Maine Appeals

The appellate calendar

I have been busy busy and derelict in reporting, but the Maine SJC just came down with three decisions, all interesting from an appellate perspective (one relating to the ever fascinating world of 80Bs), so I must get back to discussing those and other recent decisions.  But first, let's briefly look at the appellate calendar, past and future.

1.  I had an argument with the SJC this month, on their annual road tour.  I've reported about this event before, and last year I was a moderator at one.  Mine took place this year at Lisbon High School.  What struck me from the arguer's perspective is how little you pay attention to the different atmospherics  - it's an argument, and you focus on it like any other argument.  What struck me from the perspective of someone in the audience, both last year and this year, is how good CJ Saufley is at asking a question in a way that both sets the stage for the students and presents her issue to the lawyer.  This is no easy feat.  The key is to cut to the chase fast - there's no time for a lot of explanation before asking a question in a 15 minute argument.  But she was able to do it multiple times - ask her question with just a brief intro that did the trick.  I think perhaps a part of her ability to do that comes from the fact that often when she asks a question generally, she is distilling what the big picture issue about that case is for her, and briefly setting the stage to ask that question to the lawyer.  It's a similar, if not identical exercise - providing a quick predicate to a basic, perhaps decisive question.  It's also, incidentally, the best type of question to get in any oral argument  -- even better than the lovely softball, because it's achieving exactly what argument is all about - answering the questions that matter to the decision-maker.  Judge Selya does this a lot too - he identifies exactly what his issue is in deciding the case and asks his question based upon it. 

As to future events:

1.  The next 1st Circuit practitioner lunch meeting with Judge Lipez is Nov. 17, 2011 in Portland.  These are always educational.  I don't know why more people don't come to these - in particular lawyers who engage in the criminal appeals.  Perhaps they are all relying on my whiz bang reporting, which I shall try to do again.  Check with the MSBA for details.

2.  The week of Nov. 7 I am going to the AJEI 2011 Summit in DC.  The usual go-to appellate conferences are the twice annual AAAL meetings, for members, and the bi-annual DRI conference for anyone who wants to go (next June 21 in Boston - calendar it now).  The ABA's appellate section meetings can be a little different, because they are geared for both practictioners and judges, so sometimes I find the information not really relevant to my practice.  But the agenda at this meeting they are holding Nov. 10-13 looks absolutely fantabulous.  E.g., it starts Thursday afternoon with a conversation with Justice Sotomayer.  Paul Clement, among others, including a 6th Circuit judge, then talk about how to prepare for argument.  There's an annual past Supreme Court review from Dean Erwin Chemerinsky, a 4-judge panel discussion about judicial decisionmaking, Scott Turow is a lunch speaker, there's a nifty reenactment of the Burr treason trial with Judge Sentelle among others, a preview of the current Supreme Court term with Clement and Drew Days, who's always great, and discussions of the relationship between appellate and trial counsel, how to build an appellate practice, the ever important ethics session, and breakout sessions on paperless courts and the appellate brief, with a Ninth Circuit and state Supreme Court judge.  That's not everything -- and it's fairly cheap as these things go.  Yikes.  Again, your intrepid reporter will give you the full skinny - but this one looks like it's worth the money to go yourself if you can.  

Tuscan footnote

In my Sept. 28 entry I mused upon whether a recent Maine SJC decision in a different context could be transferred to the 80B or 80C context, so that when one member of a decision-making body was tainted in some way, the whole could be deemed so, even if the outcome did not depend on the vote of the tainted member, e.g the vote was 4-1.

The answer to this question appears to be no, based on another SJC decision I did not reference, Nestle v. Town of Fryeburg, 2009 ME 30, 967 A.2d 702 (http://www.courts.state.me.us/court_info/opinions/2009%20documents/09me30ne.pdf).  This is kind of embarassing, because I represented the appellant and successfully argued against the other side's claim of taint of a board as a whole.  The SJC stated (paragraph 47):

"WMRRL contends that the Planning Board's forced recusal of its chair in 2007 for a potential conflict of interest invalidates its 2005 decision, in which that member participated. As the Superior Court noted, assuming arguendo that the member should have been recused in 2005, his participation did not affect the outcome of the 4–1 vote to approve the permit. We decline WMRRL's invitation to find that the single member imposed his will on the other members of the Board, and we do not address the issue further."

Harmonizing all this precedent, it seems to me that in the absence of evidence of "imposition of will" on others, the party with the burden of showing taint of the whole would lose.  If, however, there were evidence of such taint - in the deliberations or elsewhere - perhaps the proponent would have an argument.  But just one member with taint, without any additional evidence of imposition on others, would not be in itself prima facie evidence to allow deposing the other members in the 80B/80C context.    

Unless there's another brilliant victory I've forgotten about that says otherwise.


  

Larry and me

So I was informed by Best Lawyers that I've been named their lawyer of the year for appellate practice in Portland, Maine.  There's only one chosen in Maine, and this is a peer review process, so it's very nice and thank you.  Someone might argue there aren't a lot of appellate practice lawyers in Maine to choose from, but that's really not true - many lawyers in Maine engage in appellate practice, and I'd like to think that this vote recognizes that there's something to be said for concentrating on it as a speciality. 

In any event, when told, I did what any self-respecting lawyer would do - I looked to see who was named for appellate practice elsewhere. See http://www.bestlawyers.com/AboutUs/awardsbylocation.aspx  In particular, who's my competition in Massachusetts?  Who are my rivals in the field?

Well indeed, yes, there is one, and only one, lawyer of the year for appellate practice in Massachusetts.  So here's my Bay State equivalent.  It is ... Laurence Tribe.

Watch out, Larry.

I'm now admitted in Massachusetts.  I also have the sneaking suspicion that my billing rate is lower than his (remember Grendel's Den, 749 F.2d 945 (1st Cir. 1984)? [http://ftp.resource.org/courts.gov/c/F2/749/749.F2d.945.84-1314.84-1313.html])  In fact, you can probably get three Cathy Connors' hours for one of his.  Such a deal!    

 

   

I don't think this settlement effort is going anywhere

A colleague noted the following excerpt from a First Circuit decision issued yesterday, CQ Int’l Co., Inc. v. Rochem Int’l, Inc. [http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=10-1838P.01A]:

"the district court attempted to foster settlement discussions by ordering CQ to make a written settlement offer by October 16, 2009. Although CQ complied, it demanded $675,000, the full amount of the damages claimed in its amended initial disclosures. Rochem responded by rejecting this offer and making a counter-offer demanding that CQ pay Rochem $444,444.44 in order to settle the case and avoid Rochem's filing of a motion for sanctions and a suit for malicious prosecution. The district court noted, after being apprised of this matter by CQ, that the peculiar amount in Rochem's offer was due to the fact that the number four is considered an unlucky number in Chinese culture because it is homophonous with the Chinese word for death. The district court opined that, while Rochem's counter-offer was not a death threat, its attorneys had acted improperly. The court, however, declined to impose sanctions on Rochem's attorneys."

The opinion discusses the "extraordinary" deference given a trial judge's Rule 11 decision, and sustains its decision not to impose sanctions.   

No longer under the Tuscan sun?

Here I am esconced in my new office on the working waterfront, pondering the interface between a recent decision of the Maine SJC, Walsh v. Town of Millinocket [http://www.courts.state.me.us/court_info/opinions/2011%20documents/11me99wa.pdf] and a decision from 1931, Tuscan v. Smith, 130 Me. 36, 153 A. 289.  The common issue is what happens if one of multiple members of a governmental decision-maker is purportedly no good.

In Walsh, there was a 7 member town council.  One of the members displayed discriminatory animus against the plaintiff.  The Council voted 4-3 to eliminate the plaintiff's position.  There was no disagreement that only one of the members displayed this animus.  In a WhistleBlower Protection Act  suit, the SJC concluded that judgment for the plaintiff was not foreclosed by this fact.  In upholding the jury verdict, the SJC cited Supreme Court precedent as to how an employer can be found liable for employment discrimination based on the discriminatory animus of an employee who intentionally influenced, but did not make, the ultimate employment decision.  Staub v. Proctor Hosp., ––– U.S. ––––, ––––, ––––, 131 S.Ct. 1186, 1189, 1194, 179 L.Ed.2d 144 (2011) [http://www.supremecourt.gov/opinions/10pdf/09-400.pdf]   "Although Staub involved a private employer and action by a single decision-maker, rather than a public employer and action by a multi-member council," the SJC found that Staub's reasoning applied.  The Court stated:  "We have not explicitly addressed the circumstances under which discriminatory animus of one or a minority of members of a multi-member local council or commission can be found to be a 'substantial factor' or a 'motivating factor' causing an adverse employment action approved by the multi-member body," and rejected the reasoning  of an Eleventh Circuit decision concluding that the improper motives of one member of a three-member majority was insufficient to impute improper motive to a three-person decision-making body. Matthews v. Columbia Cnty., 294 F.3d 1294, 1297 (11th Cir.2002) [http://ftp.resource.org/courts.gov/c/F3/294/294.F3d.1294.01-10863.html] The SJC stated:

"The Eleventh Circuit's approach appears to not fully appreciate the decision-making dynamics of local councils and commissions, which can be influenced by the improper but unstated views of a member with a particular interest in a matter to whom other members may defer in collegial discussions. As the First Circuit has observed, “[B]ecause discriminatory animus is insidious and a clever pretext can be hard to unmask ... it may be overly mechanistic to hold [a plaintiff] to strict proof of the subjective intentions of a numerical majority of council members.” Scott–Harris v. City of Fall River, 134 F.3d 427, 438 (1st Cir.1997), rev'd on other grounds sub nom.  Bogan v.Scott-Harris, 523 U.S. 44, 118 S.Ct. 966, 140 L.Ed.2d 79 (1998)." 

Scott-Harris was a Section 1983 case in which the plaintiff alleged the enactment of an ordinance was an unconstitutional penalty under the First Amendment for her expression of issues of public concern.  The ordinance was enacted by the majority and signed by the mayor.  The First Circuit said:  "Th[e] question is best framed as follows: How many municipal legislators (or, put another way, what percentage of the legislative body) must be spurred by a constitutionally impermissible motive before the municipality itself may be held liable under section 1983 for the adoption of a facially neutral policy or ordinance? This is a difficult question, and the case law proves a fickle companion."  After reviewing the case law, the First Circuit said: "we assume for argument's sake (but do not decide) that in a sufficiently compelling case the requirement that the plaintiff prove bad motive on the part of a majority of the members of the legislative body might be relaxed and a proxy accepted instead. Nevertheless, any such relaxation would be contingent on the plaintiff mustering evidence of both (a) bad motive on the part of at least a significant bloc of legislators, and (b) circumstances suggesting the probable complicity of others."  

There is logic to the conclusion that, as a general matter, a bad apple on a multi-member board might infect the others such that a plaintiff in a discrimination case.  The devil, as always, is in the details, and the portability of the Court's reasoning to other contexts - like direct administrative appeals.

How does the reasoning in Walsh jive with that in Tuscan v. Smith, 130 Me. 36, 42, 153 A. 289 (1931)?  There, the Court found that a statute prohibiting town officials from voting on matters in which they are financially interested did not require invalidating a vote on a lease in which one of three selectmen was interested, because original vote was unanimous.  Thus, in a conflict of interest context, the Court did appear to apply a simple head count approach. 

Take the following scenario:  a plaintiff wants a permit.  He claims that one of seven board members has a conflict of interest.  The town lawyer disagrees.  The board, after public deliberation, denies the permit application 7-0, articulating a valid basis for doing so on the merits.  The plaintiff files an 80B appeal and whoopsy, the town lawyer was wrong, there was a conflict and that board member shouldn't've voted.  Who must prove what to get or avoid a remand for a new vote without the board member with the conflict?  Does the plaintiff have to show that the board member tainted the views of others?  How many others?  How does he show that taint if the record (i.e. the deliberations) are clean on their face?  Is having one member with a conflict enough to produce a prima facie case of bias, so now it's off to the races in getting a trial and deposing all the board members etc?  The SJC in Walsh notes that animus infection to others can be "unstated," so do you even have to show taint beyond the one bad apple to prevail in an 80B and 80C? 

In Walsh, the vote was 4:3.  I'm guessing that the member with the bad animus was part of the 4, so if you just excluded that vote, it would be 3:3.  Transplanting this to the administrative appeal context, normally, ordinances say that you have to have a majority to get your permit.  So if you just excluded the one conflicted vote, the permit applicant would lose.  Is that fair?  Does it make a difference if the vote is more disparate?  Does the plaintiff have to show more taint if the vote is 7-0 then if it was 4-3?

Having a board member with a conflict is a due process violation.  The general rule is that to prevail on a due process claim, the plaintiff must show prejudice - the burden is on him.  In the abstract, one bad vote in a 7-0 ruling doesn't show harm -- or does it?  And if it doesn't, then what more, if anything, must be in the record, in order to get the plaintiff past the hump of no new evidence? 

It could be that the Court's decision in Walsh is limited to the regular trial context and has no bearing on administrative appeals.  But if so, why?  If proof of discriminatory animus of one member of a board is potentially enough to prevail in a regular trial context where the plaintiff has the ultimate burden of proof in showing discrimination was a motivating factor, why wouldn't it similarly be enough at least to prove a prima facie case of bias or a sufficient offer of proof under Rule 80B(d) or 80C(e)?  Or do you still need at least an itsy bit more? 

From a town's perspective, it might be better to have an automatic remand if one board member shouldn't've voted, if the alternative is discovery, depositions of the board members etc.  From the applicant's perspective, aside from those potential litigation costs, this could mean more delay and obstacles to development, over which it has no control.  It's the board's determination whether anyone has a conflict; board members have a duty to hear cases unless they really do have a conflict; and people in board proceedings are always banding about claims of conflict or bias. 

         

     

 

 

  

Plausibility and gatekeeping

Does the Maine SJC apply the same plausibility test for complaints as does the federal court under Iqbal and Twombly?  Two recent decisions, one from the First Circuit (Haley v. City of Boston, http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=10-2064P.01A) and one from the SJC (Blackhouse v. Doe, http://www.courts.state.me.us/court_info/opinions/2011%20documents/11me86bl.pdf) have me pondering this point.

First, a refresher on the Iqbal-Twombley test:  Although "detailed factual allegations" are not necessary, Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007), the complaint must "contain sufficient factual matter . . . to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570).

In Haley, the plaintiff was convicted of murder and spent 34 years in jail.  Eventually, he asked for documents under the Massachusetts Public Records Act and found out about documents that, while not exculpatory in themselves, were cogent impeachment materials (revealing a big discrepancy in the statements made by the two key witness sisters, from their initial statements to what they later said).  The conviction unraveled, and released, he filed a civil rights claim.

Haley sued the police officers involved, now dead, and the City under Monell.  As to the latter, he claimed both a failure to train and an alleged policy to withhold documents.  Regarding this alleged policy, Judge Selya  summarizes:  "the detectives' withholding of the sisters' statements occurred pursuant to a standing [Boston Police Department] policy, under which Boston police officers regularly kept helpful evidence from criminal defendants. The complaint further alleges that this policy was designed to encourage successful prosecutorial outcomes despite the existence of evidence pointing to innocence. The complaint contrasts the BPD's policy with that of the district attorney's office, which it alleges had a standing policy to disclose all known exculpatory and impeachment evidence in full compliance with Brady."

The Court found the question whether the plausibilty test was met was "close" but ruled for the plaintiff, stating:  "We do not reach this conclusion lightly. Evaluating the plausibility of a pleaded scenario is a 'context-specific task that requires the reviewing court to draw on its judicial experience and common sense.' Iqbal, 129 S. Ct. at 1950. Disclosure abuses are a recurring problem in criminal cases, see United States v. Osorio, 929 F.2d 753, 755 (1st Cir. 1991), and the BPD's failure to disclose the sisters' statements is wholly unexplained. Given the volume of cases involving nondisclosure of exculpatory information and the instant failure to disclose statements that clearly would have undermined the prosecution's theory of the case, we think that the municipal liability claims pleaded by Haley step past the line of possibility into the realm of plausibility.  See Iqbal, 129 S.Ct. at 1949-50. Indeed, if the detectives intentionally suppressed the discoverable statements even when such activity was condemned by the courts (as Haley has alleged), it seems entirely plausible that their conduct was encouraged, or at least tolerated, by the BPD. Although couched in general terms, Haley's allegations contain sufficient factual content to survive a motion to dismiss ...."

Next, Blackhouse.  Here, the majority (Gorman, J.) reversed a dismissal by the District Court of the plaintiff's complaint for protection from abuse for failure to appear at the final hearing.  The plaintiff argued that the dismissal was erroneous because the District Court did not first consider his request for reasonable accommodation of a claimed disability, and the majority agreed.  The dissent (Alexander, J.) said, inter alia, that the complaint was properly dismissed as implausible.

The complaint alleges that the defendant stalked and intimidated the plainitff, and that the plaintiff couldn't appear physically in court because he suffers from "an advanced form of combat-level post-traumatic stress disorder ('PTSD') specific to having survived an abduction and medical torture."

Let us set aside the potential ramifications of granting the requested accommodation versus the right to confrontation, and focus on the plausibility issue.  Justice Alexander noted that the defendant is an 86 year old woman.  In response, the majority said that "neither her age nor Blackhouse's disability allows us to prejudge the veracity of Blackhouse's allegations."  The majority added that while "a mental illness ... may prevent an individual from accurately perceiving reality, and, in this case, it may well turn out that Blackhouse's allegations against Doe cannot be supported by evidence," his asserted PTSD, "does not make Blackhouse immune from abuse, harassment, or stalking."

In sum, assuming that the SJC applies a plausibility standard, the SJC found it plausible that an 86-year old woman could be stalking and intimidating someone who alleged he has PTSD because of his "abduction and medical torture."  Additional points Justice Alexander cited in his dissent to support his implausibility conclusion were:  the plaintiff "asserted many bizarre allegations against his neighbor, his landlord, other tenants, and people in the community"; and an attachment to the complaint asserted that the plaintiff had been victimized by "a variety of collaborators," with the vicitimization including '"wrongful confinement,' terrorizing, sexual assault, kidnapping, and attempted kidnapping perpetrated by his landlord, members of the Augusta and Gardiner police departments, and others."  As relief, the plaintiff asked to be given possession of, and the defendant be ordered to leave immediately, the twelve-unit apartment building where they both live (among other things). 

Outside the pleadings, Justice Alexander also noted that the plaintiff had previously filed a protection from harassment claim against his landlord, and had previously made allegations in that case which Justice Alexander quoted regarding claims of extortion and the plaintiff's inability "to relocate outside the thrall of" the landlord; in documents in support of this previous suit, the plaintiff had contended that "he was the victim of a widespread criminal conspiracy that included, among others," the Augusta Housing Authority and Maine Medical Center; "Blackhouse also asserted that he was a witness for the 'FBI' investigating various criminal conspiracies within the State.'"

In concluding that the matter was properly dismissed, Justice Alexander stated that "[t]here is no right to maintain, and force a named defendant to defend, an incredible, frivolous, or bizarre claim.  A person claiming a disability has no greater right than any other person to circumvent the court's essential gatekeeping function on these issues." 

The plaintiff was represented by the Cumberland Legal Aid Clinic.  The defendant did not file a brief.

So what can we glean from these two decisions?  In the First Circuit decision, the panel looked at the internal plausibility of the complaint, informed by their experiences as judges and practices in withholding evidence, citing Osorio.  In the SJC decision, the majority appeared to focus only on the allegations in the complaint itself.  In the majority's estimation, it was not implausible that an 86-year old woman could harass someone, and perhaps, that the plaintiff's alleged mental condition explained and excused the otherwise implausible aspects of the complaint.  The dissent's point, in contrast, was that if the allegations as a whole and context indicate overall implausibility, then dismissal is appropriate and the implausible aspects cannot be excused by the plaintiff's alleged mental condition. 

In the end, does it matter whether an unmeritorious complaint is rejected at the dismissal stage or later?   What interests are we balancing against each other?  The harm in dismissing a complaint too early is not only the risk that the specific plaintiff's claim had some merit to it and thus should have been heard, but also in undermining our system of justice, in which the court house door is open to all.   

On the other hand, there can be serious consequences to allowing an unmeritorious claim to go past the dismissal stage.  Once a plaintiff gets passed a dismissal motion, we're usually off to discovery-land -- in Haley, potentially very broad, relating to a city-wide policy --, and the defendant can be put in a difficult position after a 30+ year time lapse in defending itself.  On the other hand, the plaintiff did 34 years of time for a conviction based on an unfair withholding of impeachment materials - in the world of rough justice, giving him some damages might not be deemed objectionable.   

More broadly, the plausibility standard began with antitrust cases.  If you get beyond the dismissal case in such a case, there can be huge litigation costs going forward.  Like a class certification, getting past dismissal can give the plaintiff ammunition to force a settlement, whatever the merits of his claim -- thus, there is a countervailing interest in early dismissal to uphold a judicial system in which the merits matter.

The additional potential adverse consequences in Blackhouse are that an 86-year old woman herself is harassed, has no resources to defend herself, and no one is protecting her interests.  The SJC calls her "Doe" to protect her ("Due to the harsh nature of Blackhouse's as yet unadjudicated allegations against the defendant, we are electing to use a pseudonym for the defendant").  But who is going to defend her against these charges?   Who is going to argue her confrontation rights?  The plaintiff has the legal aid clinic; the defendant, no one. As the case goes forward, does the plaintiff get a default and is the defendant kicked out of her housing or otherwise have an injunction imposed on her - which the plaintiff can then enforce in future litigation?  Also, the strapped resources of the district court are further pressed while it must (a) consider the request for accommodation after notice to the parties; and (b) provide a written explanation to those parties and the State Court Administrator for denying the request, accompanied by a copy of the Judicial Branch grievance procedure, potentially triggering additional administrative review and costs.  

Plausible is defined as "[s]eemingly or apparently valid, likely, or acceptable; credible."  As Judge Selya noted, it is more than possibility.  (See Haley: "we think that the municipal liability claims pleaded by Haley step past the line of possibility into the realm of plausibility.")  If the Blackhouse complaint said that the defendant was harassing him because she was a martian, would that make the complaint implausible, or would the Court ignore that allegation, too, because the plaintiff has alleged a mental condition?  What if the plaintiff doesn't allege a mental condition - then would a martian allegation trigger dismissal?  If not, then what allegation is implausible under the SJC's view?  If so, should plausibility depend on whether the plaintiff alleges that he or she has a mental condition?  

In sum, these two decisions do confirm that the Iqbal plausibility test (again assuming the Law Court has adopted it - I'm unaware of any decision in which it has) is not a high hurdle to meet.   The decisions provide cogent examples of two different sets of potential costs in allowing an potentially unmeritorious case to go forward past dismissal.  Should these costs matter when applying the plausibility test?  Should there be a plausibility test at all?  If the plaintiff is judgment proof, there aren't many consequences he suffers if an unmeritorious action is launched to harrass an elderly poor woman.  Should that matter?  What is the court's "gatekeeper" function, as Justice Alexander calls it?  Does allowing a case to go forward despite some unlikely allegations, as in Blackhouse, uphold a strong tradition of access to justice, or undermine faith in the system?       

First Circuit round-up

Here are a few recent First Circuit decisions of interest:

1.  Glik v. Cunniffe [http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=10-1764P.01A].  Here, the First Circuit holds that a citizen using his phone to film (with audio) an arrest has a clearly established First Amendment right to do so, defeating the police's qualified immunity claim.

 The Court notes its previous decision in Iacubucci v. Boulter, 193 F.3d 14 [http://ftp.resource.org/courts.gov/c/F3/193/193.F3d.14.97-1586.97-1585.97-1485.html], among other precedent, as sufficient to give the police a heads up on the unconstitutionality of its conduct in arresting the citizen for the exercise of this right, although that Iacubucci had a different context and emphasis - there, basically the question was a factual one whether the plaintiff's filming of a commission hearing - which the Massachusetts Open Meeting law expressly allows - was disruptive so as to overcome a jury verdict against the police (who apparently didn't appeal any ruling rejecting a qualified immunity claim interlocutorily).  The arrests in Iacubucci were for disorderly conduct and disturbing a public assembly.  The arrest in Glik was for disorderly conduct and a violation of the Massachusetts wiretap statute which, while broad, still requires an "interception," meaning that you must be furtive about your taping.  Since Glik's phone was in plain sight, the wiretap law clearly didn't apply.

There is apparently an unpublished 4th Circuit decision that says the right to tape was not clearly established for immunity purposes, while the Third Circuit said the same in the context of a traffic stop.  The First Circuit distinguished the Third Circuit case (a traffic stop is different from Boston Commons, where the arrest occurred); cited Ninth and 11th Circuit decisions as well as district court precedent it said supported the contrary view; and noted that whatever was or was not clearly established in other circuits, this arrest was clearly established as a no go in this Circuit.  

2.  Sterling v. Nestle [http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=10-1925P.01A].  In this decision, CJ Lynch sets out a nice primer on antitrust law, and what you need to overcome a summary judgment motion based on lack of standing.  The plaintiff couldn't do it here; summary judgment for lack of an antitrust injury was affirmed.  This decision reinforces the point in antitrust law that you can't sue just because you are harmed by e.g., the merger of your competitor(s) - you have to show how that harm is an antitrust injury.  Just because you may sell fewer widgets doesn't make it an antitrust claim - the plaintiff must show that widget competition itself will be reduced.

3.  Sony v. Tennenbaum [http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=10-1883P.01A].  This is one of those copyright infringement suits against youths downloading songs.  The jury awarded $22,500 in statutory damages for each wilful infringement, for a total of $675,000.  The district court, without ruling on a motion for remittitur or new trial, held that this amount violated the due process clause and reduced the damages for each count 90% to $2,250.  The First Circuit said not so fast, you've got to entertain the remittitur first before leaping into the constitutional fray, and so sent it back.  In doing so, the Court of Appeals noted that there's a thorny question about whether there's a right to a new jury trial if it's a due process violation when the damages are statutory under the Copyright Act.  I'm sure this one will be back --there are a gazillion lawyers on each side.  For Sony there is Paul Clement, six other lawyers and the United States and its lawyers.  A Stanford legal assistance group and others are on the other side.  It looks like every possible challenge was raised and addressed, which CJ Lynch goes through one by one, knocking the ones out that haven't been left for another day after the remand.  Stay tuned.               

Intertidal musings

Onward to tackle the latest pile of SJC decisions (there are some interesting recent First Circuit decisions too, e.g., re filming police activities, that I will attempt to address anon).

Today we look at McGarvey v. Whittredge, 2011 ME 97 [http://www.courts.state.me.us/court_info/opinions/2011%20documents/11me97mc.pdf], the latest in a long line (and, after this decision, what will no doubt be a longer line) of decisions regarding public rights on Maine intertidal land (the shore and flats between the mean high and low water marks, not exceeding 100 rods).  What I'm going to focus on here is the interface between this decision and Stop the Beach Renourishment, the latest U.S. Supreme Court ruling on takings law, upon which I blogged on June 10, 2010. 

In order to get this entry to a workable length, I must simplify everything, so bear with me. 

When last we left this issue in Maine before McGarvey, the SJC said 4:3 that the public uses within this zone were limited to fishing, fowling and navigating.  Bell v. Town of Wells, 557 A.2d 168 (Me. 1989) [http://174.123.24.242/leagle/xmlResult.aspx?xmldoc=1989725557A2d168_1725.xml&docbase=CSLWAR2-1986-2006].  In McGarvey, the plaintiff wants to use the zone to carry out his commercial scuba diving activities; the scope of the decision covers "the act of walking across the intertidal land to reach the ocean to scuba dive."    

There are two 3-Justice decisions:  one written by CJ Saufley, joined by Justices Mead and Jabar, and one by Justice Levy, joined by Justices Alexander and Gorman.  Both decisions hold that the scuba diving use is allowed, but get to this result in different ways.  Justice Levy's decision concludes that scuba diving is navigating; CJ Saufley's decision is that allowed uses are not limited to fishing, fowling and navigating.

Before getting into (some) details and musings, two questions.  First, CJ Saufley's decision is first in the slip opinion, and Justice Levy's decision is second.  Both are referred to as "concurrences."  I thought that the decision in a split decision that has precedential weight is the narrowest, and wouldn't that be Justice Levy's?  So shouldn't it go first?

Second, where is Justice Silver?  I assume given this split that if he could've participated, he would have.  I have no idea if he owns waterfront property, but the geezers among us (I qualify) might recall that back in 1989 there was some discussion because the Justices with such property were not disqualified from participating in the ruling.  Have the conflict of interest rules changed?  I think back then 4 Justices had such property, 3 did not, so if the ones that did own such property couldn't rule, you'd only have a minority left.  Whether that would mean the rule of necessity put them all back on, or you could've plumped it up with some active retired justices, I don't know, and maybe if there's only 1 Justice (if there is even one) with such land now, so there's no minority problem, different rules apply. 

In any event, here's the interesting part to me.  CJ Saufley expends a lot of discussion explaining why she and her confreres joining in her opinion conclude that the allowed public uses were never limited to fishing, fowling and navigating historically, except maybe by aberrational Bell, and that the common law can and should evolve over time.  Justice Levy says hold the phone, you can't just toss Bell, because these are property rights we're talking about.  So, on one level this presents the question bandied about in Stop the Beach - when does common law "evolution" become a taking of private property?

At one end of the spectrum, of course, the common law identifying property rights must evolve.  No one is saying that to "fowl" in the intertidal zone you have to use a musket.  On the other hand, as Justice Scalia said (in dicta) in the plurality decision in Stop the Beach, "It would be absurd to allow a State to do by judicial decree what the Takings Clause forbids it to do by legislative fiat.”  Stop the Beach Renourishment, Inc. v. Florida Dep’t of Env’l Protection, 130 S. Ct. 2592, 2601 (2010).  So just like the Legislature can't suddenly eliminate property rights by legislation, one would assume, I think, that the same result could not be achieved through court decisions "interpreting" the "evolving" common law.  That said, as I noted in the June 10, 2010 blog and as the Justices themselves noted in the Stop the Beach decision, "judicial" takings raise all sorts of thorny substantive and procedural questions which I would love to drone on about, but will refrain.

Instead, I will focus on a couple of big picture observations.  First, can the legislature or court "evolve" the common law over time to take away property rights without running afoul of the Constitution if they do it incrementally?  Like everything else in takings law, the answer is complicated.  The majority in Palazzolo v. Rhode Island, 533 U.S. 606 (2001) said no - acquisition of title after the date that regulation allegedly causing a taking were enacted does not bar a takings claim.  That said, Justice O'Connor's concurrence stated that when the owner acquired the property is still relevant in weighing the "reasonable investment-backed expectations" prong of the three-prong Penn Central ad hoc test for determining whether a taking has occurred.  So ooching away at expanding public use rights bit by bit over time probably won't avoid the takings inquiry, at least in theory -- but like everything else in takings, the jury is out (if you get one, which is another complicated question).

Second, what are the prospects of a judicial evolution of the common law triggering a viable takings claim?  From one perspective, extremely remote.  If you look at the owner's beachfront property as a whole and look at the value of that property before and after you expand the public uses allowed, the odds that you will ever get to the diminution in value needed to trigger compensation is practically nil.  That said, however, here we are talking about physically invading property.  Viewed from one perspective, all you are doing is expanding the uses an existing invader can do.  The teaching of the rent control cases is that once you let them in, it's the Penn Central diminution in value test, not Loretto physical invasion test.  Under this perspective, the fact that the legally permitted invader could fowl before and now both can fowl and scuba dive is not going to be deemed a regulatory taking.  

Viewed in a different way, however, you aren't just expanding the use, but are allowing in new invaders - Attack of the Scuba Divers!  Assuming CJ Saufley's opinion is correct and they aren't navigators, before, they couldn't come onto the land.  Now they can.  So do we apply the physical invasion test and not a regulatory taking analysis? 

In other words, if you look at this like a regulatory taking, no taking; if you treat the expansion like establishing an easement, taking.  In Bell, the Court seemed to treat the issue like the latter.  See Bell, 557 A.2d at 176, 177-79, 180.  Under this view, expansions are more likely no-no Nollan takings (that decision nixed an attempt to impose a visual easement).     

Perspective doesn't just affect substance, but procedure, too.  If it's an easement, then you may be able to challenge the change facially - look at Bell, striking down the Inter-tidal Act.  So you can avoid those insurmountable Williamson ripeness obstacles and proceed directly to - federal court?  You can hardly go to state court if you are alleging that it's the state court that took your property, can you?  (Justice Kennedy talks about that jurisdictional thicket presented with a "judicial" taking in his concurrence in Stop the Beach.)  If you can go to federal court, you can get a jury (Monterey) and attorney's fees under Section 1983.

I could go on forever, but I will end with this observation.  I really have no ox to gore here - I do believe in property rights, but I also live a few blocks from a beach and like to throw the ball to Fido there.  So who is right on this issue and whether uses can be expanded in the inter-tidal zone without a constitutional problem, I leave to those in charge (not that anyone was asking me anyway).  But one difficulty I do have with CJ Saufley's decision is that I can't tell what the test is that is being applied.

I know scuba diving is allowed; but I don't know why. I can't predict whether surfing or other recreational uses will be allowed (I assume the amici surfers are percolating such a decision as we speak; CJ Saufley's opinion states that this issue and whether public trust rights include "a general, or more limited, recreational easement to use the intertidal lands" "is neither before us nor necessary to the resolution of this case.")

Right or wrong, I do understand Justice Levy's test - can you shoehorn the use (be "sympathetically generous") into fishing, fowling or navigating?  It can be some pretty darn creative shoehorning, but I still understand what the test is.  Whether surfing or any other use can be similarly shoehorned may remain an open question, but I think I comprehend the test that's going to be applied in answering that question. 

In contrast, with the "evolving common law" approach, I don't know what factors are weighed or how.  I understand that this approach is based on the conclusion that you cannot shoehorn scuba diving into navigation, but that the use should still be deemed allowed.  It's also clear that this approach prefers a case-by-case determination, because the issue is viewed as a question of evolution.  What I can't tell is what reasoning is applied to determine whether the common law has yet evolved such as to permit the use.  I think that the people coming into the inter-tidal zone have to keep moving - the opinion references how "our common law has regularly accommodated the public's right to cross the intertidal land to reach the ocean for ocean-based activities."  I don't know whether throwing the ball in the ocean for Fido falls within this crossing the land to carry out ocean-based activities test -- or if that is the test.  

What I am sure of is that we are eventually going to find out, as the next cases testing additional uses come down the pike.    

continuing negligent treatment

Time to get back to the blogosphere.  The SJC hunkered down last month and issued a slew of decisions, including another intertidal opus that raises lots of interesting takings issues, but before we get to those, I noted last time the decision issued on August 18, Baker v. Farrand, 2011 ME 91 [http://www.courts.state.me.us/court_info/opinions/2011%20documents/11me91ba.pdf] adopting the continuing treatment doctrine and that's what we'll talk about here.

There's nothing particularly radical about a jurisdiction adopting a continuing treatment doctrine and there are logical reasons for doing so.  Tolling a limitations period until treatment ends is a reasonable position.  When a medical practitioner should have diagnosed something in year X, and keeps failing to do so for the next four years, it's a rational viewpoint to say that the patient isn't barred from suing by the three-year limitations period.  

The question here, however, isn't whether such a tolling rule makes sense, but  whether the Legislature's enactment of the Maine Health Security Act, 24 M.R.S. s. 2902 [http://www.mainelegislature.org/legis/statutes/24/title24sec2902.pdf] and bar of judicial tolling under the Act precludes the SJC from adopting a version of the continuing treatment doctrine.  In a dissent in Dickey v. Vermette, 2008 ME 179, [http://www.courts.state.me.us/court_info/opinions/2008%20documents/08me179di.pdf], Justice Silver opined that while the language of Section 2902 prevented adoption of two of three variants of the doctrine (tolling the limitations clock until the end of the doctor-patient relationship or the end of treatment for a single condition), the Legislature did not foreclose the Court from adopting a "continuing negligent treatment" variation which starts the clock at the last negligent act -- and so not a "tolling" rule but rather an "accrual" rule.  In Baker, the SJC unanimously adopts Justice Silver's position, applying the doctrine even when the only harm from the negligence within the limitation period is "indeterminent or negligible."

The operative language in Section 2902 is "Actions for professional negligence shall be commenced within 3 years after the cause of action accrues.  For the purpose of this section, a cause of action accrues on the date of the act or omission giving rise to the injury ...."  While the Legislature made clear that the Court could not toll the limitation period, the SJC concluded that nothing prevented them ruling that "act or omission" in the statute doesn't have to mean when the professional first committed an act of negligence.  While the statute refers to "act or omission" in the singular, the Court said that it did not have to adopt a "literal" construction of the statutory language because 1 M.R.S. s. 71(9) provides that "words of the singular number may include the plural; and words of the plural number may include the singular."  Noting that "[t]here is a circular quality to the logic of using a rule of statutory construction to interpret the plain meaning of a statute when that rule only applies if it does not conflict with the plain meaning of the statute," the Court said it could apply this "singular means plural" rule of construction because it found nothing else in Section 2902 indicating that "act or omission" should only mean the singular, and because elsewhere in the Act, professional negligence is defined using the plural term "acts or omissions."  24 M.R.S. s. 2502(7) [http://www.mainelegislature.org/legis/statutes/24/title24sec2502-1.pdf]. 

In sum, the Court held that "a single cause of action may arise from multiple acts or omissions even if each independent act or omission, viewed in isolation from other acts or omissions, constitutes an independent deviation from the applicable standard of care."  As long as each act can be deemed to contribute to the injury, the clock continues:  "the cause of action 'accrues' for the purposes of the three-year limitations period on the date of the last act or omission by the health care provider or practititoner that contributed to the proximate causation of the patient's harm."  The clock doesn't start accruing until the last act by a single health care provider or practitioner that deviates from the applicable standard of care and "to at least some demonstrable degree," proximately causes the harm complained of.

I am not making this up

The Law Court issued a potential important decision on the "continuing negligent treatment" doctrine, but first, before I get to that topic in my next entry, I read a First Circuit decision last week that cries out for note.  Vasquez-Rijos v. Anhang, http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=09-1928P.01A  I expect it to show up on one of those 48 hours tv shows (unless it has already).

Here are the facts:

In our opening segment, on September 22, 2005, Adam Anhang Uster leaves a restaurant in San Juan, Puerto Rico, with Vázquez, his wife of six months, when a man attacks the pair, stabbing Adam and fracturing his skull. Vázquez was seriously wounded; Adam died that evening.

In our next segment, prosecutors secure the conviction of a man who, several months later, is exonerated by an FBI investigation.  While this would be the whole story in most tales, here we have barely begun. 

The same investigation that led to the exoneration of the first defendant leads to a federal indictment of Vázquez and one Alex Pabón Colón (federal under 18 U.S.C. § 1958(a), which criminalizes the use of interstate commerce facilities in the commission of murder-for-hire.)  According to the indictment, Vázquez offered Pabón three million dollars to murder her husband and, quoting the decision, "on the fatal night, [she] lured her husband to an agreed-upon spot in Old San Juan, where Pabón killed him." Pabón pled guilty shortly after his arrest but has not yet been sentenced.

But no, there's more - we're not yet at the issue on appeal.

Six months after her husband's death, Vázquez sued Adam's parents, Abraham and Barbara Anhang, in Puerto Rico Superior Court, alleging that the Anhangs had assumed control of Adam's estate and had prevented her from accessing the assets therein. (Maybe they had suspicions?  Maybe she needed $3 million?)   Vázquez claimed that she was entitled to a portion of the estate under her prenuptial agreement and Puerto Rican law on a widow's usufructuary interest and community property. (But yes, under Puerto Rican law you forfeit those rights if you murder your spouse).  Vázquez also sought damages from both defendants to compensate her for the harm caused by their "obstinate attitude and disregard of [her] physical and emotional condition and financial situation."

I think we can safely say that Vázquez's own character shows a certain obstinacy to it, as the ensuing facts bear out.

Abraham Anhang was served, removed the action and answered the complaint.  The decision goes on to explain how Vázquez fluffed serving Barbara and fulflling various other discovery and procedural requirements, resulting in dismissal of the case as a sanction, upheld by the Court of Appeals.  But this is the least interesting part of the decision.

As discovery proceeded in the case, Vázquez's deposition began, but could not be completed because - surprise! - she hotfooted it to Italy.  "Her counsel stated that she could not return because she was studying."  Hmm.  Maybe she was studying extradition laws (she also cited "the Italian government's policy of not extraditing defendants in potential capital cases" as preventing her from returning to Puerto Rico).

 

But there's more! "Vázquez also stated that she was pregnant with twins and was advised not to
travel to Puerto Rico until after her children were born." Studying, an indictment and twins will keep you pretty busy.

To support the argument about the pregnancy and medical advice, Vázquez filed two documents in Italian which were not translated.  In denying her request, the district court, among other things, "noted that Vázquez's repeated postponements of her deposition led the court to question the credibility and reliability of the Italian medical certificate."

Vázquez , unsurprisingly, does not appear and Abraham moves to dismiss.   Still undeterred, Vázquez opposes dismissal, this time submitting "a handwritten note in Italian that she claimed was a statement from her doctor explaining her medical condition and confirming that the condition prevented Vázquez from returning to Puerto Rico. Once again, no translation was filed." (Well come on, aren't there free programs on the internet for translation?)

 

 

 

 

 

 

 

The district court dismissed the action.  There was a flurry of more pleadings, including on in which "Vázquez's counsel cited 'problems out of our control' as ground for an extension" of time.  In the kitchen sink school of pleading, "another request for an extension was based on the argument that counsel had been at a federal jury trial, which consumed his working time."  In another pleading, she argued again that she should not be blamed for avoiding a deposition because she had already been deposed for two days, and because her appearance in Puerto Rico was precluded by the murder-for-hire indictment, her health and that of her twin daughters (I guess that pregnancy assertion had been true -- although      "[o]nce more, she only attached untranslated Italian documents that she claimed were 'medical certificates' regarding her twins.)"  Vázquez also suggested that her deposition be taken by "telephone or other remote means."

The district court was unmoved, as was the First Circuit.

A relevant legal point affirmed in this decision is "while she certainly had a right to refuse to answer questions on the basis of her privilege against self-incrimination ..., it was improper to refuse to appear for any deposition whatsoever on that basis, rather than refuse to answer specific questions."

In short, she had to show up, and take the Fifth.  Because she had failed to meet other deadlines and the way she argued her case didn't highlight this point, buried in here is the question whether she really could have finished the deposition via video.  While I'm thinking that staying on the lam isn't the best legal excuse in general, the point she threw in about Italian policy against capital murder would throw an interesting twist into the argument.  That the chutzpah-based civil claim was linked to the murder indictment of course didn't help her position.  But what if a fugitive on crime X becomes a defendant or plaintiff in civil suit Y unrelated to X?  Is that fugitive stuck losing because she has to show up physically?  Even if she faces death?  If so, maybe suit Y is the least of her worries.

I guess the outcome here is that Vázquez stays in Rome with her unauthenticated twins, and doesn't get any of the estate.  And if the indictment is correct, then the shooter doesn't get his $3 million (unless he required pre-payment, probably a wise move in these kinds of transactions).  Maybe he'll sue her.        

In the end, while one can make fun of these kinds of cases, what happened to the husband was a tragedy, and I can only imagine the extra pain inflicted on the parents by this suit from the person accused of killing their son.  Vázquez's persistence in pursuing the suit, even on appeal, also says something not pleasant about our litigious society.  I leave further musing on this subject to the reader - or the next 20/20 episode.