Appellate Advocacy Blog

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

Tuesday, April 27, 2021

Reducing Exigencies and Rebuilding Trust

Exigent circumstances have appeared on the Supreme Court’s mind (and docket) frequently in recent months. After hearing arguments on the hot pursuit species of exigent circumstances in February’s Lange v. California (a case I blogged about here), the Court heard arguments concerning the so-called community caretaking exception to the warrant requirement in March’s Caniglia v. Strom. Caniglia gave the Justices plenty to chew on, including whether there is really a separate community caretaking exception or if warrantless entry into a home to check on a resident 's wellbeing is simply another species of exigent circumstances.

That question came into clear focus during Justice Breyer’s questioning of the petitioner’s attorney. Breyer struggled to define the bounds of a distinct community caretaking exception. Nonetheless, he believed some such exception must exist so that officers can respond to protect citizens’ wellbeing even if there is no emergency that requires action immediately.[1] Breyer worried that tying officers hands so they could only warrantlessly react to immediate threats would stop them from responding in slower-burning, yet equally dangerous, circumstances—such as an unattended baby crying in a home for hours.[2]

But limiting officer discretion to act warrantless to only scenarios where a response is required in seconds, rather than minutes, is appropriate in the modern world for two reasons. First, given the speed with which warrants can be obtained today, only traditional species of exigent circumstances—like rendering emergency aid, chasing a fleeing felon, or preventing the imminent destruction of evidence[3]—seem truly necessary.  As the Supreme Court has acknowledged, modern electronic warrant procedures allow officers to obtain a warrant in just a few minutes.[4] That is little help when officers must act in a matter of seconds. But the ready availability of warrants undermines arguments for many other categorical exceptions to the warrant requirement, perhaps including community caretaking, when time is less of a limiting factor.

Second, Breyer wrongly implies that officers will fear responding warrantlessly to a slow-burning, community-caretaking style “emergency.” Officers genuinely interested in protecting the community should not be afraid for two reasons. First, even if the officers’ instincts prove incorrect and no community safety threat was present inside the home, there is little chance they will face civil liability. The homeowner is unlikely to file a § 1983 suit given the minimal, if not nominal, damages involved. Even if the homeowner sues, current qualified immunity doctrine provides officers broad protection so long as their actions were not contrary to existing precedent. Second, the officer should hardly be concerned if evidence of a crime that they happen to find inside the home is excluded from a later trial. Such evidence would be an unexpected windfall for an officer genuinely interested in protecting the community from a slow-burning harm. Losing windfall evidence should not concern such well-meaning officers.

If the Court limits exigent circumstances doctrine to genuine emergencies, while at the same time curbing other categorical exceptions to the warrant requirement that seem antiquated in light of the rapid availability of warrants today, it will begin lowering the temperature in many officer-citizen interactions. Both officers and citizens can easily understand and justify a narrow exigent circumstances exception. Everyone sees the benefits of allowing officers to respond to genuine, immediate threats. And if officers have little discretion to act warrantlessly beyond those emergencies, citizens may be less wary of any interaction with officers. Counterintuitively, limiting any community caretaking exception to the warrant requirement may actually help officers care for the communities they police.

 

[1] Transcript of Oral Argument at 15-16, Caniglia v. Strom, March 24, 2021, No. 20-157.

[2] Transcript of Oral Argument at 15-16, Caniglia v. Strom, March 24, 2021, No. 20-157.

[3] Kentucky v. King, 563 U.S. 452, 460 (2011) (outlining these traditional species of exigent circumstances).

[4] “[P]olice can often request warrants rather quickly these days. At least 30 States provide for electronic warrant applications. In many States, a police officer can call a judge, convey the necessary information, and be authorized to affix the judge's signature to a warrant. Utah has an e-warrant procedure where a police officer enters information into a system, the system notifies a prosecutor, and upon approval the officer forwards the information to a magistrate, who can electronically return a warrant to the officer. Judges have been known to issue warrants in as little as five minutes. And in one county in Kansas, police officers can e-mail warrant requests to judges' iPads; judges have signed such warrants and e-mailed them back to officers in less than 15 minutes.” Missouri v. McNeely, 569 U.S. 141, 172–73 (2013) (citations and quotations omitted).

April 27, 2021 in Appellate Advocacy, Current Affairs, Oral Argument, United States Supreme Court | Permalink | Comments (0)

Sunday, April 25, 2021

Appellate Advocacy Blog Weekly Roundup Sunday, April 25, 2021

WeeklyRoundupGraphic

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

US Supreme Court Opinions and News

  • The Supreme Court ruled that courts did not need to find that juvenile offenders were beyond hope of rehabilitation to sentence them to life without parole, ending a nearly two-decade trend of expanding protections for young offenders. The ruling, penned by Justice Kavanaugh, finds that “[i]n a case involving an individual who was under 18 when he or she committed a homicide, a state’s discretionary sentencing system is both constitutionally necessary and constitutionally sufficient.” Justice Sotomayor’s dissent argues that the decision departs from Miller v. Alabama, 567 U. S. 460 (2012), and Montgomery v. Louisiana, 577 U. S. 190 (2016), precedent holding that that “a lifetime in prison is a disproportionate sentence for all but the rarest children, those whose crimes reflect ‘irreparable corruption.’” Miller.  The dissent states: “[T]he Court attempts to circumvent stare decisis principles by claiming that ‘[t]he Court’s decision today carefully follows both Miller and Montgomery.’ Ante, at 19. The Court is fooling no one. Because I cannot countenance the Court’s abandonment of Miller and Montgomery, I dissent.” See the order and reports from The New York Times, NPR, and The Wall Street Journal

  • The Court dismissed as moot the final challenge to the 2020 election, a challenge to the Pennsylvania mail-in ballot deadline. See reports from ABC News, The Hill, and CNN.  

Appellate Court Opinions and News

  • The Eleventh Circuit ruled, with regret, against one of Jeffery Epstein’s accusers, holding that she cannot pursue a claim to hold prosecutors accountable for a non-prosecution agreement reached with Epstein in 2007. See the order and reports from The Atlanta Journal-Constitution and Reuters

April 25, 2021 in Appellate Advocacy, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Saturday, April 24, 2021

Life Imprisonment Without Parole for Juvenile Offenders: An Analysis of Jones v. Mississippi

In Jones v. Mississippi, the United States Supreme Court ruled by a 6-3 margin that a sentence of life imprisonment without parole for a fifteen-year-old juvenile who was convicted of murder did not violate the Eighth Amendment’s Cruel and Unusual Punishment Clause.[1] The Court’s decision will likely engender criticism because it is arguably inconsistent with the Court’s precedents.

By way of background, in Roper v. Simmons, the Court held that it was unconstitutional to impose capital punishment for crimes that an individual committed while under the age of eighteen.[2] In so holding, the Court emphasized that juveniles’ brains are not fully developed and, as such, juveniles lack the maturity of adults and often engage in impulsive conduct that reflects a failure to appreciate the consequences of particular actions. For these reasons, juveniles are less culpable than adults and therefore not among the narrow category of offenders for whom the death penalty is warranted. Additionally, in Miller v. Alabama, the Court relied in substantial part on the differences between juveniles and adults to hold that laws authorizing mandatory sentences of life without parole for juvenile offenders convicted of murder violated the Eighth Amendment.[3] The Court emphasized that a juvenile’s crime often reflects “unfortunate but transient immaturity,” and that a sentence of life without parole should be reserved for a narrow category of juvenile offenders “whose crimes reflect irreparable corruption” or “permanent incorrigibility.”[4] Accordingly, imprisonment for life “is a disproportionate sentence for all but the rarest children.”[5] And in Montgomery v. Louisiana, the Court held that the rule announced in Miller applied retroactively to juveniles previously sentenced to life without parole, thus requiring re-sentencing for these offenders.[6] Finally, in Graham v. Florida, the Court held that sentencing juveniles to life imprisonment without parole for non-homicide offenses violated the Eighth Amendment.[7]

The Court’s decisions in Miller and Montgomery arguably require that, before a juvenile can be sentenced to life without parole, a court must determine whether a juvenile’s crime reflects “unfortunate yet transient immaturity,” therefore precluding a sentence of life without parole, or “irreparable corruption” (permanent incorrigibility), thus justifying the imposition of such a sentence.[8]

In Jones, the Court’s decision, although not technically inconsistent with Miller and Montgomery, certainly appears at odds with the spirit and purpose underlying these decisions.[9] Writing for the majority, Justice Brett Kavanaugh noted that Miller only prohibited the imposition of mandatory sentences of life without parole for individuals who were minors when the crime was committed. In Jones, however, the trial court had the discretion to impose a lesser sentence on the defendant – who was fifteen at the time of the crime – and thus did not violate Miller by exercising that discretion to impose a sentence of life without parole. Furthermore, because Graham v. Florida only prevented the imposition of life without parole for non-homicide offenses, it violated neither Miller nor Graham to impose a discretionary sentence of life without parole for a homicide offense.[10] Furthermore, Justice Kavanaugh stated that, when exercising such discretion, a trial court is not required to determine whether a juvenile’s crime reflected “transient immaturity” or “irreparable corruption,” the very distinction upon which Miller relied to identify the narrow category of juvenile offenders for whom life imprisonment without parole could be justified.[11] Rather, it suffices that a court has the discretion to consider youth as a mitigating factor – even in the absence of a record showing that the court considered this issue to a meaningful degree.[12]

The Court’s decision in Jones appears inconsistent with Miller and Montgomery and casts doubt upon their continued viability. First, if a sentence of life without parole should be, as the Court stated in Miller, reserved for a narrow category of juveniles who demonstrate irreparable corruption (or permanent incorrigibility), it seems logical and constitutionally necessary for courts to determine at sentencing that a juvenile falls within this narrow category. Holding that a sentence of life without parole is permissible simply because the lower court had the discretion to impose a lesser sentence – even if the court did not meaningfully exercise this discretion as Miller and Montgomery contemplate – eviscerates the precedential value of these decisions.

Second, as the Court in Roper, Miller, and Montgomery recognized, juveniles lack fully developed brains and the capacity to act with the same degree of maturity as adults. For that reason, only juveniles whose conduct reflects “irreparable corruption” may be sentenced to life imprisonment without parole. Unfortunately, by refusing to require a finding that a juvenile falls into this narrow category, the Court’s holding in Jones eviscerates the distinction between juveniles whose actions reflect “transient immaturity” and those whose actions reflect “irreparable corruption.” And Jones arguably undermines, at least to a degree, the distinction previously recognized by the Court between juvenile and adult culpability. After all, in Roper and Miller, the Court relied on the differences between juveniles and adults regarding brain development, maturity, and rational decision-making to hold that juveniles are less culpable for even the most serious crimes. After Jones, the Court appears willing to relegate decisions regarding culpability to courts who have the “discretion” to impose lesser sentences while imposing no requirements on how courts exercise this discretion.  

Put simply, Jones cannot be reconciled with the Court’s prior jurisprudence, suggesting yet again that stare decisis is a doctrine of convenience rather than conviction. Indeed, Chief Justice Roberts, despite pledging fidelity to stare decisis in June Medical Services v. Gee, where he voted to invalidate a Louisiana law requiring abortion providers to have hospital admitting privileges, joined the majority in Jones and appears to have an on-again, off-again relationship with stare decisis.[13] And given that Roberts seems to care more about public perceptions of the Court rather than constitutional law, his decision to inconsistently apply the doctrine is surprising because it undermines the very institutional legitimacy he strives to preserve.

Third, the Court failed to address the concern that permitting a judge to consider youth as a mitigating factor violates precedent holding that the Sixth Amendment requires juries, not judges, to make such factual findings, particularly where they may result in an increased sentence.

Ultimately, the Court’s decision in Jones confuses, rather than clarifies, the law regarding whether, and under what circumstances, juveniles can be sentenced to life imprisonment without parole. And by countenancing such sentences simply because a court has the discretion to impose a lower sentence – without any requirement that a court determine that a juvenile’s actions reflect irreparable corruption – the Court turned a blind eye to the risk that sentencing in this area will become arbitrary and unfair.

The decision was a mistake.

 

[1] 593 U.S.              (2021), available at: 18-1259 Jones v. Mississippi (04/22/2021) (supremecourt.gov)

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

[3] 567 U.S. 460 (2012).

[4] Miller, 567 U. S., at 479; Montgomery, 577 U. S., at 209.

[5] Montgomery, 577 U. S., at 195.

[6] 577 U.S.             , 136 S. Ct. 718 (2016).

[7] 560 U. S. 48 (2010)

[8] Miller, 567 U. S., at 479; Montgomery, 577 U. S., at 209.

[9] 593 U.S.              (2021), available at: 18-1259 Jones v. Mississippi (04/22/2021) (supremecourt.gov)

[10] See id.

[11] See id.

[12] See id.

[13] 591 U.S.            (2020), 2020 WL 3492640.

April 24, 2021 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Sunday, March 28, 2021

Revisiting Defamation Law in the Social Media and Online Blogging Era

Social media and online blogging have created extraordinary opportunities for individuals and groups to publicly disseminate information, participate in public policy debates, and contribute to the marketplace of ideas. Indeed, social media and online blogging certainly have benefits, such as providing individuals with platforms to connect with others, give commentary on political issues, and offer additional and alternative sources of information.

But social media and online blogging also have drawbacks.

For example, social media has been used – and continues to be used – as a vehicle by which to disseminate false or misleading information regarding, among other things, current political issues. As a source of misinformation in some instances, particularly during federal and state elections, social media has the potential to unduly influence voters and thereby indirectly affect election outcomes. Additionally, social media and online blogging have been used to disseminate false commentary about individuals and groups. To be sure, some social media users and online bloggers – using anonymity as a shield – have attacked individuals with deeply offensive insults and scurrilous attacks that contribute nothing to public discourse, and that cause severe and irreparable reputational harm.

Given the proliferation of such offensive and often harmful statements, the question arises whether defamation law provides a remedy to individuals who are the target of such commentary. The answer, in most instances, is no. And that is a problem.

Current defamation law suffers from a significant flaw. Statements that are deemed pure opinions, regardless of the harm they cause, cannot be considered defamatory.[1] This limitation makes it impossible to obtain a remedy for statements that cause substantial, and sometimes irreversible, reputational harm.

By way of background, defamation consists of libel and slander, and is divided into two categories: defamation per se and defamation per quod. Defamation per se is reserved for a relatively narrow category of statements that are considered so inherently defamatory that they are presumed to cause reputational harm. Typically, defamation per se is limited to statements negatively affecting a person’s reputation relating to his or her business or profession, falsely claiming that a person has been convicted of a crime of moral turpitude, has a sexually transmitted disease, or is unchaste. Defamation per quod applies to all other allegedly defamatory statements and requires a claimant to demonstrate that a statement was: (1) published to a third party; (2) provably false; (3) likely to subject the claimant to embarrassment, scorn, and ridicule in the community; (4) negligently made; and (5) caused damages to the claimant’s reputation.

Importantly, however, if a statement is considered a pure opinion rather than a provably false fact, it cannot be defamatory. In Milkovich v. Lorain Journal Co., the United States Supreme Court explained that “under the First Amendment there is no such thing as a false idea … [h]owever pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.”[2] As stated above, this aspect of defamation law makes it impossible to succeed in a defamation action and leaves individuals who suffer severe and often irreparable harm without a legal remedy. That is wrong. Pure opinions should not be categorically exempted from defamation law.

The fact that a statement reflects a speaker’s opinion does not mean that it is not or cannot be defamatory. Opinions can – and do – cause severe reputational harm. In Milkovich and other cases, the Court has acknowledged this fact, holding that opinions that imply underlying facts can be defamatory. Apart from the inherent difficulty of distinguishing pure opinions from opinions that imply underlying false facts, the Court missed the point. Pure opinions can be defamatory, and claimants should be entitled to have a jury decide if they are defamatory.

After all, readers arguably do not distinguish between pure opinions and provably false facts or condition their judgment of a person on whether a statement constitutes an opinion or a provably false fact. As one commentator explains:

Although people are in a position to judge for themselves whether an opinion is justified so long as the alleged facts utilized as a basis for the opinion are proven to be true and are available to them, most, if not all, people are often influenced by others, especially by the press and the media, in formulating their opinions. The reader of a book or an article may have difficulty in assimilating all the facts set forth as the basis for an opinion; as a result, the reader is apt to be more influenced by the opinion than the facts set forth to justify it.[3]

Put simply, the "view that damage to reputation may be minimized by the recipients' ability to judge the soundness of the opinion is naïve … defamatory deductive opinions may be just as damaging to reputation as other defamatory facts."[4] For example:

[C]onsider a hypothetical assertion in an editorial about John Doe, a candidate for city attorney: ‘In my opinion, John Doe is an incompetent lawyer because he was accepted into law school under an affirmative action program and would not have been admitted under the school's standards for whites.’ Even if the premises of this statement are true, a false assertion that Doe is an incompetent lawyer can be very damaging, causing readers to make judgments based on false premises. In part this pure deductive opinion may be persuasive because readers are ill informed; some may assume that the writer is correct that only those who entered law school under the standards applied to ‘whites’ can be competent lawyers.[5]

Of course, some would argue that the First Amendment protects offensive and distasteful speech. Thus, holding individuals liable for such speech would compromise core First Amendment protections by, among other things, chilling speech and inhibiting a true marketplace of ideas. This argument fails to recognize that defamatory opinion "does not advance free speech values … because it is not the type of public discourse that contributes to intelligent decision making or promotes a multicultural society that is both dynamic and durable."[6] Furthermore, the requirement that a claimant demonstrate tangible reputational harm (not merely emotional distress) inherently limits the extent to which opinions will be considered defamatory. To be sure, the problem is not solved by holding that opinions that implying underlying facts can be defamatory. How can courts distinguish between such opinions and pure opinions? There are simply no standards to make this distinction reliably and consistently, and doing so ignores the fact that pure opinions can – and do – cause reputation harm.

For example, imagine a situation where someone states that another person is a “self-serving fraud,” “Nazi war criminal,” or “Charles Manson wannabe.”[7] The courts held that each of these statements constituted pure opinion and, as such, could not be deemed defamatory. Admittedly, depending on the context, such statements may not be defamatory. But to state that they can never be defamatory, regardless of the harm they cause, and simply because they are pure opinion, makes no sense. If a claimant can demonstrate that a pure opinion caused tangible reputational harm (e.g., economic harm), that claimant should have a legal remedy.

In an era where social media and online blogging are replete with slurs, insults, and degrading comments directed at individuals and groups, the law should not categorically shield such statements from legal liability because they are “pure opinions.” Instead, courts should recognize that pure opinions can – and often do – cause substantial and irreversible harm.

 

[1] Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990); see also Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).

[2] Milkovich, 497 U.S. at 18 (internal citation omitted).

[3] Kathryn Dix Sowle, A Matter of Opinion: Milkovich Four Years Later, 3 Wm. & Mary Bill of Rights J. 467, 495 (1994).

[4] Id. at 575-576.

[5] Id. at 579.

[6] Id.

[7] Nicosia v. De Rooy, 72 F. Supp. 2d 1093 (N.D. Cal. 1999); Koch v. Goldway, 817 F.2d 507 (9th Cir. 1987); Crowe v. Cnty. of San Diego, 593 F.3d 841 (9th Cir. 2010).

March 28, 2021 in Appellate Court Reform, Appellate Justice, Appellate Practice, Current Affairs, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Appellate Advocacy Blog Weekly Roundup Sunday, March 28, 2021

WeeklyRoundupGraphic

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

US Supreme Court Opinions and News

  • The Supreme Court ruled that victims of police shooting may pursue a claim for excessive force under the Fourth Amendment even if the victim is not actually detained at the time of the shooting. The Court held that a “seizure”  occurs the " instant that the bullets str[ike] [the victim]," explaining that “[t]he application of physical force to the body of a person with intent to restrain is a seizure, even if the force does not succeed in subduing the person.” See the order and reports from The New York Times, Reuters, and the Associated Press

  • The Justices met live for the first time since the pandemic shutdowns, which began over a year ago.  See reports from NBCNews and Bloomberg.

State Appellate Court Opinions and News

  • Interpreting Minnesota law, the Minnesota Supreme Court found a victim of rape in Minnesota cannot claim to have been mentally incapacitated and thus unable to consent if she voluntarily consumed alcohol. The court granted a new trial to a man previously convicted of assaulting an intoxicated woman. The Minnesota statute defines “mentally incapacitated” as when “a person under the influence of alcohol, a narcotic, anesthetic, or any other substance, administered to that person without the person’s agreement, lacks the judgment to give a reasoned consent to sexual contact or sexual penetration.” (emphasis supplied.) The court considered whether “administered to that person without the person’s agreement” applied to all items on the list, including alcohol, and found that it did. The court deferred to the legislature saying: “[i}f the Legislature intended for the definition of mentally incapacitated to include voluntarily intoxicated persons, ‘it is the Legislature’s prerogative to reexamine the . . . statute and amend it accordingly.’” See the order here and reports from The Minneapolis Star Tribune and CBSNews.

  • The California Supreme Court has reformed the CA cash bail system ruling that “[t]he common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional.” The ruling identifies other means of monitoring that can meet the goals of cash bail, including for example, electronic monitoring, mandatory check-ins, or stays at community housing facilities, and holds that “where a financial condition is nonetheless necessary, the court must consider the arrestee’s ability to pay the stated amount of bail—and may not effectively detain the arrestee ‘solely because’ the arrestee ‘lacked the resources’ to post bail.” See the order here and reports from The Associate Press, The Los Angeles Times, and The Courthouse News.

March 28, 2021 in Appellate Advocacy, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Tuesday, March 23, 2021

Certainty vs. Exigency: The Role of Modern Police Officers in Lange v. California

    When the Supreme Court recently heard arguments in Lange v. California, Justices were forced to consider how a police officer should react to emergencies in the field—perhaps their primary role in modern policing. The case concerns the arrest of Arthur Lange, who was convicted of driving under the influence of alcohol in Sonoma, California.[1] Lange was driving home while playing loud musing with his windows down and occasionally honking his horn; a California highway patrol officer followed him into his neighborhood.[2] Though the officer turned on his lights as Lange approached his driveway, Lange did not see him, pulled into the garage, and closed the door.[3] The officer used his foot to block the garage door from closing, and when it reopened the officer entered the garage, smelled alcohol, and arrested Lange.[4] Lange challenged the evidence collected in the garage as the fruits of a warrantless arrest; the California Court of Appeal held that this evidence was admissible under the “exigent circumstances” exception to the warrant requirement because the officer had probable cause to arrest Lange and was in “hot pursuit,” even if the offense Lange appeared to commit was merely a misdemeanor.[5]

        The Justice’s arguments often returned to the issue of when and how officers can determine that an emergency is genuine, and thus the exigent circumstances exception to the Fourth Amendment’s warrant requirement applies. For instance, Justice Gorsuch worried that creating too many categorical exceptions to the warrant requirement, including one that always allowed warrantless hot pursuit of a misdemeanant, generated limitless government authority contrary to the intent of the Fourth Amendment’s drafters.[6] But as Lange’s attorney noted, the Court has never required officers to be certain of an emergency before acting under the exigent circumstances doctrine.[7]

What’s the Emergency?

    In an era of widespread citizen distrust of officers, one primary police function that can still garner widespread support is emergency response. When a genuine emergency is present,[8] immediate police action is so beneficial to citizens that officers should be able to dispense with the warrant requirement. In contrast, where officers merely seek to avoid the warrant requirement to avoid inconvenience or some slight delay that would have no evidentiary or real-world consequences, the exigent circumstances exception does not apply.[9]

    But the Court has not offered a clear rule to distinguish these two situations.[10] If the exigent circumstance doctrine requires something less than an officer’s absolute certainty in an emergency,[11] just what mental state must officers possess before acting?

    Many cases in the last half-century seemed to suggest that officers must have probable cause to believe that the exigency exists before proceeding.[12] But more recently, the Court appears to have softened the required proof of exigency before the exception applies, even while insisting that judges evaluate the totality of the circumstances in each case rather than devising categorical rules.[13] Phrases like “reasonable suspicion” and “objectively reasonable basis to believe” in an emergency have dotted the jurisprudential landscape.[14]

Terry To the Rescue

    There is good reason, both in precedent and policy, to equate the quantum of suspicion of an exigency needed to invoke that exception to the Terry-style reasonable suspicion standard. First, regarding precedent, Terry used the phrase “reasonable grounds to believe”—the very phrase that both the Supreme Court and circuit courts have subsequently applied in exigent circumstances cases—when finding that the stop-and-frisk in Terry was constitutionally justified.[15] Terry’s requirement seems to be the closest analogue to any “reasonable belief” or “reason to believe” standard that might emerge as the touchstone for applying the exigent circumstances standard.

    Furthermore, applying a robust version of Terry’s reasonable suspicion standard makes good policy sense. A probable cause standard requires more certainty than is typically possible in responding to an emergency. Probable cause—the Constitutional standard for obtaining a warrant[16]—contemplates a traditional, fully-considered investigation under relatively calm circumstances. The exigent circumstances doctrine evolved to create a lower threshold for constitutional investigation when officers are forced to respond quickly to rapidly-evolving circumstances. To achieve that level of discretion in emergencies, officers’ suspicion of an emergency must be lower than the probable cause requirement that officers must meet in more deliberate, considered investigations.

    At the same time, any floor lower than a full-throated version of reasonable, articulable suspicion is misguided. Officers need at least that much suspicion that an emergency is afoot—even when acting in the spur of the moment—before the warrant requirement can be dispensed.[17] Officer must also not be permitted to create exigencies that can serve as pretexts for warrantless searches. The Court should expand the prohibition on officer-created exigencies to ensure evidence is excluded where there is objective evidence that officers plotted in advance to generate exigent circumstances or followed a department-wide policy or practice to excuse the need for warrants.[18]

    Terry-style reasonable suspicion is also appropriate because of its inherent flexibility to adapt to new circumstances or changing facts. Fourth Amendment reasonableness is not a static concept, but one that can evolve as new types of officer-citizen interactions arise. Officers will need that kind of flexibility—though always grounded in what they can articulate as a basis for suspicion—to respond to exigencies in real time.

    Reasonable suspicion can bear the weight of determining when exigencies are genuine, even though it is not a clear, bright-line rule. The exigent circumstances exception is based in common sense and reasonableness. [19] Apply Terry returns the exception to its roots and prescribes a sphere of constitutional action for officers that is easy both to understand and to justify. The Court should rely on this standard in cases like Lange to clarify the scope of the exigent circumstances exception.

 

[1] Amy Howe, Justices to Consider Whether “Hot Pursuit” Justified Entering the Home Without a Warrant, SCOTUSblog, Feb. 23, 2021, https://www.scotusblog.com/2021/02/justices-to-consider-whether-hot-pursuit-justifies-entering-the-home-without-a-warrant/.

[2] Amy Howe, Justices to Consider Whether “Hot Pursuit” Justified Entering the Home Without a Warrant, SCOTUSblog, Feb. 23, 2021, https://www.scotusblog.com/2021/02/justices-to-consider-whether-hot-pursuit-justifies-entering-the-home-without-a-warrant/.

[3] Amy Howe, Justices to Consider Whether “Hot Pursuit” Justified Entering the Home Without a Warrant, SCOTUSblog, Feb. 23, 2021, https://www.scotusblog.com/2021/02/justices-to-consider-whether-hot-pursuit-justifies-entering-the-home-without-a-warrant/.

[4] Amy Howe, Justices to Consider Whether “Hot Pursuit” Justified Entering the Home Without a Warrant, SCOTUSblog, Feb. 23, 2021, https://www.scotusblog.com/2021/02/justices-to-consider-whether-hot-pursuit-justifies-entering-the-home-without-a-warrant/.

[5] Amy Howe, Justices to Consider Whether “Hot Pursuit” Justified Entering the Home Without a Warrant, SCOTUSblog, Feb. 23, 2021, https://www.scotusblog.com/2021/02/justices-to-consider-whether-hot-pursuit-justifies-entering-the-home-without-a-warrant/.

[6] “[W]e live in a world in which everything is illegal, you put that together with the good faith exception and the—the fact that an officer is not being tested on his subjective intentions, which may be nefarious, but whether a reasonable officer could think as he did, and hot pursuit could be pretty tepid, it turns out, have we come pretty close to—doesn’t that sound a bit like the general war—world and –and the founding that the framers were so concerned about rejecting?” Transcript of Oral Argument at 105-06, Lange v. California, Feb. 24, 2021, No. 20-18

[7] “You already have built into the Exigent Circumstances Doctrine a less-than-certitude requirement.” Transcript of Oral Argument at 35, Lange v. California, Feb. 24, 2021, No. 20-18

[8] “Any warrantless entry based on exigent circumstances must of course be supported by a genuine exigency.” Kentucky v. King, 563 U.S. 452, 470 (2011).

[9] Although the “investigation of crime would always be simplified if warrants were unnecessary . . . the mere fact that law enforcement may be made more efficient can never by itself justify disregard of the Fourth Amendment.” Mincey v. Arizona, 437 U.S. 385, 393 (1978); see also Chapman v. United States, 365 U.S. 610, 615 (1961) (“Any assumption that evidence sufficient to support a magistrate's disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people’s homes secure only in the discretion of police officers.”).

[10] “Rather than providing a readily applicable definition, the U.S. Supreme Court has held that exigent circumstances should be examined on a case-by-case basis.” Di Jia et al., An Analysis and Categorization of U.S. Supreme Court Cases Under the Exigent Circumstances Exception to the Warrant Requirement, 27 C.R. L.J.  37 (2016).

[11] Transcript of Oral Argument at 35, Lange v. California, Feb. 24, 2021, No. 20-18

[12] See, e.g., Welsh v. Wisconsin, 466 U.S. 740, 750 (1984); Tennessee v. Garner, 471 U.S. 1, 3 (1985); Minnesota v. Olson, 495 U.S. 91, 100 (1990).

[13] See Riley v. California, 573 U.S. 373, 402 (2014) (“The critical point is that, unlike the search incident to arrest exception, the exigent circumstances exception requires a court to examine whether an emergency justified a warrantless search in each particular case.”) (citation omitted).

[14] See, e.g., Kit Kinports, The Quantum of Suspicion Needed for an Exigent Circumstances Search, 52 Mich. J. L. Reform 615, 615 (2019) (“The Supreme Court opinions describing the amount of exigency needed to support a warrantless search under the exigent circumstances exception to the Fourth Amendment’s warrant requirement have long varied. Some decisions speak in terms of probable cause, others require reasonable suspicion, and many others use amorphous, undefined phrases such as ‘reasonable to believe.’”); see also Richards v. Wisconsin, 520 U.S. 385, 394 (1997); Brigham City v. Stuart, 547 U.S. 398, 400 (2006); Michigan v. Fisher, 558 U.S. 45, 47 (2009).

[15] Kit Kinports, The Quantum of Suspicion Needed for an Exigent Circumstances Search, 52 Mich. J. L. Reform 615, 625 (2019) (quoting Terry v Ohio, 392 U.S. 1, 30 (1968)).

[16] U.S. Const., amend. IV.

[17] “If law enforcement officials cannot even supply some ‘articulable’ suspicion, if they have only an ‘inchoate and unparticularized suspicion or hunch,’ they have no justification for conducting a warrantless exigent circumstances search or seizure.” Kit Kinports, The Quantum of Suspicion Needed for an Exigent Circumstances Search, 52 Mich. J. L. Reform 615, 627 (2019).

[18] This would require significant revision of the Court’s decision in Kentucky v. King, under which officer-created exigencies only exist when officers “gain entry to premises by means of an actual or threatened violation of the Fourth Amendment.” Kentucky v. King, 563 U.S. 452, 464 (2011).

[19] As Justice Kavanaugh noted in oral arguments in Lange v. California, “the exigent circumstances doctrine [is] a pretty clear rule for officers because the exigent circumstances doctrine really, as I see it, tracks common sense, these are the kinds of cases and the kinds of reasons an officer would do this in the first place, want to go into the house without a warrant, especially escape of the suspect, threats to others, destruction of evidence.” Transcript of Oral Argument at 107, Lange v. California, Feb. 24, 2021, No. 20-18

March 23, 2021 in Appellate Advocacy, Current Affairs, United States Supreme Court | Permalink | Comments (0)

Friday, March 12, 2021

Appellate Advocacy Blog Weekly Roundup Friday, March 13, 2021

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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 allowed a free speech suit seeking nominal damages to go forward despite the removal from the policy of the restriction on speech. The plaintiff sued his college over its public speaking policies, asking for nominal damages. The college revised its policy and removed the overly-restrictive limits on speech and the lower court rule the case moot. The Court reversed, finding “[t]his case asks whether an award of nominal damages by itself can redress a past injury. We hold that it can.” The decision was 8 to 1 with Justice Roberts dissenting. Justice Roberts's dissent warns that the decision will result in court’s having to issue the equivalent of advisory opinions.  He wrote: “Until now, we have said that federal courts can review the legality of policies and actions only as a necessary incident to resolving real disputes. Going forward, the judiciary will be required to perform this function whenever a plaintiff asks for a dollar.” See the order and reports from The New York Times, ABC News, and the Associated Press.

  • The Supreme Court ruled that immigrants bear the burden to prove that they have not been convicted of a disqualifying crime when trying to cancel a deportation. Although the attorney general has the discretion to stop a deportation, that discretion does not apply under certain circumstances, like in this case, where the immigrant has been convicted of a “crime of moral turpitude.” The issue here was whether the crime qualified as one of moral turpitude and who bore the burden to prove it. The Court ruled that the immigrant bore the burden and that he had not met the burden of demonstrating that the crime was not a disqualifying crime. See the order and reports from NPR and Bloomberg.

Federal Appellate Court Opinions and News

  • The Second Circuit ruled unconstitutional Connecticut’s “special circumstances” rule, which imposes unique confinement rules for former death row inmates. The rule was created when the legislature abolished the use of the death penalty for future crimes (the inmate, who had been sentenced to death before the abolishment, was re-sentenced when the Connecticut Supreme Court determined that the death penalty was unconstitutional). The rule applied to inmates formerly on death row and imposed confinement conditions more onerous than those of the general population. The Second Circuit agreed that the special terms of confinement were unconstitutional.  See the order and reports from US News and the CT Mirror.  

  • The Second Circuit reversed a lower court ruling denying an injunction against abortion protesters in New York City. The ruling determined that the tactics used by the protestors may violate federal, state, and city laws, like those that prohibit obstructing entrance to a clinic. The ruling recognizes the conflict between the right to protest and the right to be free from harassment: “The right to protest is a fundamental right central to the First Amendment. The right to be free from harassment and threats from protestors is an equally fundamental right. Properly protecting both sets of rights presents some of the most challenging work courts are called upon to do.” See the order and reports from Courthouse News and Law.com.

State Appellate Court Opinions and News

  • The Washington Supreme Court overturned automatic life sentences for younger adult defendants. The case involved the sentencing of two young adults, aged 19 and 20, and determined that the court could not be required to impose the mandatory sentence and must consider their youth in sentencing.  See the ruling and a report from the Associated Press

Other

  • On March 10, the Senate Judiciary Committee’s subcommittee on Federal Courts, Oversight, Agency Action, and Federal Rights hosted a hearing titled “What’s Wrong with the Supreme Court: The Big-Money Assault on our Federal Judiciary.” Find the recorded hearing at this link.

March 12, 2021 in Appellate Practice, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Saturday, February 13, 2021

Appellate Advocacy Blog Weekly Roundup Saturday, February 13, 2021

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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 let stand a Tenth Circuit order ruling that Alabama must allow an inmate’s request to have his pastor with him during his execution. The order denies without explanation the motion to vacate the injunction. Justice Kagan, joined by Justices Breyer, Sotomayor, and Barrett, concurred explaining that the “Religious Land Use and Institutionalized Persons Act (RLUIPA) provides ‘expansive protection’ for prisoners’ religious liberty” and that Alabama had not met ‘its burden of showing that the exclusion of all clergy members from the execution chamber is necessary to ensure prison security.” See the order and reports from The New York Times, The Hill, and the Associated Press

  • The Supreme Court granted in part a request to enjoin the California ban on indoor public gatherings as applied to religious services, allowing California churches to open despite the pandemic. The order allows the 25% capacity limitation and allows the ban on signing and chanting during services. Justice Kagan’s dissent argues not only that religious meetings were treated exactly like other similar meetings but also that the court is not equipped to step into the shoes of the scientists and legislators who are attempting to fight a deadly pandemic.  See ruling and a few of the many reports from USA Today, CNN, The New York Times, and Politico.

  • The Supreme Court granted the Biden Administration’s request to cancel two upcoming arguments in pending cases concerning the previous administration’s immigration policies. The Biden administration told the court that the polices were under review and asked the court to table argument for now.  The two arguments concerned funding for the border wall and the “Remain in Mexico” policy.  See reports in Reuters, The Hill, and Bloomberg News.

Federal Appellate Court Opinions and News

  • The Second Circuit upheld a new New York state ballot law that changes the definition of a qualified political party, making it more difficult to meet the test. The rules make access to the NY ballot more difficult by raising the number of required signatures to be a qualified political party from 50,000 to 130,000 (or at least 2% of the vote in presidential or gubernatorial elections). The ruling recognizes that the Constitution gives states broad authority over their own elections. See the order and reports from The Courthouse New Service, NBC New York, and The Associated Press.

  • The Seventh Circuit ruled that a nativity scene may be placed outside an Indiana public building because it has secular significance.  The court overturned the lower court ruling and found that the scene complies with the Establishment Clause “because it fits within a long national tradition of using the nativity scene in broader holiday displays to celebrate the origins of Christmas—a public holiday.” See order and reports in The Indianapolis Star and The Courthouse News.  

State Appellate Court Opinions and News

  • The California Supreme Court allowed a high-ranking California judge to be removed from office for sexual misconduct. A disciplinary commission found the judge sexually harassed attorneys, staff, and court colleagues. The court, with no dissents, refused to review the commission’s decision to remove him from the Second District Court of Appeal in Los Angeles. The commission found that the justice’s “misconduct has severely tarnished the esteem of the judiciary in the eyes of the public” and that, “[g]iven his lack of candor during this proceeding, [the commission does] not have confidence that he has the fundamental qualities of honesty and integrity required of a judge.” See reports from The Los Angeles Times and The San Francisco Chronicle.

Other

  • Adam Steinman posts a summary of his article titled Rethinking Standards of Appellate Review, 96 Ind. L.J. 1 (2020). The summary explains that the article “digs into” the question “[f]or any given issue that a trial court might decide, should the appellate court review the lower court’s ruling de novo? Or should it review the ruling deferentially, say, for clear error or abuse of discretion?”

February 13, 2021 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (1)

Monday, February 1, 2021

Two Great Articles on Remote Oral Argument

Two weeks ago I blogged that we were close to releasing Volume 21, Issue 1, of The Journal of Appellate Practice and Process. I am pleased to announce that the issue is now online.  There are so many wonderful articles in the issue, which I plan to blog on over the next few weeks.  

Since I have already written much on online oral arguments, I thought that I would start with the two pieces that discuss that topic.  The first, "Remote Oral Arguments in the Age of Coronavirus: A Blip on the Screen or a Permanent Fixture," written by veteran appellate advocate Margaret  McGaughey, is a follow-up from her earlier article entitled, "May it Please the Court--Or Not: Appellate Judges' Preferences and Pet Peeves About Oral Argument." In both articles, Ms. McGaughey conducts numerous interviews of state and federal appellate judges and provides their perspectives on the topics.  Her interviewees include Justice Stephen Breyer, Judge David Barron (my property professor), Judge Sandra Lunch, Judge Bruce Selya, Judge William Kayatta, Judge Lipez, former Chief Justice Daniel Wathen, Chief Justice Andrew Mean, Justice Catherine Connors, and the late Chief Justice Ralph Gants. She also interviewed several attorneys who have given remote arguments.

The article is full of great tips, including some tips at the end of setting up your space for remote argument. But, there are two things that really stuck with me in reading the article. The first is how well we all adapted.  The judges and the advocates have done what has needed to be done to adapt to the situation. They have learned how to use the technology and they have changed how questions are asked and arguments delivered. Some have even changed what they wear to "court."  We are all truly in this together, and we have persevered.  This leads to the second thing that struck me--while many judges are eager to return to the physical courtroom, things will never be the same. This new style of remote arguments will remain in some form.  How frequently it will be used in the future remains to be seen.

The second article on remote arguments is by one of our bloggers--Judge Pierre Bergeron. Judge Bergeron's article, "COVID-19, Zoom, and Appellate Oral Argument: Is the Future Virtual," also contains judges' thoughts about remote argument. What really stands out to me in Judge Bergeron's article, however, is his passionate defense of oral argument in general.  He presents a fascinating discussion of the decline of oral argument and how remote arguments can serve to both revitalize oral argument and meet key access to justice concerns. Virtual arguments, he says, could allow courts to create a "pro bono appointment program that would . . . help provide argument at-bats for aspiring appellate lawyers" by matching them with "underprivileged clients who need quality legal representation."  He cites to such a program in Arizona. This idea is genius. I could see law school clients jumping on board too.

Hopefully this new year and the vaccine rollout will see some normalcy return to our appellate courts. But, I hope too that we capitalize on all the technological advancements with remote oral argument to increase access to justice and lower costs for clients.

February 1, 2021 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Oral Argument, State Appeals Courts, United States Supreme Court, Web/Tech | Permalink | Comments (0)

Saturday, January 16, 2021

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

Appellate Advocacy Blog Weekly Roundup Saturday, January 16, 2021

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

US Supreme Court Opinions and News

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

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

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

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

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

Federal Appellate Court Opinions and News

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

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

State Appellate Court Opinions and News

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

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

Sunday, January 3, 2021

Appellate Advocacy Blog Weekly Roundup Sunday, January 3, 2021

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

 

Happy New Year from the Weekly Roundup!

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

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

 

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

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

Friday, December 18, 2020

Appellate Advocacy Blog Weekly Roundup Friday, December 18, 2020

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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 refused to hear an Indiana appeal that sought to reverse the Seventh Circuit ruling that Indiana’s limitation on who can be listed as a parent on a birth certificate was unconstitutional. The Seventh Circuit found that Indiana discriminated against same-sex couples by presumptively listing the husband on the birth certificate of a heterosexual couple but refusing to list the spouse on the birth certificate for a same-sex couple. The Court’s refusal to hear the appeal leaves in place the Seventh Circuit opinion and means that, in Indiana, both spouses in a same-sex couple can be listed on the birth certificate. See reports from The Indianapolis Star, NBC News, and Slate.

  • The Supreme Court reversed a 2018 ruling from the Court of Appeals for the Armed Forces that applied a five-year statute of limitations to military rape prosecutions. The lower ruling resulted in the dismissal of rape convictions for three Air Force personnel. The Supreme Court reversed the ruling, upholding the three convictions. The Court found that the military code weighed “heavily in favor of the government’s interpretation” to prosecute rape claims going back to the 1980s. See the opinion and reports from The Hill and Military Times.

  • The Supreme Court dismissed the lawsuit challenging the attempt to exclude unauthorized immigrants from the census count, ruling that the challenge was premature. The majority ruled that the “case is riddled with contingencies and speculation that impede judicial review.” Justice Breyer’s dissent, joined by Justices Kagan and Sotomayor, points out that “[t]he plain meaning of the governing statutes, decades of historical practice[,] and uniform interpretations from all three branches of government demonstrate that aliens without lawful status cannot be excluded from the decennial census solely on account of that status. . . . I believe this court should say so.” Justice Breyer continues, “[w]here, as here, the government acknowledges it is working to achieve an allegedly illegal goal, this court should not decline to resolve the case simply because the government speculates that it might not fully succeed.” See the opinion and reports from NPR, The New York Times, CNN, and The Washington Post.

    A tribute to Justice Ruth Bader Ginsberg was announced this week. Patterson Belknap introduced a podcast reviewing her legacy, called “Notorious: The Legal Legacy of Justice Ruth Bader Ginsburg.” See the news release here and the podcast here. 

Federal Appellate Court Opinions and News

  • The First Circuit ruled that the Massachusetts wiretapping statute that prohibits secret recording does not apply to police officer, thus ruling that individuals may secretly record the police.  See reports by NYU’s First Amendment Watch and CommonWealth.   

  • The Tenth Circuit ruled memes were acceptable intrinsic evidence” of the defendant’s facilitation and solicitation of prostitution. The memes were various references to “pimps” and “pimp culture.” The court admitted the memes not as character evidence, which would be improper under the Federal Rules of Evidence, but as evidence intrinsic to the crime of prostitution because the memes declared the defendant to be in the business of trafficking prostitutes. The memes were determined to be readily viewable by others and to constitute the defendant’s social media brand. See the order and a blog post by the Evidence ProfBlogger and reports from Colorado Politics, Law360 (subscription required),

Other News

The Federalist Society hosted a virtual event called “Court-Packing, Term Limits, and More: the Debate over Reforming the Judiciary.” Find a video of the event here.

December 18, 2020 in Appellate Advocacy, Appellate Court Reform, Appellate Procedure, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Friday, December 4, 2020

Appellate Advocacy Blog Weekly Roundup Friday, December 4, 2020

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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 has been asked to block the certification of Pennsylvania’s results in the 2020 presidential election. The case argues that absentee voting provisions were unconstitutional under the state constitution. Experts opine, however, that the Court’s scheduling order asking for responsive briefs one day after the Safe Harbor Deadline indicates that the case is unlikely to affect the election results. The Safe Harbor Deadline is the federal deadline for states to resolve outstanding challenges to their elections. Once it has passed, the state’s slate of appointed electors is considered to be locked in. See reports in USA Today and The Philadelphia Inquirer.

  • The Court heard oral argument about the retroactive implications of their April decision on unanimous jury verdicts. In April, the Supreme Court ruled that non-unanimous jury verdicts for serious crimes (whether federal or state) are unconstitutional. Then, the ruling applied only to future cases; the court left unanswered the question of whether the decision should apply retroactively. The current case asks whether April’s decision should apply to prisoners in Louisiana and Oregon convicted in the past by non-unanimous juries. (These are the only states that allowed such verdicts at the time of the April decision).  See reports from NPR, The New York Times, and The Washington Post.

  • James Romoser posted a thread this week about the petitions the Court is considering this week.

Federal Appellate Court Opinions and News

  • While acknowledging North Carolina’s “long and shameful history of race-based voter suppression,” the Fourth Circuit reversed a lower court and upheld the state’s law requiring voters to present photo identification before casting ballots. The court determined that the lower court had improperly considered the state’s “past conduct to bear so heavily on its later acts that it was virtually impossible for it to pass a voter-ID law that meets constitutional muster.”  See the order and reports from The Washington Post and The Hill.

  • The Seventh Circuit reinstated ex-Penn State President Graham Spanier’s 2017 conviction for child-endangerment.  The ruling determined that the lower court improperly overturned the guilty verdict about Spanier’s mishandling of claims of sexual abuse against Penn State assistant football coach Jerry Sandusky.  See the order and reports from the Philadelphia Inquirer and ESPN.

Other News

Beth Wilensky posted a thread on Twitter looking at the style and legal writing of an opinion of Third Circuit Judge Bibas. The thread points out the various ways that Judge Bibas employs good writing techniques, including using plain English and simple transitions.

December 4, 2020 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Writing, United States Supreme Court | Permalink | Comments (0)

Sunday, November 29, 2020

Covid-19 and Religious Liberty

In Roman Catholic Diocese of Brooklyn, New York v. Cuomo, the Roman Catholic Diocese of Brooklyn sought emergency injunctive relief, claiming that an Executive Order issued by Governor Andrew Cuomo regarding, among other things, capacity limits at houses of worship, violated the Free Exercise Clause of the First Amendment.[1]

The Free Exercise Clause provides citizens with the liberty to freely hold and practice religious beliefs without government interference. The right to freely exercise religion, however, is not absolute, and the United States Supreme Court’s jurisprudence has established several principles regarding the scope of religious liberty. First, although the government may not regulate religious beliefs, it may, in some circumstances, regulate religious practices.[2] Second, the government may not enact laws that impose a substantial burden on religious practices.[3] Third, courts may not assess the validity of particular religious beliefs when deciding if the Free Exercise Clause’s protections apply.[4] Fourth, the government may not coerce individuals into acting contrary to their religious beliefs.[5] Fifth, the government may not target or discriminate against religion generally or specific religious denominations.[6]

In Roman Catholic Diocese of Brooklyn, New York, the issue concerned whether Governor Cuomo’s Executive Order impermissibly targeted houses of worship for disparate treatment. By way of background, in response to the rising rates of Covid-19 infections in New York, Governor Cuomo adopted a color-coded microcluster model that designated areas of New York as red, orange, or yellow zones. These zones were defined as follows:

Red zones: areas where the seven-day rolling positivity rate was above 4% for ten days.

Orange zones: areas where the seven-day rolling positivity rate was above 3% for ten days.

Yellow zones: areas where the seven-day rolling positivity rate was above 2.5% for ten days.[7]

In red zones, no more than ten persons were permitted to attend religious services, and in yellow zones, no more than twenty-five persons could attend religious services, regardless of the seating capacity of a particular house of worship. In these same zones, however, all businesses deemed “essential,” which included acupuncture facilities and liquor stores, were not subject to these capacity restrictions. Furthermore, in “orange” zones, even “non-essential” businesses were not subject to any capacity restrictions.[8]

In a 5-4 decision, the United States Supreme Court held that Governor Cuomo’s restrictions on gatherings at various houses of worship in red and orange zones violated the Free Exercise Clause.[9] To begin with, the Court held that these restrictions did not constitute “laws of general applicability” (i.e., the capacity limits applied exclusively to places of worship), and thus applied strict scrutiny, which required New York to demonstrate that the Executive Order furthered a compelling government interest, was narrowly tailored, and constituted the least restrictive means of achieving the asserted governmental interest.[10]

Although holding that the interest in reducing the spread of Covid-19 was undoubtedly compelling, the Court held that the restrictions were not narrowly tailored. For example, the capacity limits could have been tied to the size of a church or synagogue, particularly given that, in the red and orange zones, fourteen churches could accommodate at least 700 people, and two could accommodate at least 1,000 people.[11] Given these facts, the Court noted that “[i]t is hard to believe that admitting more than 10 people to a 1,000-seat church or 400-seat synagogue would create a more serious health risk than the many other activities that the State allows.”[12] Moreover, as Justice Neil Gorsuch stated in his concurring opinion, these restrictions applied “no matter the precautions taken, including social distancing, wearing masks, leaving doors and windows open, forgoing singing, and disinfecting spaces between services.”[13] This was particularly troublesome given that, as Justice Gorsuch stated, secular businesses deemed “essential” faced no similar restrictions:

[T]he Governor has chosen to impose no capacity restrictions on certain businesses he considers “essential.” And it turns out the businesses the Governor considers essential include hardware stores, acupuncturists, and liquor stores. Bicycle repair shops, certain signage companies, accountants, lawyers, and insurance agents are all essential too. So, at least according to the Governor, it may be unsafe to go to church, but it is always fine to pick up another bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians. Who knew public health would so perfectly align with secular convenience?[14]

Additionally, Justice Gorsuch explained that the differential treatment of places of worship implicated precisely the type of discrimination that the Free Exercise prohibited:

People may gather inside for extended periods in bus stations and airports, in laundromats and banks, in hardware stores and liquor shops. No apparent reason exists why people may not gather, subject to identical restrictions, in churches or synagogues, especially when religious institutions have made plain that they stand ready, able, and willing to follow all the safety precautions required of “essential” businesses and perhaps more besides. The only explanation for treating religious places differently seems to be a judgment that what happens there just isn’t as “essential” as what happens in secular spaces. Indeed, the Governor is remarkably frank about this: In his judgment laundry and liquor, travel and tools, are all “essential” while traditional religious exercises are not. That is exactly the kind of discrimination the First Amendment forbids.[15]

Thus, the restrictions, “by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.”[16]

Chief Justice Roberts dissented, arguing that, because Governor Cuomo had recently re-codified the areas in question as yellow zones, and thus removed the restrictions on the houses of worship in question, the issue was essentially moot.[17]  For this reason, although questioning the constitutionality of Governor Cuomo’s Executive Order, Chief Justice Roberts did not believe that the Court needed to decide the issue at this juncture.[18]  

Justice Sotomayor, joined by Justice Kagan, also dissented, arguing that the restrictions treated houses of worship identically to other similarly situated businesses.[19] In her dissent, Justice Sotomayor relied on the Court’s prior decisions in South Bay United Pentecostal Church v. Newsom and Calvary Chapel Dayton Valley v. Sisolak, where the Court held that the government may restrict attendance at houses of worship provided that comparable secular institutions faced equally restrictive measures.[20] Based on these decisions, Justice Sotomayor argued that the Executive Order passed constitutional muster because it imposed equally stringent restrictions on other activities where “large groups of people gather in close proximity for extended periods of time,” such as “lectures, concerts, movie showings, spectator sports, and theatrical performances,” [21] Put differently, the Executive Order treated differently “only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.”[22]

Regardless of what one thinks of the Court’s decision, the justices’ opinions were quite revealing for other reasons.

1.    Chief Justice John Roberts and Justice Neil Gorsuch aren’t best friends

Based on the language and tone of their opinions, it appears that tension exists between Chief Justice Roberts and Justice Neil Gorsuch. For example, in his concurrence, Justice Gorsuch severely criticized Chief Justice Roberts’s concurrence in South Bay United Pentecostal Church, stating as follows:

What could justify so radical a departure from the First Amendment’s terms and long-settled rules about its application? Our colleagues offer two possible answers. Initially, some point to a solo concurrence in South Bay Pentecostal Church v. Newsom, 590 U. S. ___ (2020), in which THE CHIEF JUSTICE expressed willingness to defer to executive orders in the pandemic’s early stages based on the newness of the emergency and how little was then known about the disease. At that time, COVID had been with us, in earnest, for just three months. Now, as we round out 2020 and face the prospect of entering a second calendar year living in the pandemic’s shadow, that rationale has expired according to its own terms. Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical. Rather than apply a nonbinding and expired concurrence from South Bay, courts must resume applying the Free Exercise Clause.[23]

In fact, Justice Gorsuch went so far as to suggest that Chief Justice Roberts, by refusing the rule on the merits, was concerned more with political rather than legal considerations:

In the end, I can only surmise that much of the answer [to why the dissenters did not find the Executive Order unconstitutional] lies in a particular judicial impulse to stay out of the way in times of crisis. But if that impulse may be understandable or even admirable in other circumstances, we may not shelter in place when the Constitution is under attack. Things never go well when we do.[24]

In Justice Gorsuch’s view, “[t]o turn away religious leaders bringing meritorious claims just because the Governor decided to hit the “off ” switch in the shadow of our review would be, in my view, just another sacrifice of fundamental rights in the name of judicial modesty.”[25]

Chief Justice Roberts responded to Justice Gorsuch’s concurring opinion in an equally dismissive tone, stating as follows:

To be clear, I do not regard my dissenting colleagues as “cutting the Constitution loose during a pandemic,” yielding to “a particular judicial impulse to stay out of the way in times of crisis,” or “shelter[ing] in place when the Constitution is under attack.” Ante, at 3, 5–6 (opinion of GORSUCH, J.). They simply view the matter differently after careful study and analysis reflecting their best efforts to fulfill their responsibility under the Constitution.[26]

The tone of both opinions suggests that Chief Justice Roberts and Justice Gorsuch are not the best of friends. The reason is likely that Justice Gorsuch, an originalist who strives to uphold the rule of law regardless of an outcome’s desirability, views Chief Justice Roberts as capitulating to, even prioritizing, political considerations over principled legal analysis.

2.    Chief Justice Roberts is arguably prioritizing politics over the rule of law

Chief Justice Roberts’s approach to deciding cases has changed considerably from his previously expressed fidelity to originalism and to a modest judicial role that, in his words, was analogous to umpires calling balls and strikes.

Indeed, as Justice Gorsuch intimated, in some cases Chief Justice Roberts appears more concerned with preserving the Court’s institutional legitimacy than with engaging in principled legal analysis. And the consequences are likely to cause precisely the result that Roberts seeks to avoid: the politicization of the judiciary. After all, what is the criteria by which to decide whether a decision will preserve the Court’s legitimacy? Little more than a justice’s subjective values. Put differently, concerns regarding what constitutes a “legitimate” decision are predicated on nothing more than prevailing political attitudes rather than principled legal considerations. Such an approach abdicates the judicial role and weakens the rule of law. As Justice Gorsuch stated, “we may not shelter in place when the Constitution is under attack.”[27]

Additionally, Chief Justice Roberts’s jurisprudence suggests that he lacks a coherent judicial philosophy. On one hand, for example, in Shelby County v. Holder, Chief Justice Roberts voted to invalidate two provisions of the Voting Rights Act in (despite a vote of 98-0 to re-authorize these provisions), but on the other hand, in National Federation of Independent Investors v. Sebelius, Roberts went to great – and dubious – lengths to uphold the Affordable Care Act. This is just one of many examples where Chief Justice Roberts’s adherence to certain principles, such as deference to the coordinate branches, is inconsistent and unpredictable.

Simply put, Chief Justice Roberts’s focus on preserving the Court’s legitimacy is likely to cause the very result he so ardently seeks to avoid, namely, politicizing the Court and the judiciary.

3.    Ideology continues to influence the justices’ decisions

It is not difficult to predict how the justices will rule in cases involving, for example, the Fourth, Eighth, and Fourteenth Amendments. Indeed, the justices’ decisions in such cases often coincide with their perceived ideological preferences. For example, in cases involving affirmative action, it is all but certain that Justice Sonia Sotomayor will vote to uphold almost any affirmative action policy. In cases involving abortion, it is all but certain that Justices Clarence Thomas and Samuel Alito will vote to uphold restrictions on abortion and argue for the overturning of Roe v. Wade.

Not surprisingly, the Court’s 5-4 decisions often predictably split along ideological lines. Some may argue that these decisions reflect the justices’ different judicial and interpretive philosophies, but the fact remains that such decisions almost always coincide with the justices’ policy predilections. And that is precisely what has politicized the judiciary.

These and other concerns lead to the conclusion that perhaps the best way for the Court to preserve its legitimacy is for it to deny certiorari in politically and socially divisive cases where the Constitution’s text is silent or ambiguous. Simply put, the Court should leave more disputes to the democratic process.

 

[1] 592 U.S.              (2020), available at: 20A87 Roman Catholic Diocese of Brooklyn v. Cuomo (11/25/2020) (supremecourt.gov).

[2] See Reynolds v. United States, 98 U.S. 145 (1878)

[3] See Wisconsin v. Yoder, 406 U.S. 205 (1972).

[4] See United States v. Ballard, 322 U.S. 78 (1044).

[5]  See Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988).

[6] See Church of Lukumi Babalu Aye, Inc., v. City of Hialeah, 508 U.S. 520 (1993).

[7] See Lisa L. Colengelo, Yellow, Orange, and Red: How New York’s Covid-19 Microclusters Work (Nov. 24, 2020), available at: Yellow, orange and red: How New York's COVID-19 microclusters work | Newsday

[8] 592 U.S.              (2020), available at: 20A87 Roman Catholic Diocese of Brooklyn v. Cuomo (11/25/2020) (supremecourt.gov).

[9] See id.

[10] See id.

[11] See id.

[12] Id.

[13] Id. (Gorsuch, J., concurring)

[14] Id.

[15] Id.

[16] Id.

[17] See id.

[18] See id. (Justice Breyer also dissented on similar grounds).

[19] See id. (Sotomayor, J., dissenting).

[20] See id.; South Bay United Pentecostal Church v. Newsom, 590 U.S.                 , (2020), available at; 19a1044_pok0.pdf (supremecourt.gov); Calvary Chapel Dayton Valley v. Sisolak, 591 U.S.      , available at: 19a1070_08l1.pdf (supremecourt.gov)

[21] Id. (Sotomayor, J., dissenting).

[22] Id.

[23] Id. (Gorsuch, J. concurring).

[24] Id.

[25] Id.

[26] Id. (Roberts, J., concurring).

[27] Id. (Gorsuch, J., concurring).

November 29, 2020 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Legal Profession, Religion, United States Supreme Court | Permalink | Comments (0)

Friday, November 20, 2020

Appellate Advocacy Blog Weekly Roundup Friday, November 20, 2020

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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 rejected a request to intervene in a case seeking to impose heightened Covid-19 precautions at a Texas prison. The Fifth Circuit stayed a trial court’s order that required increased safety steps at the prison that houses geriatric and vulnerable prisoners and where at least 25 inmates have already died from Covid-19. Oral argument in the Fifth Circuit to determine whether to uphold the trial court order is set for December 3.  See the order and dissents and reports from USA Today and Bloomberg.

  • The Supreme Court granted certiorari in a labor rights case, Cedar Point Nursery v. Hasid, that will look at labor rights in relation to property rights. Relying on  Loretto v. Teleprompter Manhattan CATV Corp., the property owners claim a California regulation that grants union organizers access to workers on private property is a taking because it is "permanent physical occupation of [the] owner's property." Michael Dorf summarizes the issues in the case here

  • A report available this week looks at the Supreme Court’s amicus docket and reviews the last decade’s findings. (Subscription required)

Federal Appellate Court Opinions and News

  • The various attempts to challenge the 2020 presidential election dominate court news still this week. For those interested, a few sources have compiled a description of where things stand: The Guardian, The Washington Post, AP News, and The BBC.  

  • The Eleventh Circuit found unconstitutional two Florida laws that banned conversion therapy for children, finding the laws violated the therapists’ right to free speech. The ruling opines that the First Amendment “does not allow communities to determine how their neighbors may be counseled about matters of sexual orientation or gender.” The dissent recognized the compelling interest in protecting children from a “harmful therapeutic practice.” See order and report from Reuters.

  • As Covid-19 cases surge across the country, courts are shutting their doors again and are cancelling juries.  See report from Bloomberg.

November 20, 2020 in Appellate Advocacy, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Sunday, November 15, 2020

Ranking the Current Justices on the United States Supreme Court

Any ranking system contains elements of subjectivity and arbitrariness, and this is unquestionably true when attempting to rank the current justices on the United States Supreme Court. And it should go without saying that every justice on the Court is an incredibly accomplished and well-respected jurist, and among the brightest minds in the legal profession.  

Notwithstanding, based on each justice’s jurisprudence, one can gain a general sense of their effectiveness, influence, and impact on the Court and the rule of law. The following rankings, which are admittedly subjective and unscientific, are predicated on the following factors: (1) the influence, if any, of ideology on a justice’s decision-making; (2) the quality of a justice’s written opinions and legal reasoning; (3) the extent to which a justice’s outcomes reflect a reasonable interpretation of a constitutional provision, statute, or regulation and thus preserve the rule of law; and (4) the degree to which a justice considers the pragmatic consequences of a decision, particularly as it affects the Court’s institutional legitimacy.

1.    Elena Kagan

By all accounts, Justice Kagan is a brilliant legal mind. Justice Kagan possesses outstanding writing skills and the ability to communicate effectively and persuasively with lawyers and laypersons. Additionally, Justice Kagan’s decisions eschew ideology and reflect a balanced approach to constitutional and statutory interpretation, and fidelity to the rule of law.

One of Justice Kagan’s best opinions was a dissent in Rucho v. Common Cause, where Justice Kagan passionately and persuasively argued that partisan gerrymandering was anathema to the Constitution and democracy, and squarely within the Court’s adjudicatory powers. Regarding the partisan gerrymanders in Rucho, Justice Kagan emphasized that they “debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people.”[1]

2.    Neil Gorsuch

Justice Gorsuch has consistently demonstrated that he is a principled originalist. Originalism states that judges should interpret the Constitution’s text based on what the drafters of a particular provision understood those words to mean at the time such provision was ratified. In his opinions, Justice Gorsuch consistently places the rule of law above subjective values or personal policy predilections. Indeed, Justice Gorsuch’s opinions are very well-reasoned and grounded in a faithful interpretation of a constitutional or statutory text. Put simply, Justice Gorsuch is not guided by ideology and his jurisprudence reflects humility and respect for the democratic process.

3.    John Roberts

Chief Justice John Roberts is among the most brilliant lawyers of his generation – and for good reason. Roberts’s intellect, advocacy skills, and writing ability are second to none.  Additionally, Chief Justice Roberts is, by all accounts, a humble jurist who respects the rule of law, the separation of powers, federalism, and democratic choice. Furthermore, Chief Justice Roberts strives to achieve consensus among the justices (thus avoiding, to the extent possible, divisive 5-4 opinions) and is committed to preserving the Court’s institutional legitimacy.

Importantly, however, the desire to preserve the Court’s legitimacy and status as an apolitical branch has led, perhaps inadvertently, to decisions that invite precisely the criticisms Roberts seeks to avoid. For example, in National Federation of Independent Investors v. Sebelius, Roberts wrote for a 5-4 majority, in which the Court held that the Affordable Care Act’s individual mandate passed constitutional muster under the Taxing and Spending Clause, despite substantial evidence that the mandate was an unconstitutional penalty.[2] Roberts’s decision, which surprised many legal scholars, was seen by some as an attempt to avoid the negative political consequences that a ruling invalidating the Affordable Care Act would engender. However, Roberts’s decisions in McCutcheon v. FEC, in which the Court invalidated a limit on contributions that an individual could make to a national party over a two-year period, and in Shelby County v. Holder, where the Court invalidated Sections 4(b) and 5 of the Civil Rights Act (despite a Senate vote of 98-0 to reauthorize these sections) engendered significant criticism and the very charges of illegitimacy that Roberts ostensibly seeks to avoid.[3]

Put simply, an overarching focus on preserving the Court’s institutional legitimacy invariably involves precisely the element of subjectivity (and, to an extent, arbitrariness), that is anathema to legitimacy itself.

4.    Stephen Breyer

Justice Breyer is a thoughtful and very intelligent jurist who balances fidelity to the rule of law with a consideration of the pragmatic consequences of decisions. And Breyer’s jurisprudence does not suggest that he is guided by subjective values or ideological considerations.  Instead, Justice Breyer's decisions are almost always well-reasoned and balanced, regardless of whether one agrees with the outcome of such decisions. For example, in Whole Women’s Health v. Hellerstadt, Breyer wrote for a 5-3 majority that invalidated a requirement in Texas that abortion providers obtain hospital admitting privileges.[4}

The decision in Whole Women's Health was based on a reasonable review of the record and of precedent regarding abortion rights.

One criticism of Justice Breyer, however, is that he subscribes to a method of constitutional interpretation known as “living constitutionalism,” which states that the Constitution’s meaning evolves over time and that the meaning of a particular constitutional provision should reflect contemporary societal values. The problem with this approach is that it vests nine unelected and life-tenured judges with the ability to identify – for the entire nation – prevailing societal values and to impose those values through decisions that often disregard or manipulate the Constitution’s text.

5.    Clarence Thomas

Justice Thomas is a faithful adherent to originalism. The principle undergirding originalism is that judges do not have the right to unilaterally disregard, manipulate, or change the Constitution’s meaning based on their subjective values or policy predilections.[5] Doing so would be fundamentally anti-democratic and give judges the unfettered right to undermine the democratic process and identify unenumerated rights based on nothing more than their personal values. Justice Thomas consistently adheres to this philosophy.

However, Justice Thomas can sometimes be far too formalistic and eschew any consideration whatsoever of the pragmatic consequences of his decisions. This is not necessarily a criticism, although originalism does not – and should not – prohibit judges from basing decisions on pragmatic considerations where such decisions would be consistent with a reasonable interpretation of the Constitution’s text. For example, Justice Thomas has repeatedly advocated for reversing Roe v. Wade, where the Court held that the right to privacy under the Fourteenth Amendment protects a woman’s right to terminate a pregnancy under certain circumstances.[6] Although the decision in Roe, particularly the reasoning, was arguably one of the worst in the last fifty years, the reliance that women have placed on Roe during this time, and the political and social divisiveness that would accompany overturning Roe, counsel in favor of adhering to Roe’s central holding. Thus, Thomas’s rather rigid position on Roe, and his overly formalistic legal analysis in other cases, leaves far too little room for pragmatic considerations.

6.    Sonia Sotomayor

Justice Sotomayor is an incredibly accomplished jurist who has authored several passionate and well-reasoned dissents, particularly in the areas of abortion and affirmative action. And Justice Sotomayor’s personal story, in which her intellect and work ethic propelled her to Princeton University and Yale Law School, is truly inspiring.

However, in a number of decisions, Justice Sotomayor, whose jurisprudence reflects living constitutionalism, appears to be motivated more by ideology or policy preferences than a commitment to the rule of law. This is arguably evident in the Court’s affirmative action jurisprudence, such as in Schuette v. Coalition to Defend Affirmative Action, where Justice Sotomayor’s reasoning read more like a policy prescription than a legal opinion, and where Sotomayor ostensibly eschewed any workable legal standards for assessing the constitutionality of affirmative action policies.[7] Regardless of one’s views on affirmative action, one gets the sense that Justice Sotomayor will, without exception, uphold any affirmative action policy irrespective of the merits of that policy. That approach is antithetical to the role of and limits on judicial decision-making. 

7.    Brett Kavanaugh

Justice Kavanaugh, a graduate of Yale Law School, had an extraordinarily impressive record as an attorney and a judge on the United States Court of Appeals for the District of Columbia Circuit where, by all accounts, Kavanaugh was a fair and principled judge.

Justice Kavanaugh’s ranking is not a reflection of his jurisprudence. Rather, he has not been on the Court for a sufficient time to adequately assess his jurisprudence, judicial philosophy, and impact on the Court and the law.

8.    Samuel Alito

Justice Alito is extremely intelligent, and a well-respected and accomplished jurist.

However, one gets the sense from both oral arguments and Justice Alito’s written opinions that his decisions are motivated in substantial part by ideological considerations and policy preferences. Indeed, on November 12, 2020, Justice Alito delivered a speech to the Federalist Society in which he criticized the Court’s free exercise jurisprudence, its decision in Obergefell v. Hodges (invalidating same-sex marriage bans), and the protections afforded to free speech.[8]

Note: Amy Coney Barrett: Having been confirmed only a few weeks ago, Justice Barrett has not been on the Court for a sufficient time to justify including her in the ranking.

 

[1]  139 S. Ct. 2484 (2019) (Kagan, J., dissenting).

[2] 567 U.S. 519 (2012).

[3] 572 U.S. 185; 570 U.S. 529 (2013).

[4] 136 S. Ct. 2292 (2016).

[5] Of course, originalism, like living constitutionalism, can also be used as a tool to impose a judge’s subjective values and policy preferences. However, principled originalists eschew such an approach and predicate their decisions on ascribing the meaning that the drafters intended at the time a provision was ratified.

[6] 410 U.S. 133 (1973).

[7] 572 U.S. 291 (2012).

[8] Sydney Bauer, Justice Alito Takes Aim at Gay Marriage in ‘Politically Charged Speech,’ (Nov. 13, 2020), available at: https://www.nbcnews.com/feature/nbc-out/justice-alito-takes-aim-gay-marriage-politically-charged-speech-n1247772

November 15, 2020 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Tuesday, November 10, 2020

What We Can Learn from a Short History of Election Disputes.

1876 nastWe tend to think that the most recent election is uniquely important, and any irregularity is quickly magnified. A short history of just a few of the many contested U.S. Presidential elections shows that elections are often messy, and that legal intervention of some sort (either by a change in the law or by court ruling) has frequently been the remedy. That review may also give us a glimpse of what to expect this year.

The first major election dispute was in 1800, when the Jefferson ran against Adams. Jefferson's party, the Democratic Republicans, handily won, and the party electors dutifully wrote down the names of both the presidential candidate (Jefferson) and the vice-presidential candidate (Burr). This resulted in a tie. The vote thus went to the House, which was controlled by the Federalists, and in which Burr refused to concede his position to Jefferson, thinking that the Federalists might prefer him and he could thus win the presidency. In the end, the House chose Jefferson, and, eventually, the 12th Amendment was passed to prevent a repeat tie.

In 1836, there were four candidates for president. Jackson won the popular vote, but with no majority in electoral votes, the election once again went to the House. The House dropped the fourth candidate with the lowest votes (Clay), and Adams managed to capture most of those elector's votes, possibly because he promised Clay a cabinet position. As a result, for the first time, the person who won the popular vote did not win the presidency.

In 1876, Tilden ran against Hayes, and Tilden won the popular vote. However, when the electoral college met, Tilden came up one vote short of winning, with 20 electoral votes being disputed by their states (each party claiming the votes for themselves). For the first time, the Supreme Court had a role in deciding who won - a commission was formed with 5 senators, 5 congressmen, and 5 Supreme Court Justices. The commission was supposed to be equally split, 7-7, between the parties, with one independent being chosen by the Justices, in this case, Justice Davis. When Davis was selected to serve as a Senator, he was replaced by a Justice Bradley, who, it turned out, voted entirely with the Republicans, and the commission decided 8-7 to award Hayes all of the votes. After numerous compromises (including, allegedly, the Compromise of 1877, ending Reconstruction) and bargains between the political parties, Hayes was sworn in accord with the commission's decision.

In 2000, Al Gore won the popular election against George W. Bush by .5%. However, the electoral vote remained unknown until Florida completed its vote count on November 8, resulting in a win by George W. Bush by just over 300 votes (later rising to 900 when mail-in ballots were counted), giving him 271 electoral votes. Issues with "hanging chads" and purported fraud resulted in a call for a hand recount in some counties. That recount resulted in a 537 vote win for Bush, certified on November 26.

Gore challenged the vote. He lost his challenge in a lower state court, but won in the Florida Supreme Court, which issued an order on December 8 requiring a recount of the 70,000 votes recorded as "undervotes" by the voting machines. The next day, the U.S. Supreme Court issued an order staying the Florida Supreme Court's order, treating the application for the stay as a writ of certioari, granting the writ, and setting the case for a 1 1/2 hour oral argument on December 11.

On December 12, the Court issued a 7-2 per curiam decision ordering that the recount stop, based on equal protection grounds, given the different standards of counting that were being used in different counties. Justices Breyer and Souter recommended that a statewide recount be held prior to the December 18th meeting of electors, but because the State of Florida had stated that it intended to meet the discretionary December 12 “safe harbor” deadline set by U.S. Election Code (3 U.S.C. §5), the court ruled 5-4 to reject that remedy. In the end, there was no time left to do anything but certify the original vote.

As you can see, the 2000 election was the first time the Supreme Court directly intervened in a State's efforts to decide an election recount. The division reflected in the court's opinions showed a tensions between two goals - ensuring a proper process to determine legal votes, and making sure that every vote is counted. Scalia's initial concurrence to the stay summarized the issue nicely from his perspective: each recount was alleged to physically degrade the paper ballots, so if the process being utilized was incorrect, counting the ballots first might actually mean that counting the ballots under a proper process, later, might become impossible.

It seems likely that there will be recounts in the 2020 election. In some states, those recounts will occur statewide. In others, they may be called on a district-by-district basis.

Political compromise, the main method in determining earlier close elections, seems unlikely. Court challenges, however, are already in the works. Methodologies for recounts have been largely standardized, so any machine recount should be done fairly quickly and with fewer potential challenges (hand recounts may be a different matter). This is important, because Bush v. Gore gave great weight to the State of Florida's election code and deadlines. Unlike the Franken-Coleman senate-race recount and court challenge, which took almost nine months, presidential recount challenges are very time sensitive. Any challenges to the recounts because of election fraud are thus also likely going to have to be decided within this narrow timeframe.

Already, though, Trump's legal teams are making equal-protection arguments, showing that they are also closely reading the Bush v. Gore playbook. There are claims that mail-in and in-person ballots are treated differently. There are suggestions that count observations are also done differently in different districts. However, to date, none of these allegations show as concrete a difference as the way those "hanging chads" or "dimpled chads" were being counted in each county in Florida. And the ticking clock for election deadlines means that any challenge will need to be equally clear if it has any hopes of resolution in time.

(image credit - Thomas Nast, Harper's Weekly, February 17, 1877, commenting on the compromise of 1877 that eventually resolved the 1876 election, Library of Congress Prints and Photographs Division, public domain)

November 10, 2020 in Appellate Justice, Current Affairs, United States Supreme Court | Permalink | Comments (0)

Sunday, November 1, 2020

Reforming the Judiciary

In the wake of Amy Coney Barrett’s ascendency to the United States Supreme Court, several elected officials and commentators have suggested that the next president should pack the Court, namely, add more justices to ensure a political and ideological balance.  These concerns are predicated, in part, on the belief that the Court has become too conservative and, under an originalist framework, will eviscerate various civil rights and protections. For example, some commentators contend that the Court will, among other things, invalidate the Affordable Care Act and restrict, if not eliminate, abortion rights and same-sex marriage. These arguments – and the unquestionable divisiveness that has characterized recent confirmation hearings – demonstrate that the Court has become an increasingly politicized institution. And the politicization of the Court threatens its institutional legitimacy and, ultimately, the rule of law itself.

In response to calls to pack the Court, presidential candidate Joe Biden recently announced that, if elected, he would form a commission to suggest reforms to the judiciary:

If elected, what I will do is I'll put together a national commission of — bipartisan commission of scholars, constitutional scholars, Democrats, Republicans, liberal, conservative. And I will ask them to over 180 days come back to me with recommendations as to how to reform the court system because it's getting out of whack.[1]

But packing the Court is not the answer. Adding additional justices will only further politicize the Court, as future presidents will continue to appoint justices whose interpretive philosophy suggests that such justices will reach decisions that comport with a president’s policy predilections. This does not mean, however, that reforms are unnecessary. Below are a few suggestions that would likely de-politicize the Court, preserve the judiciary’s institutional legitimacy, and protect the rule of law.

1.    Require a 6-3 supermajority to affirm or reverse lower court decisions

Much of the Court’s politicization has resulted from controversial 5-4 decisions regarding socially and politically divisive issues, such as the rights to abortion and same-sex marriage, and the constitutionality of the Affordable Care Act. These decisions have often divided the Court along perceived ideological lines, the consequence of which has been to undermine the Court’s legitimacy and erode public confidence in the judiciary.

Requiring a six-vote supermajority would avoid substantially the problems that 5-4 decisions engender. Specifically, a supermajority requirement would promote moderation because it would require the justices to compromise and thus would reduce, if not eliminate, the influence of ideology on judicial decision-making. As such, the Court would likely avoid the types of decisions that cause a political backlash, either by refusing to grant certiorari in such cases or reaching narrower decisions that effectuate incremental, rather than sweeping, changes in the law. Additionally, this approach is arguably more democratic because it would prevent, at least in some contexts, nine unelected and life-tenured judges from deciding what the law should be for all fifty states.

2.    Deny certiorari in cases where a legal issue is politically divisive and the Constitution is ambiguous.

In recent decades, the Court has decided cases involving politically divisive issues where the Constitution, either through silence or ambiguity, does not clearly resolve that issue. It should come as no surprise, therefore, that such decisions are often decided on a 5-4 basis and engender substantial criticism. For example, in National Federation of Independent Investors v. Sebelius, the Constitution provided no clear answer regarding whether the Affordable Care Act, particularly the individual mandate, violated the Commerce Clause.[2] Given this fact, and given that the Act had been passed by both houses of Congress and signed by President Obama, why did the Court get involved? The result was a 5-4 decision that engendered more criticism than praise, and that undermined, rather than preserved, the Court’s legitimacy. Likewise, in Clinton v. New York, both houses of Congress and President George H. W. Bush signed into law the line-item veto.[3] Notwithstanding, the Court invalidated the legislation, holding that it violated the Presentment Clause even though the Clause, largely because of its broadly worded language, did not provide sufficient, if any, guidance regarding its constitutionality. Again, why did the Court get involved?

Put simply, the Court should be reluctant to grant certiorari in politically or socially divisive cases unless the law or a lower court opinion plainly violates a provision in the Constitution (not the “penumbras” created in Griswold v. Connecticut).[4] Instead, it should defer to the coordinate branches – and to democratic choice.

3.    Allow the Supreme Court to issue advisory opinions

The conventional wisdom is that advisory opinions violate the “case or controversy” requirement in Article III of the Constitution. But the lack of a specific case does not mean that there is no controversy. The word “controversy” can be construed to enable the Court, in some circumstances, to issue advisory opinions regarding a law’s constitutionality.

Such an approach would have substantial benefits. To begin with, it would empower the Court to resolve important legal issues quickly and efficiently. Currently, cases challenging a law’s constitutionality typically take years to reach the Court and frequently involve alleged violations of fundamental rights.  And during this time, the federal courts of appeals often reach opposite conclusions, which creates uncertainty and instability in the law. Perhaps most importantly, if the Court in such cases ultimately decides that a law violates a fundamental right, it means that, for the several years that it took to reach the Court, individuals were being consistently deprived of a particular constitutional protection. Furthermore, given the rapid pace at which technology is advancing, allowing the Court to issue advisory opinions in cases concerning the constitutionality of, for example, searches and seizures, would bring much-needed efficiency, clarity, fairness, and stability to the law. Of course, advisory opinions would be appropriate only in situations that are tantamount to a facial challenge to a statute and thus involve purely legal questions. Some may argue that this approach would likely violate the separation of powers by giving the Court impermissible authority to encroach on the lawmaking process. But if the Court is ultimately going to decide the question after protracted litigation, the argument regarding the separation of powers is unconvincing.

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Ultimately, to the extent that reforms are needed, they should focus on giving the Court (and lower courts) less power to resolve politically and socially divisive issues, but more power to resolve other issues in an efficient manner. Part of the solution may involve requiring a six-vote supermajority, denying certiorari in particular cases, and enabling the Court issue advisory opinions. Court-packing, however, is not the answer. It should be rejected.

[1] Caitlin Oprysko, After dodging questions about court packing, Biden floats commission to study judicial reforms (Oct. 22, 2020), available at:  https://www.politico.com/news/2020/10/22/joe-biden-court-packing-judicial-reforms-commission-431157.

[2] 567 U.S. 519 (2012).

[3] 524 U.S. 417 (1998).

[4] 381 U.S. 479 (1965).

 

November 1, 2020 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (1)

Tuesday, October 20, 2020

Tales of Terror! (Or, Waiver at Trial and on Appeal)

Hieronymus_Bosch_-_Death_and_the_Miser_-_Google_Art_Project (cropped)

Few words strike more terror into the hearts of appellate practitioners than the word "waiver." It is the monster that lurks under the bed and hides in the closet of those who strive to have issues resolved substantively on appeal rather than simply dismissed.

Waiver can occur at two primary levels: at trial and on appeal. But whenever it rises, it can cause nightmares for you and your client.

Waiver at Trial - The Monster Under the Bed.

At trial, waiver can arise in a variety of ways. It often arises from a failure to preserve error meticulously. Did you get a ruling but fail to make an offer of proof so the court knows what was excluded? Waived! Did you think that the ruling on your motion in limine was good enough, so you didn't renew the objection at trial? Waived! Did you object to an improper or omitted instruction but fail to offer an accurate instruction in its place? Waived! The list goes on and on.

And then there is the infamous Rule 50. Federal of Civil Procedure 50 was practically written by the boogeyman. Rule 50(a) provides that, at the close of evidence, a party challenging sufficiency of the evidence must move for judgment as a matter of law (JMOL) by specifically pointing out the law and facts that entitle that party to judgment. This is presumably so that the challenged party has an opportunity to correct any defect in proof. Rule 50(b) then provides that, after judgment, the sufficiency argument must be renewed if it was not granted the first time.

The traps caused by this two-step requirement have left many appellate practitioners with little to argue. If you did not move for JMOL at both points in the trial, your sufficiency challenge is waived. If your 50(b) points do not match your 50(a) points, many circuits will also find any differing points waived.

Recently, the Fifth Circuit recognized an entirely new Rule 50 monster. In Edwards v. 4JLJ, L.L.C., --- F.3d ---, No. No. 19-40553, 2020 WL 5628689 (5th Cir. Sept. 21, 2020), the appellant filed a JMOL and Motion for New Trial (MNT) on March 12, 2019. The trial court entered judgment March 27th without addressing that motion. The appellant then filed another JMOL/MNT after the judgment that was identical to the first, which was denied on May 20, 2019, and then filed a notice of appeal on June 12, 2019.

Appellants thought they had filed everything on a timely basis. They had filed the JMOL appropriately and avoided the Rule 50 traps. And they thought that filing the second JMOL/MNT had extended their deadline to file the notice of appeal until 30 days after it was decided under Rule 4. They even filed their notice of appeal a bit early.

But not early enough, according to the Fifth Circuit. Instead, the court held that the JMOL/MNT had been implicitly overruled by the trial court when it had entered judgment. Then, since the JMOL/MNT filed after judgment was identical to the implicitly-overruled motion, it was really a motion for reconsideration, and did not extend appellate deadlines. As such, the notice of appeal was not timely, and the court did not have jurisdiction over most of the issues in the case.

Waiver on Appeal - The Monster in the Closet.

Waiver on appeal can be even more insidious. In federal court, the issue technically becomes one of waiver (an intentional relinquishment) versus forfeiture (an unintentional omission). See Wood v. Milyard, 132 S. Ct. 1826, 1832 (2012). But whatever they call it, waiver can arise not only because the issue was not addressed at trial, but because it was not adequately addressed in the brief. Thus, some courts have found waiver where the issue was raised but only in a footnote, or in a page or less of briefing, or without citation to supporting authority. See Barry A. Miller, Sua Sponte Appellate Rulings: When Courts Deprive Litigants of an Opportunity to Be Heard, 39 San Diego L. Rev. 1253 (2002).

This is the type of waiver that can catch even the most astute legal writer. As professionals writing to a very specific audience, we listen closely when that audience speaks. And that audience repeatedly tells us that they are tired of reading our work. "Shorter is better" seems to be the recurring theme. I have even attended conferences where a justice will admonish the audience to stop citing them to authorities everyone knows, like the standard of review.

Shorter is better, but there is a shadowy place where short and concise transitions over into waiver. In the quest to cut the argument down to its finest form, we must not cut too deeply, lest the court determine there is not enough flesh left on the bones. See United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) ("A skeletal 'argument', really nothing more than an assertion, does not preserve a claim. . . . Especially not when the brief presents a passel of other arguments . . . . Judges are not like pigs, hunting for truffles buried in briefs.").

Indeed, this is part of what makes briefing waiver (or forfeiture) so terrifying. What one justice finds pleasing may cause another justice to find waiver.

And then there is the timeliness of the argument. We consider it a general rule that issues not raised and decided in the trial court should not be considered on appeal, or that issues raised for the first time in a reply brief are forfeited. But the Supreme Court has been careful to preserve the discretion of courts to take up issues, and refuses to pronounce any such "general rule." See Singleton v. Wulff, 428 U.S. 106, 121 (1976).

As a result, one can never be sure when an issue that seems to be dead will suddenly lurch back to life. See Melissa M. Devine, When the Courts Save Parties from Themselves: A Practitioner's Guide to the Federal Circuit and the Court of International Trade, 21 Tul. J. Int'l & Comp. L. 329 (2013). If the court decides that the issue is important, or is required by justice, or involves "basic" issues of pure law, it can resurrect a dead argument sua sponte. Id. Even worse, if you did not address an issue because you considered it waived, you can be deemed to have "forfeited the forfeiture" or "waived the waiver." Cook v. Rockwell Int’l Corp., 618 F.3d 1127, 1139 (10th Cir. 2010).

Waiver and forfeiture really are boogeymen. They can ambush you at trial, trick you into making mistakes in your briefing, and even raise dead issues back to life. If you want to sleep well, keep the above issues in mind when preserving error or writing your next brief.

(Image credit: National Gallery of Art: Death and the Miser, c.1485/1490. Bosch, Hieronymus, Netherlandish, c.1450-1516).

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Singleton v. Wulff, 428 U.S. 106, 121, 96 S. Ct. 2868, 2877, 49 L. Ed. 2d 826 (1976)

 

 

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Edwards v. 4JLJ, L.L.C., No. 19-40553, 2020 WL 5628689, at *2 (5th Cir. Sept. 21, 2020
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Edwards v. 4JLJ, L.L.C., No. 19-40553, 2020 WL 5628689, at *2 (5th Cir. Sept. 21, 2020)
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Edwards v. 4JLJ, L.L.C., No. 19-40553, 2020 WL 5628689, at *2 (5th Cir. Sept. 21, 2020)
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Edwards v. 4JLJ, L.L.C., No. 19-40553, 2020 WL 5628689, at *2 (5th Cir. Sept. 21, 2020)

October 20, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Writing, United States Supreme Court | Permalink | Comments (0)