Category Archives: rules

Torres v. Oakland Scavenger Co.

487 U. S. 312

June 24, 1988

Jose Torres was one of 16 people who was appealing a District Court ruling. Unfortunately, due to clerical error, his name was left off the list of people in the formal appeal. The Appeals Court refused to allow him to be part of the case, reasoning that without formal notice of appeal, it quite simply had no jurisdiction pertaining to him. Torres countered that the appeal rules were not meant to penalize minor errors and technicalities.

The Supreme Court left Torres high and dry in an 8-1 ruling. Marshall said that appeal rules should be interpreted liberally, but that this liberality could not be extended to instances where no jurisdiction existed. Without his name in the official appeal, a court could simply offer Torres no cognizance. Scalia, concurring in judgment, didn’t even like Marshall’s assertion that any spirit of liberality should animate application of the rules.

Brennan waged a lonely dissent. Rather than sum it up, I’ll quote the final paragraph. “After today’s ruling, appellees will be able to capitalize on mere clerical errors and secure the dismissal of unnamed appellants no matter how meritorious the appellant’s claims and no matter how obvious the appellant’s intention to seek appellate review, and courts of appeals will be powerless to correct even the most manifest of resulting injustices. The Court identifies no policy supporting, let alone requiring, this harsh rule, which I believe is patently inconsistent not only with the liberal spirit underlying the Federal Rules, but with Rule 2’s express authorization permitting courts of appeals to forgive noncompliance where good cause for such forgiveness is shown. Instead, the Court simply announces by fiat that the omission of a party’s name from a notice of appeal can never serve the function of notice, thereby converting what is in essence a factual question into an inflexible rule of convenience.”

All right, NOW I’m mad at the majority in Houston. If you’re going to be activist about jurisdiction, at least be consistent about it. Worse yet, Brennan makes a great case that pleading the case of Jose Torres wasn’t even activism, but just what the law demanded. I myself would have joined Brennan’s opinion. Torres got screwed over badly, and if a majority of the Justices were going to press the case of Houston, they should have pressed his case too.


Houston v. Lack

487 U. S. 266

June 24, 1988

A prisoner without a lawyer mailed off a Habeas appeal. Although he put it in the prison mail three days early, it arrived at the clerk’s office one day late. Under the Habeas jurisdiction statute, the 30 day filing deadline for an appeal was completely mandatory. In a desperate bid to save his appeal, the prisoner, Prentiss Houston, argued that the appeal should be considered filed when placed in the prison’s mail.

The Supreme Court agreed in a 5-4 vote. Brennan said that the word “filed” was slightly ambiguous – just ambiguous enough to allow a new rule that placing an appeal in the prison mail system constituted filing. Brennan stressed that in non-prison contexts, the standard rule of the appeal needing to reach the clerk’s office still applied. This special rule was necessary because a prisoner without a lawyer has no way to take extra precautions, and has to trust everything to the prison mailbox.

Scalia, joined by Rehnquist, O’Connor, and Kennedy, dissented. He said what everyone really knew: that “filed” meant filed in the clerk’s office, and that Brennan’s plea of ambiguity fooled no one. He felt Brennan was especially going rogue in making “filed” have a different definition solely for the prison system. Scalia contended that the word ought to have just one meaning. He also rejected some additional arguments put forth by Houston that the majority did not address. His answer to all of them was essentially ‘rules are rules.’ Scalia noted that the Supreme Court itself had the power to change this particular rule, and should have done so rather than resort to an activist judicial ruling.

So, let’s be honest, this ruling was blatant activism. And yet, I’m finding it absolutely impossible to get angry at the majority. As Charles Dickens once wrote, here’s an instance where “the law is a ass.” Scalia’s dissent is obviously correct on the merits, but it’s really missing some empathy in its tone.

Bank of Nova Scotia v. United States

487 U. S. 250

June 22, 1988

A prosecutor led a grand jury on a lawless witch hunt against a bank and several associated individuals. The prosecutor violated several grand jury rules to secure 27 indictments. A District Court dismissed all the indictments because of the violations, using its supervisory power as a court of law. The government tried to salvage the case by claiming that the District Court could not exercise such a supervisory power unless the defendants were prejudiced by the violations, and that the alleged violations were all harmless error.

Regrettably, the Supreme Court agreed in an 8-1 vote. Kennedy said that Rule 52(a) very strongly implied that indictments could only be dismissed upon a finding of harmful error to the defendant. The indictments could be dismissed only if the abuses had substantial likelihood of pushing the grand jury to indict. Kennedy then went through an impressively long listing of prosecutorial abuse. For each and every instance, Kennedy found a way to argue that it probably would not have affected the grand jury’s final decision. Because all the errors were somehow harmless, the indictments had to be reinstated.

Scalia, concurring, noted that a District Court’s supervisory powers should generally be construed narrowly. Marshall filed a lonely dissent. He pointed out that it was extremely difficult to discover instances of prosecutorial abuse during a grand jury phase because of all the attendant secrecy. He contended that insulating prosecutors even further with a harmless error analysis was unfair. “Today’s decision reduces [grand jury rules] to little more than a code of honor that prosecutors can violate with virtual impunity.”

I think what really bothered me about this case was not the legal holding, but the majority’s application of it. I’m all for a single instance of harmless error being forgiven. What strained my credulity were the majority’s casual assurances that every single one of the long list of errors were all coincidentally harmless.

Supreme Court of Va. v. Friedman

487 U. S. 59

June 20, 1988

Virginia allowed lawyers licensed in other states to skip the Virginia Bar Exam if they lived in Virginia. Myrna Friedman, licensed by Illinois and DC, had worked in Virginia for many years, but lived across the river in Maryland. She applied for admission without the Bar Exam, but was denied because of her Maryland residency. Friedman charged that this rule violated the Privileges and Immunities clause, especially because a recent Supreme Court ruling prohibited states from denying non-residents a law license if they passed the state bar exam.

The Court ruled 7-2 that Virginia could not enforce its rule. Kennedy claimed that the Privileges and Immunities clause protected the rights of citizens to practice law regardless of state residency, and that laws burdening this were suspect. That Friedman could still be licensed by passing the Virginia Bar Exam was irrelevant, because it was a needless extra burden. Kennedy was unimpressed by Virginia’s argument that the rule was necessary to ensure the familiarity with Virginia law of those who got licensed. Friedman was clearly familiar with Virginia law. In any event, a different rule that Virginia lawyers had to practice in Virginia was sufficient for all the ends the state wished to achieve.

Rehnquist, joined by Scalia, dissented. He refused to accept that requiring residency for a law license violated the Privileges and Immunities clause (and he referred to a previous dissent for a more in depth explanation of why). He concluded that the Court’s dumb ruling could very well encourage Virginia to eliminate all reciprocity, and thus require all applicants to take the Bar Exam.

Supreme Court activism might be most blatantly visible not when it’s applied toward an evil end like abortion, but when it’s applied toward a merely dumb end like bar admission. When activism serves an evil cause, it’s easy to care more about the terrible real world effects of the decision than the reasoning behind the decision itself. Conversely, when activism is employed to reach a stupid but basically harmless result, the activism sticks out far more prominently.

Stewart Organization, Inc. v. Ricoh Corp.

487 U. S. 22

June 20, 1988

A contract dispute from Alabama went to federal court. The contract said that venue would be in New York, but Alabama had a state policy against putting binding venue selection in contracts. The question was whether Alabama’s federal court had to follow the state policy, or if it could consider it preempted by federal jurisdiction rules. The dispute centered on Section 1404(a). It said “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.”

The Supreme Court ruled 8-1 that 1404(a) governed the situation. Marshall identified the key issue as whether or not 1404(a) was meant to cover the general topic of forum selection clauses. He said it was, because forum selection clauses bear heavily on any possible transfers, and the interests of justice in ordering them. Marshall thought 1404(a) was a perfectly reasonable housekeeping rule, and allowed it to preempt any Alabama policies on the topic. He stressed that the federal courts would still weigh the equities of transfer – they would make neither state policies nor forum selection clauses dispositive, but would consider both along with other factors.

Kennedy, joined by O’Connor, concurred to say that federal courts should almost always follow venue selection clauses, unless there was a really strong reason not to. Scalia dissented. He felt the wording of 1404(a) was too vague to  conclude that it covered forum selection clauses, especially given that other federal jurisdiction rules covered arbitration clauses far more specifically. Scalia also felt that the majority’s interpretation was inconsistent with the policy goals of the Erie doctrine. It wouldn’t, he contented, stop forum shopping, and it could produce inequitable administration of the law.

I really hate lawyers who will fight to the death over every single stupid little jurisdictional thing. These meta-lawsuits – lawsuits about lawsuits – clog up way too much of the Supreme Court’s valuable time. After I read this case’s first sentence (“This case presents the issue whether a federal court sitting in diversity should apply state or federal law in adjudicating a motion to transfer a case to a venue provided in a contractual forum-selection clause.”) I actually said aloud “Oh, for crap’s sake.” The Court did, at least, make the right decision. When you agree to a venue selection clause in a contract, pacta sunt servanda should prevail.

Liljeberg v. Health Services Acquisition Corp.

486 U. S. 847

June 17, 1988

Judge Collins of Louisiana was determining who owned a hospital. While this case was going on, Loyola was looking to sell land to the hospital, though only if Liljeberg won the suit (as he eventually did). Judge Collins was on Loyola’s board of trustees, but he was unaware of all this at the time. When these weird connections came out afterward, the losing party moved to vacate the ruling of Judge Collins, on the ground that he violated a federal law about judges recusing themselves when they have a stake in the outcome. Collins argued that he didn’t know about the conflict of interest until afterward, so there was no harm.

Unfortunately, the Supreme Court disagreed in a terrible 5-4 ruling. Stevens said that the federal law on disqualification was meant to protect citizens from even the appearance of impropriety on the part of judges. Thus, even if a judge did not know about a conflict of interest, they had a duty to recuse if they should have known. Based on his attendance at several trustee meetings, Collins clearly should have known, and at a minimum he should have personally tried to vacate his ruling the day it all came to his attention. Because the obliviousness of Judge Collins was so staggering, Stevens agreed with the lower court that the proper remedy was vacating the ruling entirely – something federal law only allowed in extreme cases.

Rehnquist, joined by White and Scalia, dissented from this nonsense. When a judge really wasn’t aware of any conflict of interest until afterward, there was no harm done. Furthermore, “[t]o hold that disqualification is required by reason of facts which the judge does not know, even though he should have known of them, is to posit a conundrum which is not decipherable by ordinary mortals.” Rehnquist was equally unimpressed by the monumental overreaction of ruling that this mistake was extreme enough to warrant vacating the ruling nearly a year after the fact. O’Connor said she agreed of most of Rehnquist’s points, but left open the possibility of a new trial if the lower courts really thought it was necessary.

I hate judges recusing themselves over stupid minutia like service on a board of trustees, or a tiny amount of stock owned in a broad portfolio. It can often lead to tie votes that waste everyone’s time and money – you’re pleasing an unreasonable jerk who will say that a Justice was just voting to protect their interest in three shares of stock, but at way too high a cost. At one point, Stevens sententiously intones that “people who have not served on the bench are often all too willing to indulge suspicions and doubts concerning the integrity of judges.” True enough, but we don’t have those doubts over specious crap like stock portfolios or trustee boards.

Let’s be blunt about it: 99% of the time, our “suspicions and doubts” are based on the judge’s political leanings and biases. If Stevens was being honest, he’d admit that the greatest appearances of partiality come when the judge apparently votes in line with his political preferences. How ironic that political leanings are the reason a judge is least likely to recuse himself to avoid the appearance of partiality! At any rate, when Justices like Brennan and Marshall are (completely by coincidence, I’m sure) voting for criminal defendants, unions, and racial minorities in nearly every case, it’s hard for me to take complaints about being on a board of trustees seriously.

This is the very first case of Kennedy being the swing vote and betraying the other conservatives. Sadly, it would not be the last case. In fact, this ruling contains some creepy prefiguring of Planned Parenthood v. Casey. The majority worries about the judge’s appearance of impropriety more than the presence of actual impropriety. Four years later, a majority composed of largely the same Justices ruled that Roe must be reaffirmed, because whether or not it was incorrectly decided, public perception of the judiciary would be undermined by overruling it. In other words, appearance matters more than the actual facts and legal substance – truly a horrifying perversion of justice and legal priorities!

Sun Oil Co. v. Wortman

486 U. S. 717

June 15, 1988

Landowners who leased property to a gas company were seeking additional interest on royalties due to them. They brought suit in Kansas state court, even though they were variously from Texas, Oklahoma, and Louisiana. Kansas had a longer statute of limitations than those states. The gas company charged that Kansas had no business applying their own statute of limitations under the Full Faith and Credit clause, and also that Kansas had not properly followed the interest rate laws from TX, OK, and LA.

The Court ruled unanimously that Kansas could apply its own statute of limitations, and ruled 6-2 that the Kansas courts had adequately interpreted the interest laws of TX, OK, and LA (Kennedy did not participate). Scalia started out by showing how statutes of limitations had always been seen as procedural rules which could be used without violating the Full Faith and Credit clause. International law (which was used to interpret the clause in the early days) had allowed the forum state to use its own limitations statutes for centuries, and nothing could overthrow the force of this history. A small number of dissonant cases from the Erie line were distinguished.

Brennan, joined by Marshall and Blackmun, sharply disagreed with Scalia’s reasoning. He hated majority’s undertones of originalism, bright lines between substantive and procedural rules, and recourse to history. Instead, Brennan would look at whether using the forum state’s limitations statute was arbitrary or fundamentally unfair. Upon reviewing the case’s facts, and finding no fundamental unfairness, Brennan concluded that Kansas could use its own statute of limitations.

On the issue of the interest rate laws of the other states, Scalia said the Full Faith and Credit clause was not breached unless the forum state’s interpretation was blatantly incorrect. Although Kansas allegedly misinterpreted laws from TX, OK, and LA, there were minimally plausible arguments to be made for the odd interpretations advanced by Kansas.

O’Connor, joined by Rehnquist, would have none of this. The laws of TX, OK, and LA were pretty clear, and Kansas did an obviously slipshod job of trying to get around them. She closed her opinion with this hilarious summation of what the Kansas courts essentially did: “Faced with the constitutional obligation to apply the substantive law of another State, a court that does not like that law apparently need take only two steps in order to avoid applying it. First, invent a legal theory so novel or strange that the other State has never had an opportunity to reject it; then, on the basis of nothing but unsupported speculation, “predict” that the other State would adopt that theory if it had the chance.”

This case sure has a number of interesting storylines. First, it’s great to see Brennan whine in dissent that the majority is using originalism. While he may hate historical practice, it’s surely a better standard than his solution of unelected Justices randomly deciding what procedures are “fundamentally unfair.” Then there’s O’Connor, who (along with Rehnquist) is the only Justice with the guts to say that the Kansas courts were on an abusive and lawless power trip. It’s a shame Scalia didn’t have the courage to admit this (he’s disappointed several times in recent cases).

Volkswagenwerk Aktiengesellschaft v. Schlunk

486 U. S. 694

June 15, 1988

After an automobile accident, Herwig Schlunk wanted to sue the German company Volkswagen. He served their American subsidiary, on the understanding that the notice would be relayed back to the German parent corporation. Volkswagen said they should have been served in Germany, according to the dictates of the Hague Convention. Schlunk responded that this was not necessary if proper service could be effected by through the American subsidiary.

The Supreme Court ruled unanimously that service to the subsidiary was acceptable. O’Connor looked through the drafting history of the Hague Convention, and concluded that it intended to leave local laws about service still operating, with international service only being required if local laws failed to give adequate notice. According to American law, service on the German parent is considered legally effectuated when the American subsidiary is served, so there was no need for the Convention to come into play.

Brennan, joined by Marshall and Blackmun, dissented from much of the reasoning. They disputed that the Convention was meant to leave all local laws unchallenged, because this would often allow for ineffective service. Nonetheless, Brennan did agree that a wholly owned subsidiary was good enough that international service could be seen as completely unnecessary.

My strongest feeling about this case has nothing to do with any of the legal principles. Instead, my key takeaway is that Volkswagen’s parent company is ridiculously hard to spell.

Van Cauwenberghe v. Biard

486 U. S. 517

June 13, 1988

Van Cauwenberghe (we’ll call him V.C. from now on) was a Belgium citizen who was extradited to America for a criminal trial. While in America for the trial, he was served with a closely related civil lawsuit. V.C. moved to dismiss the civil suit on the grounds of forum non conveniens, and on the grounds that criminal defendants present in America on extradition were immune from civil suits. The District Court ruled against these two grounds, and V.C. tried to appeal immediately, before the civil trial. The question was whether V.C. could appeal the jurisdictional issues prior to the completion of the District Court trial.

The Court ruled unanimously that early appeal was not possible. Marshall said that Court precedents allowed early appeal only if the issue was readily separable from all other issues in the trial, and only if review would be impossible after the full trial. With respect to immunity, Marshall held that the ultimate right sought by immunity was the right to not be subject to a binding final judgment, and not the right to have no trial at all. Thus, the immunity issue could still be reviewable after the full trial. With respect to forum non conveniens, Marshall said the determination was too intertwined with various other trial issues, and not readily separable at all. Poor V.C. was just going to have to go through his civil suit.

At a minimum, I wanted to see a dissent. The jurisdictional concerns raised by V.C. are not trivial, and I do think an alleged complete lack of jurisdiction is important enough for immediate appellate review. On both grounds, Marshall’s reasoning does not entirely satisfy. Reading this opinion leaves the unfortunate aftertaste of a foreigner being railroaded, à la Amanda Knox.

Monessen Southwestern R. Co. v. Morgan

486 U. S. 330

June 6, 1988

A railroad worker was permanently injured, allegedly due to the railroad’s negligence. He brought a federal action in Pennsylvania state court to recover lost future earnings. The court did two questionable things, the first based on a state law, and the second based on a state judicial ruling – first, it awarded ‘prejudgment interest,’ which gave the worker interest on damages that accrued prior to the verdict. Second, it instructed the jury not to find the present value of his lost future earnings, but the nominal value of it. Both these things were challenged as inconsistent with the federal law that formed the basis of the suit.

The Court ruled 7-2 that prejudgment interest could not be awarded. White said that state laws allowing prejudgment interest were substantial rules that could not be countenanced unless the federal law clearly allowed them. At the time the federal law was enacted, White contended, prejudgment interest was seen as suspect by most courts. Therefore, it could be presumed that Congress did not intend the law to allow prejudgment interest damages when it was passed. White also noted that Congress had ample opportunity in subsequent years to clearly include prejudgment interest within the law’s scope, but declined to do so.

Turning to the jury instruction question, the Court ruled unanimously that the Pennsylvania court had erred in instructing the jurors to merely find the nominal value. Precedents held that present value was the correct value to find for future earnings, and that the jury needed some freedom in determining the best formula for that calculation. By assuring the jury that the nominal value was legally presumed to be the same as the present value, the judge took this freedom away from the jury. O’Connor, joined by Rehnquist, only concurred in judgment on this issue. She felt that a judge could appropriately suggest that jurors compute nominal value if the judge had carefully studied the economics before doing so.

Blackmun, joined by Marshall, dissented from the prejudgment interest holding. He said the federal law should be interpreted liberally, and with an eye on its purpose of compensating injured workers with damages. Blackmun argued that prejudgment interest was an integral component of making the plaintiff whole, and that the alleged judicial aversion to interest at the time of the law’s passage was overblown. Finally, he felt prejudgment interest was especially appropriate given the rule that the present value should be found for future earnings – interest on pre-verdict lost earnings was simply the other side of that coin.

Once again, as in K mart v. Cartier, my brain is too taxed just from trying to understand this stupid decision to have much of an opinion about its soundness.