Saturday, December 20, 2014

Supreme Court Original Jurisdiction

The lawsuit by Nebraska and Oklahoma against Colorado is an interesting development on the legalization issue. This case filed by a state against another state would fall under the original jurisdiction of the Supreme Court which like appellate jurisdiction is discretionary. Texas v. New Mexico, 462 U.S. 554, 570 (1983).  They usually appoint a special master to conduct the trial and then review the record if they take the case and if it is justicible.

The lawsuit alleges that Colorado's marijuana legalization provision violates the Supremacy Clause of the United States Constitution.  U.S. Const. Art. VI, Clause 2.  Under federal law marijuana possession is illegal.  21 U.S.C. Section 812; 21 CFR 1308.11(d).  In Section 538 (page 213) of the recently passed Continuing Resolution Omnibus Act, the federal government cannot use federal funds to enforce federal laws that make the possession of marijuana illegal against state licensed medical users of marijuana.  That provision does not apply to non-medical possession and in states that have not legalized medical marijuana.

The Law Office of Kurt T. Koehler, 308 1/2 S. State Street Ann Arbor, Michigan (MI) 48198 (Washtenaw County); Copyright 2012 by Kurt Koehler

Sunday, November 30, 2014

Appellate Case Timelines

The Wall Street Journal has an interesting article about the length of time that recent Supreme Court cases from the last five years were pending by the time they reached the apex court.  This article only considers cases where the Supreme Court granted a writ of certiorari which is a very small percentage of the cases that are appealed there. 

Not surprisingly most the cases were pending for 4-6 years.  Criminal appeals and some interlocutory appeals take priority, but after conviction criminal cases can take far longer than civil cases where collateral habeas corpus review is sought especially in death penatly cases.  Some cases may also be remanded back to the lower courts and come back for further review.  Other cases may first reach the appellate courts on preliminary procedural matters and once those are resolved return on appeals from the judgment.

The Law Office of Kurt T. Koehler, 308 1/2 S. State Street Ann Arbor, Michigan (MI) 48198 (Washtenaw County); Copyright 2012 by Kurt Koehler

Friday, October 31, 2014

Jurors and the Plea

In Williams v. Swarthout the U.S. Ninth Circuit Court of Appeals reversed a conviction, because the judge erroneously stated after swearing in the jury that the defendant pleaded guilty at the beginning of the trial.  The defendant had in fact pleaded not guilty hence the ensuing trial.  Earlier during voir dire the judge told the prospective jurors that the defendant pleaded not guilty. 

The mistake did become clear until the next day when the jurors, after deliberating for one hour, sent the judge a note asking the judge if he had said that the defendant pleaded guilty.   The judge reviewed the transcript and admitted the mistake on the record.  The prosecution and court reporter had noted the error, but did not say anything.  The defense move for a mistrial.  The judge summoned the jury and corrected the record.  The judge asked the jurors whether they were unable to accept the correction, but the jury was silent.  The judge asked if they didn't pay attention because of a mistaken belief that the defendant pleaded guilty.  Again the jury was silent.  The judge asked a third time if the jurors would be unable to set aside the mistaken statement that the defendant pleaded guilty.  The jury was silent.  Lastly the judge asked the jurors to raise their hands if they could not provide the defendant with a presumption of innocence, the right to remain silent, and the standard of proof beyond a reasonable doubt, but no hands were raised.  At this point the judge denied the motion for a mistrial. 

A few days later one juror sent a note to the judge admitting that he or she had assumed the defendant pleaded guilty and that the issue was simply whether the evidence supported the plea.  The juror was dismissed, but had already told the rest of the jury about the note and its content.  The remaining jurors each stated individually that they could disregard the court's misstatement as to the defendants plea.  The defendant was convicted of false imprisonment and two CSC counts and was sentenced to at least 50 years in prison.

On appeal to the California Court of Appeals the judgment was affirmed.  The California Court of Appeals concluded that an error occurred, but that it was cured and hence harmless.  The California Supreme Court denied leave to appeal.  The defendant then filed for habeas corpus relief.  The federal district court agreed with the California Court of Appeals. 

The Ninth Circuit reversed.  Federal habeas review is limited by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).  Only claims where the state court decision is contrary to or is an unreasonable application of clearly established federal law or where the decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."  28 U.S.C. Section 2254(d).  The Ninth Circuit ruled that in this case it had to defer to the state court's determination as to whether a federal constitutional error occurred.  It ruled that the state court held there was an error according to federal law as well as state law. 

However, the Ninth Circuit did not agree that the error was harmless.  In fact it noted that the misstatement as to the defendant's plea would have completely eliminated the prosecution's burden of proof if it was not corrected.  The court ruled that the judge's first instruction did not cure the error as one juror sent a note showing it had not been corrected days after remaining silent when asked if there was an issue.   The second correction was also not adequate even though the jury was silent when asked if any issues remained.  The court found that the judge had essentially rebuked the juror who sent the note to such an extent that no other juror would want to freely admit in open court that they were not fair and impartial.  Hence the error was not harmless and the defendant was entitled to a writ of habeas corpus and a new trial. 

There was a dissent in this case which agreed with the California Court of Appeals that the error was fully cured and hence harmless.

The Ninth Circuit Court of Appeals opinion can be found here:

The Law Office of Kurt T. Koehler, 308 1/2 S. State Street Ann Arbor, Michigan (MI) 48198 (Washtenaw County); Copyright 2012 by Kurt Koehler

Sunday, August 31, 2014

New York City Sugary Drink Regulation

In September 2012, New York City's Board of Health prohibited the sale of sugary drinks larger than 16 ounces in restaurants and some other venues such as movie theaters, fast food restaurants, and cafeterias that it inspects.  Five years earlier, in 2007, the same agency required restaurants to remove trans fats from their menus.  The regulation would have taken effect 6 months after its adoption with a 9 month grace period before restaurants would face $200 fines. 

The large sugary drink ban only applied to sellers that were inspected and graded by the city health department.  Hence, supermarkets, vending machines, and convenience stores (7-11 included) were not covered by the ban.  The regulation also did not ban refills.  The regulation defined sugary drinks as those with more than 25 calories per 8 ounces that were sweetened by the manufacturer or mixed with a caloric sweetener.  This definition did not include pure fruit juice, fruit smoothies, drinks that are more than 50% milk (milkshakes and some coffee drinks if more than 50% milk), and calorie free diet sodas or alcoholic drinks. 
Various groups filed suit to invalidate the regulation.  These plaintiffs included 1) the New York Statewide Coalition of Hispanic Chambers of Commerce representing approximately 25 smaller chambers and 200,000 Hispanic businesses, 2) the New York Korean-American Grocers Association representing about 4,000 Korean-American grocery, deli, and store owners in the New York area, 3) the Soft Drink and Brewery Workers Union with about 3,600 members engaged in hauling, warehousing, and distributing alcoholic and soft drinks, 4) the National Association of Theatre Owners of New York State, 5) the National Restaurant Association, and 6) the American Beverage Association.

The Supreme Court, the trial court in New York, ruled that the regulation constituted lawmaking which is improper by an administrative agency and that it was arbitrary and capricious.  In New York and other states administrative agencies are part of the executive branch of government.  The executive branch is not permitted to exercise the powers of the other branches.  In other words administrative agencies, as members of the executive branch, cannot engage in lawmaking as that is an power exclusive to the legislative branch.  However, the legislature may delegate powers to an agency which it may then use to make administrative regulations through the rule making process.  Yet, the legislature cannot delegate its full lawmaking power.  The main separation of powers case in New York is Boreali v. Axelrod, 71 N.Y.2d 1 (1987) which dealt with an indoor smoking ban in specified buildings passed by the Public Health Council after the legislature failed to pass similar legislation. 

Four factors are considered in determining if the separation of powers doctrine requires invalidating a regulation.  These are 1) whether the regulation is based on concerns not related to the stated purpose of the regulation such exemptions created based on economic, political, or social concerns, 2) was the regulation created on a clean slate creating its own set of comprehensive rules without legislative guidance, 3) did the regulation intrude on an ongoing legislative debate, and 4) did the regulation require the exercise of expertise and technical competence by the body passing the legislation.  As to the first factor the trial court found that the regulation did not pass the test as it was "laden with exceptions based on economic and political concerns" in that it made a political decision not to seek an agreement with other regulating agencies that covered convenience stores like 7-11 and indications that it balanced public health considerations against economic ones. 

For the second factor the plaintiffs argued that the regulation was created from a clean state whereas the defendants argued that it was not created on a clean slate, but rather on the broad authority delegated to the Board of Health. The court found that the broad powers given the Board of Health in the city charter dating back to 1698 were limited to preventing and protecting against "communicable, infectious, and pestilent diseases."  There is no power for the Board to ban food items for the purpose of "controlling chronic disease" and its power to regulate the food supply is limited to when the city faces an imminent danger due to disease.  The trial court held that the power exercised by Board in this case actually belongs exclusively to the City Council as the legislative body of the City of New York.  Hence the regulation violated the second factor of Boreali

For the third factor the plaintiffs argued that the New York City Council had rejected three resolutions to tax, prohibit food stamp usage, and place warning labels on sugary beverages and the New York Assembly considered bills to regulate and tax sugary beverages without passing them.  The defendants countered that the New York City Council and the state legislature had not entertained measures limiting portion sizes.  The court rejected this argument as "a distinction without a difference" and ruled that there was an ongoing debate in the legislature and city council about the obesity issue and sugary drinks. 

The plaintiffs argued that the fourth factor regarding expertise and technical competence was lacking as the rule was drafted by the mayor's office rather than the Board and passed by the Board without any substantive changes.  The defendants argued that a memorandum issued after the public hearing addressed scientific studies and utilized the Board's expertise and technical competence.  The court held that it was not necessary for the Board to write the regulation to exercise their expertise or technical competence and that it could be met by the hearings or debates prior to passage.  The court found that the memorandum was sufficient for the Board to satisfy and meet the fourth factor in the Boreali analysis.

Overall the trial court found that the regulation did not pass the Boreali test and would "not only violate the separation of powers doctrine, it would eviscerate it."  The court noted that the defendant's interpretation of its authority would leave the Board's "authority to define, create, mandate, and enforce limited only by its own imagination."

The plaintiffs also argued that the regulation was unreasonable, arbitrary, and capricious under Article 78.  For reasonableness the trial court noted that the agency only had to demonstrate a reasonable basis for the rule which the court held that it did in addressing the rising obesity rate in New York City.  An administrative action is arbitrary and capricious if it is without a foundation in fact.  The court noted that the regulation lends itself to uneven enforcement on  a city block and in the city as a whole and that the loopholes defeat the stated purpose of the rule in that it applies to some, but not all food establishments, it excludes beverages with higher concentrations of sugar sweeteners or calories, and does not limit refills.  This, the court concluded, was arbitrary and capricious.  This ruling was appealed.

 The New York Court of Appeals, the court of last resort in New York, struck down the regulation on the basis that the New York Board of Health exceeded its authority in adopting the regulation in that it infringed on the legislative power of the City Council of New York. The court held that "[b]y choosing among competing policy goals, without any legislative delegation or guidance, the Board engaged in law-making and thus infringed upon the legislative jurisdiction of the City Council of New York."

Agency Action:

Regulation Section 81.53 : (See page 38).

Supreme Court (Trial Court in New York):

Court Opinion:

Supreme Court Appellate Division (Intermediate Appellate Court in New York):

Court Opinion:  (Beginning on Page 47).

New York Court of Appeals (Highest Appellate Court in New York):

Court Opinion:

Thursday, July 31, 2014

California Probate Law - LA Clippers Sale Trial

A few days ago a California probate court ruled in the Donald Sterling/Shelly Sterling trust dispute concerning the pending sale of the Los Angeles Clippers to Steve Balmer (Former Microsoft CEO) for $2 Billion.  The pending sale occurred under the threat of an NBA takeover and forced sale of the franchise due to allegations discussed at this link.   The judge found that Shelly Sterling properly followed the trusts requirements to remove Donald Sterling as a trustee under a capacity clause.  The parties had agreed not to include Donald Sterling's actual physical/mental condition as an issue in the trial.  So that issue was not before the court.  Presumably the idea there was to avoid an expert vs. expert dispute on capacity and resolve the trial more quickly.  Donald Sterling revoked the trust after his wife had executed a binding term sheet for the sale of the team. 

The National Law Journal Article from July 30, 2014 on the court's decision noted two main new precedents that may be set by the case.  The first issue is the invocation of Section 1310b of the California Probate Code.  Generally there is an automatic stay of the probate trial court's ruling when an appeal is filed in California under Section 1310a of the Probate Code.  Section 1310b allows the court to appoint a temporary trustee to exercise the trustee's powers as though no appeal was pending where there is a need to prevent injury or loss to a person or property.  Apparently this section has been only rarely invoked in the past.  Its application in the circumstances of a sale is new.  However, in this instance the purchase price is the highest offered for an American sports franchise and considerably higher than the other offers in the bidding or Forbes Magazine's estimate of the value of the team from January 2014.  The offer also comes with an expiration date.  You can never really know how much the team would go for an a second round of bidding, but now that the previous bids are public knowledge it probably would be less than the current offer.  Sterling bought the then San Diego Clippers for $12.5 million in 1981 and moved them to Los Angeles in 1984 which at the time lead to its own set of conflict and litigation with the NBA.  So it is probably more likely that not, as the court ruled, that the team would lose value if it had to go back on the market for new bids.  The seems to be a decent plain language interpretation of loss and injury as they exist in the statute.  The main question marks here are that this section has not been used much and it was used in distinct contexts from this one.  The court's ruling does not prevent an appeal.  It just means that the sale can close and that there is no stay of that sale.  If Donald Sterling were to prevail on appeal he could be awarded monetary damages rather than getting back the team.  He could seek review and an injunction of the 1310b ruling and the whole case before the California Court of Appeals and failing that the California Supreme Court.  The standard of review on appeal would probably be abuse of discretion by the trial court.  That is a tough standard to meet in any appeal.

The second issue mentioned in the Article revolves around the revocation of the trust.  The action itself, which might according to witnesses who testified at trial cause $500 million in loans to be recalled by banks, was not the focus of the court so much as the powers of the trustee after termination.  Trustees can wind up the affairs of a terminated trust under Section 15407(B) of the California Probate Code.  Although this power does not always involve major transactions, the court ruled that the sale of the team was a winding up transaction which the Shelly as trustee had the power to complete.  This is especially true since the sale terms sheet had been signed and made binding before the trust was revoked. 


Monday, June 30, 2014

Catching Up

A few months ago I wrote about software patents before the Supreme Court.  Instead of issuing a broad ruling the Court merely decided that adding a computer to an abstract idea would not be enough to make it patentable.  Abstract ideas are not patentable.  The trouble comes in deciding what an abstract idea constitutes.

The Law Office of Kurt T. Koehler, 308 1/2 S. State Street Ann Arbor, Michigan (MI) 48198 (Washtenaw County); Copyright 2012 by Kurt Koehler

Saturday, April 5, 2014

Lectures in History: Andrew Johnson & the 14th Amendment | C-SPAN

This is an excellent historical perspective on the 14th Amendment to the U.S .Constitution. Professor Ross describes it as Congress' peace treaty to the South. That is quite accurate. He also notes that it only came about because of a fun...damental conflict between President Johnson and Congress over how to handle reconstruction.
Lectures in History: Andrew Johnson & the 14th Amendment | C-SPAN 

The Fourteenth Amendment

The Text of the Fourteenth Amendment

Saturday, March 29, 2014

Taxes on Settlements and Judgments

The link below will take you to an informative article on the tax consequences of judgments and settlements. Taxation of judgments and settlments varies depending on the type of case and the chacter of the damages. For instance back pay in an employment lawsuit would be taxed as wages and both income and FICA taxes would apply. As noted by author, settlements can be structured to reduce taxes depending on the type of case.

Saturday, March 1, 2014

Birthday Post

Today is my birthday and I thought I would post a picture of the cake my fellow workers bought for me.

Friday, February 28, 2014