Illinois Court Distinguishes FOIA Precedent and Requires Disclosure of Police Survey under Illinois Law

Mon, 08 Feb 2010 19:53:11 GMT

The Rockford (Illinois) Police Department commissioned a 2007 survey by Rockford College of uniform and non-uniform Department personnel, as well as residents in a particular area of the City. In addition to Departmental performance, the survey sought an assessment of employee job satisfaction.

The Rockford Police union sought disclosure of the survey results. The City resisted, asserting that the survey results were protected from disclosure under any of three exemptions: audits; personnel matters; or, the “self-critical analysis” privilege. On January 22, 2010, an Illinois Appellate Court rejected the City’s defenses and affirmed an earlier court order requiring disclosure of the survey. The Illinois Freedom of Information Act does not include an exemption for “self-critical analysis,” and the Illinois court would not graft federal precedent onto the state law exemptions.

For more information, click here.

Judge Closes Hearing over John Edwards Sex Tape

Sat, 06 Feb 2010 14:04:03 GMT

The presiding judge closed a hearing Friday on whether to hold Andrew Young and his wife in contempt for failing to turn over a sex tape purportedly showing Rielle Hunter and disgraced former presidential candidate John Edwards consummating their much-publicized affair. The hearing was held in Chatham County, North Carolina, and it was set in a lawsuit brought by Hunter to recover possession of the tape from Young. Young, a former aide to Edwards, was apparently part of Edwards's misbegotten scheme to cover up his fathering of a child with Hunter, as Young originally claimed the child was his. In a book he recently published, Young says he found the tape in the home where Hunter lived with Young's family for a period of time.

The tawdry story has blanketed tabloids and dailies, but on Friday it gave occasion to consider an important newsroom law issue. At the hearing on whether to hold Young in contempt for not turning over the tape in response to a prior order, the judge without prior notice announced that he would hear argument in chambers, outside the presence of reporters and members of the public. As was reported in the Raleigh News & Observer, the judge heard argument for approximately one hour before emerging and issuing his ruling that Young and his wife were in contempt and would be jailed if the tape is not turned over by 2:00 pm on Wednesday.

Although the trial court administrator contended that closing the hearing was within the judge's "discretion," summarily closing the hearing without notice, without affording the press an opportunity to object, and without entering factual findings supporting closure and reflecting the consideration of alternatives violated North Carolina law.

The North Carolina Constitution specifically provides that "all courts shall be open." This provision entitles members of the press and public to a qualified right to attend civil proceedings, such as the matter between Hunter and Young. Based on the media reports of the hearing, there is no evidence that the judge considered alternatives to conducting the hearing in private or articulated any interests in secrecy that would overcome the presumption of access.

Unfortunately, it appears that none of the phalanx of media representatives who were present invoked a special North Carolina statute that provides a mechanism for gaining access to closed proceedings and sealed documents. In particular, N.C. Gen. Stat. 1-72.1 provides:

Any person asserting a right of access to a civil judicial proceeding or to a judicial record in that proceeding may file a motion in the proceeding for the limited purpose of determining the person's right of access.

Once a motion is made under the statute, the court must convene a hearing "before conducting any further proceedings" relating to the matter in question. Following the hearing, the court must

rule on the motion after consideration of such facts, legal authority, and argument as the movant and any other party to the action desire to present. The court shall issue a written ruling on the motion that shall contain a statement of reasons for the ruling sufficiently specific to permit appellate review. The order may also specify any conditions or limitations on the movant's right of access that the court determines to be warranted under the facts and applicable law.

The ruling is subject to immediate appellate review. It is unfortunate that in this case the court's decision to close the proceeding was not put to the test under G.S. 1-72.1. Nevertheless, the episode provides an important opportunity for reporters and editors to learn of this special procedural right they enjoy in North Carolina to challenge the closing of a courtroom or the sealing of a court record.

Thu, 04 Feb 2010 23:19:20 GMT

US v. Prince, -- F.3d --, 2010 WL 337910 (10th Cir. 2/1/10) - reversal of district court suppression order. Although there may have been a mistake of law by ATF re: whether AK-47 "flats" -- i.e., pieces of flat metal containing holes and laser perforations-- received by Mr. Prince constituted firearms, any such mistake did not taint the investigation, affidavit in support of warrant, or the ensuing search warrant. It simply led to two consensual encounters between officers and Prince, the second of which provided officers with pc to search Prince's residence based on belief he was manufacturing or dealing in firearms or possessed a machinegun in violation of federal law.

Thu, 04 Feb 2010 23:17:43 GMT

Published

US v. Headman, No. 09-1033, 2/4/10 - Defendant and others were drinking together. Two of them started fighting and defendant and two women joined in. They and the winner threw the loser into the trunk and drove to the Southern Ute Indian Reservation. They got the loser out, continued beating and also stabbing him, and eventually killed him. Defendant went to trial and was convicted of first degree premeditated murder, first degree felony murder, and kidnapping. His defense at trial was intoxication. Held: 1) As the government conceded, defendant could not be convicted of both felony murder and kidnapping, so one or the other had to vacated on remand; 2) No Brady violation, and therefore no plain error, in failing to disclose that the two women, who had pled and testified against defendant at trial, were sharing a cell at the tribal jail before and during trial, where both stated in affidavits they did not discuss their testimony with each other and defendant alleged no facts to contradict them; and 3) no plain error in failing to specifically instruct jury that intoxication was a defense to aiding and abetting first degree murder. The court seriously doubted that there was any error at all, considering the instructions as a whole, but if there were, it was certainly not obvious.

Unpublished

US v. Barraza-Martinez and US v. Ramirez, Nos. 09-3048 and 09-3057, 2/4/10 - Another all-too-routine traffic stop case in which the driver gets a warning ticket, is handed his documents, is told he is free to go, and voluntarily decides to stick around, answers more questions, and consents to search. 245 kilograms of cocaine were eventually found in secret compartment. Held: 1) Stop for failing to maintain traffic lane was supported by reasonable suspicion, in part because video clearly showed two different failures, and violations were more than de minimis, as required by Kansas law; 2) Consent to search was given during consensual encounter, and did not exceed scope of consent, so denial of motion to suppress was proper; 3) district court did not clearly err in finding that driver was not a minor participant; 4) evidence was sufficient to support passenger's involvement in conspiracy; and 5) passenger's sentence at the low end of the guidelines range was substantively reasonable because defendant did not rebut the presumption that is was.

Fourth Circuit Adopts Last-Served Defendant Rule; Plaintiffs Despair

Thu, 04 Feb 2010 22:13:41 GMT

Civil procedure nerds and defense counsel, rejoice! (I am looking at you, Travis.) In Barbour v. International Union, a fun--if dense--opinion handed down on Thursday, the Fourth Circuit adopts the "last-served defendant" rule for removal. Or in geekspeak, it takes a district court up on its invitation "to clarify whether the 'first-filed' 'dictum' in McKinney v. Bd. of Tr. of Mayland Cmty. Coll., 955 F.2d 924 (4th Cir. 1992), means what it actually seems to say."

Short answer: it doesn't. But before we get there, the Fourth Circuit walks us through some removal case law, considers the extent to which earlier panel decisions are binding, and honors the nerdly virtues of close reading and careful research.

A quick refresher, for those of us who slept through civ pro: under 28 U.S.C. 1446, a defendant has 30 days in which to file a notice of removal. But what if there are multiple defendants, and they are served more than 30 days apart? That's what happened to the defendant unions in Barbour. All three defendants filed a joint notice of removal. They filed it more than 30 days after the first defendant was served, but less than thirty days after the second defendant was served, and before the third defendant was even brought into the case. Was the notice of removal timely?

Turns out there's a Circuit split on that point. The Fifth Circuit applies a "first-served defendant" rule: in cases involving more than one defendant, the thirty days starts running when the first defendant is served. The Fifth Circuit reasons that, since all served defendants must join in the removal petition, the failure of the first defendant to remove within 30 days defeats removal altogether.

The Sixth, Eighth, and Eleventh Circuits, by contrast, apply a "last-served defendant" rule. Those jurisdictions give each defendant 30 days in which to file a notice of removal.

By all appearances, the Fourth Circuit had found a middle ground. Footnote 3 in the McKinney opinion states that, if the first-served defendant does not petition for removal within 30 days of service, the case may not be removed. But if the first-served defendant does petition for removal within 30 days, a later-served defendant may join in the petition or move for remand.

Seems pretty clear-cut, right? Here, the first defendant did not petition for removal within 30 days of service, so removal was not permitted.

No so fast.

Writing for the court, Judge (and former SCV Justice) Agee determines that the McKinney footnote is non-binding dicta--actually, in a flourish that ought to win him a sponsorship from Shephard's, he calls it "dicta citing dicta that is no longer good law." In fairness, other judges, including one who sat on the McKinney panel, had arrived at the same result. Further, a subsequent SCOTUS opinion, while not dispositive, undermines the validity of the McKinney footnote.

In that absence of statutory guidance or controlling caselaw, Judge Agee looks to basic fairness: a defendant is not involved in a lawsuit until she is served. It is fundamentally unfair to allow her procedural right to removal to be defeated by an earlier-served defendant's failure to act before she was even part of the case.

We therefore join the Sixth, Eighth and Eleventh Circuits in adopting the last-served defendant rule and hold that in cases involving multiple defendants, each defendant, once served with formal process, has thirty days to file a notice of removal pursuant to 28 U.S.C. § 1446(b) in which earlier-served defendants may join regardless of whether they have previously filed a notice of removal.

Barbour is well-reasoned, and it gets to the right result.

The fun in the case comes courtesy of Judge Hamilton, who sat on the panel that decided McKinney. He fires off a nasty dissent. Judge Hamilton points out (correctly) that a subsequent panel is not empowered to overrule an earlier panel's decision; only the Supreme Court or the Court of Appeals sitting en banc can do that. His dissent even takes a shot at the majority for eroding respect, collegiality, and uniformity in the Circuit by showing insufficient deference to the McKinney panel's decision. The majority fully engages the dissent's points and ultimately gets the better of the argument.

That's only half the decision. After resolving the removal issue, the court dives into preemption and determines that the district court lacked subject matter jurisdiction. But that's an issue for another post.

Takeaways from Barbour:

The Fourth Circuit follows the last-served defendant rule.
Barbour has a strong discussion of the binding effects of earlier panel decisions.
Only SCOTUS or the full Fourth Circuit sitting en banc can overrule an earlier panel's decision.
It is truly a glorious time to be a defendant in Virginia's federal courts. Between Barbour, Twiqbal and sons, and The Real Truth About Obama, the folks on the wrong side of the "v" are on a real tear in the Fourth Circuit. I'm definitely going to make sure that more of my clients get sued.

Finally, in case you've been wondering about the lack of activity around here, I dropped by Real Lawyers Have Blogs last week to do a Q&A. Yes, I really am that lame in real life.

New Jersey Appellate Court Holds Judicial Privilege May Not Be Absolute Outside Traditional Litigation Setting; Expunged Criminal Record

Thu, 04 Feb 2010 18:13:45 GMT

In Nunez v. Pachman, 2009 WL 5084084 (N.J. Super., A.D., Dec. 29, 2009), the Court was called upon to decide whether a verbal reference in an arbitration to an expunged criminal record could violate a reasonable expectation of privacy and give rise to a cause of action sounding in tort. In New Jersey, “expungement” requires “all” records of a conviction to be destroyed. This in turn can give rise to a reasonable expectation of privacy. The court noted that other states’ laws on expungement may be less strict, and cited cases holding that no claim for violation of a right to privacy existed in those states, under different expungement laws.

The absolute privilege from defamation actions for statements made in judicial proceedings may not apply outside traditional judicial litigation for a, because the protections from wrongful disclosure, like motions in limine, court-ordered sealing of documents, etc., may not apply. The court held that protection of attorneys and witnesses in arbitrations unrelated to the subject matter of the privacy claim (here, in a union grievance arbitration, the fact that the union member had been arrested and convicted, though the conviction was expunged, the expunged conviction was not truly germane to the proceedings) was only qualified immunity, and the attorney could be liable for invasion of privacy unless, on remand, the attorney satisfied a several-factor test.

Thus when records are made privileged or otherwise exempt from disclosure, there may be some basis for a claim that revelation of those records outside the traditional judicial setting could give rise to liability, even though the case was in alternative dispute resolution.

Thinking Outside the Box: Construction ID/IQ Contracts?

Thu, 04 Feb 2010 00:49:57 GMT

The United States Court of Appeals for the Federal Circuit affirmed a ruling from the Court of Federal Claims that an ID/IQ contract is an appropriate vehicle for construction of military housing. Rejecting assertions that ID/IQ contracts apply only to acquisition of supplies and services, which excludes construction, and that using an ID/IQ contract for construction constituted improper bundling in violation of the Small Business Act, the court held that use of ID/IQ contracts for new construction projects does not violate any procurement regulations.

ID/IQ Construction Contracts Are Not Prohibited by the FAR

Plaintiff argued that the FAR authorized use of ID/IQ contracts only for supplies and services, and that “services” did not include construction. Plaintiff identified several regulations that applied to “supplies, services and construction” arguing that a reading of “services” to include “construction” rendered the addition of the word “construction” as superfluous in other regulations. The court was not convinced. Instead it took an entirely different view of the issue finding that because there are no regulations that specifically prohibit the use of ID/IQ contracts for construction projects, such use is proper. In fact, the court praised the Corps’ approach finding its approach “innovative.”

Construction Does Not Constitute Improper Bundling

Plaintiff further argued that use of ID/IQ contracts to procure new construction constituted improper bundling in violation of the Small Business Act. In rejecting this argument, the court first noted that the Small Business Act only prohibited “unnecessary and unjustified” bundling. Furthermore, the court found that the cited provisions of the Small Business Act did not apply to contracts for new construction. Finally, the court went on to examine the small business subcontracting requirements in the solicitation and found the anticipated ID/IQ contracts very beneficial to small businesses.

Tyler Construction Group v. U.S., 2009 WL 1796702 (Fed. Cir. June 25, 2009)

Court of Appeals Declines to Recognize Tort Cause of Action for Damages for Negligent Disclosure of Unsubstantiated Allegations of Misconduct

Mon, 01 Feb 2010 19:06:18 GMT

In Corey v. Pierce County, 2010 WL 255956 (Court of Appeals, Div. 1 Jan. 25, 2010), the Court of Appeals reversed a trial court order allowing a claim for damages for negligent release of unsubstantiated allegations of misconduct by a deputy prosecutor. The former deputy prosecutor alleged that disclosure of allegations of misconduct violated her right to privacy. The court held that protection against disclosure by an agency subject to the public records laws must be based upon the Public Records Act (PRA), RCW 42.56. The PRA provides for an action to order publication of information that would be offensive to a reasonable person and not of legitimate concern to the public. RCW 42.56.050; RCW 42.56.230(2). The PRA provides for injunctive relief to prevent this disclosure. RCW 42.56.540. The PRA does not, however, provide a cause of action for damages. The court declined to recognize a common law right of action.

U.S. Supreme Court to Consider Access to Identities of Ballot Initiative Supporters

Sat, 30 Jan 2010 02:31:23 GMT

January has been a prolific month on the U.S. Supreme Court docket for cases raising First Amendment or other media issues. In addition to the Citizens United and Presley decisions addressing limits on corporate political speech and access to jury voir dire proceedings, the Supreme Court earlier this month agreed to hear a case out of the Ninth Circuit involving public access to the petitions that put in place a controversial Washington ballot initiative. The petitions were sought under a state sunshine law in an effort to learn the identities of those who supported placing the initiative on the ballot. The case therefore presents an interesting collision of the First Amendment rights to speak anonymously and to peaceably assemble and state sunshine laws.

We previously reported on the Doe v. Reed case, which the Supreme Court stayed while considering the petition for certiorari it ultimately granted this month. The case relates to Referendum 71, a ballot initiative that appeared on the November 2009 ballot in the State of Washington and was intended as a vehicle for overturning a law, passed earlier in 2009 by the Washington legislature, that granted legal rights to domestic partners equivalent to those enjoyed by married couples. The initiative passed with slightly above 53% of the vote, a result that upheld the law.

The dispute in Doe v. Reed involves the question of whether the signed petitions that ultimately allowed Referendum 71 to appear on the ballot constitute public records are subject to disclosure under Washington law as public records. Nearly 138,000 names appear on these petitions. The plaintiffs brought suit in federal court, contending that those who had requested the petitions had indicated they would publish the list of names on the Internet. Making the list available under public records laws, according to the plaintiffs, threatened to chill the First Amendment activity of supporters of Referendum 71. The plaintiffs assert that those who petitioned to include Referendum 71 on the November ballot would face harassment from opponents of the ballot measure if their names were made publicly available.

The district court issued a preliminary injunction barring release of the names, concluding that "supporting the referral of a referendum is protected political speech, which includes the component of the right to speak anonymously." The Ninth Circuit reversed, holding that signing one of the petitions at issue does not constitute anonymous speech because the petitions are not created in a way that is designed to protect confidentiality. It held further that the district court erred in applying strict scrutiny to Washington's sunshine law, and, when intermediate scrutiny is applied, the sunshine law passes muster because "each of the State’s asserted interests is sufficiently important to justify the PRA’s incidental limitations on referendum petition signers’ First Amendment freedoms."

The fact that the Supreme Court agreed to hear the case may signal that the Ninth Circuit ruling's days are numbered. If that occurs, a sweeping decision affirming the right to speak anonymously would appear to be an important First Amendment victory. However, the outcome here -- in which a third party has asserted a constitutional challenge to a sunshine law -- has troubling implications for those in the newsroom. Reporters face enough trouble securing materials under state public records statutes without interference from third parties. Reversal of the Ninth Circuit's decision may encourage court challenges to public records laws by third parties such as public employees or private entities contracting with or seeking money from public agencies. We will watch closely for the outcome in this case, which is set to be argued in April.

Medical Privacy should always be considered in responding to Public Records Act requests

Fri, 29 Jan 2010 16:07:48 GMT

In addition to federal HIPAA (Health Insurance Portability and Accountability Act) requirements, the Washington State Medical Records Act, Chapter 70.02 RCW places strict limits upon the disclosure of health care information. These limits apply to all health care providers, not only to hospitals. This includes anyone who "is licensed, certified, registered, or otherwise authorized by the law of this state to provide health care in the ordinary course of business or practice of a profession." An example would be EMT services provided by fire departments and fire districts. The Public Records Act specifically incorporates the Washington Medical Records Act at RCW 42.56.360. Washington's privacy protections are thus different from and in addition to those provided by federal law under HIPAA. More information regarding HIPAA is available at the U.S. Department of Health & Human Services HIPAA website

Upward Variance for "Exceptional" Reckless Endangerment Approved

Wed, 27 Jan 2010 16:02:55 GMT

United States v. Osborne, ___ F.3d ___ , 2010 WL 277134 (10th Cir. 2010) (per curiam)
The Tenth upholds an upward departure of two levels for reckless endangerment during flight in excess of the reckless endangerment already provided for by the adjustment under the guidelines (so 2 levels up under § 3C1.2, and another 2 level departure). The Tenth determines that the district court legally erred in determining that all high-speed chases automatically deserved a departure. However, the district court finding that the circumstances of the car chase were “exceptional” and “outside the heartland”–75 mph in a 25 mph zone, four 50 mph turns through a busy Wal-Mart parking lot while being chased by numerous police vehicles–was a factual determination reviewed with substantial deference. The court did not abuse its discretion in departing.

House Bill Would Remove the Collective Bargaining Public Records Exemption

Tue, 26 Jan 2010 16:14:16 GMT

A bill has been introduced in the Washington State House of Representatives that would remove a public records exemption for certain records regarding public sector collective bargaining. HB 1471 would remove the exemption for all records created or presented during collective bargaining, and all records received by the bargaining representative -- after a collective bargaining agreement is reached.

What Does Citizens United v. FEC Really Mean?

Mon, 25 Jan 2010 22:54:57 GMT

I received an email from a law student who posed a question about the impact of the recent Supreme Court decision in Citizens United v. FEC. The student asked:

"After the recent Supreme Court decision in Citizens United v. Federal Election Commission, it seems to me that pay-to-play laws across the nation will now serve even more of a purpose as corporations are now free to contribute to the political process (although not directly to candidates).

In saying that, I was wondering about your take on the matter. Am I missing something, or does Citizens really mean what I think it does?"

It’s a very good question because, while Citizens United doesn’t directly affect state pay-to-play issues, its impact is certain to be felt this legislative session. States and municipalities have already been struggling to respond to voter angst about the political process - and recent election results combined with breathless media reporting is certain to exacerbate that angst.

In a nutshell, Citizens United is a landmark ruling for corporations, unions and groups of individuals interested in participating in any aspect of the federal political debate. The ruling is particularly relevant because it is predicated upon a recognition that corporations, tax exempt groups and unions have a First Amendment right to use unlimited corporate funds for independent expenditures that expressly advocate the election or defeat of federal candidates. For those interested in reading more about the decision, a link to our firm’s client alert is attached here.

The ruling does not directly impact state pay-to-play laws because it expressly left intact existing federal and state limitations on campaign contributions and upon the ability of federal candidates to “coordinate” their activities with outside groups. It would be an error, however, to conclude that the Supreme Court’s ruling will not affect state legislative action on pay-to-play simply because the ruling doesn't affect contributions, coordination or any of the quid pro quo issues that pay-to-play laws are generally looking to capture. If anything, it is more likely that Citizens United is going to cause a number of state legislatures and municipal bodies to feel they need to pass tougher pay-to-play laws to counter the perceived invitation for corporations and unions to overwhelm the political process.

It is likely that such concerns are somewhat exaggerated. Rather than being incentivized by this enhanced recognition of rights to engage in pay-to-play politics, if anything, corporations and unions now have the opportunity to exert much more leverage with politicians simply by threatening to fund independent expenditures either for or against candidates depending on how responsive they are to the corporate or union cause. These groups no longer have to make contributions to exert leverage - they can do just fine on their own, thank you. As was seen just last week when a group of 40 corporate executives notified congressional leaders that they were tired of being solicited for campaign contributions, the ruling has already begun to change the political landscape away from the candidates and parties and towards the “independent expenditure”.

Third Court's Backlog Improving

Sun, 24 Jan 2010 13:17:53 GMT

On the heels of Chief Justice Woodie Jones's presentation to the Austin Bar's Civil Appellate Law Section last week, the Austin American-Statesman has published an article discussing the Third Court of Appeals' backlog problem and how the Court is addressing it.

The Chief spent some time at the beginning of his talk discussing the backlog situation and what is being done to rectify the problem. In short, the oldest cases have been given priority and reassigned to justices who are caught up on their own workloads. In just one year, with the help of some temporary staff attorneys, the Court has made significant progress and no longer has the biggest backlog of the fourteen intermediate appellate courts.

The Chief devoted the remainder of his time to TAMES—the Texas Appeals Management and E-filing System—which will be begin implementation this year. TAMES and appellate e-filing generally will be the subject of another post.

The Statesman article placed much of the blame for the backlog on former Chief Justice Kenneth Law, whom Jones replaced following the last general election, but also acknowledged that an eight-month vacancy produced by Justice Mack Kidd's death and Justice Bea Ann Smith's retirement were significant factors. The article acknowledged that the Court has made progress, disposing of 82 of its oldest cases within the past year.

Chemrock Corporation v. Tampa Electric Company d/b/a TECO Peoples Gas Company (Fla. 1st DCA Nov. 17, 2009)

Sat, 23 Jan 2010 16:14:10 GMT

Excellent post by Palm Beach Attorney Christopher Hopkins about a conflict that has developed between the 1st DCA and the 2nd and 3rd DCAs with regard to the interpretation of Rule 1.420(e), Fla. R. Civ. Pro. - Failure to Prosecute:In 2007-2008, the...Excellent post by Palm Beach Attorney Christopher Hopkins about a conflict that has developed between the 1st DCA and the 2nd and 3rd DCAs with regard to the interpretation of Rule 1.420(e), Fla. R. Civ. Pro. - Failure to Prosecute:

In 2007-2008, the Second and Third Districts held that any filing during the sixty day grace period is sufficient. The First District, in Chemrock Corporation v. Tampa Electric Company d/b/a TECO Peoples Gas Company, holds otherwise (Hawkes, Clark and Wetherell).

In Chemrock, the plaintiff was inactive for 10 months, was served with notice, and during the 60-day grace period filed a “motion in opposition” (which sounded, from the Opinion, like an attempt at showing good cause for inactivity but it was apparently not called up for hearing). Trial court dismissed and appellate court upheld.

Wells Fargo Bank v. Conaway, No. 09-000145 (Fla. 6th Cir. Jan. 11, 2010)

Sat, 23 Jan 2010 15:59:15 GMT

In another mortgage foreclosure case, which was successfully argued by your author, the Bank obtained final summary judgment without notifying the defendant, or their counsel, of the summary judgment hearing. The defendant filed an emergency motion to set aside final...In another mortgage foreclosure case, which was successfully argued by your author, the Bank obtained final summary judgment without notifying the defendant, or their counsel, of the summary judgment hearing. The defendant filed an emergency motion to set aside final judgment. The court found that the defendant had an inalienable due process right to notice of the summary judgment hearing pursuant to State Farm Fire and Casualty Co. v. Lezcano, 34 Fla. L. Wkly. D2105a (Fla. 2d DCA Oct. 14, 2009) and Greene v. Siegle, 745 So.2d 411 (Fla. 4th DCA 1999) and overturned the judgment pursuant to the court's authority under Rule 1.540(b), Fla. R. Civ. Pro.

Wells Fargo Bank v. Conaway, No. 09-000145 (Fla. 6th Cir. Jan. 11, 2010).

U.S. Supreme Court Strikes Down Limits on Corporate Political Speech on First Amendment Grounds

Fri, 22 Jan 2010 22:26:56 GMT

Yesterday, the United States Supreme Court ruled in Citizens United v. Federal Election Commission that corporations (and labor unions) may make unlimited expenditures to directly advocate for the election or defeat of a Federal candidate at any point in the election cycle. The crux of the Court’s decision is that the First Amendment prohibits Congress from banning certain types of political speech based on the corporate identity of the speaker. The decision opens the way for greatly increased participation by corporations—large and small, for-profit and non-profit—in the election process.

Prior to yesterday’s decision, federal law, as amended by the Bipartisan Campaign Reform Act of 2002 (“BCRA,” informally referred to as the McCain-Feingold law), prohibited corporations and labor unions from purchasing ads that either expressly advocate the election or defeat of a Federal candidate or amount to an “electioneering communication”—that is, a communication that (1) “refers to a clearly identified candidate for Federal office,” (2) is made within 30 days of a primary election or within 60 days of a general election, and (3) is publicly distributed. Since BCRA, corporations and labor unions have been permitted to engage in express advocacy and electioneering communications only through their political action committees (PACs).

The Supreme Court previously upheld the ban on corporate electioneering communications in 2003 in McConnell v. Federal Election Commission, relying on its holding in an earlier case, Austin v. Michigan Chamber of Commerce, that restrictions on corporate political speech are permissible in light of the Government’s interest in preventing “the corrosive and distorting effects of immense aggregations of wealth” by corporations.

In January 2008, Citizens United, a non-profit corporation, released a documentary entitled “Hillary: The Movie” about then-Senator Hillary Clinton, a candidate in the Democratic Party’s 2008 Presidential primary. Citizens United wished to make the documentary available through video-on-demand service within 30 days of the 2008 primary elections but feared that the film (and a series of three advertisements encouraging viewers to purchase the film through the on-demand service) would trigger the BCRA ban on electioneering communications because the film and ads “referred to” a Presidential candidate. Citizens United sued in federal court seeking a declaration that the BCRA ban on electioneering communications is unconstitutional. After a three-judge panel of the federal district court denied Citizens United’s requests for relief, Citizens United sought review in the Supreme Court.

The Supreme Court, in a 5-4 decision, yesterday held that “[t]he Government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether.” In so holding, the Court overruled Austin (which allowed the Government to restrict corporate political speech) and invalidated BCRA’s ban on electioneering communications. Citizens United reflects the Court’s adherence to the principle that the Government cannot suppress political speech based on the speaker’s corporate identity.

Beginning with the premise that BCRA erects an outright ban on core political speech by corporations and unions, the Court applied “strict scrutiny” to the ban, requiring the Government to demonstrate that the law furthers a compelling interest. The BCRA ban did not withstand that scrutiny: the Court found “no basis for the proposition that, in the context of political speech, the Government may impose restrictions on certain disfavored speakers,” including corporations.

The Court addressed and rejected all three “interests” proposed by the Government to support the electioneering communications ban: (1) the “anti-distortion” theory adopted by Austin, (2) an interest in preventing corruption, and (3) and an interest in protecting “dissenting shareholders.”

The Court first declared that First Amendment protections cannot turn on a speaker’s financial ability (that is, “immense aggregations” of corporate wealth) to engage in political speech. On that point, the majority was particularly troubled by the prospect that the anti-distortion rationale for the BCRA ban could be used to prohibit political speech by media corporations, which are currently exempted from the ban on electioneering communications. The Court likewise rejected the anti-corruption rationale because independent expenditures simply do not present the same risk of quid pro quo corruption (or the appearance of corruption) as do direct contributions to candidates and parties. And it rejected the shareholder protection rationale—that shareholders should not be compelled to fund corporate political speech with which they disagree—as both underinclusive (because the statute only bans some corporate speech at certain times) and overinclusive (because it applies even to single-shareholder corporations).

The Court concluded that “the First Amendment does not permit Congress to make categorical distinctions based on the corporate identity of the speaker and the content of the political speech.” With Austin thus set aside, the Court rejected the ban on corporate independent expenditures (for both electioneering communications and for express advocacy), because the law’s “purpose and effect are to silence entities whose voices the Government deems to be suspect.” Given the primacy of political speech in our representative democracy, the Court said, “political speech must prevail against laws that would suppress it.”

The Court did not go so far as to strike down the BCRA disclaimer and disclosure requirements. In the Court’s view, while more political speech enhances the political process, that speech should be transparent, so that the public can better evaluate the political message and the potential bias of the speaker.

The Citizens United decision is breathtaking in scope.

First, the content of political expenditures by corporations and unions is no longer at issue, because corporations and unions are no longer limited to engaging in so-called “issue advocacy.” Rather, they may now purchase advertising that includes a direct appeal to vote for or against a Federal candidate. The distinction between “issue” and “express” advocacy by corporations and unions—which has muddled campaign finance law for so long—is dissolved.

Second, the timing of political expenditures by corporations and unions is no longer at issue. After the Supreme Court held that corporate and union political expenditures are no longer limited to issue advocacy, it also struck down the BCRA prohibition on “electioneering communications”—and, with it, the 30- and 60-day windows that governed corporate political ads. As a result, the Supreme Court’s test for distinguishing between permissible and prohibited electioneering communications articulated in 2007 in Federal Election Commission v. Wisconsin Right to Life is already a relic of campaign finance law.

Third, the number of entities that benefit from the decision is enormous. The decision applies to all corporations and unions regardless of size or tax status. This means that both traditional for-profit corporations and tax-exempt political organizations—e.g., Section 527 organizations such as Moveon.org and Club for Growth—may make unlimited political expenditures to expressly advocate for the election or defeat of a Federal candidate.

Fourth, the Court’s reasoning calls into question similar campaign finance laws enacted by nearly half the States.

Yesterday’s ruling does not, however, alter the longstanding bar on direct corporate contributions to federal political candidates. Corporations and unions continue to be prohibited from making contributions to federal candidates from their general treasuries.

* * *

The Citizens United decision has already generated a massive volume of commentary, some positive, some negative. President Obama, for his part, has vowed to "develop a forceful response" to the decision, which he asserted gives "a green light to a new stampede of special interest money in our politics." The U.S. Chamber of Commerce hailed the ruling, stating that it "protects the First Amendment rights of organizations across the political spectrum, and is a positive for the political process and free enterprise."

As the Court itself acknowledged, the decision undoubtedly ushers in a new era of campaign finance in America, namely pairing corporate independent expenditures with disclosure requirements. It remains to be seen whether Congress will make a renewed effort to limit participation in the political process by corporations.

Governor Christie Issues Pay-to-Play Executive Order

Fri, 22 Jan 2010 21:56:46 GMT

As we mentioned in our previous blog entry, New Jersey is giving even further attention to its pay-to-play laws. Yesterday, to show the seriousness of his promises of reform, Governor Chris Christie issued an executive order that curbs political donations by labor unions and is intended to prevent pay-to-play politics from this donor group. Specifically, unions are now included in the group of donors who are barred from having state contracts worth more than $17,500 if they had donated more than $300 to a campaign for Governor or county political committee in the previous 18 months.

Democrats are voicing their opposition saying it is "over the top", as an important portion of their base is made up of labor unions. They do not believe the order will stay in place, denouncing it as an unconstitutional violation of free speech. Governor Christie claims that this simply applies the same rules as other similar types of businesses must comply with such as law and engineering firms.

Please Ignore Shapiro v. Younkin. There Is a Monster at the End of This Opinion.

Fri, 22 Jan 2010 11:33:02 GMT

Last Friday, the Supreme Court of Virginia handed down a batch of eighteen opinions and two published orders. One of them, Shapiro v. Younkin, provides a lucid, well-reasoned treatment of the rules regarding transcripts and written statements of fact.

Please ignore it in its entirety. To paraphrase one of Caroline's favorite writers, there is a monster at the end of this opinion.

Background

At issue in Shapiro was whether the circuit court erred by dismissing a plaintiff's appeal from the general district court because the plaintiff had failed to secure a court reporter, in violation of the circuit court's rule requiring that a court reporter be present at the trial of all civil cases.

Shapiro brought a landlord-tenant suit against Younkin in general district court, proceeding pro se. He lost and appealed to the circuit court, where he also appeared pro se. The court's local rules required that a court reporter be present at all civil trials, and that a party appealing a GDC case arrange to have a court reporter present at the circuit court trial.

Shapiro failed to arrange for a court reporter, so the circuit court dismissed his appeal with prejudice. Later that day, Shapiro submitted a written statement of facts. The trial court declined to enter the statement. Instead, it wrote on the face of the document that the statement did not accurately reflect the events at trial, which were noted in the court's order.

[Are you still reading? Because there is a monster at the end of this opinion.]

Shapiro--still proceeding pro se--appealed to the Supreme Court. He argued that the dismissal of his case violated Code Section 17.1-128, which provides that the failure to secure a court reporter will not affect the proceeding or trial. He also claimed that the court violated Rule 5:11 by failing to certify his written statement of facts.

Holding

The Supreme Court agreed. It reversed the trial court's judgment and remanded the case, holding that the trial judge had violated both Code Section 17.1-128 and Rule 5:11.

Justice Millette, writing for the Court, had little trouble with the first point. The trial court's dismissal of the action pretty clearly runs afoul of Section 17.1-128's rule that the failure to secure a court reporter won't affect the trial.

As to Rule 5:11, the Court walked through the requirements of Rule 5:11(c) and (d), which govern the preparation of a written statement of facts. It explained that those rules exist "to provide an appellant a means to establish a record for appellate review without incurring the substantial expense of obtaining a transcript, which for some appellants may prevent their ability to appeal from an adverse judgment."

[Perhaps you do not understand. There is a monster at the end of this opinion.]

Under Rule 5:11, a trial judge is authorized to correct errors or deficiencies in the written statement on her own initiative. A trial judge may not, however, simply refuse to certify a proposed written statement of facts. The trial judge must try to create a record for appellate review that contains a fair statement of facts by making reasonable changes to the written statement, or it must certify how the record is incomplete. If all else fails, the proper remedy is to order a new trial so that a proper transcript or written statement can be prepared.

That all seems reasonable, doesn't it?

But then you try it yourself and . . . procedural default!

[I told you there was a monster at the end of this opinion.]

What You Need to Know About Shapiro:

Don't Believe a Word of It. All of the law in Shapiro is right, but it will lead you astray. From a practitioner's standpoint, the written statement of facts is a trap. For the statement to work, it needs to show that you raised your appeal points at trial--in other words, you get a second shot at a procedural default. And then you get a third shot: check out Rule5:11(c)'s crazy notice and presentation deadlines:

[W] ithin 55 days after entry of judgment a copy of such statement is filed in the office of the clerk of the trial court. A copy must be mailed or delivered to opposing counsel accompanied by notice that such statement will be presented to the trial judge no earlier than 15 days nor later than 20 days after such filing . . .

Scheduling Difficulties Will Arise. That 15-20 span inevitably will fall over a holiday. The court will be open for a half day during the entire five-day window. Opposing counsel will be in trial, and your judge will be in Grand Cayman. Luckily, the the trial judge can endorse a statement signed by all counsel "forthwith upon its presentation to him," and the trial court's signature on the written statement will count as certification that the procedural requirements of Rule 5:11 have been met. So maybe you can finesse this and do it all by mail . . .
Opposing Counsel Will Object. But then you get yet another shot at a procedural default: opposing counsel objects. Objection? Now what? According to the Rule:

Notice of such objection specifying the errors alleged or deficiencies asserted shall be filed with the clerk of the trial court . . . within 15 days after the date the notice of filing the written statement (subsection (c) of this Rule) is filed in the office of the clerk of the trial court or, if the transcript or written statement is filed before the notice of appeal is filed, within 10 days after the notice of appeal has been filed with the clerk of the trial court.

Aack! And the trial court needs to rule within 10 days of the objection--10 days?! AACK!! (The trial court does have the ability to correct errors in the transcript after notice and a hearing, so long as the record remains in the trial court.) All of which leads to O'Keeffe's First Law of Virginia Practice:
If it's worth going to court, it's worth getting a court reporter. Always. Consider it a cost of doing business. If something isn't in the record, then it never happened. If it never happened, then why did you bother going to court?

If you take nothing else away from our time together, please remember this: for the sake of your lovable, furry old ~~malpractice carrier~~ appellate counsel, please hire a court reporter. And let's just pretend this whole Shapiro thing never happened.

Supreme Court Affirms Right to Attend Jury Selection

Wed, 20 Jan 2010 02:12:59 GMT

The U.S. Supreme Court today issued a 7-2 per curiam opinion summarily reversing a Georgia Supreme Court decision that had found no error in a lower court ruling that emptied a courtroom during jury selection in a criminal case. The case was notable in the short work the majority made of the notion that the Sixth Amendment right to a public trial somehow may not include the voir dire process or that applicable test is not clear. The case therefore represents an important victory for access to court proceedings.

The case, Presley v. Georgia, involved a criminal trial in which a single person was present in the courtroom during the voir dire of potential jurors. The presiding judge asked who the man was, and he answered he was the defendant's (Presley's) uncle. The judge then instructed the man to leave while the jury was being picked, over the objection of the defendant's counsel, suggesting there "just isn't space for them to sit in the audience." The judge made clear that the defendant's uncle could return "once the trial starts." After Presley was convicted, he moved for a new trial based on the exclusion of his uncle, presenting evidence that there had been adequate room for members of the public to attend voir dire. The trial court denied the motion, and, on appeal, the intermediate and highest courts of Georgia found no error.

The focus of the case was on whether the trial court was obligated to consider alternatives to closure despite the fact that Presley's counsel had not suggested any.

The Supreme Court began its discussion by reaffirming that the right to a public trial flows not just from the Sixth Amendment rights of the accused, but also from the free-speech protections of the First Amendment. The Court then explained that in the Press Enterprise I case, it had held that the First Amendment requires access to voir dire. Despite the fact that Presley was asserting a violation of his Sixth Amendment rights, the Court held "there is no legitimate reason, at least in the context of juror selection proceedings, to give one who asserts a First Amendment privilege greater rights to insist on public proceedings than the accused has."

The Court went on to acknowledge that under both the First and Sixth Amendments, there may be exceptions to the right to insist that voir dire be public; however, "such circumstances will be rare," and "the balance of interests must be struck with special care." The test sets a high bar, in that the party seeking to close the proceedings must "advance an overriding interest that is likely to be prejudiced," "closure must be no broader than necessary," and the judge "must consider reasonable alternatives to closing the proceedings" and "make findings adequate to support closure."

The Court brushed aside the suggestion from the Georgia Supreme Court that a court need not consider alternatives if the party opposing closure fails to suggest them. The Court underscored that the teaching of Press Enterprise I was clear -- "the public has a right to be present whether or not any party has asserted the right." Thus, "[t]rial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials." In Presley, the Court explained, the trial judge not only failed to make any attempt to accommodate public attendance, it also failed to articulate an overriding interest in closure through specific findings. There was no evidence in the record that the presence of the defendant's uncle in the courtroom gallery threatened the fairness of the trial or the impartiality of the potential jurors.

In dissent, Justices Thomas and Scalia complained that the majority summarily disposed of the case, without Presley even asking that they do so. Justice Thomas, who wrote the dissenting opinion, went on to argue that there was some lingering question after Press Enterprise I and its progeny as to the Sixth Amendment right to public juror selection proceedings and therefore that the majority should not have ruled summarily.

Justice Thomas, a Georgia native, appears to have been motivated to dissent in part by a desire to defend jurists from his home state. He closed his dissent by accusing the majority of "belittl[ing] the efforts of our judicial colleagues who have struggled with these issues in attempting to interpret and apply the same opinions upon which the Court so confidently relies today." However, while he and Justice Scalia may have felt that Presley presented a close constitutional question, the other seven Justices clearly did not. It is heartening to see a healthy majority of the Court act with dispatch to correct the failure of a state court to apply the clear holdings of Press Enterprise I and other courtroom access cases. The Supreme Court deserves high marks for its summary treatment of the issues in Presley.

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