The Great Dissenters

I don't always agree with Justice Scalia's dissent, but, usually, I find them entertaining. In a recent Washington Post op-ed, however, former Justice O'Connor clerk David Kravitz takes me to task. Mr. Kravitz believes that Justice Scalia's dissents lately ignore compelling arguments and rely, instead, on insults. In honor of the amicable dissent, I've listed four of my favorite dissents. None are antagonistic, but all make great, compelling arguments.

Here's my list (in no particular order):

1. Justice Holmes, Lochner v. New York: Short but effective. In one sentence, Justice Holmes makes his point and guts the majority opinion: "The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well-known writers, is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not."

2. Justice Kagan, Arizona Free Enterprise Club's Freedom Club Pac v. Bennett: Justice Kagan's introduction is concise and persuasive in ways most legal writing is not. It turns an amorphous constitutional issue into a concrete example.

3. Justice Jackson, Korematsu v. United States: In plain English and with plain logic, Justice Jackson explains why Korematsu's encampment was unconstitutional and dangerous.

4. Justice Harlan, Roth v. United States: Technically concurring in part and dissenting in part, Justice Harlan persuasively explains why the federal government should not have unbounded discretion to outlaw obscenity. And he simply yet powerfully explains why free speech is not a popularity contest: "Many juries might find that Joyce's 'Ulysses' or Bocaccio's 'Decameron' was obscene, and yet the conviction of a defendant for selling either book would raise, for me, the gravest constitutional problems, for no such verdict could convince me, without more, that these books are 'utterly without redeeming social importance.'"

So, what other dissents should go on this list?

DOM wins big in the Eleventh Circuit

Today, the Eleventh Circuit handed down a major victory to David Markus's client Dr. Vanja Abreu. In a lengthy opinion, the court reversed Dr. Abreu's conviction on a conspiracy charge, holding that the district court erred in denying her motion for judgment of acquittal. Congrats, David.

Update -- David tells me his wife and law partner, Mona, did the briefs. Congrats, Mona.

Citing document numbers

How do you cite document numbers? Before you answer, let me explain what I’m talking about.

The federal judiciary has a system that allows users to file documents in cases electronically—the Case Management/Electronic Case Files (CM/ECF) system. Each document filed in the CM/ECF system is given a document number, which is placed at the top of each page of the document. In the Southern District of Florida, the document number is blue. Some lawyers might refer to a document number as a docket-entry number; others might refer to it as an ECF number.

In any given filing, you may choose to refer to a document number for a particular reason. For example, in your motion for an extension of time to file a response to the amended complaint, you might refer to the document number of the amended complaint, to assist the reader to quickly and easily find the amended complaint on the docket.

If you’re citing the document number, how do you do that?

There are three main contenders:

The first is “D.E.” or some variant thereof, such as “DE”. (For present purposes, let’s put to the side what comes after the D.E.—e.g., “No.” or “#”. Let’s also put to the side whether you enclose “D.E.” in parentheses or brackets, or not at all. That’s a debate for another day.) This is the most well-established way of citing document numbers in the Southern District of Florida. If you cite document numbers this way, everybody will know what you’re talking about.

The second is “ECF”. If you meticulously follow the Bluebook, this is your choice.

Last is “Dkt.” I’d refer to this as “New York style,” because many judges in New York seem to cite document numbers using this method. If you’re into abbreviations, perhaps New York style is for you. In the Southern District of Florida, however, you’d be in a strong minority.

How do you cite document numbers?

D.E.

ECF

Dkt.

 

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Throwback Thursday: en banc edition

Let’s first throw back to Freddy’s post on the Wollschlaeger v. Florida decision, which held constitutional a law restricting what doctors can say to their patients about guns. Yesterday First Amendment scholar Eugene Volokh wrote a lengthy post about the Eleventh Circuit’s 2-to-1 decision on his influential blog. Volokh concludes that “the court is mistaken, and the law should have been held to violate the First Amendment.” He goes on:

[E]ven intermediate scrutiny—if that’s the right test—requires some serious justification for a speech restriction. Among other things, it requires that there be a “reasonable fit” between the speech restriction and the supposedly important reasons justifying the restriction. And here … there’s no such fit.

In the comments to Freddy’s post, someone expressed displeasure with the decision, writing that this is “another important case” where—and I’m editorializing slightly—the deciding vote on appeal was made by a district judge sitting by designation. This raises a question, irrespective of the merits of this undoubtedly important case: Should the fact that there was only one active Eleventh Circuit judge in the majority be considered in deciding whether to rehear the case en banc?

My initial inclination is that it shouldn’t be. Federal Rule of Appellate Procedure 35, which sets forth the standard for when rehearing en banc should be had, says nothing about it. Considering the composition of the judges in the majority may lead to more rehearings en banc. And treating differently decisions in which visiting judges are in the majority just doesn’t seem appropriate.

But it’s an interesting question, and others think that where a dispositive vote is made by a district judge sitting by designation, “experience teaches that the case has a better than average chance of rehearing en banc.”

***

Remember United States v. Davis, the en banc decision on the constitutionality of obtaining without a warrant cell-site information that we covered a few months ago?

Yesterday, Judge Koh of the U.S. District Court for the Northern District of California issued a lengthy order affirming the denial of the government’s application for historical cell-site location information, stating that where “an individual has not voluntarily conveyed information to a third party, her expectation of privacy in that information is not defeated under the third-party doctrine.” Judge Koh said her decision was “not at odds” with Davis, which she said, citing Judge Jordan’s concurrence, was “limited by its facts.” Judge Koh also quoted Judge Martin’s dissent in concluding that the government must “secure a warrant supported by probable cause in order to obtain a cell phone user’s historical [cell-site location information].”

Docs v. Glocks Redux

Nearly a year to the day after issuing its original decision, a panel of Judges Tjoflat, Wilson, and Coogler vacated and substituted its opinion in Wollschlaeger v. Governor of the State of Florida. The ACLU reacted (as a disclaimer, my firm represents the ACLU as amicus curiae):

 MIAMI, FL – Today, a three-judge panel of the 11^th Circuit Court of Appeals issued an opinion reaffirming its July 2014 decision upholding the constitutionality of a Florida law banning doctors from discussing the safe storage of guns in their patients’ homes.  The three-judge panel’s decision comes in the case of Wollschlaeger v. Florida – often referred to as the “docs v. glocks” case – in which doctors had challenged the 2011 law as a violation of free speech.
The American Civil Liberties Union (ACLU) of Florida, along with leading medical and child welfare organizations, had filed a friend-of-the court brief in the case, co-authored by attorneys Tom Julin and Gerald Greenberg, arguing that the law unconstitutionally restricts the free speech rights of medical personnel and hampers their ability to protect the health and safety of their patients.
A district court had previously found the law to be unconstitutional, but the same three-judge panel that issued today’s ruling had overturned the district court’s ruling in July 2014. Today’s order reaffirms that 2014 decision and also vacates an injunction that the district court had put on enforcement of the law, meaning the law now goes into effect.
Responding to today’s news, Howard Simon, Executive Director of the ACLU of Florida, stated:

“This is a sad day for Florida doctors, their patients, and for free speech as this unconstitutional law now goes into effect. Doctors and medical personnel throughout Florida are – today – under new orders: talk to your patients about gun safety and risk losing your right to practice medicine in Florida.

“We cannot be surprised that the same two judges who determined that ‘patient-privacy’ trumps constitutionally protected free speech would reiterate that view,.Their doing so in this way has allowed this unconstitutional law to go into effect and reset the clock on appeals. Because of today’s ruling, this pointless restriction on free speech will go into effect – for now.”

 “The Legislature’s unconstitutional effort to stop doctors from talking to their patients about measures to keep kids safe when there are guns in the home is not simply a violation of doctor’s free speech, it is also dangerous policy. Needing to score political points with those who believe the government is ‘coming for our guns’ is not a good enough reason to ban conversations between doctors and their patients– especially when those conversations are important for public health and could save lives.

“With the ongoing crisis of gun violence plaguing our country, it should not be a crime for public health professionals to ask parents questions about gun storage and offer common-sense advice about firearm safety in the home. The First Amendment and the Second Amendment are not at odds; encouraging parents to safely store their guns so they stay out of the hands of children does not threaten the right to own a gun. Gagging these conversations not only advances no public policy goal, but could be destructive for our society.”

“This dangerous policy needs to be stopped here in Florida before, like a cancer, it spreads to other states. Just as they had asked the full court to review last summer’s ruling, we expect that the plaintiffs will likely appeal this order, and we are hopeful that freedom of speech – and common sense – will prevail.”

The ACLU of Florida’s amicus brief in the case, filed with Alachua County Medical Society, Broward County Medical Association, Broward County Pediatric Society, Palm Beach County Medical Society, Florida Public Health Association, University of Miami School of Law Children and Youth Clinic, Children’s Healthcare Is a Legal Duty, Inc., and Early Childhood Initiative Foundation, is available here:
http://aclufl.org/resources/amicus-brief-in-wollenschlaeger-v-florida/

When dealing with shotgun pleadings, are we following the law?

Every so often—as our friend South Florida Lawyers has pointed out—the Eleventh Circuit tells us something about “shotgun pleadings,” which, roughly, are pleadings that don’t conform to the federal pleading standards found in Federal Rules of Civil Procedure 8 and 10. In a pair of decisions issued this month, the Eleventh Circuit told us how properly to respond to or deal with shotgun pleadings. But do we—lawyers and judges of the Southern District of Florida—follow the Eleventh Circuit’s advice?

In Weiland v. Palm Beach County Sheriff’sOffice, the court, per Chief Judge Carnes, “examined more than sixty published decisions since” Judge Tjoflat used the term “shotgun pleading” in a 1985 dissenting opinion, and “identified four rough types or categories of shotgun pleadings.” Chief Judge Carnes also restated the procedure on dealing with shotgun pleadings, thus:

While plaintiffs have the responsibility of drafting complaints, defendants are not without a duty of their own in this area. We have said that a defendant faced with a shotgun pleading should “move the court, pursuant to Rule 12(e), to require the plaintiff to file a more definite statement.” But we have also advised that when a defendant fails to do so, the district court ought to take the initiative to dismiss or strike the shotgun pleading and give the plaintiff an opportunity to replead. Where a plaintiff fails to make meaningful modifications to her complaint, a district court may dismiss the case under the authority of either Rule 41(b) or the court’s inherent power to manage its docket.

The second decision (unpublished) gave similar instructions.

My sense is that lawyers and judges of the Southern District of Florida rarely, if ever, follow these instructions, however well-established they may be. If my sense is correct, I suspect that there are a few reasons for this.

First, the instructions don’t fit with practice. It’s not uncommon to encounter the “most common type” of shotgun pleading (especially if the complaint is written by an out-of-circuit lawyer). Per Chief Judge Carnes, “[t]he most common type—by a long shot—is a complaint containing multiple counts where each count adopts the allegations of all preceding counts, causing each successive count to carry all that came before and the last count to be a combination of the entire complaint.” But Rule 12(e), which is designed for pleadings that are “so vague or ambiguous that the party cannot reasonably prepare a response,” is often ill-suited for this kind of shotgun pleading. After all, just because one count’s allegations are incorporated into another doesn’t necessarily render the complaint unreasonably difficult to respond to. So you move to dismiss, instead.

A second reason is timing. Our judges, as they often say, are busy. And it can take months—even for relatively straightforward threshold motions—to be fully briefed and decided. Meanwhile, the parties are off and running with discovery. So even if you might otherwise be inclined to seek a more definite statement, you’ll more likely seek a dismissal.

Finally, I suspect that our judges, given their large case loads, can’t usually devote their resources to scanning new cases for shotgun pleadings and to ordering re-dos. True, many of our judges will order a new complaint (or throw you out of court entirely) if you fail, say, to properly plead diversity of citizenship. But if jurisdiction isn’t obviously a problem, judges might simply prefer to leave it to the litigants to point out a complaint’s deficiencies, which is in keeping with what judges usually do. In an albeit different context, Judge Tjoflat, in an important decision, once cautioned district courts not to do the work that litigants should do: “Our adversarial system requires it; district courts cannot concoct or resurrect arguments neither made nor advanced by the parties.”

To be sure, I’m not advocating that we should intentionally disregard the Eleventh Circuit’s well-established procedures on dealing with shotgun pleadings. I do suspect, however, that they’re not being followed, or being followed only rarely. 

John Oliver on Minimum Mandatory Sentences!

Does this resonate with any of you?

Day 1 for guest bloggers: FAIL

Well, that was a bust. Sorry readers. Hopefully more content will come through soon. In the meantime, here's Paula McMahon on a new fraud case:

Eight more South Florida residents have been indicted on federal charges they were involved in a fraud conspiracy that pressured seniors to invest in what they thought was valuable technology the NFL was going to use, prosecutors said Monday.