You Know You're in Trouble When
the appellate court handling your constitutional appeal begins its opinion by putting "civil rights" in quotes:
This “civil rights” case is about ....
Thanks to Decision of the Day for the pointer.
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The full first sentence of the EV-linked op is,
This “civil rights” case is about disgruntled parents who disliked their daughters’ high school softball coach.
How do you get a show-cause order against you for filing an appeal? This decision illustrates one method.
It also has the lovely description of summary judgment as the "put up or shut up" moment in a case, which I am now going to try to find in a Mississippi decision for future use.
In my day, when the coach cut me or buried me on the bench, my parents shrugged and told me to work harder. Today, the first call is to a lawyer.
Shouldn't the court first have satisfied itself of at least Article III standing? (See Steel Company)
The opinion in this case reads a bit like Judge Jacobs's dissent from a while back ("this is a case about nothing..."). There is a little bit of gratuitous language in there, but I have no quarrel with the substance. "Their witnesses are lying" usually isn't enough to get past summary judgment, at least not since the 3 big SJ cases from the mid-80s
Yet another example of why the US might consider changing the general rule for legal fees. To my knowledge, in most countries the rule is that the loser pays either real costs, or some standardised version of real costs. (To discourage deep pocket parties from frightening potential plaintiffs by running up the tab.) Having a standard loser-pays rule seems like a pretty straightforward way to discourage frivolous litigation.
I wondered about that too. I sure hope whatever attorney represented them didn't take this on a contingent fee basis (actually I sort of hope he did, so he can get zeroed for his horrible judgment). But my experience with people who call a lawyer wanting to bring a lawsuit over something trivial like a sports dispute- here, one utterly without merit- are terribly gung-ho to sue, but darn sure don't want to pay. When I get calls like this I tell people "sure, I will require a $25,000 retainer and $XX per hour" and they get off your phone fast.
These people, and their lawyer, are just lucky they did not have Easterbrook on the panel. Bringing a frivolous appeal about some mundane personal dispute when he's on the panel, is about as smart as the kid dangling his leg over the tiger case in San Francisco a few months back, and tends to produce the judicial equivalent response.
It means that you have a case that is so easy, all you have to do is add hot water, and presto! A decision appears.
Like when the 7th Circuit ordered that Wisconsin official freed immediately after oral argument in the case, before even issuing their opinion. THAT was an instant case.
And, of course, the Conclusion:
Who says TANJ?
I think I can top that one. Some years ago I represented a land owner who was ordered to cease planting a citrus grove without an EIS (even though agricultural activities were exempt from the EIS requirement by statute). The trial court nonetheless ruled for the county and we appealed. At oral argument, I did my thing and sat down. My opponent stepped up to the lectern and said "May it please the court," whereupon he was interrupted by one of the judges who said: "Counsel, it does not please the court." Why? His brief argued that growing citrus fruit in Florida was a nuisance.
I believe that former counsel for the DoD Haynes once argued in a brief that bombing a nesting site for migratory birds would be good for birdwatchers, under the assumption that birdwatchers get more enjoyment out of looking for rarer birds.
Thanks for an amusing anecdote. What we are both dealing with is the "government lawyer" syndrome whereby government lawyers become accustomed to courts deferring to them even when they say strange things but win anyway. With the passage of time they become convinced that the nonsense they spout at times is actually brilliant lawyering. It's amusing and would be even more so if the results weren't tragic at times.
Herewith an excerpt from a DOJ argument in the 9th Circuit:
JUDGE FLETCHER: Can I get at your definition of “conceivable?” To take an outer-boundary sort of example
boundary sort of example . . . .
MR. YELLIN: Sure.
JUDGE FLETCHER: . . . not related to this case. Is it conceivable that space aliens are visiting this planet in invisible and undetectable craft?
MR. YELLIN: Is it conceivable?
JUDGE FLETCHER: That’s my question.
MR. YELLIN: Yes, it’s conceivable.
JUDGE FLETCHER: And that would be a basis for sustaining Congressional legislation, if . . . the person sponsoring the bill said, “Space aliens are visiting us in invisible and undetectable craft, and that’s the basis for my legislation,” we can’t touch it?
MR. YELLIN: If Congress made a finding of that sort?
JUDGE FLETCHER: That’s my question.
MR. YELLIN: Your Honor, I think if Congress made a finding of that sort, I think, Your Honor, it would not be appropriate for this Court to second guess that.
JUDGE FLETCHER: Okay, in other words, “conceivable” is “any piece of nonsense is enough.”
MR. YELLIN: Your Honor, I don’t think . . . . It is largely unbounded. It is not completely unbounded. There are the outlying—
JUDGE FLETCHER: How can you say it’s not completely unbounded when you agreed with my absolutely preposterous example of what’s conceivable?
Audio Recording of Oral Argument, Alaska Cent. Express, Inc. v. United States, 145 F. App’x 211 (9th Cir. 2005) (No. 03-35902). The court ruled for the government without addressing the legal implications of ET's invisble cousin's vist to earth, and government counsel chalked up another victory.
I can only say I doubt the government lawyer thought his lawyering was brilliant that day.
He won, didn't he?