Monthly Archives: September 2013

New Issues That May Be Raised on Appeal

Posted in Tips and Tactics on By Ann Schwing

As a generally applicable rule, new issues cannot be raised on appeal.  The record is silent and the issue is commonly new to the prejudice of one party.  Appellate courts have little or no difficulty in rejecting the introduction of new issues on appeal in most instances.

General rules generally have exceptions, as is true here.  Although there are a number of new issues listed that may be raised on appeal, the reality is that new issues are successfully raised on appeal very rarely.[1] The new issue may be introduced by one of the litigants or, less often, by the appellate court sua sponte.[2] Most often, the successful new issues concern either the court’s own power and protection or the protection of absent or incompetent persons. In civil cases, litigants select their attorneys and normally are bound by the errors and omissions those attorneys make. Absent compelling circumstances, trial and appellate courts normally should not come to the aid of litigants.[3]

Recognized exceptions that courts may apply in many jurisdictions include the following, although variation among the States and in differing circumstances prevents certainty.

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Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted in Monday Morning Review on By Kira Klatchko

Here’s how local governments fared in the federal courts of appeals during the past week.

Fifth Circuit

Sixth Circuit

Tenth Circuit

Eleventh Circuit

  • Carter v. City of Melbourne, No. 12-15337 (Sept. 23, 2013) (finding City not liable for unlawful termination of former officer because decisions were not made by a “final policymaker” for the City, and rejecting other claims, including that officer was terminated for his First Amendment activities).

 

 

The Supreme Court and Local Governments

Posted in Roundup on By Kira Klatchko

SupremeCourt2(1) Next Term

Over at Cities Speak, Lisa Soronen of the State and Local Legal Center outlines upcoming Supreme Court cases that could affect local governments:

And Wednesday, Irene Zurko discussed the case of Sprint Communications v. Jacobs.

For a full preview, register to hear from Tom Hungar, Kannon Shanmugam, and David Savage on October 22nd here.

(2) More on Town of Greece

SCOTUSblog has some interesting commentary on Town of Greece, a case that we previously addressed here.

Eric Rassbach says that those challenging the Town’s prayer practice have reached a “‘Hail Mary'” moment” where “facing imminent disaster” they “stake[e] everything on one desperate, final gambit:”

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Appellate Practice Conference

Posted in Tips and Tactics on By Kira Klatchko

For any local-government attorney interested in attending a worthwhile conference focused on appellate practice, I highly recommend the Appellate Judges Education Institute 2013 Summit to be held November 14-17 in San Diego. Here’s a summary of highlights of this year’s meeting:

Highlights will include conversations with Justice Sandra Day O’Connor, the United States Solicitor General Donald B. Verrilli, Jr. and the Chief Justice of the California Supreme Court, Tani G. Cantil-Sakauye.  The programs put together by the Council are designed to meet the needs of lawyers of varying experience, including people who are highly experienced.  Those programs include a program on ethics by Douglas Richmond who is highly entertaining and focuses on specific appellate ethics problems.  The program on handling difficult oral arguments  is designed to move beyond the basics of oral argument and focus on tough problems which can occur during oral argument.  Our writing program will also be different because it will be dealing with how to be an effective editor and rewriter of briefs prepared by others.  We are also doing a program on standards of review which will not merely cover the importance of review, but how to deal with the standards  strategically. When they are either for or against you.  Finally, a practical program on business development will be on hiring outside appellate counsel with the speakers from well-known corporations who actually do hire appellate counsel.

 

 

 

IMLA Joins State Partners To Address Abstention Issue Before Supreme Court

Posted in IMLA Briefs on By Irene Zurko

When is it appropriate for a federal court to decide a case that is pending in state court?Supreme Court

On the Supreme Court’s docket is a case that addresses this very issue, giving the Court the chance to once again ponder the limits of the Younger abstention doctrine.

That case, on appeal from the Eighth Circuit, is Sprint Communs. Co., L.P. v. Jacobs, Case No. 12-815.

At issue is whether Younger abstention applies only when the underlying state proceeding is “coercive” or whether it is sometimes appropriate for federal courts to abstain from hearing cases that are “remedial” in nature.  Many cases dealing with Younger abstention have turned on that distinction. But the difference between “coercive” and “remedial” proceedings, and the way courts classify cases as one or the other, is anything but clear-cut.  Indeed, the distinction could turn on whether the government or a private party initiated the action, as “coercive” proceedings are typically described as those that are criminal or quasi-criminal in nature.

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Ninth Circuit: City Not Entitled to Summary Judgment on Housing Discrimination Claims

Posted in Case Notes on By Kira Klatchko

GavelThe Ninth Circuit issued its decision Friday in Pacific Shores Properties, LLC v. City of Newport Beach, No. 11-55460. In the case, plaintiffs alleged that a City ordinance violated the Fair Housing Act, the Americans with Disabilities Act, the California Fair Employment and Housing Act, and the Equal Protection Clause because the ordinance had the practical effect of prohibiting new group homes for recovering alcoholics and drug users from opening in most residential districts. Although the district court had granted summary judgment for the City, the Ninth Circuit today reversed that decision. It concluded that the plaintiffs had created a triable issue of fact as to whether the City enacted the ordinance to discriminate against them, and whether its enactment and enforcement harmed them.

I wrote an amicus brief on behalf of the League of California Cities, which urged the court to find that evidence of arguably discriminatory intent or motive in adopting a city ordinance was not, standing alone, enough to invalidate a facially neutral ordinance. But, the court found the district court should have taken into account circumstantial evidence of discriminatory motivation—as expressed by individual council members participating in the decision—when reviewing what was otherwise a facially neutral ordinance restricting group homes. It also found, among other things, that the plaintiffs were not required to identify similarly situated individuals who were treated better than those subjected to the ordinance.

Image courtesy of Flickr by Brian Turner (creative-commons license, no changes made).

 

Monday Morning Review: Local Governments in the Federal Courts of Appeals

Posted in Monday Morning Review on By Kira Klatchko

Here’s how local governments fared in the federal courts of appeals during the past week.

Second Circuit

Ninth Circuit

 

 

 

Whether To Intervene or Seek To Be Amicus

Posted in Tips and Tactics on By Ann Schwing

NYcourtA nonparty may be vitally interested in the outcome of pending litigation or a pending appeal.  The interest may be so great and so direct as to require that the nonparty be made a party.  Such a nonparty is frequently but unfortunately spoken of as indispensable.[1]  When the interest is somewhat less, however, the nonparty may seek leave to intervene or to appear as an amicus or, alternatively, watch the litigation from the sidelines.[2]  What considerations bear on the choice of intervention and appearance as an amicus?

Most significantly, an intervenor is bound as a party, whereas an amicus curiae is not a party and is not bound by the judgment.[3]  That distinction is a strong encouragement for a nonparty to proceed as an amicus curiae and retain the ability to fight again in the future, especially if the nonparty’s ability to participate in and influence the trial, appeal, and outcome as an intervenor are not entirely clear. As a party, an intervenor will have the right to appeal, denied to an amicus, but may be held liable for attorney fees and costs.[4]  An intervenor will be bound by the judgment for purposes of res judicata and collateral estoppel, while an amicus will not.

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Monday Morning Review: Local Governments in the Federal Courts of Appeals

Posted in Monday Morning Review on By Kira Klatchko

Here’s how local governments fared in the federal courts of appeals during the past week.

Eighth Circuit

Ninth Circuit

 

 

Eighth Circuit: Restricting Bible Distribution During Festival Likely Violates First Amendment

Posted in Case Notes on By Kira Klatchko

8th Circuit: Park did not adequately justify the need to limit literature distribution

8th Circuit: Park did not adequately justify the need to limit literature distribution

An evangelical Christian, Brian Johnson, sought to distribute Bibles at a gay-pride festival in a public park.

The park board would not allow it.

It had adopted a policy limiting literature distribution to confined areas, due to security concerns and the festival’s size.

Johnson claimed the policy violated the First Amendment, and sought an injunction barring its enforcement. In a 2-1 decision released Wednesday, Johnson v. Minneapolis Park and Recreation Bd., the Eighth Circuit ruled that Johnson would likely prevail on his claim.

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Don’t Underestimate the Table of Contents

Posted in Tips and Tactics on By Ann Schwing

Many brief writers mistakenly think of the table of contents as a nuisance that their secretaries must complete before briefs are finished. This fundamental error can profoundly affect the quality of their documents.

Once a significant part of a document has been prepared, and often when a discrete segment is completed, the author should pull the table of contents that then exists to study. That table may reveal a missing argument to be added, an editorial adjustment to be made in the ordering of existing arguments, a problem in the logical flow of the document, and other issues to be addressed. For a long document, this process may need to be repeated multiple times.

Pulling the table is not difficult.  The headings can be cut and pasted into a separate document.  The page numbering is of little importance and will change, so it’s only the wording that is needed.

When the document nears completion, the table of contents should be pulled again and closely examined.

  • Are the headings that form the table in parallel format, typically all affirmative sentences? The table is disjointed when some headings are sentences, others phrases or single words.  A rare exception may arise if all subheadings are a single word or short phrase.
  • Is there something missing? Even if the point is in the brief, some courts will deem an argument waived if it is not captured in a heading. Moreover, this review may be your chance to realize that an entire argument has accidentally been omitted.
  • Is there a logical flow from one part of the document to the next?  Do the headings carry the reader forward?
  • Does the table constitute a stand-alone short statement of all the arguments? A judge may read the briefs a week or more before oral arguments. If your table provides a stand-alone statement of your arguments, it can refresh the judge’s recollection easily on the day of arguments.

A compelling table of contents may be the best selling point possible for your arguments. Don’t pass up the chance to use it to make your arguments clearer and more accessible.

 

 

Ninth Circuit: Local Government’s Tenant-Protection Program Is Constitutional.

Posted in Case Notes on By Kira Klatchko

9th Circuit: Landlords do not have a viable constitutional claim against City housing program

9th Circuit: Landlords do not have a viable constitutional claim against City housing program

Your community’s housing conditions are in crisis. Too many landlords ignore codes. They disregard tenants’ concerns. And their properties are hardly habitable. But they continue to collect rent—from tenants with little capacity to protect themselves.

So your local government fashions an innovative program, one that empowers tenants. It allows tenants living in troubled properties to withhold a portion of their rent and to use it for needed repairs.

Landlords sue. They claim that your program violates their federal substantive due process rights. Do they have a winning constitutional argument?

Not according to the Ninth Circuit, which ruled Monday in Sylvia Landfield Trust v. City of Los Angeles, No. 11-55904, slip op. (Sept. 9, 2013), that the City of Los Angeles’s Rent Escrow Account Program is constitutional.

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Regulating Illegal Immigration With Local Housing Ordinances

Posted in Case Notes on By Kira Klatchko

Local government regulation of immigration through housing ordinances has divided the courts.

Local government regulation of immigration through housing ordinances has divided the courts.

Can a local government prohibit the leasing of housing to persons who entered the United States illegally?

Since June, three federal courts of appeals have tackled that difficult question—and reached different results.

The decisions present a range of perspectives on whether local housing ordinances “conflict” with federal law or intrude upon a “field” reserved to the federal government. They highlight the uncertain contours of the preemption doctrine—and demonstrate the risk facing any local government that regulates in this space.

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Confining Federal Preemption: The Case of Dan’s City v. Pelkey.

Posted in Case Notes on By Kira Klatchko

Federal preemption provisions must be read sensibly

Federal preemption provisions must be read sensibly

[This is the second in a series of posts reviewing unheralded but noteworthy decisions for State and local governments from the Supreme Court’s last term. See Koontz here.]

State and local-government attorneys often battle federal preemption—including against broad readings that strain common sense.

The case of Dan’s City Uses Cars, Inc., v . Pelkey reminds you why it’s worth it.

It’s the story of Robert Pelkey.

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Appellate Savvy: Three Tips for the Circuit Court Practitioner

Posted in Tips and Tactics on By Kira Klatchko

Appeals can be tricky. They are expensive to litigate and difficult to win. They also take time, particularly in the Ninth Circuit, which is the busiest Court of Appeals in the United States. But, appellate practice can be rewarding, particularly if you can avoid common pitfalls and understand your chances on appeal before you get started.

Here are three tips.

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