Interview of a Master, about a Master

One of the patron saints of this blog, Bryan A. Garner, is interviewed re his and Justice Antonin Scalia's new book Reading Law: The Interpretation of Legal Texts here.

Why Grammar and Usage Are So Vital in Writings to Appellate Courts

If you think that grammar doesn't matter in an appellate brief, you are beyond my help, but a post is trending all over the blogosphere from an internet CEO who says that he won't hire people who use bad grammar. This is a useful meditation for our purposes of why and how grammar and usage makes the players in the appellate process think better or worse of us. Sometimes in an appellate court, especially a state appellate court, the justices are not the most educated or picky members of the court community, but just because that may be the case, doesn't mean that other people who are vitally important to you aren't judging you by your grammar and usage-- the staff attorneys and senior clerks.

The Final Judgment Rule and Its Exceptions in Texas State Law

As a general rule, in Texas state law, one can only appeal a final judgment. There are a lot of civil cases for this, e.g., Qwest Communications v. A T & T, 24 S.W.3d 334 (Tex. 2000) (per curiam). The same rule applies in Texas state criminal law as in, e.g. Ex parte Apolinar, 820 S.W.2d 792 (Tex. Crim. App.1991), but see Taylor v. State, 268 S.W.3d 752 (Tex. App.—Waco 2008, pet. ref’d) (listing interlocutory appeals that may have to be allowed under federal law). An appeal not of a final judgment is an interlocutory appeal. In Texas state civil law, interlocutory appeals are controlled by Texas Civil Practice and Remedies Code § 51.014; one of those kinds of interlocutory appeals was discussed in an earlier post on this blog. All Texas criminal appeals are controlled by Texas Code of Criminal Procedure chapter 42, which provides for certain interlocutory appeals. The State can have them in very limited circumstances. Bail bondspersons, too, under very limited circumstances, but not defendants. Writs such as habeas corpus, mandamus and prohibition are not limited by the final judgment rule. If such a writ application is appropriate, it’s not invalidated because what is being sought relief for is not a final judgment.  

Texas Supremes Start with a System that Will Eventually Replace Paper with Ecommunication

The Texas Supremes adopt Texas Appeals Management and eFiling System (TAMES) after Houston's First and Fourteenth Courts of Appeals do. The Texas Court of Criminal Appeals and the other Texas state intermediate appellate courts will follow afterwards. Eventually, communication between counsel and the court and the courts internal communication will be all electronic, speeding up and simplifying procedures. This is from the Texas Lawyer's Tex Parte Blog.

For Student Loan Debtors, Bankruptcy Court Relief Can Exist for Some

Sometimes what civil plaintiffs want washes up against defenses like sea-waves against rock cliffs, and the defenses are generally unaffected, even after many waves, even after decades.

•  Sovereign immunity, the doctrine that the government is generally immune from a suit for damages was only washed away a bit by legislators, who didn't want to have to pass a private bill for relief every time a government vehicle got involved in a fender-bender.
• The rule of Feres v. United States, 340 U.S. 135 (1950), that military-service members on active duty cannot sue anyone for anything that could be attributed to a military order, was recently invoked in a case where a Green Beret survived war in Iraq, but didn't survive a  shower in one of Sadaam's old palaces in which an American military contractor likely grounded a water pump to the plumbing itself. One of the most pleasant pieces of work I ever did was-- as a young law clerk-- to help George W. Wilhite sue drunken doctors who botched the delivery of two service members's child on the ground that the mother had standing to sue as a dependent of the father (Nonservice member dependents can sue for medical malpractice where the service member personally cannot.).
• "Student loan debt cannot be discharged in bankruptcy." I put this one in quotes because it's not quite true. The Bankruptcy Code provides that such debts can be discharged if not to do so would work an undue hardship on the debtor or the debtor's dependents. Congress made student loan debt hard to discharge after a few infamous cases in which professionals filed for bankruptcy shortly after graduation from professional school.

Despite this clause in the law, discharge of a student loan has been somewhere between extremely difficult and practically impossible. Today's case, Bene v. Educational Credit Management Corporation (In re Bene), AP No. 08-1167 K (Bankr. W.D.N.Y. June 26, 2012) is one in which a debtor got such a discharge. Ms. Bene, without any prior higher education, went to Canisius College at age 33 in 1981. At age 64, facing job loss, lacking a profession, lacking any debt other than 24-year-old student loan debt, she gave up educational opportunities to care for her sick parents, two decades ago. She lives and lived an austere life She has no TV; I envy her.). She had worked on an assembly line for 12 years at less than $13.00/hr. leading up to trial. She never completed her education, and so has no options for higher income now. She paid little toward her student loans, but paid what she could. The $25,000 payment from her parents in 1986 could have paid off her student loans, but she used it to care for her parents. The judge held that is nothing culpable about that in the Bankruptcy Code.
To distinguish from other cases, Brunner involved a debtor starting out on her career. (So did DeRose, albeit at age 50.) Bene was at the end of her rope at age 64, facing job loss and no prospects other than Social Security. The 1978 legislative history regarding efforts to discharge student loan debt concerned “abuses” of the “bargain.” The court found that there was no abuse in Ms. Bene's case.
Student loans used to be dischargable. Over time, they have become nondischargable except for undue hardship. The William D. Ford program, which allows collection efforts to cease after a lengthy period of token payments (Bene was offered a 25-year-payment plan, terminating at age 89.) is an attempt to make undue hardship under the Brunner test impossible to show.
Bankruptcy Judge Michael J. Kaplan sounds like an interesting guy, and an outstanding jurist. I'd like to meet him.
One other note- I didn't vet this with my friend Rick J. Deal, the finest consumer bankruptcy lawyer I personally know serving Montgomery County, Texas. He's usually a very busy guy this time of day, so he is in no way responsible for the opinions above.
Thanks to the New York Law Journal for the news about the case.

Why Should You Care If Your Citations Are Right?

Criteria for a good citation from South Carolina appellate lawyer Robert Hill is here. Maybe I'm missing something, but he doesn't seem to have an RSS feed (or any alternative) set up for his blog.

Don't Make This Mistake in Your Hearings; or How to Get in Front of the CCA

Defendant moved to suppress meth and drug paraphernalia evidence seized after a traffic stop. Motion denied, the defendant pleaded out and appealed. The Texarkana Court of Appeals reversed, finding that the officer conducting the stop lacked reasonable suspicion to continue the detention until a drug dog arrived, which, when summoned, alerted to drugs within the vehicle. They didn’t address the State’s “cross-appeal” arguing that the trial court should not have applied the rules of evidence in a suppression hearing because the State failed to file its own notice of appeal.

Texas’s Court of Criminal Appeals heard the State’s petition for the CCA to resolve a split among the courts of appeals as to whether the State must file a separate notice of appeal when the defendant appeals and the State wishes to appeal a law ruling of law under Article 44.01(c), Texas Code of Criminal Procedure. The CCA held in an 8-1 decision that the State need not and remanded the State’s point back to Texarkana.

The officer on the scene said he stopped the defendant’s truck because it lacked needed mud flaps. The officer went on to say that the defendant seemed nervous and answered his questions vaguely. While waiting to hear back on a warrants check, the officer got a call from a county investigator (not clear from the opinions what precise agency the investigator was working for). Defense counsel consistently objected to the officer’s repeating what the investigator told him, and it does not appear that the State made an offer of proof.

In this case on remand, Texarkana, in an opinion written by Justice Bailey C. Moseley, held that though, with the exception of privileges, the Texas Rules of Evidence do not apply to suppression hearings because they involve only the determination of preliminary questions and even though hearsay is admissible at a suppression hearing to demonstrate the existence of reasonable suspicion or probable cause, the objection to the motion to suppress was properly overruled because even though the State did not get an adverse ruling, it did not keep going to reveal what was in the call which might or might not have given the officer cause to hold the defendant further. There is no evidence that the officer possessed sufficient reasonable suspicion to have detained the defendant for the period of time necessary to bring the drug dog to the site of the stop. This case can be distinguished from Granados v. State, 85 S.W.3d 217 (Tex. Crim. App. 2002) and similar cases by the failure to limit or exclude admissible evidence.

Comments: Note here that the CCA takes the case not because Texarkana’s judgment is a gross miscarriage of justice (It might be; it might not be.), but to resolve a split among the state courts of appeals. On a petition for discretionary review to the Court of Criminal Appeals (or on a petition for review to the Texas Supreme Court or in an application for writ of certiorari to the Supreme Court of the United States), don’t just talk about whether the intermediate appellate court ruling is a triumph or miscarriage of justice but also emphasize how a ruling in your case will resolve splits between the appellate courts the court you’re making application to is supposed to be governing. Really, the way that the system is set up, that’s how the high courts are supposed to choose their cases.

Lavern A. Pfeiffer v. State of Texas, No. 06-11-00001-CR, (Tex. App.—Texarkana, July 6, 2012, no pet. h.) (on remand).

Some Oddities of Stare Decisis or Issue Preclusion

Of necessity, stare decisis or issue preclusion, is weaker in a final appellate court than in an intermediate appellate court. A final appellate court is one that which there is no higher. In the federal system, it's the Supreme Court of the United States. In Texas, as to Texas civil law, it's the Supreme Court of Texas; as to Texas criminal law, it's the Texas Court of Criminal Appeals. Intermediate appellate courts are the others.
It is not unreasonable to think that a legal rule adopted dozens or hundreds or years earlier, might become outmoded as technological or economic circumstances changes. While higher courts might change outmoded rules for the lower courts. The only court that can overrule the bad rule of the highest court of a system is that highest court.
A common law court can overrule its own rules, but most of them would probably leave changing important old rules to the higher courts.
An appellate court is generally also more open to changing rules on constitutional matters than on matters interpreting legislation, which may be counter intuitive. This is because as to constitutional interpretation only the appeals court can change its interpretation of the constitution. As to legislative interpretation, the legislature can change a statute. By comparison, changing the constitution is a lot more work.

What is a Code of Criminal Procedure 46.05 Review?

Texas's Court of Criminal Appeals issued opinions Wednesday, June 27, 2012 holding that Jonathan Marcus Green was competent to be executed Saturday, June 30, 2012. They changed their minds and reversed the stay on the 30th.
Let's start with a chronology.

• Christina Neal  disappeared around June 20, 2000.
• Green was convicted in July 2002 of her murder and was given the death penalty. 
• June 23, 2010 Green filed his first subsequent application for a writ of habeas corpus, claiming to be incompetent and requesting a Texas Code of Criminal Procedure article 46.05 hearing to determine his competence.
• June 28, 2010 the district court held a competency hearing and found him competent. Green appealed this ruling and also filed for a writ of habeas corpus accompanied by a brief arguing that competency-to-be-executed claim are cognizable on habeas corpus. The CCA stayed Green's execution and ordered the trial judge to file with them a written clarification of the standard she used.
• The CCA ruled June 27, 2012.
• They re-stayed the execution on June 30, 2012.

Judge Paul Womack delivered the opinion of the court in which Presiding Judge Keller, and Judges Meyers, Keasler, Hervey and Cochran joined. Judge Tom Price wrote a concurring opinion joined by Judges Johnson and Alcala. Everybody agreed that Green had not shown his incompetence to be executed, that Green did not deserve any relief on his habeas application, and that it was OK in a hearing on a motion to recuse the trial judge that the trial judge not be required to present herself as a witness. The majority believed that the review of the article 46.05 hearing was like a direct appeal, giving great deference to the trial judge. The concurrence argued that the 46.05 review was like a post-conviction habeas corpus review, giving less deference to the trial judge. It would follow from the majority's view that habeas would not lie for competence since a habeas is not appropriate where there is a remedy by direct appeal. The concurrence group agreed that habeas didn't lie in this case, but argued that there might be circumstance when it would, particularly if the incompetence manifested itself for the first time less than 20 days before the execution (46.05 requires that the defendant give at least 20 days' notice before execution to get a reviewable hearing). The majority ruled that the recusal matter was filed too late- you can't file a refusal complaint after you've submitted your appeal. The concurrence noted that on post-conviction habeas, defendants regularly brought up additional matters between the first submission of a writ application up until the habeas had been ruled on. The concurrence said that the recusal motion wasn't late, it was just unmeritorious.
Green v. State, Nos. AP-76,374, AP-76,376 & AP-76,381 (Tex. Crim. App. June 27, 2012).

It's Blue and It Makes Law Students and Lawyers Blue, Too

Another complaint from a working lawyer about the length and expense of the Harvard legal Bluebook. It aptly compares other academic style guides to the legal standard. The 19th edition has 511 pages, not counting 13 pages of frontal matter, a cover sheet and the printed, two-sided covers. The Unbearable Heaviness of Being the Bluebook.

The Texas Court of Criminal Appeals Vacations Like the U.S. Supremes Do

This news story about Kenneth Wade Boyd, Jr. shows how the endgame of an actual innocence case can work itself out, but I write about it here to get on record that the Texas Court of Criminal Appeals vacations like the United States Supreme Court does-- from June to October.

Mitchell substantiates habeas corpus request.

No Life without Parole for Offenders Younger than 18

To give good reader service and to keep you from having to go all over the net to keep up with what you read here, SCOTUS, in Miller v. Alabama, as might reasonably have been expected, ruled that life without parole is not a constitutional punishment for a person who commits the offense before attaining the age of 18. Thanks to the blog of the Austin American-Statesman for reminding me of the case and pointing me to the links, etc. Miller v. Alabama, Nos. 10-9646, 10-9647 (U.S. June 25, 2012).

Chief Justice Roberts May Be Indirectly Be Giving Away Some of His Thinking

For those of you who may have been or may be perplexed by Chief Justice Roberts's alliance with the left wing of his court, this blog post from the Wall Street Journal is damned interesting. How a 1927 Movie May Have Revealed the Roberts Defection

A Very Famous Legal Writer You Might Not Have Heard Of

Lord Alfred Denning wrote forcefully and clearly in favor of an old-fashioned morality particularly in matters related to marriage and was impatient with stare decisis (See prior post.) when the conditions that caused the old ruling to arise had changed. The link is to the episode about him on the British Broadcasting Corporation Radio 4 Network's series The New Elizabethans, profiling important figures of the present queen's reign. Alfred Denning.

Stare Decisis, or Everything Old Is New Again

Let's start at the top of the forensic food chain. As to federal law, once the Supreme Court of the United States makes a rule in a case, all the courts in America are supposed to follow it. Even it is supposed to follow its prior rulings unless it overrules itself. Sticking with federal law, the Courts of Appeals are supposed to follow their prior rulings unless they are overruled by SCOTUS or overrule themselves, and they require that all the courts below them in their respective regions follow their rules. Occasionally lower federal courts make rulings that are recorded that they are expected to follow- I have in mind decisions of district courts published in the West Publishing's Federal Supplement or the rulings of the Board of Immigration Appeals.
State law is supposed to work the same way. In Texas, the Supreme Court handles civil cases, the Court of Criminal Appeals, criminal. There are Courts of Appeals. Unlike the feds, Texas state District Court opinion are not ever published. In prior posts, I've discussed how state district courts in Austin, Brazoria, Chambers, Colorado, Fort Bend, Galveston, Gregg. Grimes, Harris, Hunt, Rusk, Upshur, Waller, Washington and Wood counties are subject to more than one Court of Appeals.
This is properly the place to discuss American International Ins. Co. v. International Business Machines, 933 S.W.2d 685 (Tex. App.--San Antonio 1996) (writs dismissed and denied). The insurance company was that of the first family of Galveston, Texas, the Moodys. The estimable Joe Jamail was one of the lawyers on the case for American National. The insurance company sued IBM at their home in Galveston, and got poured out on motions for summary judgment. On appeal, the case went up to the First Court of Appeals in Houston, but was transferred to equalize dockets to the Fourth Court of Appeals in San Antonio. As to one of the claims, the First and Fourteenth Court of Appeals had made rulings in other cases that would have required the case to be reversed and remanded to the trial court as to that claim, but San Antonio had a different rule.
An outstanding visiting justice wrote San Antonio's opinion: former Chief Justice of Fort Worth's Second Court of Appeals John G. Hill. He and one of the regular justices held that in a case transferred like that the court should rule according to what the court thought was the best rule for all of Texas. A dissenter ruled that the issue should have been decided according to the rule of the First Court, since that is where the parties had their right to appeal and since the trial court should have considered itself bound by the rules of its local courts of appeal. The Texas Supremes in Austin refused to mess with it.
I sympathize with courts of appeals not wanting to treat equalized cases differently from its other cases and go through elaborate and impractical choice of law exercises about them, but it seems to me that American International really didn't get the rule of law-- the trial court should have followed the rules of the Houston appeals courts, didn't and their appeals court didn't give them the benefit of the rules in the law books applicable to them, and the Supremes wouldn't fix it. The Supremes should have resolved the dispute-- their most important job is to harmonize the civil precedents of the fourteen courts of appeals into a single body of law, and I understand that they might well argue that they did-- harmonizing doesn't have to be done only with a you-win-you-lose Supreme Court opinion, but I don't buy it.
This principle that rules in one case have to be applied subsequently is called stare decisis or issue preclusion. In the next week or two, I'll follow up with a discussion of how this analysis can protect you from a common rookie mistake in getting your case before SCOTUS, the Texas Supremes or the Court of Criminal Appeals.