When is an opinion not an opinion?

When it's an order, I guess. Yesterday, the MSSC granted an interlocutory appeal on venue, via a 5-4 order instead of a published opinion.

Buddy Craft allegedly bought a part for his car from AutoZone in Scott County, which he claimed malfunctioned and damaged his car in Smith County, where he filed suit. AutoZone moved to change venue and appealed the denial.

The order (Lamar, J.) quotes MCA 11-11-3:

Civil actions of which the circuit court has original jurisdiction shall be commenced in the county where the defendant resides, or, if a corporation, in the county of its principal place of business, or in the county where a substantial alleged act or omission occurred or where a substantial event that caused the injury occurred.

The Court held that the "act or omission" was in Scott, and summarily stated that "Craft failed to allege in his Complaint that a substantial event that caused the injury occurred in Smith County."

Chandler (joined by Randolph, Kitchens, & King) dissented—er, I mean, objected to the order with a separate written statement:

Craft’s complaint alleged that a “substantial event that caused the injury” occurred in Smith County. Craft resides in Smith County, and he used the computer in Smith County, where the computer malfunctioned and caused injury by destroying his transmission. His use of the malfunctioning computer was “a substantial event that caused the injury” in the county of his residence. The complaint also alleges that the continuing malfunction of the computer has caused continuing damage to his new transmission. Clearly, the continuing malfunction in Smith County is a substantial event that caused injury to his new transmission.

Based on that description of the complaint, the Court's holding is a bit mysterious to me. I wish they'd explained it better ... maybe even in an "opinion." (UPDATE: I'm not saying I can't see it: putting a part out into the stream of commerce suffices for jurisdiction, but a car part could malfunction anywhere, making venue possible in any of our 82 counties. But if that's the logic, then why not say so?)

More mysterious, however, is why this was done in an "order." The only reason I can think of is that it's not immediately clear that an "order" can be cited as precedential authority. But it seems less than judicious to issue a one-off "order" in this manner, as if the majority doubted the validity of its legal reasoning—particularly in a field as vexed as the law of venue. Sucks to be Mr. Craft, I guess.

... The MSSC docket shows Keith Obert and Gene Tullos for AutoZone and Mr. Craft pro se. Being familiar with the recurring inaccuracies of that website's attorney information, I would venture a guess that Tullos is Craft's counsel, though it might be that Obert thought it prudent to get a Tullos at his table. The trial judge was Eddie Bowen, of recent fame, and changing venue will change the judge as well.

Money and justice

In welcome news, Judge Primeaux reports that the judicial pay-raise bill, which raises some filing fees to fund long-overdue salary increases for the state judiciary, has been signed into law. Yay!

You get what you pay for, and what you don't pay for, you don't get—as Justice Dickinson is reminding folks in Washington:

Mississippi Supreme Court Presiding Justice Jess H. Dickinson will participate in the White House Forum on the State of Civil Legal Assistance at 1 p.m. Tuesday, April 17, at the White House. * * *

The forum will focus on access to civil justice, benefits of legal aid for the judicial system and the effect on courts when they risk being overwhelmed with unrepresented litigants.

Justice Dickinson said, “I view this as an incredible opportunity to provide information to people who make decisions about funding this critical program. I hope that it will help the President and Congress formulate reasonable budget priorities.”

Funding for the Legal Services Corporation has been cut in recent years. Legal Services Corporation funding in Mississippi is currently $4.7 million. The state’s two Legal Services organizations currently have 21 attorneys, and have cut back staff and closed offices. In 1985, there were 259 lawyers working for Legal Services offices in Mississippi, with a $6.8 million budget.

“We are going backwards,” Justice Dickinson said. * * *

“The primary message that I hope to get across is that the principle of access to justice and fairness in the courts is not at the same level as other spending priorities,” Justice Dickinson said. “The right to fairness in our courts is not only a basic, fundamental, Constitutional right of every citizen, but it is one of the government’s absolute obligations.”

I am guessing those dollar figures aren't adjusted for inflation. $6.8M in 1985 equates to $14.5M in 2012, which would mean today's budget in real terms is one-third what it was back in the heyday of the Reagan years.

Is the judicial counterrevolution underway?

It's difficult to believe that Jerry Smith of the 5th Circuit would've been so bold as to call out the President of the United States over a press conference Q&A had the ACA oral arguments at the Supreme Court not put the scent of blood into the water.

Now some other judges are happily anticipating the judicial counterrevolution:

In a concurring opinion today in Hettinga v. United States, Judge Janice Rogers Brown (joined by Judge Sentelle) contends that the Supreme Court should overturn its rational basis caselaw in the economic area and return to a Lochner-era regime of judicial scrutiny for economic regulations.

Orin Kerr confines himself to tsking that such an op-ed piece was placed in a judicial opinion, but the merits of the position are catnip to the conservatives who have thought for 80 years that the country went wrong in the New Deal and have longed to return America to the Gilded Age.

The ACA opinion(s) will be meaningful for a lot more than whether or not the individual mandate or Obamacare get overturned. The rationale will be the real story. Will the Court contrive some Bush-v.-Gore one-shot rationalization for a nakedly political act? Or will the Court actually establish its decision on case law by overturning, or "distinguishing" so as to effectively overturn, the modern understanding of the Commerce Clause? Are the Randy Barnetts and Janice Rogers Browns the wave of the future?

Pop quiz on professional ethics!

Inspired by this Philip Thomas post ....

PREMISES: You're a trial lawyer with considerable success in premises-liability cases in a particular venue. A potential client wants to hire you to file such a suit for him in that venue.

The facts strike you as dubious at best, and on the one hand, you don't really think he's entitled to any significant relief.

On the other hand, you've won six- and seven-figure verdicts in this venue for some pretty dubious plaintiffs. You can predict that, with a little luck on the judge assignment and jury pool, you can do the same for this guy. It may not stand up on appeal, but then, the insurer may settle rather than risk your going to a jury.

If you haven't accepted the client, is it unprofessional to take his case?


... My answer in the comment thread.

Evidence of incompetence

Judge Primeaux relays the news that Ole Miss Law [EDIT: like MC Law as well] no longer requires its students to take the Evidence course.

I suppose one could debate whether to have any required courses in law school, but any sane list of requirements would have to include Evidence. I don't care what kind of law a student thinks he or she is going to practice - Evidence is too fundamental to omit.

If any of you happens to run into the new law dean, you might ask him what the heck his school thinks it's teaching. But more polite-like.

Only two and a half pages! SANCTIONS!

DOJ has filed in the Fifth Circuit its homework assignment on judicial review. Sections 2 and 3 tweak the court just a bit.

Orin Kerr: "I assume this will satisfy the Fifth Circuit judges, although at this point nothing would surprise me."

Trivia

Who was the only U.S. president to have served as Solicitor General?

(Hint: kinda obvious, when you think about it.)

And you thought Scalia jumped the shark last week

Dig this from Judge Jerry Smith of the Fifth Circuit:

In the escalating battle between the administration and the judiciary, a federal appeals court apparently is calling the president's bluff -- ordering the Justice Department to answer by Thursday whether the Obama Administration believes that the courts have the right to strike down a federal law, according to a lawyer who was in the courtroom. * * *

The panel is hearing a separate challenge to the health care law by physician-owned hospitals. The issue arose when a lawyer for the Justice Department began arguing before the judges. Appeals Court Judge Jerry Smith immediately interrupted, asking if DOJ agreed that the judiciary could strike down an unconstitutional law.

The DOJ lawyer, Dana Lydia Kaersvang, answered yes -- and mentioned Marbury v. Madison, the landmark case that firmly established the principle of judicial review more than 200 years ago, according to the lawyer in the courtroom.

Smith then became "very stern," the source said, telling the lawyers arguing the case it was not clear to "many of us" whether the president believes such a right exists. The other two judges on the panel, Emilio Garza and Leslie Southwick--both Republican appointees--remained silent, the source said.

Smith, a Reagan appointee, went on to say that comments from the president and others in the Executive Branch indicate they believe judges don't have the power to review laws and strike those that are unconstitutional, specifically referencing Mr. Obama's comments yesterday about judges being an "unelected group of people."

Whoa. Somebody needs to quit reading FoxNews.com in his chambers. (H/t.)

... Found that link at a blog thread, from which I must quote this comment:

Judge Smith pwned Obama! Ha! Judge Smith now rulez the internet! He is now the greatest internet troll in Article III history.

... More on this story:

Judge Smith's ultimatum calls for U.S. Attorney General Eric Holder to send him a three-page, single-spaced letter by noon Thursday addressing whether President Barack Obama's recent public statements that the PPACA should be upheld signal a belief that the judiciary does not have the right to overturn a federal statute on constitutional grounds.

This has an April Fool's quality - how can the court require a three-page single-spaced letter? Is Smith senile? Did the rest of the panel sign off on this?

... All PACER has is a clerk letter:

Dear Ms. Kaersvang:
As directed today, the panel has requested a letter referencing oral argument questions. The letter is to be no less than three pages, single spaced, and is due by noon on Thursday, April 5, 2012.

Wow.

... Orin Kerr calls this report, if true, "extraordinarily embarrassing to the federal judiciary." Word.

... Commenters at his post note that the court neglected to specify a maximum font size, so the three pages should consist entirely of "YES," one letter per page.

... Balkinization: "In response to the President's comments about the Affordable Care Act yesterday, Judge Smith of the Fifth Circuit decided to beat up a lawyer for the Government." Yep.

... Audio here (haven't listened; am told it's around 18:00 mark). Partial transcript:

SMITH, J.: Let me ask you something a little bit more basic. Does the DOJ recognize that federal courts have the authority in appropriate circumstances to strike federal statutes because of one or more constitutional infirmities.

A: Yes your honor, of course, there will have to be a severability analysis.

Q: I am referring to the statements by the President from the past few days, to the effect .. . I'm sure you've heard about it, that it's somehow inappropriate for what he termed "unelected judges" to strike acts of Congress that have enjoyed . . . what he termed broad consensus and majorities in both houses of Congress. That has troubled a number of people who have read it as somehow a challenge to the federal courts or to their authority, or to the appropriatness of the concept of judicial review. And that's not a small matter. I want to make sure that you are telling us, and that the DOJ do recognize the authority of the federal courts through unelected judges to strike acts of congress or portions thereof in appropirate cases.

A: Marbury v. Madison is the law . . .

Q: Okay, well I would like to have from you by noon on Thursday, about 48 hours from now, a letter stating what is the position of the AG and the DOJ in regard to the recent statement by the President, stating specifically and in detail, in refenreces to those statements, what the authority is of the federal courts in this regard in terms of judicial review. That letter needs to be at least three pages, single spaced, no less, and it needs to be specific. It needs to make specific reference to the President's statement and the position of the AG and the DOJ.

[very long pause]

A: Okay, and that's our position regarding judicial review?

Q: Judicial review as it relates to the specific statements of the president in regard to Obamacare and the authority of the courts to review that legislation.

A: Yes, your honor.

"Very long pause" as in "oh my god, is this really happening or am I about to wake up?"

Right to jury trial vs. The Totality of the Circumstances

The Fifth Circuit tossed Tyler Edmonds' § 1983 claim last week, in which he and his mother had sued on the theory that the state coerced his confession when it separated him from his mother. (Edmonds was the 13-year-old whose adult sister convinced to share the rap when she murdered her husband—the infamous "two fingers on the trigger" case.)

Note to potential plaintiffs: don't go on the Dr. Phil show first. The opinion quotes from Edmonds' TV appearance:

A. I was coerced by my sister.
Q. By your sister, but not by the police.
A. Uh, no, not by the police.

I am mildly surprised Jim Waide took the case on those facts.

The court's holding that "[i]mproper police tactics did not implant that desire [to confess]: In all likelihood, Fulgham’s manipulation did" is a bit odd to me, given that (1) the police dragged the boy's mother away and then put him in a room with the murderer where she could and did (as the police hoped) manipulate him, and (2) that sure sounds like a jury question to my untutored brain. But, we are told, the question of coercion is ascertained "by examining the totality of the circumstances." Oh all right then.

Carter Phillips on the SG and the Obamacare suit

Always worth hearing from.

Don, I don’t know exactly what happened in terms of the start of the mandate case. I don’t know if he got something caught in his throat or exactly what was happening, but he started off slow. But ultimately, I thought Don made all the points he had to make and answered the tough questions effectively. It’s always hard when you compare two people and one has a lights-out couple of days. You look bad by comparison, but the truth is if you were comparing to 99 percent of the lawyers in the country, he still would have been at the top of that heap. It’s just when you’re up against one of the absolute best, it sometimes looks worse because of the comparison.

Issuing temporary emergency decisions?

I hadn't previously heard of the Temporary Emergency Court of Appeals.

Tho it's been in my Bluebook all along: (Temp. Emer. Ct. App.).