commentary and current events

I Read King v. Whitmer and…Yikes

I’m reading the opinion in King v. Whitmer, and it’s a ride. If I’d been assigned this in law school, I would have refused to believe it was a real case.

Some of my favorite parts so far:

Image: blog post title and URL over notebook and textbook.

“Plaintiffs’ lawyers argue that no attorney can be sanctioned whose name appeared only in typewritten form.”

This is some sovereign citizen nonsense flavored horse paste, right here. Can they also not be sanctioned because they typed their names in all caps?

(Ask me to yell about the “sovereign citizen” movement sometime if you really want some entertainment.)

L. Lin Wood tries to claim he shouldn’t be sanctioned because he had no idea Sidney Powell put his name on the paperwork until he read about it in the newspaper. Yet “at no time between [January 5] and the July 12 hearing did Wood ever notify the Court that he had been impermissibly included as counsel for Plaintiffs in this action.”

Oh, and Wood tweeted on January 5, the day the motion for sanctions was filed, that it was unfair the City of Detroit was seeking sanctions against him. Fastest paper ever.

“[T]he Court finds it exceedingly difficult to believe that Rohl read an 830-page complaint in just “well over an hour” on the day he filed it.”

Even if Rohl is some kind of badass speed reader, the Court concludes, reading 830 pages the day of filing is not making a “reasonable inquiry” into the contents of what you’re filing. Especially when there are 830 pages of them.

(Would that we could get this kind of reasoning on 28 U.S.C. 2254(d)(1) IAC claims, but I digress.)

Heads up: Only spending “five hours” on a matter while working from home, or doing nothing at all but letting someone else put your name on a filing because they need someone with a Michigan law license and a pulse, won’t get you out of being sanctioned either, kids.

It’s like every lawyer on this thing thinks the best possible argument against “you filed an utterly frivolous claim” is “I’m too bad at lawyering to know better.”

Variation on a theme: Plaintiffs’ lawyers try various claims that a certain motion (the safe harbor motion) wasn’t sent to them properly – wrong address, wrong ZIP code, and so on. Yet the addresses used were the exact same ones the lawyers listed on their own filings.

“I’m so bad at lawyering I don’t even know my own address” is not the slam dunk these folks seem to think it is.

The test for when a district court can issue sanctions sua sponte is called the “Big Yank” test, after Big Yank Corp. v. Liberty Mut. Fire Ins. Co., 125 F.3d 308 (6th Cir. 1997). I love this.

…Plaintiffs try to argue that Rule 11 prohibits courts from issuing sua sponte sanctions…by citing the part that says courts retain that power under Rule 11 (as long as they issue a show cause order).

YOUR LAWYERING IS BAD AND YOU SHOULD FEEL BAD

“In other words, Plaintiffs’ attorneys maintain that this lawsuit was no longer moot after December 14 because three Plaintiffs subjectively believed that they had become electors. The attorneys cite no authority supporting the notion that an individual’s “[personal] opinion” that he or she is an elector is sufficient to support the legal position that the individual is in fact an elector.”

I’m DYING

brb, going to stop paying taxes and go to space because I now subjectively believe I am a billionaire, and no court can stop me*

“Plaintiffs’ attorneys fail to provide a rational explanation”

This is basically the entire 110 pages.

“The fact that it was never shared suggests that counsel’s argument as to why the case had to be pursued after December 14 is contrived.”

I mean this not as a disparagement of the judge but as a big disparagement of these arguments: I’m beginning to think any parent of teenagers could have decided this case.

“The Court said it before and will say it again: At the inception of this lawsuit, all of Plaintiffs’ claims were barred by the doctrines of mootness, laches, and standing, as well as Eleventh Amendment immunity.”

For the non-lawyers, briefly:

  • Mootness: Whatever your issue was, it’s over in a way that means no court can do anything to fix it. If a court can’t do anything, it’s moot. (There are exceptions “capable of repetition but avoiding review” – pregnancy, for example.)
  • Laches: You waited so long to assert this claim that (even if it was a good claim once) you unfairly screwed over the other party. (And you probably did it on purpose, or at least you could have filed it at a time that did not unfairly screw over the other party.) Laches is a rarer argument than it once was because most equity claims are subject to statutes of limitations.
  • Standing: You’re the wrong person to bring this claim, usually because you’re not the one who has been harmed by whatever you claim the other party did.
  • Eleventh Amendment immunity: States cannot be sued by citizens in federal courts unless the state consents to the federal court’s jurisdiction. (There are tactical reasons a state might consent in some instances.)

I bet the arguments against each of these are hilariously inept.

…And their “strongest” precedent is Bush v. Gore, in which SCOTUS intervened to stop a recount and certify existing results, not to impound voting machines and disenfranchise 5.5 million voters in order to hand the election to someone who lost the count by 150,000 some votes. I’d ask “r u f’in srs rn” but I know the answer.

(That this comes after a lengthy argument from Plaintiffs about how certain other, unfavorable precedent cases are not “on point” because of some random detail in the facts is even more facepalm-y.)

“Plaintiffs’ counsel’s citation to Throckmorton is puzzling, both because the case relates to a nineteenth-century land grant and has nothing to do with election law and because the Supreme Court held that the grant could not be collaterally attacked on the basis that the judgment was procured by fraud.”

I’m actually dead. I have died. Of irony. And death.

Plaintiffs tried to argue that the election results could be challenged here because they’re fraudulent, and of course they are fraudulent because the Plaintiffs yelled it lots of times. But don’t take my word for it:

“Yet counsel’s citation to Throckmorton is enlightening in that it reflects, as the City puts it, “that this suit has been driven by partisan political posturing, entirely disconnected from the law” and “is the dangerous product of an online feedback loop, with these attorneys citing ‘legal precedent’ derived not from a serious analysis of case law, but from the rantings of conspiracy theorists sharing amateur analysis and legal fantasy in their social media echo chambers.”

Apparently no court has accepted these claims so far. That’s a relief.

“Plaintiffs alleged that certain acts or events violated the Michigan Election Code when, in fact, they did not.”

When I worked at the law firm, I often got complaints that had already been marked up by one of the partners – my job, usually, was to draft an answer and/or what we called an “R&R” letter (stood for “review and recommendation”) we’d send to the insurer.

One partner was fond of writing “So?” beside every claim that did not drive toward the plaintiff getting what they wanted. My job was to translate that into a legal argument – but the basis was always So? (To this day, when I listen to any argument, I’m ticking off “So?” points in my head. Good arguments leave no “So?” hanging – great arguments never make a “So?” at all.)

This is the ultimate “So?” claim.

“The Amended Complaint further claims that Michigan election laws were violated because ballots that lacked postmarks were counted. But when the Court asked Plaintiffs’ attorneys whether Michigan absentee ballots must be received through U.S. mail—and therefore postmarked—to be counted, counsel went on about not being able to “rely on the Secretary of State’s guidance.” Noticeably absent from that response, however, was an answer to the Court’s question.”

YEAH, I’LL BET.

(Full disclosure: My 2020 Michigan presidential ballot did not have a postmark, because I shoved it through the slot in the wall at my township clerk’s office expressly marked by three separate signs that it was the absentee ballot dropoff slot.)

“At the July 12 hearing, Kleinhendler told the Court that it was “completely irrelevant” whether the conduct Plaintiffs claimed was violative of Michigan law was actually unlawful.”

i’m sorry what

“This is because, counsel argued, the conduct “raise[d] a suspicion” and what was significant was the mere chance for misfeasance to occur.”

These lawyers are literally advocating that a United Stated federal court acknowledge thoughtcrime.

I don’t often say a fellow attorney should be disbarred, but these attorneys should be disbarred. This is a disgrace to the nation, not merely the profession.

“Plaintiffs alleged that certain acts or events constituted violations of the Michigan Election Code when, in fact, Plaintiffs’ counsel failed to make any inquiry into whether such acts or events were in fact unlawful.”

So my crack up top about 28 USC 2254(d)(1) is a reference to how dastardly hard it is to get a habeas petition granted on the basis of a Sixth Amendment ineffective assistance of counsel claim. Tl;dr you basically have to show your trial lawyer did nothing.

This is the whatever-the-hell-is-going-on-here equivalent of that. “Failed to make any inquiry” is a big statement. Any. Not “sufficient” or “substantive” or “meaningful” or “thorough.” Any.

This isn’t “you didn’t study hard enough for your test.” This is “you skipped all your classes, never opened the textbook, and avoided everyone you knew who was taking or has ever taken that class.”

“The sanctionable conduct is not based on whether the facts described in the Gustafson Affidavit are true or false. What is sanctionable is counsel’s allegation that violations of the Michigan Election Code occurred based on those facts, without bothering to figure out if Michigan law actually prohibited the acts described.”

“You’re not being grounded because your little sister lied to us, dear. You’re being grounded because you repeated that lie without even bothering to find out if it was true or not.”

Plaintiffs, finally, argue they shouldn’t be sanctioned because they were acting in good faith – which I have to admit is a tough sell when most humans acting in good faith at least try to follow rules and find out if rumors are true before repeating them to anyone, especially to a federal court. Of course, the Court here is having none of this either:

“Of course, an “empty-head” but “pure-heart” does not justify lodging patently unsupported factual assertions.”

Wait – we can’t lawyer just by feeling good in our hearts about our clients? What? Oh my gosh, I totally knew that because I went to law school and also passed the MPRE!

“And surely Plaintiffs’ attorneys cannot fail to reasonably inquire into an affiant’s speculative statements and thereafter escape their duty to “stop-and-think” before making factual allegations based on the statements, simply because their expert did the same.”

Wait, we can’t just make shit up because we hired someone to make shit up? Oh my gosh, I totally knew that too because once again, I am a lawyer and also a reasonable adult human who would not have assumed I could lie to a court because it made my heart happy and also I paid another guy to do it!

(N.b. “stop-and-think” is a quote from the commentary on FRCP 11, not the court writing weirdly.)

A few paragraphs later, the court basically says that Plaintiffs’ lawyers would have been lawyering better if they had literally just Googled their expert’s “results.”

“It is not acceptable to support a lawsuit with opinions, which counsel herself claims no reasonable person would accept as fact”

*insert entire Hamilton cast saying ‘DAMN’*

There is of course more, but I’m worn out after so many pages of ineptitude. I’m not sure what any competent lawyer will learn that we didn’t already assume every member of the profession knew, but it’s worth a skim for the popcorn factor, anyway.

.


*Full disclosure: I am not actually going to do this, because I am not this bad at lawyering.

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Uncategorized

Gambling on Gamble: The Case That Made Us All Wish We’d Paid Attention in Civics

What’s the deal with Gamble v. United States?

The case, on the U.S. Supreme Court’s docket for 2018-2019, is getting a lot of attention in the wake of the Kavanaugh hearings. So far, I’ve spotted this Facebook meme:

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Facebook meme text:

On next month’s SCOTUS docket is Gamble v. US No. 17-646. This is what the rush is about. Yes, they want him to overturn Roe, yes they want him to drag us all back, but they need him seated for October to rule on that specific case. At stakes [sic] is the “separate sovereigns” exception to double jeopardy. If he (and the other 4 conservative judges) vote to overrule it, people given presidential pardons for federal crimes cannot be tried for that crime at the state level. Bam. Trump can pardon the lot of them and they have nothing to fear from state’s attorneys. We’re all looking at the shiny coin and not seeing the bigger picture.

The Atlantic has this article, which appears more or less to support the meme’s position; but see this post by Ed Brayton at Patreon, which points out at least one flaw in the meme’s reasoning.

A fun true fact about me, for new readers: I used to be a lawyer. These days, pretty much all I do with my law degree is use it to interpret one of my top hobbies, SCOTUS-watching, for amusement and edification. Here’s what I can tell you about Gamble.

What is Gamble v. US all about, anyway?

On its face, Gamble is pretty straightforward. Back in the day, Mr. Gamble got convicted of a felony. Under both the law of his state (Alabama) and federal law, that felony conviction meant he couldn’t legally possess a firearm.

Fast-forward a few years. Mr. Gamble is pulled over by police one day. Inside his vehicle, the cops find a loaded weapon. Mr. Gamble is prosecuted by the state of Alabama for being a felon in possession of a firearm and convicted, under Alabama state law.

Then, the federal government decides that it wants to prosecute Mr. Gamble for being a felon in possession of a firearm, too. It convicts him under federal law. The federal conviction adds about three years to the almost-four-year sentence he’s already received for the state conviction.

Throughout the process, Mr. Gamble continually points out that, hey, this should be double jeopardy. And judges agree with him! One even said that, were it not for the “separate sovereigns” exception to double jeopardy, Mr. Gamble could not possibly be tried twice for being a felon in possession of a firearm.

So Mr. Gamble appealed. And has kept appealing. And now he’s got a hot date with the U.S. Supreme Court.

So is this really “double jeopardy”?

Yes. The Fifth Amendment reads:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

(Important bit in bold.)

Mr. Gamble was convicted in Alabama under Alabama Code section 13-11-72(a), which reads:

 

No person who has been convicted in this state or elsewhere of committing or attempting to commit a crime of violence, misdemeanor offense of domestic violence, violent offense as listed in § 12-25-32(15), anyone who is subject to a valid protection order for domestic abuse, or anyone of unsound mind shall own a firearm or have one in his or her possession or under his or her control.
He was also convicted in federal court under 18 USC 922(g)(1), which reads:

(g) It shall be unlawful for any person— (1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year…

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
The text matters in double jeopardy cases, because being tried on two charges for the same action isn’t always double jeopardy. How many acts occurred matters less than how similar the charges are. (I’ll come back to this in a bit.)
For now, just keep in your head that yes, being convicted of both of the crimes quoted here counts as being convicted twice for the same crime.

 

What’s the “separate sovereigns” exception?

The short and dirty version is “Trying someone twice for the same crime is not okay, unless two separate governments do it.” And in the U.S. federal system, a state government and the federal government count as “two separate governments.”

The “separate sovereigns” exception isn’t in the text of the Constitution. It arises from British common law, much of which we imported way back in the late 1700s because it was, frankly, what we were used to. I won’t get into its background here, but if you want to read 150 years of precedent supporting it, check out the lists of cited cases in the briefs for Gamble, which are available at the SCOTUSblog link at the top of this post.

Does the “separate sovereigns” exception really make it possible for the President to pardon people for state crimes?

No. But it does make possible a result with nearly-identical consequences, in a handful of specific cases.

For example, suppose that Mr. Gamble had been tried by the federal government first – but the President stepped in to pardon him. Under our current system, Alabama can still try him for the same crime.

Without the separate sovereigns exception, however, Alabama would not be able to try Mr. Gamble for being a felon in possession of a firearm once the President had pardoned him, because the Fifth Amendment’s bar to double jeopardy would prevent it. The federal charges and the pardon would be the end of it (assuming Mr. Gamble had not committed some other crime).

That sounds pretty ominous if you’re not keen on our current President pardoning anyone. But here’s the number-one reason it’s unlikely to occur except in a minute handful of cases:

When people face multiple charges from the same single act, in most cases, double jeopardy doesn’t even apply in the first place.

The relevant test comes from Blockburger v. United States, and it states (I’m paraphrasing) that it’s not double jeopardy to face two charges for the same act, as long as each charge contains at least one element the other does not.

This can be confusing in the abstract, so here’s an example.

Suppose that a completely hypothetical defendant named Maul Panafort is accused of committing tax fraud – basically, of hiding millions of dollars so that he didn’t have to pay either the IRS or his home state of Michissippi any taxes on that money.

Now, it’s pretty tough to lie on your federal tax return without lying on your state tax return, or vice versa. State tax returns use information like your adjusted gross income, calculated on your federal return. When those numbers don’t match up, folks get suspicious.

Wanting to evade suspicion, Maul Panafort naturally used the same fake numbers on his state tax return as he did on his federal tax return. But both the state and the feds found out, and now they both want to charge him with criminal tax fraud.

It’s not double jeopardy if they do. Take a look at the charges:

  • Federal: “you lied on your federal tax return.”
  • State: “you lied on your state tax return.”

Both charges include “you lied” and “on your tax return.” But the federal charge includes the “federal” element, which the state charge does not. The state charge includes the “state” element, which the federal charge does not.

Even if Mr. Panafort receives a Presidential pardon for federal tax fraud, the state can still prosecute him for state tax fraud. It’s not double jeopardy, because each charge contains an element not contained in the other.

The overwhelming majority of cases that both the state and federal governments can prosecute will fall into this category. There’s a reason it’s taken several years for SCOTUS to receive a petition in a case that cleanly addresses the separate sovereigns doctrine (and why Mr. Gamble’s attorneys went to great pains in that petition to stress that this was a “clean case”).

Will cases exist in which a Presidential pardon could bar state prosecution, if the separate sovereigns doctrine is overturned? Yes. It would have saved Mr. Gamble, for instance. But these cases are likely to be so few and far between as to be highly unusual – and I predict that anyone the current President wishes to pardon is likely to face non-double-jeopardy state charges anyway.

Are the conservatives really going to overturn the separate sovereigns exception?

My prediction: If the Court overturns the separate sovereigns exception, the vote will not be along political lines.

The strongest support for that position appears in the last case in which the Court considered the “separate sovereigns” question, Puerto Rico v. Sanchez Valle. There, the Court looked at whether Puerto Rico had sovereignty separate from the U.S. federal government (the Court’s answer: no).

Justice Ginsburg wrote a concurring opinion in which she pointed out that sooner or later, the Court needed to address the question of double jeopardy as it related to being prosecuted by both the state and federal governments – and she signaled that the exception may be overdue for retirement. Justice Thomas joined that opinion.

The Court may or may not overturn the exception, but there is no reason, currently, to think it would do so along conventionally-accepted political lines.

In fact, the separate sovereigns exception is fascinating precisely because it is so hard to come to a conclusion on based on traditional political leanings: its existence supports a certain type of bounded federalism that conservatives and libertarians traditionally support, but at the cost of increased police intervention in individuals’ lives and a counterintuitive reading of the Fifth Amendment, which they traditionally eschew.

Is there a good reason to support (or to oppose) getting rid of the separate sovereigns exception?

Off the top of my head, the biggest to support getting rid of it is fewer prosecutions: you’d be prosecuted in state or federal court, but not both. It’d also make the prohibition against double jeopardy clearer to ordinary folks, although it’s not going to make it exactly clear.

Reasons to support keeping it include that it’s a 150+ year old component of our federalist system, one that arguably supports the concept that the states really do have powers the federal government does not within their own borders. There’s a chance that ending it would have unforeseen consequences for the balance of power between the states and the federal government, which may not tilt in the favor of individual liberty.

It’s not an easy question, either way. But I do look forward to seeing which justices have what things to say about it after oral arguments.


I no longer practice law and this post isn’t legal advice, but feel free to share a coffee with me anyway.

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Uncategorized, writing

Keeping the Pace: Legal Writing vs Academic Writing

Back at the law firm, we had a “pace” for long-form research-based writing, like recommendation letters and legal briefs: one page per hour.  This was approximately how long producing these pages actually took, from the moment one of the paralegals dropped off the case file to the final edit of the finished draft.  A ten-page, single-spaced recommendation letter took about ten hours; a ten-page, double-spaced brief in support of a motion for summary judgment also took about ten hours.  On entering grad school, I assumed that academic papers would take about the same amount of time.

The sound you are now hearing is every academic in the country laughing at my naïveté.

In the past eleven days, I’ve produced about fifty pages of academic writing.  That’s “academic,” as in “not written for teaching, freelance client, blogging, or personal purposes,” and “writing,” as in “not research, outlining, or freewriting in an attempt to tag and track all my various thoughts.”

The writing alone has taken about sixty hours in the past eleven days.  In all, I’d estimate that my “pace” for academic writing has been about three hours per double-spaced page.

There are, of course, reasons for this that have nothing to do with my relative skill at legal and academic writing.  Academic writing is by nature harder than legal writing, for several reasons:

1.  The scope of the research is larger. 

Legal briefs have one set of facts that are based on a discrete set of sources (massive document review projects notwithstanding).  In daily practice, we see the same basic legal issues over and over, which makes the legal research move more quickly; by the time I left the firm, I had a desktop folder containing the twenty cases we cited most often.  Academic research is more far-flung, especially if we go for the “interdisciplinary” approach.

2.  The organization is looser.

Legal briefs have very specific organization rules: facts, legal issues, analysis.  They don’t mess around with introductions, and the conclusion is one sentence: “For the abovementioned reasons, [PARTY] respectfully requests that this Court [do the thing].”  Short of deciding on which order to make your arguments, you don’t have to do a lot of outlining or planning.  Academic papers offer much greater scope for organizational choice – which can be great for your argument but which also take time.

3.  There are (probably) several ways to look at the evidence.

Legal briefs are partisan by nature, even if you’re not actually a party to the case.  Sure, occasionally someone will write an amicus brief in support of neither party, but those are few and far between and are inevitably polemics on the author’s partisan point anyway.   But in academic writing, particularly in English, the evidence frequently points in several directions at once.  This is doubly true if your theoretical framework permits questioning not only of the arguments but of the language itself.  (Ask me about my work in deconstruction!)

4.  Who’s my audience, anyway? 

Lawyers know what judges want, and if we don’t, the judge tells us.  “Writing the best brief you can” is always about writing the best brief for this particular court.  Academic writing, on the other hand, has more than one judge.  Or it should; writing seminar papers that can’t make their way into a publication or into your thesis/dissertation even with substantial editing are a waste of everyone’s extraordinary effort.

This list overlooks, of course, the types of legal writing that are also academic writing, aka “law review articles.”  It’s been several years since I produced a seminar paper for a law school class, but those are nearly as time-consuming as academic works, especially if your legal-academic piece is interdisciplinary.

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