Posted 09 Jun 2014 in Monday Morning Review
Here are last week's published decisions involving local governments:NinthCircuit First Circuit Fifth Circuit

Posted 06 Jun 2014 in Case Notes
In a unanimous decision published yesterday,camera the California Supreme Court concluded that the evidence generated by an automated traffic enforcement system (ATES) was adequately authenticated by the testimony of a city officer, and that the ATES evidence did not constitute hearsay. The defendant in People v. Goldsmith was cited for failing to stop at a red traffic light at an intersection located in the City of Inglewood. The evidence presented against her included several photographs and a 12-second video, all of which were generated by an ATES. Only one witness testified at the defendant’s trial,

Posted 04 Jun 2014 in Case Notes
Taxpayers X and Y live in the same state and have the same income but Taxpayer X earns all of her income in-state while Taxpayer Y earns all of her income out-of-state.Supreme Court  Taxpayer Y pays more in taxes because she pays income taxes out-of-state and pays a county income tax in her home state.  Unfair?  (Not necessarily.  After all, Taxpayer Y receives government services in the county where she resides.)  Unconstitutional?  The Supreme Court will decide. The Supreme Court hasn’t decided a state and local government tax case since Armour v. Indianapolis, during the Court’s 2011 term.  In Comptroller v. Wynne it will decide an issue of first impression:  whether a state must offer a credit to its residents for all income taxes paid to another jurisdiction.  A decision against Maryland’s Comptroller would limit state and local taxing authority nationwide.

Posted 03 Jun 2014 in Tips and Tactics
In Seven Sins of Appellate Brief Writing and Other Transgressions, 34 U.C.L.A.L. Rev. 431 (1986), fountain penNinth Circuit Judge Harry Pregerson identified seven deadly sins of appellate briefing:
  • Long boring briefs
  • Incoherent, unfocused, disorganized briefs
  • String cites and other poor use of authority
  • Briefs with abusive language
  • Briefs that ignore the standard of review or attempt to relitigate the facts
  • Briefs that ignore jurisdiction
  • The last minute emergency motion—usually filed at 4:00 p.m. on a Friday before a holiday

Posted 02 Jun 2014 in Monday Morning Review
Here are last week's published decisions involving local governments:SCT stairs Sixth Circuit
  • Robertson v. Lucas, No. 12-3877 (May 28, 2014) (in case arising out of corrupted drug-trade investigation, affirming award of qualified immunity on malicious prosecution and false arrest claims, and affirming dismissal of Monell claim against Richland County and City of Cleveland).

Posted 30 May 2014 in Commentary, Tips and Tactics
String cites are almost universally condemned.  paperJudges at all levels criticize string cites.  Minority and dissenting judges criticize majorities that use string cites, and vice versa but to a lesser extent.  Attorneys criticize the string cites in their opponents’ briefs.  Law reviews insult string cites routinely. What distinguishes a string cite from a list of cases that support the stated proposition?

Posted 30 May 2014 in Case Notes
On Tuesday the Supreme Court issued two unanimous opinions granting law enforcement officers qualified immunity.highway stop  These ruling were unsurprising; the lower court errors in both cases were obvious. In Plumhoff v. Rickard the Sixth Circuit did not so much as discuss the qualified immunity standard when denying qualified immunity.  In Wood v. Moss the Ninth Circuit viewed the qualified immunity question at a high level of generality causing dissenting Judge O’Scannlain to (accurately) warn:  “Our court's track record in deciding qualified immunity cases is far from exemplary, and with this decision, I am concerned that our storied losing streak will continue.” But at least Plumhoff v. Rickard contained a surprise.

Posted 27 May 2014 in Monday Morning Review
Here are last week's published decisions involving local governments:Alexandria-court First Circuit
  • Gericke v. Begin, No. 12-2326 (May 23, 2014) (affirming denial of qualified immunity for police officers on First-Amendment retaliatory prosecution claim where plaintiff was arrested after she attempted to film a traffic stop).
Eighth Circuit
  • Walton v. Dawson, No. 12-4000 (May 20, 2014) (affirming in part and reversing in part denial of qualified immunity in failure-to-train claims against officers arising out of jail-cell attack that occurred after officers did not lock cell doors).

Posted 22 May 2014 in Tips and Tactics
Almost all legal positions that matter to one side in a dispute have contrary law supporting a different legal position.8122523_ab151ea98b_z  I’ve got some cases on my side and you’ve got some cases on your side.  One of the serious mistakes I can make is to focus so greatly on the good cases that I fail to distinguish and destroy your cases that hurt my position.  In Coghlan v. Starkey, 852 F.2d 806 (5th Cir. 1988), the court awarded sanctions for frivolous appeal for that mistake.  “Here, the appellate brief indicts counsel as having recognized that no authority supports the claim. Not only was there scant discussion of adverse decisions cited by the magistrate, but only two cases were even named in the brief. This is poor appellate practice and an abuse of the appellate process.” Id. at 816 (footnote omitted). What are some ways to address the cases that hurt? 

Posted 19 May 2014 in Monday Morning Review
Here are last week's published decisions involving local governments:Gavel Second Circuit