May It Please The Court
Quote of the Day - On Thanksgiving Day all over America, families sit down to dinner at the same moment - halftime.
A History of Thanksgiving Proclamations
The First Thanksgiving Proclamation issued by the governing council of Charleston, Massachusetts, is when the Pilgrims got Thanksgiving started. Think about it. Back then, Thanksgiving was when it was warm enough in the New England colonies to actually eat outside with the Indians. Here's what Council Clerk Edward Rawson wrote:
June 20, 1676
People v. Decker: A Moral Dilemma for the Second Appellate District? (Part 2)A. Sliding-Scale Test Prone to Misuse
Second, and more problematic, the use of a sliding-scale test in emotionally-charged counts – where the gravamen of the case appeals to the feelings but distorts the judgment – unfairly introduces, albeit unintentionally, a moral factor into a legal equation. As the Adami court foreshadowed, “Merely soliciting one to do an act is not an attempt to do that act. In a high, moral sense, it may be true that solicitation is attempt; but in a legal sense, it is not.”
By applying the “sliding-scale” test to the same general set of facts that were present in Adami, the Decker court came to an exactly opposite conclusion, to wit: “Decker attempted her murder.” I suggest the “moral factor” explains this different result. For example, most telling are the 2nd District’s own words: “[Decker’s] specific intent to cause her death could not have been more unequivocal or emphatic,” and “[t]here was nothing more for Decker to do to bring about the murder of his sister.”
Without question, Decker – like Adami some 30 years before him– intended for the crime of murder to be committed. Both defendants are morally reprehensible and deserve to be punished for their despicable conduct. However, the issue here is not about their specific intent; rather, the issue here is whether the second element for the count of attempted murder has now been obfuscated through 2nd District’s judicial activism. Ask yourself, what act (other than preparation or solicitation) did Decker commit so that the murder of his sister “[would have been] consummated unless interrupted by circumstances independent of the will of the attempter”?
B. Murder-for-Hire Cases
In murder-for-hire cases, courts in other jurisdictions have uniformly looked at the actions of the agent to determine whether any steps toward perpetrating the crime took place. This is precisely the analysis that the Adami court went through before concluding that such a count could not be maintained under California law. Thus, in situations where, like here, the agent is really an under-cover policeman, an attempted murder charge can never be sustained because the agent lacks any intent whatsoever to carry out the crime. And that is the real rub here because, from a moral standpoint, it goes against our natural instincts to let anyone, who would commit such a heinous crime, get off on a mere technicality.
Convinced of Decker’s specific intent to kill his sister, the 2nd District misused the sliding-scale test to characterize Decker’s acts of preparation and solicitation as acts toward the commission of the crime to commit murder. When I handed my friend the Daily Journal and told him what I believed the 2nd District had done, he suggested that I was getting soft on crime (Me?), that – since Decker clearly possessed the requisite mental state to convict on solicitation and attempted murder – he should be punished for the more severe crime, and that Decker should not benefit from the fact that the would-be assassin was a police officer.
C. The Moral Pitfall
A problem arose, of course, when I asked him to step down off his lofty moral perch and simply explain the distinction between the two separate crimes in this murder-for-hire fact pattern: solicitation for murder and attempted murder. Using the 2nd District’s approach, there is none. That’s what happens when moral values influence legal decisions: waters become muddied and the law becomes less bright. The problem is not a new one. The maxim that “hard cases make bad law” was coined from an opinion by Justice Oliver Wendell Holmes in 1904. Time-tested, the point is equally applicable here.
After all, it doesn’t take a rocket scientist to figure out that neither the California Supreme Court nor the State Legislature have taken any steps in over a quarter of a century to overcome or reverse the result reached in Adami. So I ask: why the change now and why is the 2nd District leading the charge for change? Although Decker makes perfectly clear that the 2nd District didn’t think that solicitation of murder carried a stiff enough sentence, it is the Legislature’s province to determine the scope of punishment. Thus, by punishing defendants who are guilty of solicitation for the crime of attempt, the 2nd District has crossed over this well-known line and exceeded its jurisdictional powers. More to the point, its actions have needlessly created a conflict among the district courts, thereby contributing additional confusion in an area of law that has already seen too much.
Word and Word Perfect Wars Are About To Enter The CourtroomLet's talk word processors and litigation. My two favorite subjects: law and technology.
Two disclaimers here: I'm a MicroSoft devotee. I think the company has done wonders for computers and software, and although there may be some truth to the rumors, the monopoly arguments don't bother me. Of course, I used to work for AT&T before it was broken up. Despite my devotion, however, I much prefer Word Perfect over Word.
In my humble opinion, Word Perfect makes it much easier to format documents than Word. Admittedly, I don't know Word all that well because I don't use it everyday, but I have struggled to use it. In fact, I generally have to convert to Word if I'm going to send a document to a client. It should be easier.
Word Perfect itself has had a checkered history. It was started by the Word Perfect Corporation, and then sold to Novell, who owned it for two years, and then to Corel. We have found upgrades difficult to install, so we just keep it on the last one that works. Perhaps Corel hasn't invested enough into the program.
So, what's happening now?
Novell is about to sue Microsoft for its monopolistic treatment of Word, to the exclusion of Word Perfect. Novell has tried to reach a settlement with MicroSoft, but hasn't been able to get satisfaction. I'm sure Corel will be watching these developments closely.
Word has become so prevalent, and is such an inferior product, that I hope Novell gets some recovery for losing market share to MicroSoft.
Maybe I have to rethink that MicroSoft devotion.
People v. Decker: A Moral Dilemma for Second Appellate District? (Part 1)I. A Conflict Develops
Last week, the Court of Appeal, Second Appellate District (“2nd District”), issued its decision in People v. Decker, 2004 Cal.App. LEXIS 1921. The fact that the Second Appellate District chose to disagree with precedence established by the First Appellate District (“1st District”) over thirty years ago, while nothing novel, still raised enough curiosity in me to read about it in the Daily Journal. But truth be told, it was the knee-jerk reaction from my long-time colleague -- who is one of the smartest attorneys that I know -- during a discussion about Decker that prompted me to go further and write this blog.
A. The Adami Case
As you may know, in 1973, the 1st District decided People v. Adami (1973) 36 Cal.App.3d 452, a case involving a man who had solicited an under-cover policeman to murder his wife, giving him a down payment, a photograph of his wife, and written instructions on where she could be found. The defendant was charged with soliciting the crime of murder in violation of Penal Code section 653f, and attempted murder under Penal Code section 187 and 664.
Under California law, the elements of attempted murder are: (1) the specific intent to murder a human being; and (2) a direct, unequivocal but ineffectual act in furtherance of such intent. In construing the second element, the California Supreme Court has held that acts of preparation alone are insufficient and that “some appreciable fragment of the crime must have been accomplished.” In other words, the crime “must be in such progress that it will be consummated unless interrupted by circumstances independent of the will of the attempter.” See, e.g., People v. Gallardo (1953) 41 Cal.2d 57; People v. Buffum (1953) 40 Cal.2d 709.
After the trial court granted Adami’s motion to eliminate the attempted murder count, the 1st District affirmed the ruling, holding that Adami’s acts consisted solely of solicitation or “mere preparation.” Looking at decisions from other jurisdictions, the Adami court focused on the conduct of the third-party agent, or “solicitee,” and whether the would-be assassin had taken any steps toward carrying out the crime. Finding that the under-cover policeman in its own case had done nothing in that regard, the 1st District concluded that the crime Adami had committed could be no greater than solicitation of murder.
B. The Decker Decision
Facing almost identical facts in Decker, the 2nd District rejected the application of Adami, claiming it to be “inconsistent with later decisions of our Supreme Court.” In an effort to marginalize Adami, the Decker court relied upon language from the Supreme Court’s more recent decision in People v. Memro (1985) 38 Cal.3d 658, which noted that some appellate courts have been using a “sliding-scale” test to determine whether in fact the crime of “attempt” has occurred. In such cases, when “the design of a person to commit a crime is clearly shown, slight acts done in furtherance of that design will constitute an attempt.” The emphasis is mine.
II. The Second Appellate District's Flawed Approach
In my opinion, the 2nd District’s application of Memro to justify the reinstatement of an attempted murder charge against Decker is incorrect for at least two reasons. First, nothing in Memro is inconsistent with earlier holdings from the Supreme Court in either Gallardo or Buffum, both of which were relied upon by the 1st District in Adami. The Memro court did not dispatch the requirement that some act – however slight – must occur in furtherance of the crime after all preparations have been made. Consequently, the 2nd District’s excuse for disagreeing with the conclusion reached in Adami lacks merit.
(See Part 2, Wednesday 11/24/04)
Who Is Judge Selya And Why Does He Write Like That?As a takeoff from Beanie's comment on my "logophilia" article yesterday, here's a quick round up of some of the unusual words used by The Honorable Bruce M. Selya, who sits on the First Circuit.
Feel free to add comments for any other wordsmiths out there.
Here we go:
Bashman's 20 Q's;
The Puerto Rico Association of Criminal Defense Lawyers.
There's more out there, I'm sure, but you'll have to excuse my lethologica. You see, I am not at all lexiphanic, having put forth this post as a lucubrationous and lubricious effort.
All of which words were liberally liberated from The Superior Person's Book of Words. No, it doesn't belong to me. I borrowed it from my partner.
Slapped By An Anti-Slapp MotionSLAPP and anti-SLAPP. It's enough to make your head spin.
SLAPP is Strategic Lawsuit Against Public Participation. Anti-SLAPP is ... well, you can figure that out. It's the opposite of being slapped.
Generally speaking, SLAPP lawsuits are those filed by someone who wants the defendant to drop a government challenge. Typically, it's a developer trying to shut down an environmental group that is opposing a housing project. Not always, but sometimes.
Anti-Slapp, then, is when a defendant thinks that a plaintiff is suing because the defendant tried to exercise its First Amendment rights.
With that, we're ready to delve into Northern California Carpenters v. Warmington. The City of Hercules removed contamination from an old oil refinery and turned it over to Warmington and other developers to build homes on 206 acres.
The City had earlier adopted a prevailing wage policy. Warmington and the other developers didn't think it applied to them, so they sought a coverage determination from the California Department of Industrial Relations.
In January. The Carpenters' lawsuit was filed in July alleging that Warmington and the other developers violated the City's prevailing wage policy.
So, the defendant developers reasoned that the Carpenters' lawsuit was -- you guessed it -- an anti-SLAPP suit. When the developers filed a motion thinking they were being punished for seeking the interpretation from the State, however, they ran into a hitch.
It was a recently added statute. The statute was designed to shut down the broad application that California courts have been applying to anti-SLAPP suits. Kind of like Prop 64.
But, it worked the opposite way that Warmington had intended. Warmington lost the motion, the appeal, and now will be defending the Carpenters' lawsuit.
The Ease Of Reading Index Is Off The ScaleThanks to Rob Crisell for this article in the November California Lawyer magazine. The question is: how good is your vocabulary?
Did you know that you'd have to turn to the OED in order to read legal opinions? Legal jargon is bad enough, but now we're going to have to turn to another dictionary to get the full understanding of these words.
The California Lawyer article cites excerpts from twelve opinions by Judge Ferdinand Francis Fernandez of the Ninth Circuit.
Here's the dirty dozen (with the erudite words hyperlinked for your ease of reference):
1. Kearney v. Standard Ins. Co., 175 F.3d 1084 (9th Cir. 1999) (dissenting): "But let that be; at least after today's didactic exercise a district judge will be able to incant canorous phrases which will please our ears."
2. Committee to Save Mokelumne River v. East Bay Mun. Utility Dist., 13 F.3d 305 (9th Cir. 1993) (concurring): "They indicate that it takes no genius or epopt to see what the message will be."
3. United States v. Garett, 179 F.3d 1143 (9th Cir. 1999) (concurring): "To put it another way, absent a compelling reason the district court cannot have abused its discretion, but it would take a better haruspex than I to divine that from the opinion."
4. In re Daisy Sys. Corp., 97 F.3d 1171 (9th Cir. 1996) (dissenting): "The district court, with that perceptive and informed sententiousness that often characterizes the work of our district judges, said that: Merely because Bear Stearns was hired as an expert consultant to render financial services does not mean it was in a position of superiority in this relationship between two sophisticated business entities."
5. Smith v. McCormick, 914 F.2d 1153 (9th Cir. 1990) (concurring and dissenting): "I will not undertake to burden, bore, or ensorcell the reader by glossing what the Montana Supreme Court actually wrote when it decided this case."
6. United States v. Valdez-Gonzalez, 957 F.2d 643 (9th Cir. 1992) (dissenting): "Perhaps Congress should resile from its sentencing experiment."
7. Bugenig v. Hoopa Valley Tribe, 266 F.3d 1201 (9th Cir. 2001) (dissenting): "So plain it seems, it would take a marvelous act of interpretation, bordering on thaumaturgy, to read the constitution as expanding the Tribe's jurisdictional reach beyond the norm."
8. Paulson v. City of San Diego, 294 F.3d 1124 (9th Cir. 2002) (dissenting): "No matter how timorous or cautious we are about religion, the city's action cannot be seen as minatory."
9. Gentala v. City of Tucson, 244 F.3d 1065 (9th Cir. 2001) (dissenting): "If the statement did present a problem, I hardly think that the City can place a tarnkappe [a magic cap securing the invisibility of the wearer] over the policy's reification of hostility at the threshold by adding that requirement."
10. Newdow v. United States Congress, 292 F.3d 597 (9th Cir. 2002) (concurring and dissenting): "My reading of the stelliscript suggests that upon Newdow's theory of our Constitution, accepted by my colleagues today, we will soon find ourselves prohibited from using our album of patriotic songs in many public settings."
11. Kang v. U. Lim Am. Inc., 296 F.3d 810 (9th Cir. 2002) (dissenting): "Moreover, the statute speaks with enough clarity to permit (nay require) one to stop with its own words, rather than undertaking to stravage in a wilderness of possible legislative purposes."
12. Dillingham v. INS, 267 F.3d 996 (9th Cir. 2001) (dissenting): "To say that, does not enisle this country, although it does recognize that we are a separate nation."
Exactly. What ever happened to plain English for lawyers?
That's why Latin is a dead language.
Insurance Companies Must Insure, And Not At The Risk of the InsuredCall me sentimental, but this one seems just right.
Here's the playbill. While trying to put out a prairie fire in Nebraska started by sparks from a Union Pacific train, Dailey suffered second- and third-degree burns over a significant portion of his body. He sued UP and settled, receiving over $1.2 million, plus $10K/month for ten years. Plus, UP agreed to defend Dailey if his health insurer, Blue Cross/Blue Shield, sued to recover part of the settlement. That agreement did not necessarily mean that UP would pay more.
Larry H. Parker may not have been able to do much better.
Trouble is, BC/BS was left out in the cold. It had paid almost $800K of Dailey's doctor and hospital bills, but had not received anything as part of the settlement. So, it sued Dailey for equitable subrogation and for breach of contract.
It wanted money.
If BC/BS recovered that money from Dailey, he was out of luck. He had signed a UP settlement, releasing it from paying any more. Dailey would have to pay BC/BS out his own recovery.
But, BC/BS had a contract with Dailey that allowed it to recover the money it had spent on Dailey's care if Dailey recovered in a settlement. So, it sued both UP and Dailey. UP denied the claim, and the lower court decided that if BC/BS wasn't entitled to recover from Dailey, it wouldn't be entitled to recover from UP.
The initial decision was that BC/BS was entitled to contractual recovery, reducing Dailey's recovery by the nearly $800K it had paid for Dailey's injuries. Remember - Dailey had released UP.
The Nebraska Supreme Court didn't like that result. Well, more than half of the Court. They decided that an insurer is precluded from any recovery unless the insured has been made completely whole by the tort-feasor. In other words, the insurer can't take any money from the injured insured until he has first been fully paid for his injuries.
The root of the rationale? The court said that " these are risks of loss that the insurer is paid to bear."
Hmm. Do they mean that BC/BS has to act like an insurance company? What a surprise.