Judge chides attorney for not wearing coat

An Arkansas Supreme Court justice earlier this month called out a professor-attorney for not wearing a coat in a Zoom argument.

Associate Justice Courtney Rae Hudson took to task attorney and Professor Robert Steinbuch, Arkansas Little Rock, my colleague and past co-author on freedom-of-information works (book, essay), first, for not wearing a coat over his button-down shirt in the Zoom argument on February 2, and then for not having asked advance permission to use a demonstrative exhibit. She had the court and counsel wait painfully while Steinbuch and his attorney-client fetched coats.

Steinbuch probably should've worn a coat. He told Justice Hudson he had not because it interfered with his handling of the exhibit, a statutory text, within the small space of the camera view. Good excuse, bad excuse; either way, Justice Hudson's handling of the matter was condescending and, coming as it did after Steinbuch's argument, felt more personal than professional. My impression as a viewer was that Hudson was the one who came off looking worse for the exchange.

Being an aggressive advocate for transparency and accountability in Arkansas, Steinbuch has many allies in mass media, and they were not as gentlemanly about what went down as Steinbuch was. The aptly named Snarky Media Report made a YouTube video highlighting the exchange.  As Snarky told it, "Justice Hudson pulled out her Karen Card." Snarky also observed, with captured image in evidence, that "[s]everal times during the hearing Hudson appeared to be spitting into a cup."

More seriously, Snarky took the occasion to highlight past instances in which Hudson's ethics were called into question. Hudson (formerly Goodson), who was elected to the court in 2010, and her now ex-husband, a class action attorney, took two vacations abroad, valued together at $62,000, at the expense of Arkansas litigator W.H. Taylor (Legal Newsline). Hudson did report the gifts, and she said she would recuse from any case in which Taylor was involved.

Very well, but my suspicions of bias run a bit deeper. Hudson's vacation-mate ex, John Goodson, is chairman of the board of the University of Arkansas. (Correction, May 9, 2023: I'm told that Goodson ended his service on the board a year or so ago; I've not been able to ascertain the date.) One of Steinbuch's tireless transparency causes has been for Arkansas Freedom of Information Act access to the foundation funding of the university system in Arkansas, especially the flagship University of Arkansas, Fayetteville. Indeed, Steinbuch wrote just last week (and on January 29), in his weekly column for The Arkansas Democrat-Gazette, about that very issue in connection with secret spending at Arkansas State University. University System counsel have fought ferociously and successfully for decades to stop any lawsuit or legislative bill that would open foundation books to public scrutiny.

Goodson also has what the Democrat-Gazette characterized in 2019 as "deep political and legal connections around the state" with disgraced former state Senator Jeremy Hutchinson. Hutchinson is a nemesis of former Arkansas politician Dan Greenberg (a longtime friend of mine). After Greenberg lost the senate race to Hutchinson in 2010, Greenberg sued a local newspaper, alleging a deliberate campaign of misinformation. Steinbuch supported Greenberg in the suit. Though Greenberg was unable to demonstrate actual malice to the satisfaction of the courts, discovery in the suit revealed a problematically cozy relationship between the newspaper editor and Hutchinson.

The day after the oral argument in Steinbuch's case, Hutchinson was sentenced to 46 months in prison on federal charges of bribery and tax fraud—ironic, given that a false report of ethical misconduct was a rumor that Hutchinson had sewn about Greenberg in 2010. 

I don't know; maybe Justice Hudson just gets really hung up on men's attire.  She does hail from a conservative corner of Arkansas.

But a wise friend once told me, "Nothing in Arkansas happens for the reason you think it happens."

The case is Corbitt v. Pulaski County Jail, No. CV-22-204 (Ark. oral arg. Feb. 2, 2023).

Sullivan publishes on ethics, criminal appeals, and seeking Supreme Court certiorari

My friend and colleague Professor J. Thomas Sullivan has published, Ethical and Aggressive Appellate Advocacy: The Decision to Petition for Certiorari in Criminal Cases, 51:3 St. Mary's L.J. 585 (2019).  The article is especially salient in light of the U.S. Supreme Court's recent decision requiring unanimous juries to convict in criminal trials for serious offenses.  Here is the abstract.

Over the past six decades, United States Supreme Court decisions have dramatically reshaped the criminal justice process to provide significant protections for defendants charged in federal and state proceedings, reflecting a remarkable expansion of due process and specific constitutional guarantees. For criminal defendants seeking relief based on recognition of new rules of constitutional criminal procedure, application of existing rules or precedent to novel factual scenarios, or in some cases, enforcement of existing precedent, obtaining relief requires further action on the Court’s part. In those situations, the Court’s exercise of its certiorari jurisdiction is the exclusive remedy offering an avenue for reversal of conviction or order vacating the sentence. Petitioning for review by writ of certiorari is essential to the defendant’s chances for obtaining relief and is what might be characterized as the “final tool” in the appellate lawyer’s “toolbox.” There are at least five scenarios in which the petition for writ of certiorari is critical, and counsel must be aware of circumstances dictating strategic decisions that need to be made in order to protect the client’s options for relief in the direct appeal and post-conviction processes.

As Sullivan explains in footnote:

This is the third in a series of articles addressing appellate practice from a different perspective than that usually taken by appellate courts with respect to counsel’s duty in representing the client. It differs from Chief Justice Warren Burger’s approach to attorneys serving as an officer of the court, as he expressed while writing for the majority in Jones v. Barnes, 463 U.S. 745 (1983). For the author’s prior articles addressing a more aggressive approach to appellate advocacy than that taken by the Jones majority, see J. Thomas Sullivan, Ethical and Aggressive Appellate Advocacy: Confronting Adverse Precedent, 59 U. Miami L. Rev. 341 (2005), and J. Thomas Sullivan, Ethical and Aggressive Appellate Advocacy: The “Ethical” Issue of Issue Selection, 80 Denv. U. L. Rev. 155 (2002).

See also the multi-talented Professor Sullivan recently playing Taps.

Law prof joins 'Taps Across America,' honors Texas soldier, attorney, Justice Floyd A. Shumpert

My longtime colleague, mentor, and friend, Professor J. Thomas Sullivan, joined Monday's "Taps Across America" remembrance (Facebook), organized by CBS News correspondent Steve Hartman.

Justice Shumpert

Emphatically, if unnecessarily to my ear, asserting his amateur proficiency, Professor Sullivan played especially to honor his father-in-law, Floyd Allen Shumpert.  In 2008, Professor Sullivan dedicated a law review article to Justice Shumpert, writing:

This article honors my father-in-law, Floyd A. Shumpert of Terrell, Texas, who served as an Associate Justice on the Texas Court of Appeals for the Fifth Judicial District from his appointment in 1983 until his defeat in the 1984 general election. Judge Shumpert began his career in public service following his return to Kaufman County, Texas, after World War II. During the War, he served in the 8th Infantry Division, 28th Infantry Regiment, 2nd Battalion of the United States Army. He suffered a severe injury requiring amputation of his lower leg when he stepped on a land mine in the Huirtgen Forest in Germany only a few days before commencement of the German counter-offensive known today as the Battle of the Bulge. He was awarded the Silver Star and Purple Heart. Upon his return from Europe, he was elected County Clerk and later, after earning his law degree from Baylor University, County Judge. He left the bench for private practice for over fifty years in Kaufman County, interrupted only by his appointment to the court of appeals. He is the most courageous and the kindest man I have ever known.

J. Thomas Sullivan, Danforth, Retroactivity, and Federalism, 61 Okla. L. Rev. 425, 425 n.* (2008) (direct download).  The video is © 2020 J. Thomas Sullivan, used here with permission.

Appeals court reviews fundamentals of multiple liabilities in remanding business tort case

A Massachusetts Appeals Court decision Friday reaffirmed the rule against double recovery, the finality of settlement, and other fundamentals in a business case of joint tortfeasors.  The case is a good refresher for law students and lawyers on multiple liabilities in tort.


A company sued its former secretary-treasurer and a tax consultant for breaches of fiduciary duty through fraudulent concealment, resulting in financial loss in excess of about $288,000.  The company president, a husband, and the former principal, a wife, were recently divorced, and the latter’s separation on both counts was settled upon a $50,000 payment.  The couple furthermore stipulated an allocation of about $40,000 for the purchase of the wife’s company shares.

The company prevailed against the tax consultant on default judgment.  However, the court determined that the terms of the settlement, and specifically the allocated share purchase, inclusively credited the company with the $288,000 of the wife’s liability.

Under widely accepted state doctrine of joint tortfeasor liability in American law, a joint tortfeasor at judgment is credited with the plaintiff’s past settlement against a departed joint tortfeasor.  The rule encourages settlement by encouraging a well bargaining defendant to settle out, while deterring needless litigation by respecting the common law maxim that “a party can have but one satisfaction for the same injury.”

In accordance with the doctrine, then, the trial court ruled that the plaintiff had been made whole, so would collect nothing more from the tax consultant, however negligent.

That was an error on the merits, the Appeals Court ruled.  “Settlements are motivated by a wide range of factors, some non-monetary, and may involve significant payments or no payment at all,” the court wrote.

Justice Desmond

[T]here are many reasons [the husband] could have agreed on behalf of [the company] to dismiss the complaint against [the wife].  To name just one, having in-depth knowledge of [her] financial status, [he] may well have concluded that [she] would be unable to pay any judgment against her.  In any event, it was clearly erroneous to conclude that the plaintiff had been made whole based on no more than (i) the mere existence of a settlement [on] multiple legal claims and (ii) hearsay assertions that a discount had been given.

The court remanded for the trial court to reassess the actual measure of credit against liability represented by the share allocation, thus the remaining liability owed to the plaintiff by the tax-consultant defendant.

The case is Custom Kits Co. v. Tessier, No. 19-P-503 (Mass. App. Ct. May 1, 2020).  Associate Justice Kenneth V. Desmond Jr. wrote for a unanimous panel with Justices Wendlandt and McDonough.

Scharf laments executive disrespect for courts in immigration enforcement

My friend and colleague Irene Scharf has written for the Human Rights At Home blog on "mid-case deportations" by Immigration and Customs Enforcement.  Professor Scharf is expert in immigration law, which I know next to nothing about.  But Professor Scharf raises the alarm about worrisome incidents of executive defiance of the courts, implicating the separation of powers and raising questions about the very rule of law in America today.

Responding to a Boston Globe editorial (pay wall) at the end of February, Professor Scharf wrote on March 20:

While I of course deplore the acts these crimes involved [subject of charges against immigration detainees], as an immigration lawyer and advocate I am deeply disturbed by ICE’s systematic and ongoing attacks on the Massachusetts judicial system.  The Globe editors referred to their hope that the federal courts will address and contain these actions. However, given what we’ve seen recently, it is unclear whether the federal government, acting through ICE, would even abide by a federal ruling. To me, that is the most alarming issue behind these ICE moves.

She quoted respected Seventh Circuit Judge Easterbrook in a recent opinion (Justia), "We have never before encountered defiance of a remand order, and we hope never to see it again.... [I]t should not be necessary to remind the Board [of Immigration Appeals], all of whose members are lawyers, that the 'judicial Power' under Article III of the Constitution is one to make conclusive decisions, not subject to disapproval or revision by another branch of government."

Teaching and learning speech and advocacy: Is online as good?

The National Communication Association met in downtown Baltimore, Md.
(All photos by RJ Peltz-Steele CC BY-SA 4.0.)

UMass Law offers oral advocacy online. I was on the curriculum committee that approved a colleague's proposal for the offering. I was surprised. Oral skills online? Is nothing sacred?

I've used Zoom quite a bit: for class guests and snow make-ups. I took the university training to teach online courses in toto; I was uninspired by the shaky infrastructure and unproved methods, especially relative to the worthy rigors of legal education. At the same time, I like teaching the occasional online one-off, and online might work well for a seminar. The early miseries of teleconferencing (still the norm in the ABA) feel nothing like the real-time interactive experience offered by contemporary tools.

Anyway, I would not vote against a colleague’s well intentioned proposal. That would be unprofessional.

Well, when you don’t know, ask an expert. At the National Communication Association annual meeting in Baltimore on Saturday, experts in public speaking debated whether the communication discipline’s most popular basic course, Public Speaking, should be taught online.

Keohane and Broeckelman-Post

In the yes camp were Melissa Broeckelman-Post, George Mason University, and Jennifer A. Keohane, University of Baltimore. They structured their argument on three points: (1) we must teach for the 21st century; (2) public speaking can be taught online effectively; and (3) online classwork enhances access to higher education.

On the first score, they cited research showing that in 2018, the number of online first job interviews doubled, and more than half of professionals telecommute at least half the week. Hillary Clinton was the first candidate to announce for the Presidency online. And globalization is pushing demand for long-distance teamwork, having to surmount communication hurdles from the technical to the cultural.

Huddy and Morreale

On the second score, Broeckelman-Post and Keohane argued that speaking competencies can be achieved through online learning, as measured in student reports of positive experience, diminished anxiety, and increased confidence. The no side referenced research showing contrary results on anxiety and confidence. On rebuttal, the yes side said that the most recent research shows at least equal efficacy by these measures, and maybe somewhat better anxiety reduction with online.

On the third score, Broeckelman-Post and Keohane argued that educators' responsibility to ensure access to education demands online teaching. They cited research counting 74% of college students as “nontraditional,” including military, parents, disabled persons, commuters, and others who are financially independent. Also, dual enrollment in college coursework is on the rise, including more than 1.2 million high schoolers.

In the no camp—though in truth, this was in large measure devil’s advocacy—were Sherwyn P. Morreale, University of Colorado, Colorado Springs, and William P. Huddy, Metropolitan State University of Denver. They appealed more to qualitative than quantitative sources.

Morreale

Morreale cited three components of student communication competence (Spitzberg 2000), motivation, knowledge, and skills. Motivation is fueled by anxiety diminution and confidence enhancement, which (at least earlier) research showed were better achieved in the live company of a supportive community and instructor. Higher order learning is accomplished through discussion and reflection, which Morreale argued are accomplished more readily in the live presence of an instructor. And as to skills, Morreale posited that conventional public speaking skills are adaptable to online communication, but not necessarily vice versa. In later discussion, Morreale conceded that the no side made an apt point on the value of students’ acquisition of tech skills, such as speaking into a mic and looking into a camera, if besides conventional skills.

Morreale pointed also to the six core components of instructional communication competence (Beebe & Mottet 2009), immediacy, affinity-seeking, relational power, credibility, clarity and humor. Live communication epitomizes immediacy and better allows a speaker to exercise relational power, she argued. Credibility and clarity are achieved best without the intermediation of mics and speakers, and humor is more readily generated in person.

Huddy

Huddy made a compelling personal appeal. His work history includes ten years as a television anchor, and he described his process of video-recording and watching himself to study and enhance his communication looking into a camera lens—thereby to manage the camera’s limitations, becoming accustomed to missing what can only be achieved in person. “Eye contact is not just gestural or theatrical,” he said. “It’s my number one opportunity to see if what I am saying is getting across to you. There’s a young lady in the back there that is kind of smiling,” he observed, telling him that what he was saying was resonating with her.

Huddy described the cruciality of de-centering in public speaking (I missed the attribution), meaning putting yourself mentally in your audience's thinking, and evolving on the fly the main points that the audience wants to hear. Learning to do that with live visual cues has no equal of experience, he argued. Effective public speaking requires richness, authenticity, and warmth, he explained, and warmth only communicates in person. An audience member in the Q&A offered some pushback, observing that she experiences a kind of warmth with students online incidentally by seeing them in their home contexts—with nagging siblings, dogs, and other home pandemonium unfolding on screens' edges.

Thorpe, Keohane, Morreale, Huddy, and Broeckelman-Post

The audience voted in the end for who won the debate and, separately, whether to offer public speaking online. Yes took both honors, which probably says a lot about the future of higher education, communication and other fields. In truth, as indicated above, Morreale and Huddy took the hard no position for sake of debate and critical analysis. Morreale in fact eagerly teaches public speaking online. All agreed that the key is not whether to teach online, but how to do it well. I imagine that should be our take-away for legal education, too.

The session was moderated by Janice Thorpe, University of Colorado, Colorado Springs. Susan Ward, Delaware County Community College, offered insightful responsive commentary.

Gruesome bone-in-burger case: verdict remanded for reconsideration of 'reptile,' 'golden rule' arguments

Willis Lam CC BY-SA 2.0

Reversing and remanding an order for new trial in a personal injury-product liability case over a $5 Wendy's hamburger, the Massachusetts Appeals Court today issued an opinion on jury argument fit to serve as a teaching tool in trial practice.

Plaintiff's counsel made improper "golden rule" and "reptile" arguments in closing, the Appeals Court concluded.  But the trial court did not fully and fairly assess whether prejudice resulted before rejecting the jury verdict and ordering a new trial.

In 2011, the 34-year-old plaintiff suffered a gruesome dental injury while eating a $5.64 small plain hamburger from the Wendy's fast-food restaurant in Medford, Massachusetts.  Skip this block quote (footnotes omitted) if you don't feel strong in the stomach today.  But if you're into this sort of thing, there's more in the opinion.

On the third or fourth bite, she heard a loud crack and crunching, and felt a pain shoot up into her upper left gum. She spit out the half-eaten food and discovered that her mouth was bleeding and one of her upper left molars (tooth 14) was split in two. The injury was caused by a piece of bone in the hamburger.

The bone had split tooth 14 well below the gum line, and the dental nerve was sheared, bleeding, and exposed. The bone also caused minor damage to the opposing lower molar (tooth 19), which was easily repaired with a filling. But repairing tooth 14 was not a simple matter and required at least twenty-three trips to various dentists over the next two years.

In its 38-page opinion, the court gave a blow-by-blow of the entire trial, just two half-days, from opening to closing arguments with ample quotations.  That rendition in itself is a great teaching tool.

The salient problems arose for the plaintiff in the closing argument.  Long quotes are given in the opinion, but the trial judge summed it up.

[S]he concluded that plaintiff's counsel's closing argument (1) improperly created an "us versus them" dichotomy designed to distinguish "'us,' the average people" from "'them,' the big corporations"; (2) "improperly suggested that the jury decide the case as 'the voice of the community' to 'send a message' beyond the courtroom," and sought "to arouse in the jury a sense of duty to safeguard the community" from generalized safety concerns; (3) improperly invoked the "golden rule" by asking the jurors to place themselves in the plaintiff's shoes; (4) improperly interjected counsel's own personal opinions and beliefs; and (5) resorted to rhetorical principles "described in the book [D. Ball & D. Keenan,] Reptile: The 2009 Manual of the Plaintiff's Revolution" (book).

Oddly enough, I just this week read in the ABA Journal about how that Ball & Keenan book is vexing the defense bar.

The court recited the Massachusetts Guide of Evidence, section 1113(b)(3), listing prohibited closing arguments (and tracking multistate norms), and located plaintiff counsel's arguments within paragraphs (C) and (D):

(A) to misstate the evidence, to refer to facts not in evidence (including excluded matters), to use evidence for a purpose other than the limited purpose for which it was admitted, or to suggest inferences not fairly based on the evidence;

(B) to state a personal opinion about the credibility of a witness, the evidence, or the ultimate issue of guilt or liability;

(C) to appeal to the jurors' emotions, passions, prejudices, or sympathies;

(D) to ask the jurors to put themselves in the position of any person involved in the case;

(E) to misstate principles of law, to make any statement that shifts the burden of proof, or to ask the finder of fact to infer guilt based on the defendant's exercise of a constitutional right; and

(F) to ask the jury to disregard the court's instructions.

Nevertheless, the appeals court faulted the trial judge: "The judge acknowledged that she had given curative instructions but deemed them inadequate without explanation."  When the jury returned a verdict for $150,005.64, the lowest amount suggested by plaintiff's counsel, plus the cost of the hamburger, it came without evidence of prejudice.  The Appeals Court admonished "that a judge is not to 'act merely as a "13th juror" [to] set [the] verdict[s] aside simply because he would have reached a different result had he been the trier of facts'" (quoting precedent).

At minimum, the trial judge applied the wrong procedural standard, holding over the defense motion for mistrial from before the verdict to after, rather than requiring (or raising sua sponte) and analyzing a motion for new trial after the verdict.  Thus the Appeals Court vacated the new-trial order and remanded for proper consideration.

The case is Fitzpatrick v. Wendy's Old Fashioned Hamburgers of New York, Inc., No. 18-P-1125 (Mass. App. Ct. Nov. 7, 2019).  Wolohojian, Blake, & Shin, JJ., were on the unanimous panel, the Hon. Gabrielle R. Wolohojian writing.  The trial judge was the Hon. Heidi E. Brieger, who teaches adjunct at her alma mater, Boston University Law School.  Matthew J. Fogelman appeared for the plaintiff.  In the 1990s, he was editor-in-chief of the student newspaper Argus at Wesleyan University.  Christopher A. Duggan and Pauline A. Jauquet represented defendants Wendy's and beef producer JBS Souderton, Inc.

Mass. App. remands textbook 'keys-in-ignitions' case on foreseeability analysis

Today the Massachusetts Appeals Court published a clean and concise opinion on negligence, focusing on foreseeability as an aspect of duty.  The decision covers basic elements and points of civil procedure, so could be of use to tort profs introducing negligence this semester.  The case is R.L. Currie Corp. v. East Coast Sand & Gravel, Inc., No. 17-P-1186 (Aug. 21, 2018).

The facts are a classic keys-left-in-car-then-stolen scenario, unfortunately involving heavy equipment instead of a car.  Employee of defendant snow-plow service left a front loader running idle and unlocked in a shared company lot.  There had been previous thefts of materials, but not heavy machinery.  Keys were routinely left in unlocked vehicles, but hidden.  In the employee's four-hour absence, the loader was driven by an unknown third party and crashed into two of plaintiff's trucks.

The trial court dismissed for failure of foreseeability, deciding no duty as a matter of law and awarding summary judgment.  The court here aptly reiterated the dual role of foreseeability as an aspect of duty and of causation.  The Massachusetts Supreme Judicial Court previously declined to adopt a doctrine of no liability as a matter of law for "keys left in ignitions" cases, employing general notions of foreseeability instead.  Upon such precedents, the appellate court remanded, concluding that the trial court erred in finding intentional vandalism beyond the scope of foreseeability as a matter of law.

Incidentally, the panel author is relatively new to the court, since July 2017.  Associate Justice Dalila Wendlandt is New Orleans born (close to my heart) and was a proper engineer who built robots at MIT before going to law school, joining the IP litigation group at Ropes & Gray, and publishing in patent law.

[UPDATE, Aug. 25: Only days after this case was decided, shocking video came to light in an ambulance-keys-in-ignition story in my home state of Rhode Island that could fuel law school hypotheticals for months. Miraculously those involved sustained only minor injuries, and complicating matters, the teen perpetrator was autistic. No criminal charges are anticipated. See WJAR Providence.]

Mass. appellate courts render two wrongful death opinions in attenuated duty and causation

Massachusetts appellate courts have rendered two wrongful death opinions in the last two days, both favoring plaintiffs.

In Dubuque v. Cumberland Farms, Inc. (AC 17-P-266) (June 6, 2018), the Court of Appeals upheld a $20m judgment against the convenience store after inadequate "bollard" protection of a pedestrian who was killed when struck by an out-of-control car.  The opinion includes an interesting discussion on evidence regarding the admissibility of past pedestrian-car collisions arguably similar or distinguishable.

Today in Correa v. Schoeck (SJC 12409), the Supreme Judicial Court reinstated Walgreens pharmacy as a defendant in the tragic death of a 19-year-old who was unable to fill a prescription for life-saving medication.  The prescription was hung up on paperwork somewhere among pharmacy, doctor's office, and insurer.  The court held the pharmacy bound to at least a thin reed of duty in the negligence claim.

Brief argues public interest in social science research, FOI, while managing privacy risk

Representing the National Association of Scholars, UCLA Professor Eugene Volokh, UALR Professor Robert Steinbuch, and I filed an amicus brief in a California appellate case in which we argue the public interest in social science research, especially freedom of information in the area of legal education and admission to the bar, while managing risks to personal privacy.  Below is the introduction.  A longer excerpt appears here on TaxProf Blog, along with a link to the full brief in PDF.  My thanks to two formidable writing partners and a dedicated client.

Introduction

The public good often depends on social science research that employs personal data. Volumes of scientific breakthroughs based on data accumulated through access to public information demonstrate the importance and feasibility of enabling research in the public interest while still respecting data privacy. For decades, reliable and routine technical methods have ensured protection for personal privacy by de-identifying personal data.

Social science research into legal education and admission to the bar is presently a matter of urgent public interest and importance, requiring solid empirical analysis of anonymized personal data that government authorities possess. Social science research of the very kind proposed by Appellants Sander and The First Amendment Coalition represents standard, indeed commonplace, research practice furthering the public interest, while employing established methodologies that minimize the risk to privacy.

Mass. App. upholds $2.9m 'actual malice' verdict over 'bitter feud' in local politics

The Range Feud (Columbia Pictures 1931)

The Massachusetts Appeals Court today rejected appeal of a defamation verdict.  The case is Van Liew v. Eliopoulos, no. 16-P-567 (soon available from the Reporter of Decisions), per Justice Blake.

The case arose amid what the court described as "a bitter feud ... between Chelmsford residents," focusing on the redevelopment of a historic property.  Plaintiff Eliopoulos was a selectman, real estate attorney, and project developer; defendant Van Liew was a business owner and project opponent.  The latter's vigorous opposition included a newsletter titled, "Why Perjury Matters."  The jury found, and the trial court entered judgment, against the defendant for 29 defamatory statements, to the tune of $2.9m.  The Appeals Court affirmed upon 26 statements.

Because the plaintiff was a public official and public figure, the case occasioned review of some First Amendment basics, namely, the Sullivan (FindLaw) "actual malice" standard and the Bose Corp. (FindLaw) standard of independent appellate review, besides the common law fact-opinion dichotomy.  Actual malice was supported, inter alia, by evidence that the defendant had reiterated charges of unethical conduct knowing that an ethics commission had exonerated the plaintiff.

The jury's damages award comprised $2.5m for reputational injury, $250,000 for emotional distress, and $150,000 in other compensatory damages.  Refusing remittitur, the Appeals Court held the damages sufficiently supported and neither excessive nor punitive.  A real estate broker had "testified that potential real estate buyers and sellers do not want to work with [plaintiff] because 'a lot of folks think that he is a—a corrupt, unethical person, because it's been said hundreds ... of times, over the past few years, in mailings and e-mails to their homes.'"  The Appeals Court opined, "The jury well could have found that the defamation turned [plaintiff] into a pariah in his own community, a status for him that has no end in sight."

Not many years ago, a politician-plaintiff's favorable verdict on actual malice was about as likely as, well not quite a unicorn, but maybe a California condor.  I advised more than one public-figure colleague not to pursue a cause because of cost, emotional toll, and mainly the overwhelming probability of loss under prophylactic free speech rules, all notwithstanding merits.  The "actual malice" standard on its face suggests no more rigor than a thoughtful recklessness analysis, but trial courts seemed to find it, to borrow the sometimes critique of strict scrutiny, "fatal in fact."

The efficacy of that conventional wisdom has been on the wane in recent years, and I welcome the return to fairness.  The $3m defamation verdict against Rolling Stone and its reporter in November  for "Rape on Campus" (NYT) and the Hulk Hogan (Bollea) privacy win against Gawker (settlement in NYT; new Netflix docko in The Atlantic) are high-profile instances of what might be a sea change underway to balance the scales.  Much hand-wringing has attended the President's "open up our libel laws" statement (NYT), and rightly so.  But that doesn't mean that the frustration that propelled Trump into office is wholly ill derived, on this point any less than on jobs and the economy.

The Appeals Court's application of "actual malice" was workaday and workmanlike.  That's the kind of cool rationality we need in our courts, now more than ever.

Exemplary court decision pries open 50-year-old murder investigation

Transparency (FOIA, open records, sunshine) advocates, public information officers, and judges hearing FOIA cases throughout the United States should heed a straightforward and concise decision this spring from the Arkansas Supreme Court, per Justice Rhonda K. Wood, concerning ongoing police investigations.  The case is Arkansas State Police v. Keech Law Firm, P.A., No. 16-545 (Ark. Apr. 20, 2017).  Bonus: the case comes with interesting, if tragic, facts.

In 1963, the murder of Harding College (now University) alumna and English Professor Ruby Lowery Stapleton shocked the community of Searcy, Arkansas.  According to the Harding College Bulletin, Stapleton was believed taken from a self-service laundry in Searcy, Arkansas.  Federal and state law enforcement officers and Harding volunteers searched for her for 11 days, and Harding offered a $1,000 reward for information leading to her detection.  Her body was found by a squirrel hunter in a dry creek bed 15 miles from the laundry.  Stapleton was survived by her husband and two children.

Professor Ruby Stapleton in the Harding College Bulletin, October 1963

Stapleton’s murder remains unsolved.  Fifty years later, in November 2013, family members sought access to the Arkansas State Police case file on the Stapleton murder.  The request spurred brief police re-engagement with the cold case, apparently to no avail.  Police refused access to the file under the ongoing investigation exemption of the Arkansas Freedom of Information Act.  After in camera review of the file, the Arkansas Circuit Court rejected the police theory and ordered the file disclosed.  The Arkansas Supreme Court affirmed.

Ongoing investigation exemptions are a FOIA universal across the state and federal sunshine statutes.  The public policy supporting them is hardly disputed: police investigations require secrecy, lest evidence be compromised or suspects tipped off.  At the same time, transparency is nowhere more urgent a policy priority than when counterpoised with the enormity of state police power to curtail liberty and even life.  This balance proves exceptionally difficult to achieve.  Cases vary broadly in their particulars, and judicial determinations are profoundly fact driven.

Therefore, though the language of ongoing investigation exemptions varies considerably, the question usually boils down to a court’s willingness to defer to, or to second-guess, police discretion.  The Arkansas statute provides a good example of the textual variability, because the statute actually protects only “undisclosed” police records against disclosure.  But that nonsensical oddity has long been construed by the state courts to mean “ongoing investigation,” in conformance with multistate FOIA norms.

In practice, on the whole across the states, courts tend to err on the side of secrecy.  To the frustration of journalists especially, no local judge wants to be responsible for obstructing or derailing a criminal investigation.  Thus law enforcement officials are frequently able to prolong the secrecy surrounding an investigation file well beyond arrest—to charge, to trial, even to exhaustion of appeals.  In fact, criminal investigation files might remain sealed indefinitely, while co-conspirators remain at large—or crimes remain unsolved.

Despite judicial patience that sometimes seems inexhaustible, the imperative of accountability for law enforcement weighs heavily against indefinite secrecy.  The Arkansas Supreme Court quoted a treatise on the Arkansas FOIA co-authored by John J. Watkins, Robert E. Steinbuch, and myself:

Police and prosecutors should not be permitted to apply this exemption as a matter of course until conviction or acquittal, or indefinitely until a charge is brought, if there is no genuine interest in enduring secrecy. To do so would excessively insulate the government against legitimate probes by the public and media into the performance of law-enforcement functions, even apart from the disadvantage to criminal defendants.

Long-cold cases such as the Stapleton murder squarely present this problem.  In reviewing the investigation file in camera in 2014, the Arkansas Circuit Court found “sparse activity” since 1965.  Police cited no documentary evidence of ongoing investigation from 1965 until the filing of the family’s FOIA request.  The Arkansas Supreme Court summed up the case simply: “This is a 54-year-old murder case. No charges have been brought or appear to be imminent.  The victim’s family and the public are entitled to know how the officials in this case, i.e., law enforcement, performed their duties.”

In the course of its concise analysis, the Court reiterated several points of best practices in FOIA compliance and dispute resolution.  These are multistate principles that warrant review.

• A FOIA should be construed liberally to accomplish the objective of transparency.
• Inversely, FOIA exemptions should be construed narrowly to accomplish the objective of transparency.
• As usual in litigation, questions of law and interpretation of a FOIA are subject to de novo appellate review.
• A trial court should conduct in camera review of disputed records to determine the applicability of a statutory exemption from disclosure.

The Arkansas Supreme Court stated moreover another solid practice point that had been lacking in state precedent:  Also as usual in litigation, questions of fact in a FOIA analysis are subject to the more deferential appellate standard of review, clear error.  As the Court observed, application of an ongoing investigation exemption is especially prone to generate a question of fact, as a qualitative, if not quantitative, assessment of purported police investigative activity is part and parcel of the analysis.  In the Stapleton FOIA case, the Court applied the clear error standard to defer to the circuit court’s assessment of the 1965-2014 police file.

As the Arkansas Court wrote, “A finding is clearly erroneous when the appellate court is left with a definite and firm conviction that a mistake has been committed.”  Or as the Seventh Circuit famously wrote in 1988: “To be clearly erroneous, a decision must strike us as more than just maybe or probably wrong; it must, as one member of this court recently stated during oral argument, strike us as wrong with the force of a five-week-old, unrefrigerated dead fish.”  A finding that is not clearly erroneous should be left undisturbed.

Finally, full disclosure and point of privilege:  Justice Wood, who authored this case for the Arkansas Supreme Court, was a law student, and then later a dean, when I taught at the University of Arkansas at Little Rock Law School.  She has shined in her career as lawyer, academic, and judge, undoubtedly owing to her unyielding integrity, character, and intellect—and decidedly owing in no part to me.  Nevertheless, I assert pride by virtue of mere association.