Appellate Advocacy Blog

Appellate Advocacy Blog Weekly Roundup Friday, March 17, 2023

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

• West Virginia has asked the Supreme Court to vacate in an injunction in a transgender rights case, West Virginia v. B.P.J. The injunction bans a law that prohibits trans-identified boys from competing on female-only sports teams at the secondary and university level. If the Court reaches the merits, it may be the first case where the Court will determine whether the Constitution protects against anti-trans discrimination. See report from Vox.
  
  
• The United States Courts posted this News Release announcing that the Judiciary’s 2022 Annual Report and Statics is now available.
  
  
• The Supreme Court’s memorial for Justice Ruth Bader Ginsberg was held today, Friday, March 17. See a report from the Associated Press.

Appellate Court Opinions and News

• The Fifth Circuit has refused to recognize the state-created danger doctrine, which is an exception to the general rule that the government has no duty to protect against privately caused harm. Although recognizing that a majority of federal circuits recognize the doctrine and noting that the “facts giving rise to [the] lawsuit are unquestionable horrific,” the Fifth Circuit found that the state-created danger doctrine was not clearly established in the Fifth circuit and cited the recent Dobbs opinion as a basis for not expanding substantive due process rights without careful consideration, including considering whether the right is “deeply rooted in the Nation’s history and tradition.” Thus, the court ruled that a school enjoyed qualified immunity from liability regarding the repeated sexual assault of a severely disabled public-school student on school grounds. In the case, school officials not only knew in advance of the first assault that the victim required supervision at all times and that her attacker had violent tendencies but also knew about the prior attack on the victim by the same attacker before again allowing victim and her attacker to be unsupervised. A dissent posing as a concurrence urged the Fifth Circuit to hear the case en banc and adopt the doctrine, stating “it is well past time for this circuit to be dragged screaming into the 21st century.” See the ruling and reports in The Volokh Conspiracy, Law.com, Courthouse News Service, and Bloomberg (subscription required).

• The Eleventh Circuit upheld a Florida law that bans people under 21 from owning a gun. In upholding the ban, the court applied the 2022 Bruen framework that requires the government to demonstrate that the regulation “is consistent with this Nation’s historical tradition of firearm regulation” and cited more than a dozen state law barring people under 21 from buying guns. See the ruling and reports from Reuters and CBS News.

• The Ninth Circuit refused to rehear the November 2022 case that ruled that the First Amendment protected an Oregon beauty pageant’s “natural born female” eligibility requirement and allowed the pageant to ban a transgender contestant. See the November 2022 ruling and the order denying rehearing.  

State Court Opinions and News

• The North Dakota Supreme Court upheld a lower court decisions that blocked an abortion ban and held that the state constitution protects the right to “enjoy and defend life and a right to pursue and obtain safety,” including the right to an abortion to preserve life or health. See the ruling and report from The New York Times.

The 2023 Justice Donald L. Corbin Appellate Symposium

On March 30 and 31, the Pulaski County Bar Foundation will be hosting its Annual Justice Donald L. Corbin Appellate Symposium at the University of Arkansas Little Rock Bowen School of Law.  This national symposium honors the late Justice Donald L. Corbin of the Arkansas Supreme and Appellate Courts.  The event offers the chance to discuss and learn about the appellate process from federal and state judges, professors, and experienced practitioners in beautiful Little Rock.  You can tour the Clinton Library too! 

The impressive lineup this year includes many members of the appellate bench:

• A United States Court of Appeals panel discussion with Judge Michael Y. Scudder of the Seventh Circuit, Chief Judge Lavenski R. Smith of the Eight Circuit, and Judge Jane Kelly of the Eight Circuit;
• Judge Morris S. "Buzz" Arnold, United States Court of Appeals for the Eighth Circuit, speaking on ethics;
• A state Supreme Court panel discussion with Justice Courtney R. Hudson of the Arkansas Supreme Court, Justice Holly Kirby of the Tennessee Supreme Court, and  Justice Piper D. Griffin of the Louisiana Supreme Court;
• Justice Annabelle Imber Tuck (Retired), Arkansas Supreme Court, speaking on oral argument; and
• An Arkansas Court of Appeals Panel Discussion with Judges Cindy Thyer, Wendy S. Wood, and Stephanie P. Barrett.

Robert S. Peck, of the Centers for Constitutional Litigation, will be speaking on framing issues for appeal, and How Appealing's founder Howard Bashman will present as well, along with several other appellate practitioners and professors. 

You still have time to register, and you can find all of the details here:  https://www.pulaskibarfoundation.com/corbinsymposium.

This year, I am honored to be speaking on appellate brief writing, and I invite you to join us at the beautiful Bowen School of Law for the 2023 Corbin Symposium.  Plus, if you have never been to Little Rock, I highly recommend a visit.  Trust this Chicago gal living in Los Angeles, Little Rock is a charming and welcoming town with big city amenities in a gorgeous part of the country.  See you there!

Should Courts Dispense With the Table of Authorities?

Pending before the Arizona Supreme Court is a petition to change court rules and dispense with the table of citations in state briefs. According to the full petition,

The Table of Citations is no longer needed to help a reader navigate to a particular cited source because most briefs are filed in electronic format with searchable text. Cumulatively, appellate litigants spend an unjustifiable amount of time and resources creating Tables of Citations.

The authors claim that readers now use "searchable text and hyperlinks to navigate the brief and locate cited authorities," rather than the table. The tables, are incredibly time-consuming to create:

Petitioners have found no data-driven analyses on the average length of time it takes to build a Table of Citations. Anecdotal estimations, however, abound. For example, the company ClearBrief—which sells AI software that formats and edits appellate briefs—claims that its “conversations with hundreds of attorneys, paralegals, and legal assistants across the country, indicate that manually creating a perfectly formatted and accurate Table of Authorities can take anywhere from 3 hours to a full week, depending on how complicated the document is.” See Clearbrief, How to Create a Table of Authorities in One Click in Microsoft Word, https://clearbrief.com/blog/authorities (last accessed Jan. 8, 2023). Considering that this source is selling a tool that builds Tables of Citations, Petitioners take the high end of that range with a grain of salt. 

Still, U.S. Supreme Court Justice Antonin Scalia and noted legal writing scholar Bryan Garner warn advocates to “[a]llow a full day” to prepare a Table of Citations, and to “[n]ever trust computers to prepare the tables automatically.” Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 90 (2008). Experienced advocates working for a firm or company willing to pay for assistive software might manage to generate a perfectly formatted and accurate Table of Citations in less than 45 minutes. Meanwhile, a litigant without access to these programs may spend considerably more time using Word’s built-in citation-marking tool. The tool is not intuitive, and an average-length brief requires anywhere from a couple of hours to a full day to manually mark the citations, depending on the user’s familiarity with the tool. And, many self-represented litigants, particularly inmates, write out their Table of Citations by hand. 

. . . .

Even accounting for time savings from modern technology, the time it takes to compile the Table of Citations, confirm its accuracy, and correct any errors is not insignificant. And all this work must be performed after the substantive briefing is complete, meaning parties are often running up against their deadlines by the time they are ready to build the table. This leaves no room for last-minute adjustments, which creates its own challenges in cases where the drafting attorney needs to seek feedback from a supervisor, trial counsel, or a client. And in both criminal and civil litigation, “the time it takes” translates into actual dollars—either billed to a client at hundreds of dollars an hour or in salary paid to State-funded employees. It is the litigants and taxpayers who ultimately bear these costs.

Petitioners claim that, given the fact that most Arizona courts have now moved to electronic briefs, the "court's infrequent use of the table of citations as a navigational tool renders the cost unjustifiable." They likewise dismiss the non-navigational uses of the table:

Although few people use the Table of Citations as a navigational tool, some have found non-navigational uses, including: (1) to get a “feel” for the case before reading the brief; (2) to check whether a draft decision addresses the main authorities cited by parties; (3) to prepare for conferences or oral argument; and (4) as an aide for finding the correct citation when the citation in the body of the brief is incomplete or inaccurate. See Ball, Jancaitis & Butzine, Streamlining Briefs, at 33–34. None of these uses justify the continued requirement that briefs contain a Table of Citations.

First, readers can “get a feel” for the case by reading the introduction, summary of the argument, and the table of contents. Separately, while first impressions are inevitable when reading any brief, “feeling out” the argument serves little purpose for the end result. Appellate courts base their decisions on the law and facts of the case, not initial impressions. The substance of the arguments should be far more persuasive than a mere list of authorities.

Second, while the Table of Citations may make the brief more formal and emphasize the need to support arguments with legal authorities, other procedural rules and formatting requirements compensate for the loss of the Table of Citations. See, e.g., ARCAP 13(a)(7)(A) (requiring appellate argument contain the litigant’s “contentions concerning each issue presented for review, with supporting reasons for each contention, and with citations of legal authorities . . . .”). Moreover, formatting rules are meant to “promote succinct, orderly briefs that judges can readily follow.” Judith D. Fischer, Pleasing the Court: Writing Ethical and Effective Briefs, 51 (2d ed. 2011). That purpose is not served if the Table of Citations is being used merely to test an advocate’s ability to follow directions. Other aspects of the brief can provide that signal while also improving readability.

Third, while some use the Table of Citations to gather sources to download or refer to at oral argument, it is not a necessary tool to complete either task. More practitioners are hyperlinking their briefs so courts can easily access the cited material as they read the brief. And relatively few cases have oral argument, further diminishing the value of the Table of Citations for this particular purpose.

Finally, the use of the Table of Citations as a “backup” for locating correct citations when they are missing in the body of the brief is unlikely to occur with sufficient frequency to justify the time and resources spent creating the tables. From a logical standpoint, if a litigant has not spent the time ensuring their citations in the body of the brief are accurate, it is unlikely they will have a reliable Table of Citations, or in some cases, any table at all. See State v. Haggard, 2 CACR 2010-0307-PR, 2011 WL 315537, at *2, ¶ 8 (Ariz. App. Feb. 1, 2011) (mem. decision) (attempting to identify cases vaguely referred to in a pro-per brief and noting that no Table of Citations had been provided).

I agree with much of what the Petitioners say. The tables do take a lot of time to prepare, and there are not a lot of great, free, resources for making the tables. I see this with student briefs all the time. I always warn my students to leave time to prepare the tables, and they don't. They then usually comment that they had no idea how time-consuming the tables were to create (despite my prior warning).

Still, I hope that the Supreme Court keeps the table. First, although most briefs are now filed electronically, my research for Winning on Appeal revealed that many judges still like to read briefs in paper form. This means that the table does still play a navigational role. I also find tables useful to identify what cases the parties relied upon. This is more than just getting the "feel" of a brief. It tells me the strength of the reasoning and points me to where in the brief I need to look if I am concerned about a particular case. I think that we often forget how important citations are to the courts. I blogged on this several years ago when talking about citations in footnotes:

Last week, over at The Volokh Conspiracy, Eugene Volokh blogged on this very topic, quoting a district court opinion that stated, 

The Court strongly disfavors footnoted legal citations. Footnoted citations serve as an end-run around page limits and formatting requirements dictated by the Local Rules. Moreover, several courts have observed that "citations are highly relevant in a legal brief" and including them in footnotes "makes brief-reading difficult." The Court strongly discourages the parties from footnoting their legal citations in any future submissions.

Eugene also mentioned a federal appellate judge who told him "You view citations to authority as support for the argument. I view them as often the most important part of the argument."

I do agree that we need more technology tools to make efficient tables, and I would be happy to highlight any such tools in this blog (just shoot me an email!).

A Call for Law Over Politics

In the novel Guy Mannering, Sir Walter Scott wrote that a “lawyer without history or literature is a mechanic, a mere working mason; if he possesses some knowledge of these, he may venture to call himself an architect.” As lawyers and especially as appellate advocates, we aspire to creating an edifice where the rule of law governs and not simply the politics of the day. We seek to design the law to withstand political winds while capable of change though remaining true to rules and standards that sensibly apply regardless of the ascendant ideologies.

It is not an easy task, and we are not always very good at perpetuating that approach. Sometimes, our inability to do so leads to embarrassment and harm to the rule of law. Other times, it leads to revolutionary and welcome change. Rarely, though, do we realize which outcome is most likely going to result until significantly later as we look back retrospectively.

Today, our courts have lost enormous public confidence and respect, traits that are essential to their salutary operation. We have seen the rhetoric of politics in the place of timeless legal principles populate judicial opinions — and appellate briefing at levels and rates that mark a departure from past instances of the same developments.

New evidence of the escalating trend may have emerged from the North Carolina Supreme Court. The new year saw that court flip from a 4-3 Democratic majority to a 5-2 Republican majority (use of party labels is perhaps unsettling but unavoidable in this instance). The new majority has granted petitions for rehearing in two election law cases: one involving redistricting and another on a voter identification law.

Reconsideration of this type is normally used when a court made its decision under a misapprehension of the record or some other error that demands correction. It is an extremely rare event. Here, it is clear that the law is unchanged, and there are no evidentiary issues. The only thing that changed was the membership of the court — and that is a troubling basis for reconsideration.

            As Justice Anita Earl put it in dissent from the grant of reconsideration:

it took this Court just one month to send a smoke signal to the public that our decisions are        fleeting, and our precedent is only as enduring as the terms of the justices who sit on the bench. The majority has cloaked its power grab with a thin veil of mischaracterized legal authorities. I write to make clear that the emperor has no clothes.

Hall v. Harper, No. 413PA21 (Feb. 3, 2023) (Earl, J., dissenting).

I write this post in a bit of a state of shock, simply because of how blatant and clear the coming reversal is. If law is not to become little more than a yoyo or roller coaster ride, it cannot simply become the spoils of political warfare. As much as there are precedents that I hope will be overturned, and there are past examples of judicial composition driving changes in the law, this precipitous reversal of field renders the law less the work of architects and more a political game where appellate advocacy becomes less relevant. Rather than the rule of law, the rule of seat warmers prevails.

 

 

 

What is Your Best Case?

“What is your best case?”

That’s a question that many an appellate judge asks during oral argument.

Sometimes, there is an obvious answer: Smith v. Jones holds that the very inaction of the defendant in this case constitutes a breach of duty that warrants liability. Or, Johnson v. Williams holds that  it is not a violation of the statute to engage in the conduct the plaintiff alleges that my client undertook.

Other times, however, the caselaw might appear ambiguous, even if it is not. In one case I argued, Justice Breyer asked first my opponent and then me for our best case on whether the underlying state law was well-established and regularly applied. My opponent cited a case that stated the law somewhat loosely, which allowed him to claim that the law was not clear and thus not established. When I stood at the podium, I mentioned that my brief cited 39 cases over a 78-year period, but that I was happy to rely on one case that both sides cited because I believed it actually favored my argument.

The choice proved a good one. Justice Breyer had also flagged the case and had the opinion in front of him, no doubt because both sides had relied upon it. He asked me to explain a sentence that he read, which he said seemed to cut against my stance. It was the passage that my opponent had also cited in his brief, so I was very familiar with it. I responded that the sentence cited also had a dependent clause that the justice had not read aloud and that the qualification it made changed the entire meaning of the sentence. Justice Breyer chuckled and admitted that he agreed. Some three-and-a-half months later, we prevailed.

Certainly, that type of preparation and anticipation is needed when advocates are challenged by potentially clashing precedent. But what happens when there are no directly on-point cases and your argument is constructed from the logical implications of multiple cases that build upon one another? That is, no single case stands for the proposition you are advocating, but that several separate precedential propositions lead inexorably to your result?

It is important to make clear that a single case does not answer the question when that’s the case. Still, you must explain that the answer to the question presented becomes clear from looking at several cases. Precedent number one holds that the relevant constitutional test is a historical one. Precedent number two demonstrates that common practices prior to 1791, the year the Bill of Rights was ratified, satisfy historic conceptions of due process. Precedent number three is a historic practice indistinguishable from the issue before the court. Therefore, these precedents establish a roadmap that should demonstrate that the practice now before the court is consistent with due process. The deductive reasoning used to tie the precedents into a coherent legal theory becomes the product of multiple precedents and makes the best-case inquiry too simplistic to resolve the dispute.

What if, instead, the mandatory historical inquiry works against your position? It then becomes necessary to demonstrate that our constitutional conceptions are not frozen in time, but establish larger principles that can applied to situations unimagined at the time. Thus, we apply the concept of free speech to radio, television, and the Internet, even if the authors of the First Amendment could not have imagined these mediums. A best case, then, might consist of cases where a court has imagined the principle and applied it analogically.

In the end, a best case may exist – or it may a best case may actually be a series of cases.

Appellate Advocacy Blog Weekly Roundup Friday, January 13

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:

• The Court has yet to release any opinions from cases argued this term.  Although the Court is four months into its current term, it has provided a record-setting silence with regard to opinions in argued cases. Bloomberg discussed the delay in opinions and compared it to prior terms HERE.
• The Court this week denied an application to vacate a stay in a case involving a New York law that restricts the possession of firearms in specific public locations.  The trial court issued a preliminary injunction in the case, and the Second Circuit Court of Appeals issued a stay that kept the law in effect pending litigation on the merits of the challenge to the law.  The Court's order, issued without opinion and without dissent, allows the stay to remain (and thus, the law) to remain in effect.  The order is HERE.
• Senate Democrats are poised to push for new ethical standards for the Court after the Court faced increased scrutiny over the last year concerning such matters as financial interest in pending cases, the leak of draft opinions, and other apparent conflicts of interest.  More can be found HERE.
• A helpful summary of pending criminal law and procedure cases before the Court was posted by Joel Johnson at the ABA this week.  You can review the summary HERE.

Federal Appellate Court News:

• The United States Court of Appeals for the Federal Circuit heard arguments this week in a case where Apple, Google, and Intel are seeking to revive challenges to a U.S. Patent and Trademark Office policy about contesting the validity of patents before administrative judges.  More can be found HERE.
• A federal appeals court in D.C. heard arguments this week in a case challenging portions of the Fight Online Sex Trafficking Act and Stop Enabling Sex Traffickers Act (FOSTA-SESTA), a 2018 law passed to crack down on online advertising viewed as facilitating prostitution.  The appellate court panel expressed skepticism about the constitutionality of language in FOSTA-SESTA that makes it a crime to operate a computer service with the intent to promote prostitution.  More can be found HERE.

State Appellate Court News:

• The New Mexico Supreme Court heard arguments this week in a venue dispute in a lawsuit concerning whether wind leases overlapping with grazing leases can impact a rancher's ability to raise cattle on state trust land in New Mexico.  Right now the question is really about where the arguments over the leases will take place, but the substantive issues to be addressed down the road will determine whether state law and lease contracts may allow for wind energy to be developed on land that ranchers are already leasing.  More can be found HERE.

Appellate Practice Tips:

• Three Harvard Law advocates recently shared their tips and tales of their times arguing before the United States Supreme Court in an article at Harvard Law Today.  The article includes recollections from Paul Clement, former U.S. Solicitor General and partner at Clement & Murphy in D.C.; Jessica Ring Amunson, partner at Jenner & Block in D.C.; and Deepak Gupta, lecturer at Harvard and founding principal of Gupta Wessler PLLC.  The article can be found HERE.

Appellate Jobs:

• The Illinois Appellate Court, Third District, is hiring an appellate court law clerk.  Details can be found HERE.

Who Serves on the Bench Matters

As lawyers and appellate advocates, we trust that the rule of law will prevail – that there will be consequences for breaching contracts, for negligence that injures another person, and for violating constitutionally guaranteed rights. We trust that judges will  be impartial and apply the law within a range of accepted conclusions that may not always be right but with an error rate that maintains confidence in the justice system. We believe that the law should not differ because of who serves on the bench because all who do must adhere to the rule of law. And yet, we know that who serves often will make all the difference.

We engage in ideologically tinged battles over who serves on the bench, regardless of whether the path to a judgeship is through appointment or election. Appellate advocates tailor their arguments to the judges who hear a case, combing their past opinions and other writings for clues that might trigger a favorable response for their client or issue. Some judges have expertise on the subject of the appeal, while others do not. Some have staked out positions on the appellate issue that makes the appellate task easier or even insuperable. Some utilize a methodology or a hierarchy of interests that signal the approach a wise advocate should take. A one-time dissenting view can now fit within the mainstream of legal thinking so that it provides a new handle on addressing an issue. That is why advocates are well-advised to know their audiences.

Court memberships shift, and the likely result from a court can shift with it. In an end-of-the-year decision from the Ohio Supreme Court, the justices’ own awareness of that shift was on display. In full disclosure, I was the winning advocate in the case and had the opportunity to watch it play out. By virtue of the mandatory retirement requirements of the state, the chief justice was due to step down from the court on December 31. I argued the case, which challenged the constitutionality of a state statute both facially and as applied, in late March. The decision, striking the law as applied, was written by the chief justice for a 4-3 majority and issued December 16. One dissenter appended a paragraph to the decision complaining of a departure from what he called the “regular and orderly internal rules of operation and practice,” because the majority insisted on issuing the decision so that the current court, rather than its successor, would rule on any motion for reconsideration.[1] He added his apology to the “citizens of Ohio that my individual dissent is not of the quality that I have come to deliver and that the public expects” because his “time on this case was aberrantly and improperly limited.”[2]

That paragraph became the focus of the motion for reconsideration filed just within the deadline on the evening of December 27. It seemed apparent that both the majority and the dissenter were well aware of the consequences of pushing reconsideration off to the new year and the new court. The majority sought to assure that a reconsideration motion would come before the same court that decided the case; the dissenter sought to push the case to the new term where he believed a different membership would reach a different result and his dissent could become the decision of the court.

Taking no chances, I filed my opposition to reconsideration within hours of the motion’s filing so awaiting opposition would not provide an excuse to delay a ruling. On December 29, reconsideration was denied.

The episode demonstrates what we know as advocates: who sits on the bench makes a difference. It also confirms another thing we know – judges are as acutely aware of that as anyone else.

 

[1] Brandt v. Pompa, 2022-Ohio-4525, ¶ 132 reconsideration denied, 2022-Ohio-4786 (Fisher, J., dissenting).

[2] Id.

Appellate Advocacy Blog Weekly Roundup Friday, January 6, 2023

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! 

US Supreme Court Opinions and News

• Justice Roberts’s 2022 Year-End Report on the Federal Judiciary was released on December 31, 2022. Find reviews and analysis of the report from The New York Times, The Washington Post, The Associated Press, Reuters, and Bloomberg.    
• In December, the Supreme Court announced that this year it will resume the tradition of announcing opinions from the bench. The practice has been suspended since the beginning of the pandemic. The last opinion delivered from the bench was Kansas v. Garcia, delivered March 3, 2020. Opinion announcements will not be livestreamed but will be recorded and available at the National Archives at the beginning of the next Term, which was the pre-pandemic tradition. See reports from The New York Times, CNN, SCOTUSBlog, and Bloomberg Law.
  
  
• This week, the Biden Administration filed a response in the case challenging its student loan forgiveness plan. The Court will hear two challenges: one by states arguing that the plan will harm companies that service the loans and the other by individuals arguing that the plan will harm them because they are excluded from the plan. The administration’s response argues that the challenging parties have failed to show the requisite harm to establish standing and that the administration is within its authority to implement the plan. Late last year, the Court issued an injunction blocking the administration from implementing the plan to forgive up to $20,000 per borrower. Oral argument is set for February 28, 2023. See reports from CNBC and The New York Times.
  
  
• The Court ruled that Title 42, the pandemic-era restrictions on migration along the southern border, must stay in effect pending a ruling. The decision overturns a lower court decision to remove a stay issued against the Biden administration’s attempt to lift Title 42 restrictions. The Court is set to hear argument only on the question of whether the 19 states could pursue their challenges. See reports from The New York Times and The Wall Street Journal.
  
  
• The Supreme Court is set to become the subject of a new primetime legal drama. See descriptions and discussion of the new ABC pilot, “Judgement,” from The Hollywood Reporter, Variety, and Deadline.

Appellate Court Opinions and News

• The Ninth Circuit ruled that wearing a MAGA hat is free speech. The plaintiff claimed that a school principle violated his first amendment rights by disciplining him for wearing the hat at a teacher-only training session. The court determined that wearing the hat had not caused actual disruption and that evidence that some faculty members were offended was not sufficient justification to infringe the plaintiff’s rights. The court ruled, however, that the plaintiff could not sue the school district for dismissing the harassment complaint. See the ruling and reports from Reuters and CBS News.
  
  
• The Eleventh Circuit upheld a Florida school board’s transgender bathroom policy that segregates bathrooms by sex. A transgender student challenged the policy because it discriminates against transgender students. The court ruled that the policy survives constitutional review because it has the legitimate objective of protecting students’ privacy and shielding their developing bodies from the opposite sex. The dissent recognizes that “[t]he bathroom policy categorically deprives transgender students of a benefit that is categorically provided to all cisgender students—the option to use the restroom matching one’s gender identity.” See the ruling and reports from Reuters and Bloomberg Law.

State Court Opinions and News

• The Oregon Supreme Court has ruled that the ban on non-unanimous jury verdicts applies retroactively to all convictions in Oregon. The April 2020 Supreme Court case, Ramos v. Louisiana, outlawed convictions based on divided verdicts but the Court declined to apply the ban retroactively, leaving that decision to the states. (See The Weekly Roundup’s coverage here and here.) With the Oregon ruling, hundreds of Oregon felony convictions became invalid. The Oregon court recognized that the policy of allowing non-unanimous verdicts was intended to minimize the voice of non-white jurors and that it “caused great harm to people of color” and “undermined the fundamental Sixth Amendment rights of all Oregonians.” See the ruling and a report from The Oregonian.

This week, a couple of state courts have contributed to the still developing national abortion landscape:

• The South Carolina Supreme Court struck SC’s 6-week abortion ban on state constitutional grounds, finding the that the “state constitutional right to privacy extends to a woman’s decision to have an abortion” and that the 6-week ban was an unreasonable invasion of privacy. See the ruling and reports from CNBC and The New York Times.
  
  
• Meanwhile, in Idaho, the state supreme court upheld Idaho’s near total abortion ban, finding that the Idaho constitution did not include a right to the procedure. Idaho has three abortion bans, one of which bans abortion from conception. See the ruling and reports from The New York Times and Politico.

Other Appellate News

• The Eleventh Circuit has held that “and” means “and” not “or” in an analysis of the First Step Act, a law giving offenders a “safety valve” that allowed them to escape certain mandatory minimum sentences. The “safety valve” applies only if certain conditions are met. The list of conditions is connected with the word “and,” which generally means that all conditions must be met. This interpretation significantly limits when an offender would be excluded from enjoying the “safety valve.” However, Florida prosecutors argued that, in this case, “and” meant “or.” The Eleventh Circuit disagreed, applying the common definition of “and.” For those of us who enjoy statutory interpretation and language analysis, the ruling is worth a read. See also reports from Georgia Public Broadcasting and The Atlanta Journal-Constitution.

Two Overlooked Tips for Writing Briefs and Arguing Cases

Experienced appellate advocates often tell others that the art of effective brief writing relies on a uniform set of tips, such as keeping sentences short, using topic sentences, and simplifying language. Sometimes, though, violating these precepts can prove effective, even though the advice offered is usually worth following.

Today, however, I want to focus on two key tips that, too often, are ignored: maintaining credibility and making no assumptions about the court’s knowledge of the law. It is critical that your rendition of the facts and the law are credible. In one case years ago, my opponent, a prominent appellate practitioner made a factual assertion that misstated the record. It was not a crucial fact, but it was used by the other side to demonstrate the insensibility of what the court below had done across the board so that he could claim the actual ruling in the case was similarly fanciful. In my reply brief, I dropped a footnote that showed the assertion was wrong with a citation to the record. Surprisingly, during oral argument, my opponent repeated his misrepresentation of the record from his brief. As I jotted down a note to remember to debunk the claim when I stood up, one of the judges eviscerated him for the misstatement. He never recovered from that during the remainder of his argument. To me, the rebuttal was all the stronger because the judge made the point, rather than me. Misrepresenting the record can destroy credibility on other issues, just as he had hoped to harm the credibility of the decision below by making a point that turned out to be unanchored by the evidence.

A similar experience occurred in another case, although this time it concerned the state of the law. My opponent sought to make a seemingly logical argument about why a federal district court should have denied a remand motion after removal from state court. He relied upon support for his position from a nonbinding letter from the general counsel of a federal agency. What he failed to explain, though, was how his position remained credible after three other federal circuits and more than 100 district courts had ruled otherwise. No court had accepted his position. At oral argument, the panel never let him off that point. The issue consumed all his argument time so he had nothing left for rebuttal. On the other hand, in light of how his argument went, I used very little of my time before sitting down.

Where the law is uncertain and conflicting decisions or building blocks render it a close call, credibility can be the key to success. A court is more likely to accept a novel position if it is built on a solid and acceptable foundation, rather than one that does not withstand scrutiny.

Today’s second tip requires you to lay a foundation for the fundamentals that undergird what may be a fairly sophisticated issue. Judges are often generalists and may lack experience with even well-established issues. There are many areas of law where the usual assumptions do not apply. Burdens can shift to defendants, proximate cause standards can vary based on statutory text, and developing trends can signal a change when the context of the dispute creates new considerations. A credible and informed brief will explain the basic rules, whether they apply or require adjustment because of the context of the case. Even during oral argument, it pays to explain fundamentals before reaching the key issue. While most judges are well prepared for oral argument, some may not have read the briefs as carefully as you assume. Without dwelling on basic concepts, it helps to tie them to the issue at hand unless a fair reading of the tribunal indicates a different course. At the same time, one must be alert to a well-informed court that will not patiently await your explanation of basic law.

While no advice about brief writing or oral argument is immutable, credibility and foundational explanations for the legal issue come to providing a consistently helpful approach as any advice you might consider.

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!

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.

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.

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.”

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.  

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).

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.

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).

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.

Appellate Advocacy Blog Weekly Roundup Friday, June 3

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.

• • More from Bloomberg

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.

• • More from SCOTUSblog

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.

• • More from SCOTUSblog

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."

• • More from the Sacramento Bee

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.

• • Details HERE

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:

• SCOTUS, Shurtleff v. Boston--49 pages
• 1st Circuit,  Coughlin v. Lac du Flambeau Band of Lake Superior Chippewa Indians--56 pages
• 2d Circuit, United States v. Peguero--84 pages
• 3d Circuit, Gaines v. Superintendent--19 pages
• 4th Circuit, United States v. Thomas--17 pages 
• 5th Circuit, Owens v. Circassia Pharmaceuticals--30 page
• 6th Circuit, In re Automotive Parts Antitrust Litigation--16 pages
• 7th Circuit, Canter v. AT&T Umbrella Benefit Plan No.--16 pages
• 8th Circuit, A.I.G. Agency, Inc. v. American International Group--10 pages
• 9th Circuit, A.C. v. Erica Cortez--12 pages
• 10th Circuit, Reserve Mechanical Corp. v. Commissioner IRS--72 pages
• 11th Circuit, Global Marine Exploration, Inc. v. France--26 pages
• D.C. Circuit, Pham v. NTSB--14 pages
• Federal Circuit, Atlanta Gas Light Company v. Bennett Regulator Guards, Inc.--23 pages

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.