On Thursday, the Maine SJC denied Husson University's application to circumvent the Maine Bar Admission rule requiring graduation from an ABA accredited law school to be eligible to take the Maine Bar exam - In re Petition of Husson University School of Law, SCJ-242, http://www.courts.state.me.us/court_info/opinions/supreme/index.shtml#mostrecent The SJC declined Husson's invitation set pre-approval standards before the Husson School of Law was in operation, or to set forth alternative criteria to be administered outside the ABA framework, so Husson would not need to obtain ABA accreditation to ensure that its students would be eligible to practice in Maine.
The SJC really had no other practical option - it simply lacks the time and resources to create its own non-ABA accreditation system. This means, as I understand it, that Husson will need to start operations without any guarantees and seek ABA accreditation. One sticking point seems to be tenure - while currently being debated, the ABA requires a certain portion of the school's teachers to be tenured or on a tenure track, while Husson doesn't grant tenure. It will be interesting to see what Husson will do. It could start operating, without tenured professors, apply for ABA accreditation, and see what happens in the next few years - either the ABA could change its mind and excise the requirement, or perhaps if the ABA ruled that Husson met all of its criteria but tenure, Husson could go back to the SJC and seek relief. But that would require a lot of faith on the part of the students that their three years of study would not be for naught.
Is this fair? On the one hand, some would say that having teachers be tenured doesn't seem to be a critical requirement to produce competent lawyers. Indeed, haven't we all encountered the tenured "lifer" professor who last updated his course outline when the Rule in Shelley's Case was new and has no incentive to improve his teaching? And one goal of the Husson school is to try to keep costs down so that less wealthy candidates can become lawyers and serve the northern half of the State. Certainly the high cost of law school is a serious problem, freighting students with crippling loans that reduce their job options (and in a current economy where the options aren't quite as rosy as they used to be).
On the other hand, some would say that tenure may not be required if you treat lawyering like other skills such as learning to dance the rhumba or play the guitar, but admission to the bar can put other people's lives literally in your hands, so maybe a little more is involved. And tenure isn't really the issue in itself - rather, tenure acts as a proxy for a certain quality of education generally. It also appears that Husson might not want to meet the ABA's library criteria. More broadly, the value of ABA accreditation isn't really meeting each and every substantive ABA criterion, but meeting those standards as applied by the ABA. The ABA's accreditation criteria are fairly straightforward and intuitive. If you compare them to California's, for example -- the only separate accreditation standards I'm aware of -- they are practically the same. The key is having competent and experienced evaluators applying those standards. No one in Maine has that capability, again making the SJC's decision here fairly self-evident -- again without belittling the laudatory goals articulated Husson.
The current system for making lawyers is certainly imperfect and we should welcome action to think outside the box and try something new. But ensuring minimum competency is critical given what's at stake. While one could certainly posit creation of lawyers without tenure or other ABA requirements on an individual basis (I'm pretty sure Lincoln didn't have any tenured professors teaching him and he turned out ok), we don't have the luxury of individualization of the profession they had back in the Eighteenth Century. And if we did use that kind of approach, the exposure to subjectivity and discrimination and other problems would be manifest. (In some countries, being admitted to the bar requires an oral exam by a local lawyer. I have been told that in practice, unsurprisingly, this leads to "who you know" results as opposed to a fair test of competency).
I hope Husson - or someone else - figures out a way to make law school more affordable, and to get legal services to the folks up north who need it. But trying to invent an entirely separate Maine set of accreditation criteria is simply not a workable avenue for achieving those goals.
The Jan/Feb 2010 copy of the ABA's Landslide magazine has an interesting article by Roy E. Hofer called "Supreme Court Reversal rates: Evaluating the Federal Court of Appeals." He goes through the statistics for the last ten years to see which court has the highest reversal rate.
The theme of his article is that while everyone thought the Ninth Circuit was the "rogue court," it's really the Federal Circuit - it has the highest reversal rate at 83.3%. The Ninth Circuit is second highest, with 80.0% The lowest reversal rate? The Seventh Circuit at 55.3%. The median reversal rate is 68.29%.
And how about our First Circuit? Second lowest at 55.6% ("we're #2, we're #2").
He also includes statistics about the volume of appeals heard. By far CTA9 had the most - 114,199 cases disposed of in that ten-year period. The lowest volume? The DC Circuit, followed by the Federal Circuit, followed by us (13,215, 15,781 and 16,620, respectively.)
Do these statistics mean anything? Given the small number of cases that the Supreme Court takes, it's difficult to say. In that ten-year period, for example, there were only 18 cases heard by the Supreme Court from CTA1 (8 reversed, 8 affirmed and 2 vacated).
On April 27, I will be in Chicago speaking on a panel at my old alma mater, Northwestern University (I am a double wildcat - both undergraduate and law school). The subject matter is the Expansion of Liability under Public Nuisance, and the audience is the judiciary. There will be a session on our Rhode Island lead pigment case, [http://www.courts.ri.gov/supreme/pdf-files/04-63_7-2-08.pdf]. I will also be on a panel discussing the recent climate change cases, including Comer v. Murphy Oil, [http://www.ca5.uscourts.gov/opinions/pub/07/07-60756-CV0.wpd.pdf], in which rehearing en banc was granted a few days ago. I recently posted an entry on my blog over at www.nuisancelaw.com noting that the law of nuisance is not the only body of law which seems to a current hunting ground for a judicial avenue to address these policy questions.
I am always happy to return to my old stomping grounds in the Windy City and am looking forward to discussion on an interesting topic. I thought I'd focus on some of the logistical and administrative problems in processing these types of claims in courts, and how these practical difficulties can be viewed as further support for the conclusion that some issues, like climate change, are simply not meant to be addressed by the judicial branch.
A unanimous Supreme Court in Hertz Corp. v. Friend adopted the "nerve center" test today for citizenship under 28 U.S.C. s1332.
http://www.supremecourtus.gov/opinions/09pdf/08-1107.pdf
Basically this means that plaintiffs in California can't avoid federal court by arguing that the proportional percentage of a corporation's business in California is so large (since California is so large and populous) that the corporation is a California citizen. So a corporation does still have some control over the identity of the state of which it will be deemed a citizen.
So last week I lost an appeal. I'm not going to blog on that case because there is nothing one can say in this situation that puts one in a positive light. It's over, the ice cream cone is on the sidewalk, the definition of the right interpretation of Maine law is what the SJC says it is, end of story.
Instead, I want to talk more generically about strategies to make the hopefully infrequent experience of losing more palatable.
1. Make it a learning experience. This sounds lame, but I think it's true that you learn more from your losses than your wins. After all, if you win, you did what you thought made sense and it worked - yay, but the lessons learned are not obvious. There are times when the lesson from a loss is very clear - from one experience, for example, I learned the perils of not briefing a non-waivable issue that the other side hadn't brought up. I thought I had a simple explanation should the issue be brought up in oral argument. Wrong. Don't throw new matter up in the oral argument; get it in the brief. Other times, the lesson may be less obvious. But even if you can't think how you could have presented your case any differently, you are still learning something about the court and its decision-making that you can incorporate in your approach going forward.
2. Be born Irish. With this comes an instinctive sense of Celtic fatalism, accompanied by the understanding of the glories of a heartfelt if ultimately unsuccessful effort. As long as you have given your client a realistic cost-benefit analysis, and have a reasonable argument, there's nothing unworthy about a game but unprevailing attempt. This lesson was brought home to me in law school, when I was working for a very good and very successful criminal defense lawyer in Chicago, who not-so-laughingly referred to the Seventh Circuit as the Court of Affirmance. Some challenges -- many in the criminal defense arena -- are uphill; that doesn't mean you don't climb.
3. Get cancer. Obviously this strategy has its downsides, but it does wonders for giving you perspective.
Yes, victory always feels better, and hopefully loss doesn't become a habit, but no one said that this would be easy, and sometimes tackling the more challenging cases is the better part of valor. Litigators protecting their win-loss percentages can get too risk adverse to the detriment of the best interests of the client. So when you lose say, "Rats!" in the privacy of your home or office; take a deep breath identify what you've learned; pat your dog on the head; and move on.
Last week the Maine SJC decided another 80B case, so of course I must blog on the same: Adams v. Town of Brunswick, 2010 ME 7, majority opinion by Justice Mead, Justice Jabar dissenting:
http://www.courts.state.me.us/court_info/opinions/2010%20documents/10me7ad.pdf
Basically, Brunswick has ordinances the spirit of which I think it's safe to say is to prevent Bowdoin students from piling into off-campus housing like a bunch of gerbils. Justice Jabar thought there was enough language in the ordinances to achieve that anti-gerbilizing objective in the particular context presented (leasing a house divided into two apartments to a total of 11 students); the majority thought such language was lacking. That aspect of the opinion provides a good example of how the Court parses ordinances and more specifically the use of the "family" concept, the modern version of which, for various reasons, most ordinances do not focus on the need for blood relations.
But the aspect of the decision that has a more universal application is the court's discussion of the difference between an appealable decision on the merits, interpreting whether a use fits the ordinance, and an unappealable decision to enforce or not enforce the ordinance, so interpreted.
In May 2007, the neighbors learned the gerbils were coming -the owners leased the first apartment to 6 students beginning September and 5 students to the other apartment in the same time frame. After their discovery, the neighbors contacted the CEO, and on May 30, the CEO issued an opinion that it was an allowed use, then appealed to the ZBA. The ordinance recited that the ZBA has authority "to hear and decide appeals where it is alleged there is an error in any order, requirement, decision or determination made by the" CEO. The ordinance also expressly recited that whenever anyone files a complaint with the CEO that the ordinance "is being" violated, the CEO shall examine the complaint and if he declines to take action than neither that non-action "nor any written record or report on the complaint" constitutes an appealable order, requirement, decision or determination.
So was the CEO's conclusion an appealable decision or an unappealable declination to take action? The SJC ruled it was the former, for two reasons. First, it said that because the ordinance gave the CEO prosecutorial discretion when a complaint is filed asserting that the ordinance "is being" violated, and the students hadn't moved in yet, so the Ordinance was just going to be violated, this made a difference. So one takeaway from this decision is if you find out about the violation before it occurs, that apparently is relevant, at least under the language of this ordinance.
Second, the SJC deemed the CEO's memorandum "an advisory opinion, not a decision declining to take an enforcement action, because absent a violation occurring at that time there was nothing to enforce." While this is couched in terms of a second point, it's really related to the first point - if it hasn't happened yet, there's nothing to exercise discretion about. The language of the court's reasoning on this second point, however, I think is infused with a separate concept, focusing on the contents of the memo. Because the violation hadn't occurred yet, the CEO's language in his memo was all and only about whether the use was allowed under the ordinance.
I will be interested in seeing how this ruling works in application. For example, from one perspective, the timing issue seems a little metaphysical - why should it matter whether you learn about the violation before or after it starts and what tense the ordinance uses? Can a CEO bulletproof his conclusion simply by saying something like "whether or not this use is an allowed use, I am not going to enforce it?" Or what if the CEO doesn't issue anything in writing? If someone complains about something (before or after it starts) and the CEO thinks that his interpretation of the ordinance is correct, can he avoid review by simply doing nothing, and the complanant is stuck?
There's a balance that needs to be struck between the inequity of a flagrant ordinance violation with no ability of a neighbor to do anything about it (although if the use is sufficiently unreasonable and damaging, he can always file a common law private nuisance action against the neighbor), and the inequity of a newbie or harassing neighbor complaining (and in theory repeatedly) about a longstanding inoffensive use. It's the in-between is murky. Looking only at the equities, as represented in this opinion, it seems more on the fairness side to allow judicial review - the complaint wasn't harrassing regarding a longstanding use; the issue presented, for the first time, was whether the use fit the ordinance; and the CEO's memo was couched exclusively in terms of ordinance interpretation, not enforcement.
Because the enforcer in the non-80B/80C context (e.g. a criminal prosecutor) is a separate person from the adjudicator, it's easy to figure out whether a decision is an adjudication or an exercise of prosecutorial discretion. The AAG could send a letter to the complainant saying "I'm not going to prosecute because I think X hasn't violated the law," and that would still be deemed an exercise of prosecutorial discretion, not an appealable decision by an adjudicator, even though he couched his decision in terms of interpreting the statute. It's the dual role of CEO as enforcer and adjudicator that complicates things. The SJC's citation of the timing factor as key to finding the dividing line could make sense in this context because if you complain about something before it happens, as the Court noted, obviously there's no discretion to exercise. If you called up a criminal prosecutor and said "X is going to rob a bank tomorrow," that prosecutor (absent some conspiracy evidence, i.e. something already happening) can't do anything and isn't exercising any prosecutorial discretion.
In sum, I look forward to seeing how this ruling plays out. Is the timing factor dispositive? Or is the nature and content of the CEO's reaction determinative?
Stay tuned.
Last Monday Bill Kayatta argued an interesting qui tam case in front of the First Circuit, U.S. ex rel. Loughren v. Unum Group. Justice Souter was on the panel. The RSS feed is now on line, so if you can hear the argument (link to cite below).
Among other things, Justice Souter's questioning of the appellee, and honing in on his issue, is very instructive, and if he continues to sit on First Circuit panels (see previous entry), we are lucky and had better be on our game.
Following up on my previous entries, here is the full skinny on the session on appellate practice held a week ago at the winter bar meeting. It was well attended and we had a great set of panelists. I only wish we had had more time to go into more depth on some of the topics.
The subject was the ten biggest mistakes made on appeal and here’s who talked on which mistake:
Judge Lipez - overreaching & tone
Justice Alexander - failure to follow the rules
Justice Levy - ignoring the standard of review & not answering the question
AAG Macomber - avoiding the bad fact/decision & including too many issues
Melissa Hewey - use of exhibits & post-argument filings
moi – appealing in the first place.
Briefly:
Judge Lipez gave a thoughtful and succinct summary, with specific examples, of what constitutes overreaching and improper tone, and noted, among other things, that an ad hominem or improper tone only results in loss of credibility. There’s no upside on the overreaching front, either, because the clerks are going to check all your cites in any event.
Justice Alexander gave a plea in particular with respect to the appendix. I’ve blogged on this issue before, but I will just note my growing personal understanding of the critical importance of this point. The busier a court is, the more it needs to rely on the lawyers to (a) give it what it wants and (b) cull a workable portion of the record on which it should focus. Judge Lipez noted that the addendum is a useful mechanism for the really important items in the First Circuit (in the Law Court, Justice Alexander noted that there should be no duplicates of anything, so be more cautious about using an Addendum to your brief there).
Justice Levy gave audio examples of his topics, and I thought made a very interesting point about it being ok not to answer the question, in that lawyers should be very cautious about making concessions in the oral argument. While other judges might grow frustrated at the failure to answer a yes or no question yes or no, Judge Lipez and Justice Levy observed that they don’t ask a lot of yes or no questions, and they understand that more fulsome responses are often required.
AAG Macomber returned us to Judge Lipez’s overreaching topic, by noting that it does no good to overreach by avoiding the bad fact or question. Cluttering your case with too many issues also doesn’t help. Given that he works in the criminal arena, he pointed out that a defense lawyer can always choose to focus on the strongest points in his or her brief, and let the client, if he or she insists, brief the other points that he or she may want, separately themselves.
Melissa Hewey concisely noted that the use of exhibits never works, and everyone agreed, with the limited exception that if you have a land use case or similar appeal where a map is useful, then the mechanism to deal with this may be to make sure the map is in the record, and give the judges individual copies of the map, and, if you can, to follow in the argument. On the post-judgment front, she reported the statistics that graphically demonstrate that a moti0on for reconsideration rarely wins in the Law Court. Justice Alexander, while agreeing that such motions that just re-hashed the argument is not appropriate, said that he thought a motion correcting a clerical-type mistake (mis-citing a statute etc.) or addressing a point in a decision that had not been briefed and had unintended ramifications could be the exception to the rule. On the Rule 28(j) front, Judge Lipez noted that counsel should adhere to the rules and limit themselves. Note that there is no state counterpart to Rule 28(j), and although people seem to file the equivalent type letters with abandon before the SJC, your shouldn't. Instead, file a motion to allow you to do so (and don't do it often).
I basically cited the statistics that show that, looking at the brief covers, “blues” generally lose. The general statistic in the First Circuit is that @ 8% of cases are reversed. The statistics from the Law Court are more opaque, but after the session, Justice Alexander told me that the number is about the same - @ 8%.
As I noted, my regret is that, with such a great group, we didn’t have more time to go into these topics or others in more depth. I personally could have asked a lot of questions that we just didn’t have time for. I’d be interested in the thoughts of anyone who attended this session as to what was good or bad and what topics should have been included etc., so if you have any comments, please send them along.
A full report of the well-attended session on appellate practice at the Maine State Bar Association winter meeting will follow, but first this tidbit of First Circuit news.
If you've been looking at the calendar for January and February for the panels for First Circuit arguments, you've noticed a visitor - David Souter. Apparently he was unenamored of Washington, not judging, so voila - a new Kevin McHale in Boston to relieve the starters and keep them on their toes. What an excellent development.