California (11.29.04)

People v. Seel, S106273, the Court held that Apprendi’s double jeopardy protections preclude a retrial of the premeditation penalty provision after an appellate court has held there was no evidence of premeditation. The defendant, Seel, was convicted of attempted premeditated murder and sentenced to life in prison with parole, plus 20 years. But an intermediate appellate court held the evidence did not show premeditation and remanded for retrial of the sentencing allegation. The Court today found, though, that because premeditation is part of the “commission of the offense,” retrial would effectively place the defendant in jeopardy twice for an “offense” greater than attempted murder.

In People v. Ramos, S030956, the defendant pled guilty to three counts of murder as well as felony possession and other firearm offenses. The jury sentenced the defendant to death. In this automatic appeal, the defendant raised several arguments, including an argument that his propensity towards violence, paranoia, and death wish made him incompetent to plead guilty. The California Supreme Court upheld all of the trial court’s findings and affirmed the sentence of death.

California Supremes Deny Peterson's Petition

The California Supreme Court is reporting here that it has denied Scott Peterson’s petition for an emergency stay of penalty phase proceedings, scheduled to start Tuesday morning. Mark Geragos, Peterson’s lawyer, requested a new jury and change of venue. In his brief Geragos argued that when jurors were released from sequestration, the community congratulated and celebrated them like “members of a winning Super Bowl team.” Consequently, “any ‘lingering doubt’ one or more jurors might have had about Mr. Peterson’s guilt, a doubt which defense counsel could invoke at the penalty phase trial, was extinguished” and the jury is “presumptively disabled” from determining whether Scott Peterson should receive the death penalty.

For more information, check out coverage at CNN and the San Francisco Chronicle.

CA5 (11.23.04)

Constitution doesn't always protect against cronyism

In Alexander v. Eeds, the Fifth Circuit considered the § 1983 claims of police lieutenants who were denied promotion to the rank of narcotics service captain, allegedly because of cronyism and retaliation for protected speech. Among other things, the plaintiffs alleged that an examination used to select candidates for promotion was rigged to favor members of a social organization, the "Houston Bar-B-Que Club," to which the plaintiffs did not belong.

The district court granted summary judgment dismissing the claims of five plaintiffs, but denied summary judgment (based on qualified immunity) on the claims of the other two. The Fifth Circuit affirmed dismissal of the five, on grounds that their speech at issue concerned private matters, not public matters, and so was not protected. Held the court,

While the facts of this case give us great pause in as much as they reflect a very troubling promotion process, reeking of cronyism, within DPS, because the § 1983 actions are brought to us in the context of alleged First Amendment violations, the inquiry necessary leads us to conclude that Plaintiffs' claims are unsupported. Because the speech of [the five] was not protected by the First Amendment, the district court correctly gratned summary judgment on these § 1983 claims.

The district court also granted summary judgment for the five on the alternative ground of qualified immunity, but denied summary judgment on qualified immunity on the claims of the other two. With respect to the five, the Fifth Circuit affirmed. Since those plaintiffs failed to allege speech that was constitutionally protected, they failed to allege a violation of an established right. As for the remaining two, the Fifth Circuit reversed as to one (dismissing his claim), but affirmed as to the other (allowing his claim to stand). The decision in each plaintiff's case turned on whether the speech in question was protected, i.e., whether it addressed a matter of public concern.

Finally, the Fifth Circuit affirmed the district court's rejection of plaintiffs' equal-protection claim, on grounds that the Equal Protection Clause does not protect against cronyism:

"While we do not approve of promoting friends over others who may have superior objective qualifications, we cannot say that such a practice is not rationally related to a legitimate governmental objective. See Kotch v. Bd. of River Port Pilot Comm'rs., 330 U.S. 552, 563 (1947) (upholding nepitistic system of appointing State-employed pilots as rationally related to the legitimate governmental interest of "morale and espirit de corps")."

Expert testimony not always needed to prove design defect

In Malbrough v. Crown Equipment Corp., the Fifth Circuit held that under Louisiana law, a products-liability plaintiff does not necessarily need expert testimony to establish a design defect. The district court had granted the manufacturer's motion in limine to exclude plaintiff's expert because plaintiff failed to timely meet discovery deadlines. The manufacturer then moved for summary judgment, on grounds that the Louisiana Products Liability Act requires expert testimony to establish a prima facie case of design defect. The district court denied the motion, on grounds that a trier of fact could understand whether the design was defective without expert testimony. The district court and the Fifth Circuit granted the manufacturer permission to appeal, and the Fifth Circuit affirmed. The court found no Louisiana caselaw requiring that a plaintiff must always have expert estimony to establish a prima facie case of design defect. "Consequently, we hold that the district court did not err in refusing to recognize a per se requirement of expert testimony in all design defect cases under the LPLA."

The next big appellate seminar
The 20th Annual Fifth Circuit Appellate Seminar is scheduled for April 7-8, 2005 in New Orleans at the J.W. Marriott Hotel. According to the seminar planners, so far the card includes Maureen Mahoney and Barrett Prettyman (Supreme Court practice), Alan Childress (what else? standards of review), Michael Rubin (professionalism), and Susan Wagner (interlocutory appeals). They're also expecting "at least 8 federal circuit judges from the 5th and 11th Circuits," -- and a visit by three dead presidents (Washington, Jefferson, and Madison). Information and registration form are here.

P.S. For those who like to plan way ahead, the next DRI Appellate Seminar will be in February 2006 in Santa Monica, CA.

CA5 (11.19.04)

"There's no such thing as being a little bit moot."
So said the Fifth Circuit in Scruggs v. Lowman, filed yesterday. The case, an interesting study in mootness affecting appellate jurisdiction, answers this question: What's an appellate court to do with an appeal if the case became moot before the lower court rendered judgment? Must the appellate court dismiss the appeal for lack of jurisdiction, thus allowing the lower court's judgment, even though null, to stand? Answer: Even though the appellate court has no jurisdiction to decide the merits, it retains power to vacate the lower court judgment.

Eleventh Amendment and Ex Parte Young
In other news, the Fifth Circuit denied both panel and en banc rehearing in McCarthy v. Hawkins. Seven judges dissented from the denial of en banc rehearing (Smith, Jolly, Jones, Barksdale, Garza, Clement, and Pickering). The dissenters agreed with Judge Garza's panel dissent: "[A] challenge to the constitutionality of a statute underlying a [suit under Ex parte Young, 209 U.S. 123 (1908),] is a proper subject of an Eleventh Amendment immunity analysis and that consideration of such a challenge is within the scope of an interlocutory appeal from the denial of a claim of Eleventh Amendment immunity."

CA5 (11.19.04)
Torts on the water

Brad Parker provides this summary of yesterday's decision in Scarborough v. Clemco Industries:

• First, admiralty jurisdiction exists over claims against product manufacturers when at least one other alleged tortfeasor was engaging in a traditional maritime activity. That traditional maritime activity, however, must have had a proximate-cause relationship to the incident. In a multiple-defendant case, this ruling extends admiralty jurisdiction over all claims - if one of the claims arises from a traditional-maritime activity.

• Second, when the decedent was a Jones Act seaman, non-pecuniary damages are not recoverable in a general-maritime-law-wrongful-death suit against non-employer-third-party tortfeasors.

CA5 (11.19.04)

Greetings from New Orleans. I hope to bring you the more interesting decisions from the Fifth Circuit and the Louisiana Supreme Court.

No more opinions expected from the California Supreme Court this week . . .

CA10 (11.18.04)

The Tenth Circuit ruled today against Dr. Exum, former head of the United States Olympic Committee’s drug control program in Exum v. United States, 03-1256 and 03-1280. Exum claimed he was passed over for the director's job of the anti-doping agency because he is black. The court ruled Exum didn't prove that he formally applied for the job or that he was discriminated against. Rather, it seems the director's job was phased out with the creation of the U.S. Anti-Doping Agency, which switched doping control from the USOC to an independent agency.

In Woodruff v. Covington, 02-7040 and 02-7051, the court said employee doctors of an Indian health clinic are not federal employees within the meaning of the Federal Torts Claims Act and thus not entitled from immunity from malpractice suit. Defendant doctors argued the clinic is an administrative entity within the Indian Health Service. The court rejected that interpretation and also found that the doctors were not within the government’s day-to-day control.

In United States v. Artez, 03-4166, the court found that a search of an alleged drug dealer’s home pursuant to warrant was supported by probable cause. Officers searching for narcotics turned up an short barrel shotgun and charged Leon with possessing an unregistered gun. The district court suppressed the evidence, but the Tenth Circuit reversed.

And in another gun possession case, United States v. Griffin, 03-7052, the defendant's probation officer testified that the defendant—a convicted felon—knew he was prohibited from possessing firearms under the terms of his probation. The district court admitted the probation officer's testimony over Defendant's objection that the evidence was irrelevant and would cause undue prejudice. The Tenth Circuit affirmed.

CA8 (11.18.04)

Three published opinions today. These summaries are from the Eighth Circuit’s site:

United States v. Rushing (01-3077, 01-3428, 01-3082): District court did not err in excluding defendant's expert's proposed testimony regarding likelihood of sexual transmission of Hepatitis B as the proffered testimony was not reliable and admissible under Daubert; no Brady violation as the government did not have a duty to disclose rejected plea offer under Brady; nor is there any evidence that the government made any sort of undisclosed agreement with the witness to secure her testimony or otherwise acted in bad faith.

Brown v. Barnhart (03-3248): The administrative law judge’s decision that child's condition did not meet or medically equal a listed impairment was supported by substantial evidence.

United States v. Escobar (03-4046): District court did not err in suppressing search of baggage as defendants had not given a valid consent to the search; fact that agent lied about drug-dog result, combined with location of the search and the agents failure to advise defendant of the right to refuse consent, support district court's conclusion that consent was tainted.

CA7 (11.17.04)

One published opinion today:

Perruquet v. Briley, 02-2981: A convicted murderer procedurally defaulted his due process claim by not bringing it up in state court. Though the district court said the due process claim was just a warmed-over version of Perruquet’s state law claims—and thus not cognizable on habeas review—the Seventh Circuit said it was cognizable. Nevertheless, the court concluded that Perruquet procedurally defaulted his claim: “[B]ecause no Illinois court was ever given the opportunity to pass on the merits of Perruquet’s constitutional claim, comity and federalism principles weigh strongly against permitting Perruquet to assert the claim in federal court.”

California (11.15.04)

Morohoshi v. Pacific Home, S120903: Today the California Supreme Court held that the agency that arranged care at Pacific Home, a residential care facility, for a mentally disabled man is not vicariously liable for his death. Bobby Morohoshi’s parents received a jury award of about $600,000 because Pacific Home failed to check the diabetic man’s blood sugar one night, resulting in hypoglycemic seizure and death. Appallingly, Pacific Home was uninsured, so the Morohoshis sought to hold Harbor Regional Center responsible. However, the Supreme Court held that Harbor Regional Center wasn’t responsible for the hour-by-hour care that would have prevented Mr. Morohoshi’s death.

CA5 (11.12.04)
In an usual decision yesterday, United States v. Andrews, the Fifth Circuit held that the district judge “blatantly elect[ed] to ignore the plain language of the [sentencing] guidelines” when he sentenced Andrews to 120 months for fraud. The court remanded for resentencing by a different district judge, noting “[t]his is far from the first time we have had to reverse this judge” who “has breached the barrier between the rule of law and the exercise of personal caprice.”

Douglas Berman blogs about the decision here, with the promise of more to come.

CA8 (11.12.04)
The Eighth Circuit published five opinions today. Here are quick summaries from the court’s website.

USA v. Lucy Mitchell, 03-2323: Evidence was sufficient to support conviction for aiding and abetting the making of a material false statement to the INS.

Mohamed El-Sheikh v. John Ashcroft, 03-2944: Denial of asylum claim was not supported by substantial evidence because there were no agency findings as to whether: (1) petitioner's testimony was credible, (2) whether his testimony concerning police detention and abuse, if credible, established past persecution, and if so (3) whether the government had rebutted the presumption that petitioner has a well-founded fear of future persecution if he returns to Sudan; case remanded for further administrative proceedings.

Raisul Amin v. John Ashcroft, 03-3038: Immigration Judge had ample reasons for finding petitioner's testimony on past persecution was not credible; finding that petitioner is a citizen of Bangladesh was supported by the record.

Jani Strato, et al. v. John Ashcroft, 03-3421: Board of Immigration Appeals did not abuse its discretion in denying motion to reopen based either on its finding that the motion did not present any new evidence or its alternative holding that even if the evidence was new, it would not overcome the deficiencies in the prima face case for asylum.

USA v. Adil Gasim Al-Dabbi, 04-1053: Admission of testimony that defendant assaulted a member of the conspiracy and was connected to a firearm was not plain error as the evidence was relevant to show defendant's attempts to control members of the conspiracy through fear and violence; nor did admission of the testimony violate Rule 404(b); no Brady violation shown.

D.C. Circuit (11.11.04)
Three interesting opinions yesterday.

In United Servs. Auto. Ass'n v. NLRB, No. 03-1371 and 04-1001, the court upheld the NLRB order to reinstate an employee fired after distributing fliers protesting lay-offs. Loretta Williams distributed the fliers after work. When USAA management questioned her about the fliers, Williams—afraid of retaliation—said she did not distribute them. Six days later the company fired her for lying during the interrogation.

The court affirmed the NLRB’s decision that the interrogation was illegal because the company’s only purpose was to identify who had engaged in the protected concerted activity. In addition, USAA’s policy prohibiting distribution of non-company material in the work area during work hours was overly broad. Last, the court affirmed the NLRB’s order to reinstate Williams.

In Moore v. Hartman, No. 03-5241, the court affirmed denial of summary judgment for postal inspectors arguing they had qualified immunity. Plaintiff Moore was CEO in the 1980s of a company that made optical scanners meant to obviate the switch to the ZIP+4 system. He was unsuccessfully prosecuted for fraud, and Moore believes the postal inspectors prodded prosecutors to indict in retaliation for Moore’s lobbying efforts against the ZIP+4 system. The Court of Appeals affirmed the district court’s decision that the postal inspectors do not have sovereign immunity from retaliatory prosecution claims and remanded the case.

In DBI Architects, P.C. v. Am. Express Travel-Related Servs. Co., No. 03-7132, the court held that by paying off an American Express card with fraudulent charges by one of its employees, DBI led American Express to believe the charges were authorized and thus DBI could not recover all of the fraudulent charges under the Truth in Lending Act.

DBI’s accounting manager (also named Moore!) added herself as a cardholder on DBI’s American Express account without DBI’s knowledge or approval. Moore charged over $130,000 in clothing, travel, jewelry, and other personal expenses. As accounting manager, Moore was also in charge of paying the corporate credit card invoices, so her fraud went undetected for 10 months. When DBI found out, American Express refused to refund the charges, arguing that Moore was an authorized user and thus outside the provisions in the Truth in Lending Act. The court of appeals agreed. By identifying apparent authority as a limit on the cardholder's protection, Congress recognized that a cardholder has certain obligations to prevent fraudulent use of its card. DBI's troubles stemmed from its failure to separate the approval and payment functions within its cash disbursement process.

Slow week for the California Supreme Court . . .

California (11.4.2004)

In People v. Briceno, S117641, the high court held that “any felony offense” that was committed for the benefit of a criminal street gang is a “serious felony” within the meaning of California’s three-strikes law. Consequently, the defendant’s two prior convictions—one for unlawful possession of a firearm by a felon for the benefit of a criminal street gang and another for carrying a concealed firearm for the benefit of a criminal street gang—can be counted as two strikes, “consistent with the voters’ intent to dramatically increase the penalties for all gang-related felony offenses.”

The court in McClung v. Employment Div. Dep't, S121568, held that a change in California law making nonsupervisory coworkers personally liable for sexual harassment is not retroactive. Ms. McClung filed a complaint against her employer and a coworker, Mr. Lopez, alleging claims of hostile work environment and failure to remedy a hostile work environment. The Court of Appeal affirmed summary judgment for the employer but, applying the amended law retroactively to Mr. Lopez, denied his motion for summary judgment.

In reversing, the California Supreme Court quoted the esteemed words of Chief Justice John Marshall: “It is, emphatically, the province and duty of the judicial department, to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule.”

California (11.2.2004)

The Supreme Court of California released two opinions yesterday (sorry this post is a bit late):

1. In People v. Turner, S009038B, the court affirmed Richard Dean Turner’s sentence of death for two murders committed during a 1979 burglary. This is the second time the California Supreme Court has seen this case; in 1984, the court reversed Turner’s original judgment of death because the trial court failed to instruct on intent to kill as an element of the felony-murder and multiple-murder special circumstances. On retrial, a jury convicted the defendant again, and this appeal was automatic. The court rejected Turner’s allegations of various errors. While the court declined to address the constitutionality of the death penalty, leaving “decisions regarding the propriety of the death penalty to the Legislature and the People of the State of California,” the court catalogued cases upholding the death penalty’s constitutionality.

2. The California Tort Claims Act requires employees who wish to sue their public employer to notify the agency in writing first, thus helping the government to “adequately investigate claims and to settle them, if appropriate, without the expense of litigation.” In Stockett v. Assn. of California Water Agencies, S108220, the court held that this written claim need not detail every theory the plaintiff might raise at trial as long as it specifies each cause of action—in this case, wrongful termination. The court upheld a jury verdict of $4.5 million for the wrongfully terminated employee.

Florida (11.1.2004)

The United States Supreme Court today denied review of two cases from the Florida state courts.

In Dobrin v. Fla. Dep't of Highway Safety & Motor Vehicles, 874 So. 2d 1171 (Fla. 2004)(SCOTUS docket no. 04-275), the Supreme Court of Florida held that since the arrest record in a drunk-driving case did not establish probable cause for pulling over the driver, the police officer wrongfully suspended the defendant’s driver’s license. The correct test for probable cause under Whren v. United States, 517 U.S. 806 (1996), is whether the particular officer who initiated the traffic stop had an objectively reasonable basis for making the stop.

In McKee v. City of Casselberry, 873 So. 2d 373 (2004) (SCOTUS docket no 04-177), the Fifth District affirmed, without comment, a city ordinance banning nudity in clubs that serve alcohol. The court found the ordinance constitutional because adopting an ordinance comparable to those of “surrounding cities is a valid exercise of the city's police power and no further inquiry into the city's motivation need be made" under City of Los Angeles v. Alameda Books, 535 U.S. 425 (2002).