the Second District of the California Court of Appeal, I know mediating appeals can seem hopeless.  The parties I met with had already invested so much time, energy, and money into their cases that they often saw little reason to settle before oral argument.  However, I did help some parties reach a non-court resolution, and I often thought of Judge Nelson and the roses when I did so. 

Happy Thanksgiving!

November 19, 2022 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Arbitration, Federal Appeals Courts, Legal Writing, State Appeals Courts | Permalink | Comments (0)

Sunday, November 13, 2022

A Focus on the Facts

Sometimes the law wins a case; sometimes the facts do. Yet, even when the case presents a purely legal question, it pays to shape the factual narrative to make sense of the applicable law.

In its first-of-the-term oral argument, the Supreme Court heard Sackett v. EPA, No. 21-454, a case that turns on the meaning of “navigable waters” in the Clean Water Act. The long running litigation, returning to the Supreme Court a decade after its first trip there demonstrates the importance of the factual narrative, even if what constitutes navigable waters under the Act seems not to depend on the underlying facts.

The Plaintiff-Petitioners have portrayed the case as one where a couple seeks to build a modest home on their land in a residential zone for near the Canadian border in Idaho and some 300 feet from a nearby lake. Because they failed to seek a permit, they told the Court the EPA stopped the construction and threatened “crushing fines” because the land contains “navigable waters,” even though there are no streams, rivers, lake, or similar waters on the property. Instead, in the Sacketts’ telling of the story, the EPA has made a highly attenuated connection between the lake, which is navigable, through a connected “non-navigable creek” that itself is attached to a ”nonnavigable, man-made ditch” connected to wetlands that are separated from the property by a thirty-foot-wide paved road. Who, the Sacketts ask, could possibly anticipate that this property would be covered by the Clean Water Act. The narrative, which Justice Neil Gorsuch picked up in oral argument, attempts to portray EPA’s definition of navigable waters as unjustifiable based on both text and its attempt to apply to these facts.

The EPA provides a different narrative. In that story, the Sacketts’ property, which was, historically, part of a fen complex that still exists and drains directly into the lake. The property connects to the wetlands and lake through “shallow subsurface flow.” The Sacketts received information about obtaining a site-specific permit that would have covered home construction, but chose to proceed without a permit, using their own commercial construction and excavation business to dump 1700 cubic yards of gravel and sand to fill the wetlands in order to commence construction. Federal officials inspected the site in response to a complaint, finding “soils, vegetation, and pooling water characteristic of wetlands.” The Sacketts own expert then inspected and confirmed that the property was located on wetlands. Because the Sacketts’ wetland property affected the lake’s water quality through sediment retention, contributed base flow to the Lake with beneficial effects to fisheries, and provided flood control, the EPA ordered the Sacketts to remove the gravel and sand they added and restore the wetlands.

The Sacketts’ narrative suggests innocent and sympathetic landowners attempting to build a home, a story that supports the idea that bureaucrats have gotten out of hand. The EPA’s narrative counters that tale by showing that the Sacketts operate a highly relevant business and were informed about how to comply with the law but chose to flout it to challenge the order, pre-enforcement.

 The first narrative portrays a sympathetic set of facts, while the counterstatement undermines that status, while generating some sympathy for EPA’s actions in trying to avoid a problem by providing the means to obtain a permit.

 Ultimately, the decision may turn on what Congress intended to include within EPA’s regulatory ambit. And, at oral argument, the Court seemed divided on that question. Nonetheless, experienced appellate advocates understand that law cannot be determined in a vacuum and will a factual lens from which to read the applicable law.

November 13, 2022 in Appellate Advocacy, Appellate Practice, Current Affairs, Legal Writing, Oral Argument, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Tuesday, November 1, 2022

Shortcomings in Arguing Original Public Meaning

From questions posed at the confirmation hearings of now-Justice Ketanji Brown Jackson to the decisions at the end of the most recent Supreme Court term and the lower court decisions that soon followed, the rapid recent embrace of “original public meaning” as the metric for constitutional interpretation now dominates appellate argument. Some judges even somewhat crassly pose the question: is there an originalism argument to support your position?

Originalism’s shortcomings are apparent. James Madison, rightly recognized as the Father of the Constitution, described records of the Constitutional Convention as “defective” and “inaccurate.” Justice Robert Jackson critically explained that “[j]ust what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.” Judges commonly rely on a highly selective use of history that allows the invention of intent, rather than its discovery, as Professor Ronald Dworkin wrote. And, however illuminating the historical inquiry can be, even Justice Antonin Scalia, a leading advocate of this interpretative methodology, described himself as a “fainthearted originalist” in order to avoid the absurd results it could bring about.

Certainly, many underlying assumptions of the society the Framers lived in no longer undergird modern society. Just as their attitudes about gender and race, land ownership and the common good influenced their attitudes about a host of issues of constitutional dimension, modern sensibilities about these topics must look at deeper meanings to understand contemporary application. Even advances in transportation, communications, and science more generally have profound implications for constitutional understandings. And, the Constitution, written in the language of the common law, is capable of sensible application unforeseen by its progenitors. Even the most faithful originalist can only see the past through the eyes of the present.

However, the revolutionary nature and adventurism of the Constitution seems missing from the debate over originalism and its application to current issues. Ideas from the Enlightenment and idealized versions of what good government means animated the effort, even if myopic about how those ideals contradicted slavery and other institutions left unaffected. Still, those who framed the Constitution and supported its instigation publicly sought two things: a government with the energy to prove Montesquieu wrong about the viability of an extended republic by enabling an experiment in self-government across vast territory and a regime capable of respecting rights grounded in ideals of liberty, justice, and equality. They imagined continuing change toward a “more perfect union,” never believing that their efforts had achieved that goal. And they imagined continuing debates on what they had wrought. As Madison stated during the debate on the Jay Treaty in the First Congress, the Framers were not of one mind about the words of the Constitution. Instead, “whatever veneration might be entertained for the body of men who formed our Constitution, the sense of that body could never be regarded as the oracular guide in expounding our Constitution.”

Indeed, the change of attitude he and others adopted about the authority of the federal government to charter a national bank reveals that understandings can change based on arguments and experience that demonstrate greater flexibility than some thought the words portended. Notably, on the issue of a national bank, respected constitutional framers divided on its legality from the start.

We see the same indeterminacy in the affirmative action cases before the Supreme Court tomorrow. Contradicting amicus briefs by historians explain why one side or the other should prevail. The opposing parties also invoke Brown v. Board of Education, claiming it supports them and not the other side. All of it confirms that advocacy is about argument – and no side has a monopoly on any mode of interpretation.

There is a lesson to be drawn. The appellate advocate must enter the courtroom clear-eyed, aware of the outsized role that history now plays in constitutional interpretation while cognizant of its shortcomings. The advocate must address that thirst for historical support while also understanding that other tools exist to reach a result faithful to the Constitution with an equal claim to grounding in history. Anyone who tells you only a single path exists to reach the right result misunderstands the interpretative exercise.

November 1, 2022 in Appellate Advocacy, Appellate Practice, Current Affairs, Federal Appeals Courts, Oral Argument, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Sunday, October 2, 2022

When to Make a Bold Argument

Tomorrow, the Supreme Court launches into a new term that promises to be momentous. A no longer hesitant majority of the Court flexed their muscle last term to launch new approaches to constitutional law and overturn or impair venerable precedent addressing abortion, gun, and religious rights. Seeing the indisputable writing on the wall, some advocates have taken a hefty swing for the rafters on a range of other issues – and it seems likely to pay off because the court’s current membership has signaled its willingness to entertain bold requests, rather than incremental change, despite potential damage to the public’s trust in impartial justice divorced from politics. When a court signals its interests that appear to align with political ideologies, advocates should listen and act accordingly.

 In anticipation of this term, advocates have listened. A cluster of cases have arrived at the Court seeking a pure version of Justice Harlan’s phrase, color-blindness, in civil rights and applying the concept to voting, affirmative action, Native American adoption, and non-discrimination in business dealings. While discussions about the upcoming term often begin and end with the potential of Moore v. Harper to skew our democracy so that parties in power could perpetuate their control regardless of what voters choose by invoking the “independent state legislature theory,” other earth-shaking cases populate the docket as well.

Today, I want to focus on another election law case that the Court will hear this week, which has received far less notice than it deserves and demonstrates the go-bold strategies being brought to the Court. In Merrill v. Milligan, the Court returns to the Voting Rights Act to determine whether Section 2 remains a viable basis for challenging racial gerrymandering. The plaintiffs challenged Alabama’s congressional redistricting plan, which, consistent with longstanding reapportionment decisions in the state, again drew a single majority-Black district out of the state’s seven seats, even though Blacks represent a quarter of the state’s population. The plaintiffs argue that by dispersing Black voters among the other districts the legislature diluted Black voting strength and diminished their opportunity to elect candidates who would represent their concerns and interests. Plaintiffs prevailed on that theory before a three-judge court.

The court below reached its decision by relying on the Supreme Court’s decision in Thornburg v. Gingles, which requires a vote-dilution claim to show a sufficiently large and compact minority group that is politically cohesive and who suffer an inability to elect the candidate of their choice because of non-minority bloc voting. After that determination, a totality-of-the-circumstances assessment then takes place to determine if the minority voters have a lesser opportunity to elect their preferred candidate than the majority voters.

Alabama, however, has asked the Court to change the test. A major part of its proposal asks that courts require plaintiffs to establish that racial discrimination provides the only explanation for the alleged racial gerrymander. In other words, Alabama’s test would authorize states to overcome the accusation by showing that some other purpose, such as party politics, provides at least part of the rationale for the districts drawn.

Without such a test, Alabama contends that Section 2 is unconstitutional because it requires race to be considered. With similar issues raised in affirmative action and Native American adoption cases this term, the Court’s interest in reconfiguring civil rights law seems apparent. Section 5 of the Voting Rights Act, requiring preclearance of certain election law changes, was neutralized in 2013 by Shelby County v. Holder. Similar damage was previously done to Section 2 in Brnovich v. Democratic National Committee last year by reading the statutory provision narrowly.

If Alabama’s argument prevails, Merrill may mark the demise of the Voting Rights Act and vindicate the very bold approach Alabama has taken to defending its gerrymandering with a clear eye on signals sent by members of the Court. Margo Channing’s observation in All About Eve seems to sum up anticipation of this Supreme Court term: “Fasten your seatbelts; it's going to be a bumpy [and long] night.”

October 2, 2022 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Saturday, September 24, 2022

In Praise of the Second Edition of The Indigo Book: A Manual of Legal Citation

Most appellate practitioners understand the necessary evil of citations, and some of us even enjoy parts of The Bluebook.  On the other hand, I have concerns about Bluebook cost, frequent Bluebook revisions seemingly for the sake of revising, and allegations of law review happy hours funded by Bluebook sales.  See, e.g., Richard A. Posner, The Bluebook Blues, 120 Yale L. J. 850, 851 (2011); Bryan Garner, The Bluebook's 20th Edition Prompts Many Musings From Bryan Garner, ABA Journal (Aug. 1 2015); https://taxprof.typepad.com/taxprof_blog/2022/06/harvard-led-citation-cartel-rakes-in-millions-from-bluebook-manual-monopoly-masks-profits.html.

As I’ve mentioned in the past, California, Florida, and some other states have their own style manuals and do not follow The Bluebook.  Additional states have their own gloss on key Bluebook rules or allow use of other manuals.  Rule 28 of the Alabama Rules of Appellate Procedure, for example, tells counsel to use The Association of Legal Writing Directors Citation Manual: A Professional System of Citation (the ALWD Guide), The Bluebook, or otherwise follow the citation style of the Alabama Supreme Court. 

Happily, those of us in Bluebook jurisdictions have a wonderful alternative, now in its second edition.  The completely free, open source The Indigo Book, which one commentator described as “compatible with The Bluebook [but including] easier-to-use guides,” now has a second edition.  See generally Wendy S. Loquasto, Legal Citation:  Which Guide Should You Use and What Is the Difference?, 91 Fla. Bar J. 39, 42 (2017). 

Here is the final second edition of The Indigo Book, which parallels the twenty-first edition of The Bluebook:  https://indigobook.github.io/versions/indigobook-2.0.html.   Many thanks to Prof. Jennifer Romig of Emory University School of Law, and others, for this resource.  In sharing the second edition, Prof. Romig explained:  “The Indigo Book is a free, open-access citation manual. It is consistent with well-accepted citation practices.”  The new version also “includes enhanced and expanded state-by-state "Local Notes" in Table T3 at the back,” along with “commentary and critique” in “Indigo Inkling” boxes.  Prof. Romig thanked many in our legal writing community who helped her create this wonderful resource, especially David Ziff, and noted “Alexa Chew's work is cited twice.” 

The original Indigo Book was a light-hearted, yet serious resource, which raised important questions about monopoly, ethics, and bias.  Prof. Romig promised, “in general the [second edition] attempts to engage with ongoing conversations about citation ethics and practice, while staying true to its main function as a rule-based manual with examples.”  In my opinion, the second edition of The Indigo Book succeeds in these missions, and I urge you to share this resource with students and practitioners.  

September 24, 2022 in Appellate Advocacy, Appellate Practice, Books, Law School, Legal Ethics, Legal Profession, Legal Writing, State Appeals Courts | Permalink | Comments (0)

Sunday, August 21, 2022

Providing Fresh Perspective at Oral Argument

Common wisdom holds that an advocate can lose a case at oral argument, but rarely prevails at the argument. By providing a wrong or weaker answer than expected, an otherwise allied judge might rethink support of a position. However, it is rare that an advocate can provide an unexpected basis to win over a judge committed to the other side. Even as he claimed that oral argument makes a difference, Chief Justice William H. Rehnquist admitted that only in a “significant minority of cases” had he changed his mind after hearing argument.[1] A recent personal experience in oral argument has made me think about the difficulty of breaking through to judges whose minds were made up before argument.

In this instance, in a trial court hearing a motion to dismiss, one question from the judge indicated that he had misunderstood the pleadings and our brief. He explained that the scenario contemplated by this declaratory judgment action would never come up in real life. Even though I responded with an entirely different fact pattern consistent with the pleadings and past experience, it had no impact. The argument ended with the judge picking up a sheet of paper and reading his pre-typed ruling from the bench. Whatever doubt I may have planted with my unanticipated response evaporated as the preconceived result, memorialized on paper without regard to the oral presentations, prevailed.

I’m convinced that nothing I might have said at oral argument would have made a difference. The “crutch” of a written decision prepared in advance was too much to overcome. Still, it demonstrated the importance of briefing to make oral argument worthwhile. Anticipating the judge’s confusion about the practicalities of our position with a more pointed explanation would have provided at least a fighting chance to change the judge’s mind when it was still open to how the challenged statute and the plaintiffs’ dilemma operated in real life. However much I thought our brief made that plain, it was only as I prepared for oral argument that I realized a better way of framing the factual predicate to my legal argument – and that’s what I explained before the judge.

On the other hand, another recent case provided greater confidence that oral argument can have influence. Lengthy majority and dissenting opinions struggled with crediting or rebutting a point made during the argument. What was said had an obvious impact and forced judges of vastly different views to contend with it.

Judges may have strong reactions in some cases or even in all cases to their understanding of what the case is about, making the job of dissuading them from a view that works against your position difficult, if not impossible. Nonetheless, an advocate should always assume that judges have sufficient impartiality so that oral argument can help shape the opinion, if not persuade, even while crafting a brief that lays out the argument clearly. That is one reason I like a hot bench. Rather than give an oration, I am more interested in arguing about what the judge indicates is important – and perhaps providing a new insight that wins the day.

 

[1] William H. Rehnquist, The Supreme Court 243 (2001).

August 21, 2022 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Oral Argument, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Sunday, August 7, 2022

Agency Deference and Statutory Interpretation

Courts often defer to administrative agencies on matters that require the agency’s specialized expertise. Yet even the embattled Chevron deference doctrine[1] puts the brakes on judicial deference sensibly when Congress has spoken on the matter. After all, the statute’s meaning must reflect legislative intent.[2]

Still, in defending the constitutionality of a statute, States will ask courts to read the statute more narrowly than its language supports, to avoid invalidation as applied to common situations. The Supreme Court has supplied advocates with precedent that should overcome these attempts to recast legislative language, particularly where free speech concerns predominate.

For example, in consolidated lawsuits in Susan B. Anthony List v. Driehaus,[3] two organizations brought facial and as-applied challenges to an Ohio statute that prohibited certain false statements made during a political campaign. The plaintiffs alleged that they intended to make statements that could be deemed false and then “face[] the prospect of its speech and associational rights again being chilled and burdened,” as it had when a complaint about their speech was previously filed.[4]

In holding that pre-enforcement standing existed, the Court found Babbitt v. Farm Workers[5] instructive. There, the plaintiffs challenged a law that proscribed “dishonest, untruthful, and deceptive publicity.”[6] The plaintiffs alleged that they feared prosecution because erroneous statements are “inevitable in free debate,” that they had engaged in past consumer publicity campaigns and any future campaign would be scrutinized for truthfulness, and that they had “an intention to continue” campaigns like the ones they had mounted in the past.[7] Notably, they did not claim that past campaigns were dishonest or deceptive or that future campaigns would be, or that any official action against them was likely or imminent. Still, Babbitt concluded that the “plaintiffs’ fear of prosecution was not ‘imaginary or wholly speculative’” given the statute’s language and allowed the case to proceed.[8]

Two other cases also informed the Susan B. Anthony Court’s analysis. Virginia v. Am. Booksellers Ass’n Inc.,[9] found a credible threat of enforcement to a law that criminalized the commercial display of printed material deemed harmful to juveniles. At trial, the plaintiff booksellers named “16 books they believed were covered by the statute” and how compliance to avoid prosecution would be costly.[10] In defense, Virginia contended that the statute was “much narrower than plaintiffs allege” and even conceded that the law would be unconstitutional “if the statute is read as plaintiffs contend.”[11] Nonetheless, the Court found no reason to believe the “newly enacted law will not be enforced” and that one plain harm is “self-censorship; a harm that can be realized even without an actual prosecution.”[12]

In the end, a reasonable reading of a statute based on its language and the lack of discretion an agency (or a court) has to re-write a statute, a purely legislative act, requires the appellate advocate to push back on agency attempts to recast plain language into a more defensible posture.

 

[1]  Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 468 U.S. 837 (1984).

[2]  Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980).

[3]  573 U.S. 149 (2014).

[4]  Id. at 155.

[5]  442 U.S. 289 (1979).

[6]  Id. at 302.

[7]  Id. at 301.

[8]  Susan B. Anthony, 573 U.S. at 160 (quoting Babbitt, 442 U.S. at 302).

[9]  484 U.S. 383 (1988).

[10] Susan B. Anthony, 573 U.S. at 160 (describing American Booksellers)

[11] Am. Booksellers, 484 U.S. at 393-94.

[12] Id. at 393.

August 7, 2022 in Appellate Advocacy, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (2)

Sunday, July 24, 2022

Tackling a New Area of Law on Appeal Without Fear

Subject-matter specialists might seem to have an advantage over a generalist on appeal. They would seem to have unmatched familiarity with the underlying statutes and caselaw. In specialty courts, such as the Federal Circuit, focused advocates may stand on a firmer footing than a newcomer in the field.

In most courts, however, the judges are generalists. They hear appeals on a wide range of subjects and cannot keep up with developments in every area of law. For them, the complexities and nuances that a specialist brings to the table may be less important than an experienced lawyer’s ability to boil the complicated down to familiar principles. Seventh Circuit Judge Diane Wood has noted that the “need to explain even the most complex area to a generalist judge . . . forces the bar to demystify legal doctrine and to make the law comprehensible.”[i] Make the unfamiliar familiar by utilizing language a judge will understand.

Moreover, the specialist may rely on memory of a frequently cited case that, over time, becomes little more than code words that only the cognoscenti appreciate. The generalist, however, is certain to find the case, read it freshly, and expose the imprecision while finding legal analogies that point in a different direction than the specialist argued.

A specialist’s command of policy arguments often relies upon the gloss of repetitive usage, twists to conform to his clients’ preferred results, and the dullness of repeated use, a generalist can look at legislative history and intent with fresh eyes that can be revelatory to a judge. Moreover, a generalist will draw from other areas of law enabling the judge to appreciate analogies that the specialist would never consider.

In some ways, the difference is comparable to the difference between an appellate lawyer and a trial lawyer. Trial counsel knows the record from having lived though the case and having pursued key objectives that yielded the desired result. The appellate lawyer looks at the case more dispassionately and often finds that the formula for victory is either an issue quite different from the one that may have dominated trial or a route that may even have been unavailable at an earlier stage.

The bottom line is that tackling a new area of law should not generate fear that the specialist opponent holds all the cards. The well-prepared appellate lawyer should appreciate the advantages that a generalist can bring to the table.

 

[i] Diane Wood, Generalist Judges in a Specialist World, 50 SMU L. Rev 1755, 1767 (1997).

July 24, 2022 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Writing, Oral Argument, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Saturday, June 18, 2022

Rejecting Canons of Construction and Following Legislative Intent to Define a Bee As a “Fish”

By now, you've probably heard that a California appellate court deemed bees "fish."   In fact, a truth-checking site, Verify.com, even posted a verification of the claim a court ruled a bee a fish as “true.”   See https://www.verifythis.com/article/news/verify/courts/bees-are-fish-says-california-court-for-conservation-law/536-ae3e9921-2b54-432e-8c51-66fc3e23eca4.  However unusual the idea of a bee as a fish might seem, the opinion from the Third District California Court of Appeal contains some very careful analysis and discussion of long established canons of statutory construction that will be helpful to appellate practitioners.  While the court in Almond Alliance of California v. Fish and Game Commission, __ Cal. App. 4th __ (C093542 May 21, 2022), definitely finessed some points and seemed to reject those canons not helpful to its conclusion, it also gave us an excellent modern discussion of what some canons of construction mean and how they rank against evidence of legislative intent.  

The Almond Alliance dispute involved a new California Fish and Game Commission designation of four types of bumble bees as protected "fish" under California's Endangered Species Act, Fish & G. Code § 2050 et seq.  The Act "directs the Fish and Game Commission (Commission) to 'establish a list of endangered species and a list of threatened species.'"  Almond Alliance, slip op. at 2. 

As the court explained, "The issue presented here is whether the bumble bee, a terrestrial invertebrate, falls within the definition of fish, as that term is used in the definitions of endangered species in section 2062, threatened species in section 2067, and candidate species . . . in section 2068 of the Act."  Id.  Slate.com noted:  because section 45 of the California Endangered Species Act “defines a fish as a ‘wild fish, mollusk, crustacean, invertebrate, amphibian, or part, spawn, or ovum of any of those animals,’” the State and environmental intervenors “argued that the inclusion of the word invertebrate technically allows the act to cover all invertebrates, not just aquatic ones.”  Emma Wallenbrock, The Completely Logical Reason Why a Bee Can Be Considered a Fish Now (June 04, 2022) https://slate.com/technology/2022/06/california-endangered-species-bees-fish.html.

The Almond Alliance court first concluded “the Commission has the authority to list an invertebrate as an endangered or threatened species.”  Next, the court “consider[ed] whether the Commission’s authority is limited to listing only aquatic invertebrates [and] conclude[d] the answer is, “no.”  Slip op. at 2. 

At the heart of the court’s decision is the use of legislative history to define “fish” and “invertebrate.”  The court begins this analysis by explaining:

Although the term fish is colloquially and commonly understood to refer to aquatic species, the term of art employed by the Legislature in the definition of fish in section 45 is not so limited.  We acknowledge the scope of the definition is ambiguous but also recognize we are not interpreting the definition on a blank slate. The legislative history supports the liberal interpretation of the Act (the lens through which we are required to construe the Act) that the Commission may list any invertebrate as an endangered or threatened.  

Id. at 2-3. 

Over the next 32 pages, the Almond Alliance court supports this conclusion by using a small number of past appellate cases, rejecting some canons of construction, and analyzing a significant amount of legislative language and history.  I strongly recommend reading the whole opinion, but I will summarize a few of the canons of construction the court rejected here.

First, the court reminded the parties of the general, underlying rule that courts must apply statutes as written, and “[i]f there is no ambiguity, we presume the lawmakers meant what they said, and we apply the term or phrase in accordance with that meaning.“   Almond Alliance, slip op. at 19.  According to the court, “[i]f, however, the statutory terms are ambiguous, then we may resort to extrinsic sources, including the ostensible objects to be achieved and the legislative history.”  Id.  Thus, “’[o]ur fundamental task . . . is to ascertain the intent of the lawmakers so as to effectuate the purpose of the statute.’” Id., quoting California Forestry Assn. v. California Fish & Game Commission, 156 Cal. App. 4th 1535, 1544-1545 (2007).   “Where . . . the Legislature has provided a technical definition of a word, we construe the term of art in accordance with the technical meaning,” and “we are tasked with liberally construing the Act to effectuate its remedial purpose.” Id. at 19-20.

Second, the court rejected petitioners’ rule against surplusage canon argument that applying the section 45 definition of “fish” as including invertebrates here would write the listing of “amphibians” out of other sections.   The court explained the “rle against surplusage . . . provides courts should “avoid, if possible, interpretations that render a part of a statute surplusage.”  Id. at 20.  Interestingly, the court recognized a “textual tension with the Legislature’s inclusion of amphibian in [some] sections,” but noted:  “the rule against surplusage is not, however, an infallible canon. The canon is merely a “guide for ascertaining legislative intent, it is not a command.”  Id. 

Next, the Almond Alliance court rejected “petitioners’ argument that the noscitur a sociis canon should be applied to read ‘a native species or subspecies of a bird, mammal, fish, amphibian, reptile, or plant’ in sections 2062, 2067, and 2068, as encompassing only vertebrate animals.”  Id. at 21.  The court dismissed this idea because, “[p]lainly, section 45 expressly includes invertebrates within the definition of fish.”  Id.

Third, after a lengthy discussion legislative history, the Almond Alliance court considered “petitioners’ suggested application of the noscitur a sociis canon,” which “means ‘a word takes meaning from the company it keeps.’”  Id. at 33.  Under this rule, a “word of uncertain meaning may be known from its associates and its meaning ‘enlarged or restrained by reference to the object of the whole clause in which it is used.’” Id.  “In accordance with this principle of construction, a court will adopt a restrictive meaning of a listed item if acceptance of a more expansive meaning would make other items in the list unnecessary or redundant, or would otherwise make the item markedly dissimilar to the other items in the list.” Id

The Almond Alliance court “decline[d] to apply the statutory interpretation canon here because:   

If we were to apply the noscitur a sociis canon to the term invertebrate in section 45 to limit and restrict the term to aquatic species, as petitioners suggest, we would have to apply that limitation to all items in the list.  In other words, we would have to conclude the Commission may list only aquatic mollusks, crustaceans, and amphibians as well. Such a conclusion is directly at odds with the Legislature’s approval of the Commission’s listing of a terrestrial mollusk [the bristle snail, a land invertebrate  previously protected] and invertebrate as a threatened species. Furthermore, limiting the term to aquatic would require a restrictive rather than liberal interpretation of the Act, which is also directly at odds with our duty to liberally construe the remedial statutes contained therein.

Id. at 33-34.

Based on its review of legislative history and rejection of petitioners’ arguments, the court concluded “the Commission may list any invertebrate,” including a terrestrial invertebrate, as an endangered or threatened species under 2062 and 2067.”  Therefore, the Almond Alliance court ruled the Commission could designate a bee as a “fish” for purposes of the Endangered Species Act.  Id. at 35.  As Emma Wallenbrock noted for Slate:  “It’s unclear whether this is a permanent victory, as the agricultural groups may decide to take the case to the California Supreme Court,” but the ruling could be “good news for the bees—and good news for our stomachs, too” because the “Center for Food Safety, states that “one out of every three bites of food we eat [comes] from a crop pollinated by bees.”  Wallenbrock, Why a Bee Can Be Considered a Fish Now, https://slate.com/technology/2022/06/california-endangered-species-bees-fish.html.  Even if this possible “good news” falls on review, the case certainly provides an interesting discussion of canons of construction.

June 18, 2022 in Appellate Advocacy, Appellate Justice, Appellate Practice, Appellate Procedure, Current Affairs, Legal Profession, Legal Writing, State Appeals Courts | Permalink | Comments (1)

Friday, June 3, 2022

Appellate Advocacy Blog Weekly Roundup Friday, June 3

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.

Supreme Court News and Opinions:

This was a relatively quiet work at the Supreme Court, as the Court did not issue any opinions this week.  Nonetheless, the Court faces a substantial task in completing its work as the end of the term approaches.   As of now, the Court has more than 30 decisions still outstanding in argued cases.  The Roberts Court has traditionally gotten all of its cases out by the end of June.

On Tuesday, the Court issued a brief order in which it blocked a controversial Texas law that sought to bar large social media platforms from removing posts based on the viewpoints expressed.  Chief Justice Roberts and Justices Kavanaugh, Barrett, Breyer, and Sotomayor joined together to vote in favor of putting the law on hold, while Justices Thomas, Alito, Gorsuch, and Kagan dissented.

Also on Tuesday, the Court issued a brief order in which it rejected a request from three Texas lawmakers to delay giving depositions in lawsuits challenging redistricting plans in the state.  No dissents were noted.

State Appellate Court Opinions and News:

On Wednesday, the presiding justice of the California appeals court in Sacramento retired as part of punishment announced for his delays in resolving 200 cases over a decade.  The Commission on Judicial Reform in the state said that the Justice "engaged in a pattern of delay in deciding a significant number of appellate cases over a lengthy period."

Appellate Jobs:

The Washington State Attorney General's Office is hiring an Assistant Attorney General for its Torts Appellate Program.  The division defends state agencies, officials, and employees when sued in tort and in some civil rights matters.

June 3, 2022 in Appellate Advocacy, Appellate Justice, Appellate Practice, Federal Appeals Courts, Legal Ethics, Legal Writing, State Appeals Courts, United States Supreme Court | Permalink | Comments (1)

Monday, May 16, 2022

Do as I do....

Not too long ago I was driving in the car with both junior associates. I was talking to my spouse on the phone (safely via hands free), and in the course of the conversation I used the "s" word--"stupid." An adorable little 4 year old voice called out from the back seat, "Mommy, we don't say 'stupid.'" To which I said, "you are right, I am so sorry." 

This little episode, which has sadly happened more than once, got me thinking about the advice that judges give attorneys. Judges are often very quick to give excellent advice to attorneys, but then fail to follow their own advice in writing opinions. Now, I know that opinions are different from briefs, but despite these differences, I think that there are some pieces of their own advice that judges should follow.

Advice #1: Be Brief

Just last week I read a story that included advice from Chief Justice John Roberts on keeping briefs brief. When I teach appellate advocacy, I tell my students that the one thing that ALL judges agree on is briefs are too long. But what about judicial opinions? Oh my! I decided to do an informal survey of the most recent opinions posted on appellate court websites. Here is what I have for published or precedential opinions:

While this endeavor is highly unscientific (I am sure the empiricists are cringing), my purpose was to get just a random snapshot. This snapshot produced an average of 31.7 pages. Half of the opinions were over 20 pages. Another snapshot would have different results--easily higher, perhaps lower.

What is the problem with long opinions? Well, Luke Burton, a career clerk on the Eighth Circuit has discussed them here. The problems he lists include increased (1) litigation costs, (2) misinterpretation of opinions, and (3) difficulty for the parties in understanding the decision. While all of these are real problems, I think that two and three should especially catch the attention of judges, which leads me to my second piece of advice that isn't always followed.

Advice #2: Write for your audience.

Judges like to remind brief writers to write for judges and their clerks, not the client and not the partner. Likewise, judges need to remember their audience--the parties. Sure, judicial opinions, especially at the highest court in a jurisdiction, can introduce rules that inform and impact others, but at its core, a judicial opinion seeks to resolve a dispute between two (or more) parties. And while these parties may be sophisticated, they might not be lawyers. Therefore, judicial opinions should be written in a clear, concise manner that is largely devoid of legalese. 

Have you ever visited a doctor and had that person explain your ailment in medical terms that you could not understand? I have, and it is really frustrating. Doctors and lawyers deal with some of the most private, trying, and important matters in a person's life. Just like people should be able to understand their diagnosis from a doctor, parties should be able to read judicial decisions and understand the outcome and reasoning.

Advice #3: Don't hide the ball.

Based off of advice in Winning on Appeal, I always tell my students that their appellate briefs should not be like the latest show they are binge watching on Netflix.  It isn't a murder mystery where we wonder whodunnit or a Regency romance where we ponder who the protagonist will marry. In a brief the error being appealed, the proper legal standard, and the desired result should be perfectly clear and upfront in the brief. Some judges encourage advocates to use a well-written introduction to present these issues. 

Likewise, judges can and should use a well-written introduction to set out the key issues being resolved and the outcome. I remember when NFIB v. Sebelius was decided. When one starts reading that decision the result is not immediately apparent. It takes some deep reading (and nose counting) to figure out what is going on. And while that might be an extreme example, a good trial or appellate opinion sets out clearly in the beginning the issues in the case and the result before diving into the facts and reasoning.

Advice #4: About those footnotes.

Last, but not least, judges need to follow their own advice about footnotes. Just like textual footnotes detract from briefs, they also detract from opinions and contribute to the three problems identified above. Incidentally, I am also team #nocitationfootnotes, but I know that reasonable minds disagree on that point.

I get that many judges, especially trial judges, are working on huge caseload and tight deadlines. I also get that when attorneys don't follow this advice it makes it even harder for judges to do their jobs. But, perhaps modeling this advice will help slowly move the profession into following it as well.

May 16, 2022 in Appellate Advocacy, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (3)

Sunday, May 1, 2022

The Art of Rebuttal

            Rebuttal provides an advocate with an opportunity to point out otherwise undiscussed weaknesses in an opponent’s argument, as well as to emphasize the superiority of the evidence, precedents, and reasoning that supports your client. Five points fundamental points should guide rebuttal:

  1. Answer your opponent’s best argument. During your opponent’s argument, you can evaluate your opponent’s framing of the argument and the court’s reaction to them. Many advocates go after the obvious weakness in the argument the court just heard. Doing so can be effective, but, if the argument is available, demonstrating why your opponent’s best argument should not prevail can powerfully move the court to your position. Perhaps accepting that argument creates practical problems easily avoided or raises unnecessary constitutional issues that the court should want to avoid. Perhaps it would create precedent that throws into question another line of related precedent that cannot coexist together. Simplicity, rather than new complexities, often provide a court with a path that allows it to resolve your case favorably without creating a host of new problems for those who come after you.
  2. Answer questions posed to your opponent. A judge’s questions are a window into the jurist’s mind, letting you know what concerns might animate the decision. Whether it is a seemingly softball question or a penetrating inquiry, a satisfactory answer that leads the judge in your direction can overcome your opponent’s response. If your answer provides a better path to decision, it can create confidence in the court that the result you seek is the proper one. In one argument last year, a judge known to favor that approach asked my opponent whether he was aware of an original-intent scholarship that supported his position. Using only a few seconds of my rebuttal time, I reminded the judge that he did not receive an answer to that question because academic writings on that point uniformly favored my position, citing two scholars.
  3. Don’t waste time rebutting a point that a judge already accomplished for you. There is no more powerful rebuttal to an opponent’s argument than one that comes from the court itself. Unless questioned about it, there is no reason to reiterate that point and subtract from its impact. In a case I had before the U.S. Supreme Court, my opponent made a facially useful point in his brief. In my reply brief, I explained why it lacked substance, adding a footnote that the record reflected that the evidence took away the foundation for that argument. During oral argument, my opponent, early on, made the same point again, ignoring my rebuttal. Justice Ginsburg, however, did not ignore it. She interrupted to state that the evidence deprived him of that argument. He had no response and, despite substantial experience in that court, never recovered from that loss of credibility. When he first expressed the argument, I made an immediate note to rebut it. When Justice Ginsburg made my point, I crossed the note out. She had settled that issue in my favor. Have a one-sentence conclusory pitch. As time runs down, too many advocates end with a perfunctory request for affirmance or reversal of the court below. Instead, a one-sentence conclusory pitch that articulates exactly the ruling you hope the court will adopt and write into the opinion, providing the judges with a strong, clear basis for its decision. That 30-second or less conclusion will leave an impression much more memorable than any generic statement.
  1. Don’t feel the need to use all of – or any of – your time. Too many advocates believe the opportunity for face time before the judges is too valuable to give up. Although they may have nothing new to say, they remain at the podium, reemphasizing something previously articulated. And, often, the advocate endangers the argument by allowing the court to pose new questions that might not have troubled them if the argument had ended. In one case I argued, as my opponent, thoroughly eviscerated by the court’s questions, finished, I realized I had not written a single note to myself about something I needed to answer. I rose and said that, unless the court had any questions, I waive rebuttal. The tactic proved correct, as I received a unanimous decision months later. Although I am fond of certain rebuttals that made astute observations that showed up in the subsequent opinion, waiving that response was unquestionably the best rebuttal I have made in more than four decades of practice.

May 1, 2022 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Oral Argument, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Sunday, April 3, 2022

The Logic of a Courtroom, the Skewing Influence of Politics

As appellate advocates, we honor the rule of law because it depends on logic and reason. When we muster enough support in our favor, we expect a good result, even if we are sometimes disappointed in that expectation.

The rule of law also means that, regardless of an opponent’s money, clout, and influence, a level playing field exists so that the strength of one's arguments made should prevail. At least, that is the theory. And, in most instances, the theory holds, evidenced by the frequency of 9-0 decisions in the Supreme Court, despite vastly different judicial philosophies and ideological divisions among the justices.

Part of the reason the theory holds is that judges are supposed to park their politics at the courthouse door and not inside the courtroom. In one famous example of doing so, Salmon Chase was President Abraham Lincoln’s treasury secretary and had been a driving force behind the Legal Tender Act, which allowed paper money to replace silver or gold as currency and finance the Civil War. When an opening for chief justice came up, one reason Lincoln tapped Chase (besides eliminating a potential presidential rival) was an assumption that he would “sustain what has been done in regard to emancipation and the legal tenders.” It turned out to be a miscalculation. Chase led a slim majority in declaring the act unconstitutional. Some have explained the turnaround as Chase doing his best to serve his client as treasury secretary to draft a valid act and later deciding that his best was still not good enough.

We enjoy stories about judges putting the rule of law above politics, but we also live in an era where the lines between law and politics seem to be dissolving. The line was never as bold and clear as our learning and imagination suggested. Yet, today, the marriage of politics and law appears more evident, particularly in the appellate courts.   

It does not just come with threats of impeachment by disappointed legislators who resent a court’s decision striking down their handiwork.[1] It also comes from the interjection of social and political debates in opinions unrelated to those debates, as well as the politicization of judicial philosophies. Many senators who have announced that they plan to vote in opposition to Supreme Court nominee Ketanji Brown Jackson have explained their rationale for doing so because she would not commit to originalism. Although she testified that she uses originalism, that was not enough. Still, few of those senators who have insisted on an unalloyed commitment to originalism could explain how it works as an interpretive tool behind a simplistic but uninforming definition. They probably hold the false belief that originalism always leads to a single result.

One of the most outspoken originalists on the Court was Justice Antonin Scalia, who liked to describe himself as a “fainthearted originalist.” He held no brief where originalism would lead to an absurd result. He also fashioned his originalism, at times, to fit his preexisting views as in D.C. v. Heller.[2] The fractured version of history he recited to support his conclusion was assailed by two conservative jurists for its selective use of history.[3] Other times his use of the tool led him to a conclusion that the Senate’s originalism fans would probably oppose, such as in the Flag-Burning Cases,[4] where he voted to grant First Amendment protection to that act of protest.

Originalism is no panacea against imbuing interpretation with personal predilections, but advocates must be prepared to provide the necessary fodder for those who follow that approach. Pointedly, it does not always inform the issue. Justice Samuel Alito once teased Scalia for his sometimes-rigid adherence to originalism during oral argument in Brown v. Ent. Merchants Ass’n,[5] where the Court held a California statute that restricted the sale or rental of violent video games did not comport with the First Amendment. After Scalia had posed a question to the advocate, who hesitated in responding, Alito mockingly explained the question: “What Justice Scalia is asking is what did James Madison think about video games?”

Perhaps appellate advocates have always contended with politics in preparing briefs and oral arguments, but the impact of it today seems more acute than at any time in my experience. And the nature of the politics intruding on judicial decision-making also seems more extreme.

 

[1] See, e.g., Haley BeMiller, Jessie Balmert, and Laura A. Bischoff, “Ohio Republicans discussing impeachment of Chief Justice Maureen O'Connor after map ruling,” Columbus Dispatch, Mar. 18, 2022, https://www.dispatch.com/story/news/2022/03/18/ohio-republicans-want-impeach-maureen-oconnor-over-redistricting/7088996001/.

[2] 554 U.S. 570 (2008).

[3] See J. Harvie Wilkinson III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 Va. L. Rev. 253, 254 (2009); Richard A. Posner, “The Incoherence of Antonin Scalia,” New Republic (Aug. 24, 2012) (book review), http://www.newrepublic.com/article/magazine/books-and-arts/106441/scalia-garner-reading-the-law-textual-originalism.

[4] Texas v. Johnson, 491 U.S. 397 (1989), and United States v. Eichman, 496 U.S. 310 (1990).

[5] 564 U.S. 786 (2011).

April 3, 2022 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Oral Argument, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Friday, April 1, 2022

Appellate Advocacy Blog Weekly Roundup Friday, April 1, 2022

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

  • In a shocking and unexpected move, a unanimous Supreme Court overturned Marbury v. Madison this afternoon stating that the principle of judicial review was, in fact, unconstitutional.  The sua sponte ruling sent ripples through the legal community with many wondering how the decision may retroactively affect what was consider controlling Supreme Court precedent. See the opinion here.  And reports from The New York Times, CNN, and Fox.

  • The Supreme Court heard argument this week in a case that addresses whether companies can use arbitrations clauses that forbid class claims. At issue is a California labor law that allows attorneys to sue on behalf of groups of workers even where the workers agreed to arbitrate their claims.  The Court posted transcripts and audio of the argument. See reports from Courthouse News Service and The LA Times.

  • This week, the Supreme Court agreed to hear two interesting cases:

    • A case involving the humane treatment of pigs that will hear a challenge to a California law that requires adequate space for breeding pigs to turn around. The challenge argues that the law is an unfair burden on out-of-state farmers. See discussion of the case from The New York Times and The Washington Post.
    • A copyright battle over Andy Warhol’s Prince image. The question is whether Warhol violated copyright of the photographer Lynn Goldsmith when Warhol created his Prince images based on the Goldsmith’s photo. The case addresses the scope of fair use as a defense to copyright infringement. See discussion of the case from NBC News, USA Today, and The New York Times.

State Court Opinions and News

The Louisiana Supreme Court has ruled that Black Lives Matter leader DeRay McKesson could be liable for injuries an officer suffered during a 2016 protest. The court ruled that people who participate in crimes by others can be held liable and that emergency workers injured while on duty are not automatically barred from suing. See ruling and reports from ABA Journal and The Advocate,

April 1, 2022 in Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (1)

Tuesday, March 22, 2022

Why Standards of Review Matter

    When the Supreme Court hear oral arguments yesterday in Berger v. North Carolina State Conference of the NAACP, the discussion seemingly centered around dry procedural minutiae and one of the banes of legal writing courses—the appropriate standard of review to answer the question. But the case demonstrates both the importance of those standards of review, and the way that procedural nuance can mask surprisingly broad political and policy subtexts.

    The case concerns North Carolina’s new voter ID law, which the North Carolina NAACP has challenged as unconstitutional. The North Carolina attorney general, a Democrat, is defending the law, but Republican state legislators in North Carolina seek to join the lawsuit to defend the statute’s constitutionality. The legislators argue that the attorney general was not sufficiently representing their interests because he was primarily seeking clarification on which voting law to enforce—without forcefully defending the constitutionality of the new voter ID law.

    Despite the seemingly mundane procedural posture of the case, the political subtext and repercussions are broad. Republicans want to see the voter ID enforced immediately, while Democrats did not support it from the outset. North Carolina’s Democratic governor initially vetoed the voter ID law, and Republican legislators passed it over his veto. Some of those same Republican legislators, now dubious that a Democratic attorney general truly seeks to uphold the voter ID law, believe they must intervene to preserve their interest in asserting that the law is constitutional.

    In a twist that should draw the attention of appellate attorneys and law students, the case may turn on the deference owed to the lower court, and thus the standard of review that ought to apply. Because the lower court ruled against the Republican legislator’s effort to intervene, the Supreme Court must decide whether to follow that lower court decision. Republican legislators argue that the Court should apply de novo review, allowing the Supreme Court to consider the legal issue afresh without any deference to the lower court’s ruling. They claim that the Supreme Court should not simply review the lower court’s ruling for an abuse of discretion—meaning that the lower court’s decision was so arbitrary and capricious as to hardly be a legal ruling at all—because their decision refusing to allow intervention was purely legal, not the kind of fact-driven decision best left to lower courts. But opponents respond that the Republican legislatures seek a ruling of whether their interests are adequately represented by the state attorney general—an inherently fact-specific inquiry to be made by lower courts with a closer relationship to the parties and a better view of the facts involved.

    A debate over standards of review may appear immaterial. Judges, after all, might reach whatever ruling they prefer irrespective of that standard, either by manipulating the standard they apply or by simply applying the correct standard more or less rigorously. But this case illustrates the ways in which the standard of review, when contested, can have a meaningful impact on the outcome of litigation. In many ways, it drove the direction of oral arguments, where Justices wondered how strong an interest the Republican legislators really had and whether other groups of legislators might also want to join the suit. Those questions, though framed as a legal inquiry, also contain a clear factual subtext; they require close examination of the details of every case where such intervention is a possibility. How the Court frames those questions—as either legal inquiries subject to de novo review of factual ones subject to review for an abuse of discretion—seems likely to control the outcome. The case thus provides a ready example of standards of review playing a crucial role in a case with broad political and policy implications.

March 22, 2022 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Profession, Legal Writing, Moot Court, Oral Argument, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Friday, March 18, 2022

Appellate Advocacy Blog Weekly Roundup Friday, March 18, 2022

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

  • The Supreme Court denied two emergency petitions and allowed to stand court-drawn congressional voting maps in North Carolina and Pennsylvania. In both states, republican gerrymandered maps had been challenged by democrats. However, both the concurrence and the dissent in the North Carolina case indicate that at least four justices are interested in hearing the “exceptionally important and recurring question of constitutional law, namely, the extent of a state court’s authority to reject rules adopted by a state legislature for use in conducting federal elections.”  See the North Carolina order and a report from The New York Times.

  • The Supreme Court issued a news release concerning the March session. Although the Court will continue to hear arguments in the courtroom, “[o]ut of concern for the health and safety of the public and Supreme Court employees, the Courtroom session will not be open to the public.” Live audio feed will continue to be available on the Court website.

  • SCOTUSblog’s Amy Howe provided a list of the March 2022 session arguments with descriptions of the cases.  Find it here.

Appellate Court Opinions and News

The Fourth Circuit approved a permanent injunction that prevents South Carolina’s removing Planned Parenthood from the list of approved Medicaid providers. The panel found that allowing “the State to disqualify Planned Parenthood would nullify Congress’s manifest intent to provide our less fortunate citizens the opportunity to select a medical provider of their choice, an opportunity that the most fortunate routinely enjoy.” See the order and reports from Bloomberg Law, Reuters, and Courthouse News.

State Court Opinions and News

The Texas Supreme Court has ruled that state regulators cannot enforce the State’s near-total ban on abortions and thus cannot be sued to challenge the law.  See the ruling and reports from Reuters, The New York Times, and Bloomberg News.

March 18, 2022 in Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Tuesday, March 8, 2022

Lead with Your Strength

We all know that, with some exceptions,[1] we should lead with our strongest argument. But, it’s not enough to lead with our strongest argument—we should lead with our strongest positive argument. By that, I mean the strongest argument for why we should win, not our strongest argument for why the other side should lose. This can be particularly difficult to do when we represent the appellee because the appellant has set out their arguments and our first instinct might be to show why their arguments are wrong. But that’s not leading with our strength, it’s an attempt to show our opponent’s weakness.

Take this example from the appellees' brief in Welling v. Weinfield.[2] In Welling, the Supreme Court of Ohio was asked to recognize the tort of false-light invasion of privacy.[3] After first arguing a procedural issue, that the case had been improvidently granted,[4] the appellees began the substantive argument like this:

As noted by the Wellings in their opening brief to this Court, a majority of the jurisdictions in the United States have adopted the false-light invasion of privacy cause of action. Brief of Appellants at 8. In The Denver Publishing Co. v. Bueno (Colo. 2002), 54 P.3d 893, the Colorado Supreme Court noted that 30 states had adopted the false-light invasion of privacy theory as part of their tort law. Despite that, the Colorado Supreme Court rejected the tort because it overlaps defamation to such a large degree and because its adoption might have a chilling effect on First Amendment freedoms. This Court should do the same.[5]

See how the appellees referred to and agreed with the appellant’s brief (giving appellant’s argument credibility) and then highlighted the strengths of the appellant’s argument:

  • a majority of jurisdictions have adopted the claim;
  • the Colorado Supreme Court noted that thirty states had adopted it.

It’s not until the next to last sentence of that opening paragraphing that we learn of the appellees' positive arguments: the tort overlaps with defamation and recognizing the claim could chill free speech.[6]

Here is how I might re-write the opening paragraph to lead with why the appellees should win:

This Court should reject the invitation to expand Ohio law. Defamation and false-light invasion of privacy claims largely overlap. And recognizing a false-light invasion of privacy claim might chill speech protected by the First Amendment. Instead, the Court should follow the reasoning of the Colorado Supreme Court. That court acknowledged the states that had recognized the claim but refused to do so because of the overlap with defamation and the possible chilling effect on free speech. The Denver Publishing Co. v. Bueno, 54 P.3d 893 (2002).

How would you re-write the opening paragraph to lead with the appellees' positive argument?

[1] An example of when this rule wouldn’t apply is when there is a procedural argument that logic dictates be addressed first.

[2] 866 N.E.2d 1035 (Ohio 2007).

[3] Id. at 1053.

[4] Robert E. WELLING, et al., Appellants, v. Lauri WEINFELD, Appellee., 2006 WL 1860670 (Ohio), 16.

[5] Id. at 17.

[6] Id.

March 8, 2022 in Appellate Advocacy, Appellate Practice, Legal Profession, Legal Writing, Moot Court, Rhetoric, State Appeals Courts | Permalink | Comments (1)

Saturday, March 5, 2022

Appellate Advocacy Blog Weekly Roundup Saturday, March 5, 2022

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

  • The Supreme Court reversed a lower court decision and upheld the death sentence for Dzhokhar Tsarnaev, one of the two the Boston Marathon bombers. The lower court’s decision had set aside the death sentence finding that the trial judge may have erred in excluding mitigating evidence. In reinstating the sentence, the Supreme Court ruled that Tsarnaev had received the fair trial guaranteed by the Sixth Amendment. See the order and reports from CNN, The Boston Globe, and the Wall Street Journal.

  • This week, the Supreme Court heard argument in what is being touted as the most important environmental case in more than a decade. The case concerns the scope of the Environmental Protection Agency’s regulatory power, specifically, whether the Agency has authority to regulated power plants’ carbon emissions. But the decision may affect federal regulatory power more broadly. The arguments in the case concern the more central question of the scope of federal agencies authority overall. See links to the transcript and audio of the argument and reports from USA Today, Bloomberg, The Wall Street Journal, and The New York Times.

  • The Supreme Court ruled that state-secrets doctrine protects against the disclosure of black-site locations. A Guantánamo detainee sought information concerning his allegations of torture by CIA contractors. The ruling determined that the information could confirm the location of a CIA black site and that the government could therefore assert national security concerns to protect the information. See the order and reports from The New York Times, USA Today, and The Washington Times.

  • In a second state-secrets case, the Supreme Court overturned the Ninth Circuit and ruled that the government could invoke the state-secret doctrine to block claims alleging that the FBI violated the right to the free exercise of religion when it spied on Mosques after 9/11. The decision, which the Court described as “narrow,” does not block or end the lawsuit but sends it back to the Ninth Circuit to determine whether the secret evidence is core to the government’s defense.  See the ruling and reports from The New York Times and The Los Angeles Times.  

Appellate Court Opinions and News

  • The First Circuit has ruled that a Massachusetts judge can be prosecuted for helping an immigrant avoid arrest. The court rejected the argument that the judge enjoyed immunity for actions taken in her official capacity. See the order and reports from the ABA Journal and Reuters.

In other news

  • Vermont Governor Phil Scott appointed Judge Nancy Waples to be the first woman of color to serve on the Vermont Supreme Court. See the news release and a report from The Burlington Free Press

March 5, 2022 in Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Tuesday, February 22, 2022

Preempting Appellate Issues in Palin v. New York Times

    In the space of two days last week, Sarah Palin lost her libel suit against the New York Times twice. Palin’s claim centered on a New York Times editorial in 2017 that linked Palin’s political rhetoric to the mass shooting that nearly cost representative Gabby Giffords her life. While the jury was deliberating on Monday, Judge Jed S. Rakoff, a senior judge in the Southern District of New York and former prosecutor who has written extensively on the flaws in America’s justice system, announced that he planned to dismiss the suit no matter what verdict the jury might return. Though Rakoff allowed the jury to continue deliberating, he announced his finding that Palin had not met the high standard to show “actual malice” by the newspaper, a requirement for public figures raising libel claims established in 1964’s New York Times Co. v. Sullivan. One day later, the jury agreed, rendering a verdict in favor of the Times that is likely to be appealed, perhaps all the way to the Supreme Court.

    Rakoff’s unusual step came in response to the Times’s motion for a directed verdict, which claimed that reasonable jurors could only conclude that Palin had failed to meet her evidentiary burden to show actual malice on the Times’s part. Such a directed verdict would be effective without any additional word from the jury. Such verdicts typically occur either before the jury begins deliberations or after they have returned a contrary verdict. In the Palin case, Rakoff’s extremely unusual ruling came while the jury was still deliberating. Rakoff justified that decision on the grounds that Palin was likely to appeal, so his ruling might avoid the need for a retrial. Because appellate courts are generally more deferential to jury verdicts, Rakoff’s apparent hope was that his ruling would allow the appellate court to consider the trial process concluded, then decide the appeal solely the legal issue of actual malice. That would prevent the appellate court from remanding for a new trial, which would render the proceedings to date an enormous waste of resources for all parties involved.

    It is no surprise that Judge Rakoff hopes to control the appellate process from this case given its long history in his courtroom. Judge Rakoff initially dismissed Palin’s lawsuit nearly five years earlier, only to have an appellate court reverse his decision and reinstate the case. He may have hoped to avoid the same fate, and thus permitted the jury to reach a verdict even though he was convinced that the suit had no legal merit. But his ruling may have affected jury deliberations nonetheless, undermining the very purpose behind it. After the jury reached its verdict, several jurors informed Judge Rakoff’s clerk that they had seen notifications about the Judge’s ruling on their phones. Though the jurors insisted that those notifications played no role in their decisions, Palin’s legal team is almost certain to seize upon that news in seeking a new trial during the appellate process. Rakoff’s decision thus seems likely to lead to complications on appeal at a minimum, and perhaps even the need for the very resource-intensive retrial he hoped to avoid.

    The case is a microcosm of the desire trial judges often harbor to control the outcome of their cases all the way through the appellate process. Trial judges may genuinely aim to enforce the rule of law without an eye towards the repercussions. But trial judges are also human actors within a legal system. And nobody, judge or not, enjoys hearing from their superiors that they have made a mistake and may need to repeat months or even years of work to correct it.

    Those kinds of cognitive biases are ever present, ever for trained and experienced judges. Those biases are difficult to control, though gains can be made by engaging more deliberative processes and reducing decision making to checklist-style thinking to reduce the impact of these biases. Blind efforts to buttress a given decision against overrule and remand, however, are unlikely to be successful. As the Palin case illustrates, they may even be counter-productive for the well-intentioned judge.

    Judge Rakoff’s judicial legacy is hardly in question. But even he may have succumb to the simple human desire to see an initial decision upheld without question or doubt. And in doing so, he may have done his own decision a disservice, making it far more likely that it will be reversed in the future. That kind of trial judge overreach should be avoided as much as possible.

February 22, 2022 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Current Affairs, Federal Appeals Courts, Legal Profession, Legal Writing, Rhetoric, State Appeals Courts | Permalink | Comments (2)

Sunday, February 13, 2022

Skipping the Intermediate Appellate Court

            Some states permit direct appellate review by the state’s highest court in cases where a matter presents a serious opportunity to develop, change, or clarify the law. Where an issue is unresolved, a state or federal statute was declared unconstitutional, or the applicable law is obsolete or unclear, the procedure permits a high court the discretion to take the case, bypassing the intermediate appellate court, and address the question presented. The same may be true for matters of great public significance or where the precedent that will be set will likely govern other cases percolating through the system.

            Despite the many bases for direct appeals, they remain rare and should be used by practitioners sparingly. Direct appeals often have different time requirements and different procedures. Counsel considering a direct appeal needs to pay close attention to the grounds and process when undertaking such an appeal. Counsel must also consider whether seeking review in the intermediate appellate court might provide a good opinion that might enhance the chances for success in the higher court.

            It also helps to have a good sense of the higher court. Unlike other courts that sit in panels, a state’s highest court will usually sit en banc, rather than in a random panel, particularly when the issue qualifies for direct appeal. Knowing who will consider the case allows counsel to review past relevant decisions by those very justices. Knowledge of the justices’ expressed views on the issue’s importance, preferences for what qualifies for direct appeal based on prior rulings, and their familiarity with the underlying issue can help determine when to undertake such a “Hail Mary” by aiming straight to the end zone.

            Also rare, but possible, are direct appeals from a district court to the U.S. Supreme Court. In a recent grant of certiorari in Students for Fair Admissions v. University of North Carolina, No. 21-707, the Court took that case directly from a district court decision, likely because it raised the same issues as the Court chose to hear in a similar action involving Harvard University. The grant of certiorari relied on 28 U.S.C. 1254(1), which allows the Court to grant a petition for a writ of certiorari to review any case that is in the court of appeals, even if that court has not entered a final judgment. See, e.g., United States v. Nixon, 418 U.S. 683, 692 (1974). Under the Supreme Court Rule 11, a petition seeking direct review of a district court decision “will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.”

            Despite that warning that certiorari before judgment is available only sparingly, Professor Steven Vladeck found that the UNC case marked the fourteenth time since February 2019 that the Court has granted a “before judgment” petition. Before that date, it had been fourteen years since the Court last used the procedure. Does this mean that cert before judgment will become more commonplace? There is no reason to assume that that will be the case. Although the Court has shown a greater interest in taking hot-button issues quite recently, we have also had a slew of justices expressing a concern that they are being view as too political. The upshot of those observations, especially once some of these controversial decisions come down, is that the Court is likely to return to take a more low-profile approach to choosing its docket, even if decisions tend to encourage new doctrinal overlays on familiar controversies. On the other hand, the Court could offset its growing use of the “shadow docket” by relying more heavily on cert before judgment to obtain a fuller review of cases.

            If cert before judgment does become a more prominent approach to review in the Court, it may well spawn similar approaches in the states. Although skipping the intermediate court is a more normal procedure in many states, and it would go against the grain of West Virginia newly adopting an intermediate appellate court, it is likely that state supreme court will find the expanded use of the procedure worth a further look.

February 13, 2022 in Appellate Advocacy, Appellate Practice, Appellate Procedure, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)