From the Irritated Appellate Lawyer Department

Heard a news report last night that said that "New York's Supreme Court" had found New York City mayor Michael Bloomberg's ban on large-serving-size sugary drinks unconstitutional. This may technically be true, but for the vast majority of listeners it's likely misleading. You see, in New York state, "supreme court" is what they call one of their type of trial courts, and cases from there are appealed to the Supreme Court-- Appellate Division, which is what happened to the ban-- an Appellate Division court overruled it. What nearly all of the rest of the American states call a supreme court--  their highest courts-- is called the Court of Appeals in New York State.
Here's my new favorite song that mentions the State of New York.

Highest New York's Court's Briefs Generally Not Improving Last 40 Years

The language in the briefs to the New York Court of Appeals-- that state's highest court-- have gotten less and less plain between 1969 and 2008, except for less use of the passive voice, according to an article pending for publication in the Suffolk University Law Review. Bryan A. Garner and I, among many others, have much work to do in this connection.

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.

SCOTUS Nomination Diversity

The president has not nominated anyone to the Supreme Court of the United States who was not an Ivy League female, unmarried and childless, from New York City, New York, who studied in Princeton's history department.
Hat tip to Mises Economics Blog.

Appellate Lawyers Have to Read

The story of Michael Swango, the murderous medical doctor of James B. Stewart's Blind Eye continues with Swango's indictment in the Eastern District of New York.

Habeas Upheld for Ineffective Assistance of Appellate Counsel

The United States Second Circuit Court of Appeals upheld the granting of a writ of habeas corpus and a new trial Friday, April 2, 2010 to defendant Racky Ramfair because his appellate counsel was ineffective in assisting him.
Robert D. Sack, a Clinton appointee, wrote the opinion for a panel that also included senior-- that is, retired-- judges Guido Calabresi, famed Yale legal scholar who is also a Clinton appointee, and former chief judge Ralph K. Winter, Jr., a Reagan appointee.
Ramfair was accused of robbing cabdrivers in the New York City borough of Queens. His appointed lawyer Jonathan D. Latimer, III, was present at a lineup which identified Ramfair. It is undisputed that Latimer was at the lineup, but he does not remember if he objected then. Some of the men in the lineup had facial hair; some did not. The police had the ones who did not to rub their faces with carbon paper for the viewing.
The first trial resulted in a mistrial when Ramfair was assaulted while in jail. He had a second mistrial when a juror had to be hospitalized during the trial. The main issue at that trial was whether the robbery victims had said that Ramfair was the man who attacked them because he looked different from the other men in the lineup. At the third trial, a police witness revealed that Latimer had been present at the lineup and testified that he had not objected. Latimer asked the court for permission to testify to dispute that testimony. The judge overruled him. Latimer moved for a mistrial. It was also overruled. In closing argument, the prosecutor emphasized that Latimer had been at the lineup and of the testimony that Latimer had not objected then.
Ramchair was convicted, and ended up getting 10 to 20 years in prison. He had different appointed counsel on appeal. She brought two issues. First, that the trial violated double jeopardy. Second, that Latimer should have been allowed to testify.
The Appellate Division of the New York Supreme Court (equivalent to Texas's state courts of appeal) affirmed. It said that Latimer should have sought to withdraw. If he had, they said, Ramchair could have had a new, different lawyer and Latimer would have been just a witness instead of being both a witness and trial counsel.As a practical matter, this would almost certainly have required a fourth trial.
Making a long story short, the federal trial court held more proceedings in this case between June 30, 2009 and February 12, 2010, resulting in Friday's ruling.
Here are some observations about this. First, this is mostly a panel of retired judges. Federal judges are more open to do unpopular things-- like grant habeas relief-- than state judges are. Senior federal judges are even more likely to. Second, if the lineup was unduly suggestive, Ramchair might be doing time for a crime that he did not commit. Such a case is much more appealing to a federal habeas judge or an appellate judge than a due-process-type challenge made by a guilty person. Third, Ramchair has served approximately thirteen years of a 10-to-20 year sentence. If he was improperly convicted, he's done about as much time as he would have done had he been properly convicted. When I saw oral argument in the Fifth Circuit, I noticed the electric emotional effect such an argument on federals appeals judges in a case such as that. Fourth, conventional wisdom about how many issues an appellate lawyer should put in a brief is that one should not put in more than two or three (in an extreme case, four) if you really want the appellate court to rule in your favor. Appeals court judges don't believe that a trial could have more than a few important errors, and lengthy briefs make their hearts sink. The only time one wants many issues should be put in is when the purpose of a brief is to preserve error in some proceeding likely far-off in time. For example, a criminal defense lawyer may reasonably that the only court likely to rule for a defendant is a federal one. To get to that federal court properly, one has to exhaust one's state remedies and that might well take years. There is a good chance that the federal habeas lawyer will not be the one doing the original appeal to the trial court. The world might be very different then. That might be one scenario; the other is defensive law practice. Complain about everything, all the time, to be ready when the ineffective assistance of counsel claim is made or when the grievance is filed.