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Multiple Taxation Vexation

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.

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.

Seven Deadly Sins

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),

Ninth 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

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted 02 Jun 2014 in Monday Morning Review

Here are last week's published decisions involving local governments:

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).

String Citations

Posted 30 May 2014 in Commentary, Tips and Tactics

String cites are almost universally condemned.

Judges 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?

Unqualified Win in Qualified Immunity Cases

Posted 30 May 2014 in Case Notes

On Tuesday the Supreme Court issued two unanimous opinions granting law enforcement officers qualified immunity.

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.

Tuesday Morning Review: Local Governments in the Federal Appellate Courts

Posted 27 May 2014 in Monday Morning Review

Here are last week's published decisions involving local governments:

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).

Address Cases That Hurt

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.

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?

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted 19 May 2014 in Monday Morning Review

Here are last week's published decisions involving local governments:

Second Circuit

Sherman v. Town of Chester, No. 13-1503 (May 16, 2014) (ruling that takings claim against the Town was ripe because seeking a final decision from the Town would be futile and because Town had removed case to federal court).
Morales v. City of New York, No. 13-2126 (May 16, 2014) (affirming dismissal of complaint against City alleging malicious prosecution, abuse of process, deprivation of right to fair trial, and deprivation of constitutional rights on account of race and color).
Disabled in Action v. Bd. of Elections in the City of New York, No. 12-4412 (May 14, 2014) (affirming that City Board of Elections violated Section 504 of the Rehabilitation Act and Title II of the ADA by failing to provide people with mobility or vision disabilities with meaningful access to voting program).

Appellate Advice from an Appellate Court

Posted 15 May 2014 in Tips and Tactics

The Bankruptcy Appellate Panel of the Ninth Circuit has adopted some materials designed to assist attorneys and litigants involved in a bankruptcy appeal before the BAP.

Although many of the excellent materials address the peculiarities of bankruptcy appeals, Appendix I has advice for all attorneys in any court. Do’s and Don’ts for an Effective Appeal DO: 1. Know what relief you want (and why). 2. Know your audience. BAP judges generally possess a level of expertise in bankruptcy matters superior to that of most district court judges and their law clerks. 3. Understand the role of the appellate court. While its dominant role is to assess whether the trial court reached the correct result,

Five Writing Tips That I Wish I Knew Earlier — Tip # 1: Stress Positions

Posted 13 May 2014 in Tips and Tactics

I wish I had learned some things earlier.

That's especially true when it comes to my writing. So I thought I'd share five writing tips that I wish I had known earlier. The first tip concerns an edit at the sentence level. Other tips will address changes at the paragraph and word levels. Tip # 1: Place important and new information at a sentence's ending. This one is counterintuitive: a sentence's most valuable real estate is not where it starts but where it finishes. At the sentence's ending, a reader naturally stops -- it's sometimes called a "stress position." These natural pauses give a writer an opportunity:

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