Friday, November 04, 2005
The "exorbitant" request for fees and costs, Posner says, amounts to an abuse of process.
The fee request had been granted originally, because Consolidated's appeal was so obviously frivolous. How can it take 14 hours of anyone's time to point out the obvious?
13.7 hours for 4 pages and 5 cases? I've done a bunch of appeals both as appellant and appellee. The rule that seems to work out for me in every but the most unusual case is an hour per page in a brief, excluding the formal stuff numbered with Roman numerals. That's a brief. Motions and memos generally take a lot less.
So grant Budget, liberally, 4 hours of associates' time and a half hour of partner time to review the piece. At the rates mentioned in the opinion, that's about $1,500. Still pretty steep for a four-page memo, it seems to me, but less than a third of what Budget's lawyers requested.
I wonder if Budget is going to ask its lawyers to write off the fees. I wonder if the lawyers are going to offer to write them off. I wonder if Budget is going to do a review of the fees it has paid these lawyers in the past. I wonder if this is going to find its way to Illinois' attorney disciplinary authority.
I forgot to mention that the lawyers wanted another $4,300 for the time spent preparing the fee request. As part of the costs, they tried to get Consolidated to pay the $165 fee to have a lawyer admitted to practice in the 7th.
Shocks my conscience. And I'm a lawyer.
Thursday, November 03, 2005
Before getting to the (serious) problems with the cases, Wilson finally takes care of an even more awful case, Hilton v. State, 648 N.E.2d 361 (Ind. 1995), in which Justice Selby, in her very first opinion, said that a lawyer who says, "I believe the witness will testify to X" does not make a sufficient offer to prove to preserve anything for appeal. The "I believe" was, according to Justice Selby and a unanimous court, insufficient. Hilton also placed other unreasonable and even silly requirements on offers to prove; and Wilson takes care of those too.
Hilton qualified, actually, for membership among the Blatant Indencies in the sidebar, and not just for its treatment of offers to prove. I've been waiting for its demise, in whole or in part, for 10 years.
Wilson is extraordinary, because it actually invalidates an entire code section because, the court says, the section was a "mistake" when considered together with the purpose of an entire recodification as that purpose was expressed in another section. (The alleged purpose of the recodification was not to change existing law.) The court tries to put the "mistake" off on the Commission on Recodification and its staff. One problem with this at least is that it is impossible to say which section, substance or purpose, is the "mistake," assuming there is one.
If you think about it, Wilson has a great deal in common with Justice Breyer's remedial opinion in Booker. It declares "ineffective" a statute properly passed into law that would not be "ineffective" if properly passed again into law tomorrow.
Glover says, without much ado, that either spouse can waive spousal privilege--which is to say, it pretty effectively does in the privilege. ("We think both the statutory language and a more realistic view of the reasons for this privilege support the conclusion that either spouse may waive the privilege.") That also does in 100 plus years of pretty well-established law, I think. Well, Ok.
At least one problem, though, is that the spousal privilege statute was part of the same recodification of the 1881 Civil Code as the statute at issue in Wilson. In Wilson the court takes the extraordinary step to invalidate a statute, because the statute changed the law when the purpose of the recodification was to not change the law. Then in Glover, the Supreme Court re-interprets a statute to change 100 years of law, even though it has just said in another opinion that it was the express intent of the General Assembly to not do that?
There is an additional problem with Glover. Maybe it is not so much a problem as simply something that ought to be discussed. There is a collision of two pretty well-established rules. On the one hand, priveleges are to be construed narrowly, which Glover says. But Glover also says that the common law rule was that either spouse could prevent the other from testifying. So the spousal privelege statute is in derogation of the common law. Statutes in derogation of the common law are also to be strictly construed and limited, to the extent possible, in their departure from the common law. Nothing in the spousal privilege statute suggests, much less requires, a change in the common law rule that either spouse may prevent the other from testifying.
I am not saying that there might not be a rational way to reach the same results in both Wilson and Glover. But they cannot both be right as written--except, perhaps, to the extent that they are decisions adverse to criminal defendants.
It is truly fascinating how little dissent there is on this court, even when pitching a century of law out with the . I doubt you could pick five lawyers randomly who would agree about the outcome, much less the means of getting there, in either of these cases. And we have five justices appointed by three governors over 15 years.
It would be a pretty interesting experiment, it seems to me, to give five top-notch Indiana lawyers the problems presented by these cases, have each do the research, and then write a hypothetical majority opinion. Then have them swap the opinions and have a vote. I understand that's not how opinions get written, but it might still be instructive, if not illuminating.
I read these cases and feel like the rat who's shocked no matter what door he opens--nuts.
Tuesday, November 01, 2005
In a fascinating turn of events, one panel of the Court of Appeals appears to have gotten tired of waiting for the Indiana Supreme Court's transfer decision in Ryle. In Pinkston v. State, No. 49A02-0412-CR-1003 (Ind. Ct. App. 10/31/05), (Robb and Bailey, Friedlander dissenting), the court decides that juvenile adjudications are not prior convictions for Blakely purposes after all.
The docket shows that Pinkston was fully briefed on June 9th. The Supreme Court heard oral argument in Ryle on June 21st. So this panel--or two members of it--either got tired of waiting or decided to contribute to the debate.
The court does, in fact, contribute something new to the debate. In addition to relying on Tighe (9th Cir)and Brown (that case from the crazy, liberal Louisiana Supreme Court), the court brings up two Tennessee cases that eluded me back in June when everyone was Ryle'd up: State v. Chatman, No. 01-0494 (Tenn. Crim App. April 19, 2005) and a case it relies on: State v. Wallace, No. (Tenn. Crim. App. January 28, 2005). (Chatman was decided four days after the Tennessee Supreme Court said in Gomez, over the AG's concession, that Blakely does not apply to Tennessee sentencing. So why the Chatman court had to consider Blakely at all escapes me.)
While deciding an important issue, the court misses another obvious one as well. In imposing an enhanced sentence, the trial court relied on the statutory aggravator that a reduced or suspended sentence would depreciate the seriousness of the crime. Both the Indiana Supreme Court and Court of Appeals have repeatedly said that this particular aggravating circumstance may only be used to justify refusing to mitigate a sentence and may not be used to enhance one. Since nothing in the opinion suggests that the trial court was considering a mitigated sentence, this aggravator was invalid.
The court also makes a bollocks of the opinion in its "Standard of Review" section beginning on page 8. The court purports to review the appropriateness of Pinkston's sentence under Indiana Appellate Rule 7(B). But the error the court finds is constitutional, so the debate should only be about whether Blakely error is structural or subject to harmless error analysis.
Even if Blakely error is subject to harmless error analysis, the error in not submitting the juvenile adjudications to a jury was surely not harmless. There were only three aggravators: the juvenile adjudications, the reduced sentence etc., mentioned just above, and the judicial finding that Pinkston was "in need of correctional or rehabilitative treatment that can best be provided by commitment to a penal facility." Given the invalidity of the first two aggravators, the third, which had to be "derivative" at least in part of the other two, has to be invalid as well.
Just a word about Judge Friedlander's dissent. He's one of the gang for whom the prior-conviction exception is the "criminal history" exception; and juvenile adjudications are criminal history. Judge Friedlander is surely right that it is not a foregone conclusion that the Supreme Court is going to decide Ryle differently from the way the Court of Appeals did.
In fact, there are really only two reasons--discounting sloth--that I can imagine Ryle is taking so long: either the court doesn't think the case is very important in light of the number of cases involved and the Bookerization of the sentencing statutes last April; or there is one hell of a disagreement among the justices--who almost never like to publicly disagree too much. (I cannot recall when last I saw a scathing dissent from an Indiana justice. There have certainly been enough cases to justify one.)
Pinkston is worth reading in its entirety also because it is the first published opinion, I think, in an appeal from a post-Blakely jury sentencing. There will be more. A fascinating tidbit, by the way, is that the State filed a notice of aggravating circumstances way back at the end of September 2004--almost 6 months before Smylie was decided, 3 weeks before the Court of Appeals said that Blakely was "superficially applicable" in Holden, and while the Indiana AG was swearing up and down, in briefs and public comments, that Blakely did not apply to Indiana sentencing.