Noteworthy U.S. Supreme Court Decisions of 2010

Once again, this year, I was mesmerized by the melodic cadence of renowned Professor Erwin Chemerinsky’s lecture discussing the significant U.S. Supreme Court opinions of 2010.  Here is a tongue in cheek recap of some of the more interesting decisions Professor Chemerinsky highlighted.

• Don’t expect a Fourth Amendment right to privacy when sending text messages with employer-owned equipment to your mistress while on the job.

City of Ontario v. Quon, 560 U.S. ___ (2010).

• If you want to invoke your right to remain silent, break your silence and say so.

Berguis v. Thompkins, 560 U.S. ___ (2010).

• Justice Scalia has decided the invocation of the right to counsel while being questioned automatically expires after 14 days.  Thus, the new police interrogation  techniques will be to arrest and Mirandize  a suspect, and if he invokes his right to counsel during questioning, simply wait 14 day periods before interrogating again.

Maryland v. Shatzer, 559 U.S. ___ (2010).

• Locking up your teenager and throwing away the key for anything less than murder is cruel and unusual punishment.

Graham v. Florida, 560 U.S. ___ (2010).

• Criminal lawyers who want to get their resident alien clients off, advise them to plead guilty and then misadvise them a guilty plea will not result in automatic deportation.

Padilla v. Kentucky, 559 U.S. ___ (2010).

• Corporations are people too; at least when it comes to the First Amendment and spending money in election campaigns.

Citizens United v. Federal Election Commission, 558 U.S. ___ (2010).

Professor Chemerinsky has a unique ability to keep participants attentive with not only his distinctive style of speech, but with his humorous side notes and commentary.  This year I noticed that not only do more questions get asked in Professor Chemerinsky's CLE lectures, but the questions are generally the sort one would have asked in one's Constitutional Law class in law school to impress the professor, i.e., statements of opinion or analysis disguised as questions:  "Well, is it your opinion professor that this case modifies the (insert obscure reference to case law not being discussed) case?"

But, I have to admit, listening to my fellow attendees attempt to impress Professor Chemerinsky is almost as much fun as listening to his lecture.

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Finding That Elusive Legal Niche Is Not Always A Good Thing

The ABA Journal reports that a young Las Vegas attorney was so successful after opening his own practice two years out of law school, he had a "breakdown" from the sheer volume of clients.  Citing the RJ, the ABA Journal reports that Jorge Sanchez launched his own bankruptcy practice catering to Spanish-speaking clients just two years out of law school.  Apparently,Mr. Sanchez quickly became inundated with clients, and unable to keep up, struck a deal with Las Vegas attorney Joseph Scalia.But the deal between the two attorneys soured, resulting in what the ABA termed Mr. Sanchez's "breakdown."  The ABA Journal reports that last week the Nevada Supreme Court temporarily suspended Mr. Sanchez's license.
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Ninth Circuit Rules Lower Court Appropriately Considered Award of Attorney's Fees Under ERISA To Plaintiff After Grant of Summary Judgment Against Plaintiff's Claims

On June 24, 2010, the Ninth Circuit Court decided an ERISA case entitled
Simonia v. Glendale Nissan/Infinity.  Where a plaintiff's claim under ERISA 
has achieved "some degree of success on the merits," the plaintiff may seek
attoreny's fees under section 1132(g) under ERISA.

In this case, Plaintiff's claim for continuing disability benefits was dismissed on
summary judgment, and Plaintiff's "degree of success" amounted to Defendant
Hartford agreeing to dismiss its counterclaim for overpayment of benefits due
to retroactive SSDI payments received by Plaintiff, after Plaintiff informed
Hartford that the Social Security Administration subsequently retroactively
reduced his SSDI award.

The Ninth Circuit, relying on the recent Supreme Court case Hardt v.
Reliance Standard Life Insurance Co., 560 U.S. ___ (2010), concluded 
that in exercising its discretion to award attorney's fees, a trial court must apply
the factors enumerated in Hummell v. S.E. Rykoff & Co., 634 F.2d 446
(9th Cir. 1980), to guide the trial court's decision as to whether to award
attorney's fees a determination that the plaintiff has acheived "some degree of
success" under ERISA..
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Federal Court, Rather Than Arbitrator, Had Authority to Rule on Enforceability of Arbitration Clause In Employment Agreement

Last week the United States Supreme Court decided a case originating out of Nevada,

Rent-A-Center, West, Inc. v. Jackson, 561 U.S. ___ (2010).  An employee of Rent-A-

Center filed an employment discrimination suit in federal court, and the employer filed a

motion to compel arbitration.  On Certiorari from the Ninth Circuit, the Supreme Court ruled

that under the Federal Arbitration Act, codified in Title 9 of the United States Code (FAA),

the courts could decide the enforceability of an arbitration clause in an employment agreement 

that stated the arbitrator must decide the enforceability of the agreement as a whole,  

whereas only the arbitrator could decide whether the employment agreement as a whole

was enforceable.

In opposing the motion to compel arbitration, Jackson argued the arbitration clause was unconscionable under Nevada law.  The federal trial court dismissed, stating the arbtration clause prevented it from deciding Jackson's unconscionable argument. Jackson appealed to the Ninth Circuit, which reversed, stating the courts decide the threshold question of whether the agreement was enforceable, affirmed the trial court's finding against Jackson on part of his unconscionable argument, and remanding for the trail court to decide the remainder of Jackson's unconscionable argument.

Justice Scalia delivered the opinion, and pointed out that Jackson's challenge was not to the validity of the agreement but to his manifestation of intent to the arbitration clause based on his unconscionability agrument.  Additionally, Jackson's briefs argued the entire agreement was invalid.  Based on those observations, Scalia concluded that Jackson's challenge was to the validity of the agreement as a whole versus the validity of the arbitration clause, and reversed the Ninth Circuit's decision.

Relying on First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995), Justice Stevens dissented, reasoning that the arbitration clause at issue did not "clearly and unmistakeably" evince Jackson's assent to arbitration because of his unconscionability argument.  Stevens characterized Scalia's opinion as a "'fantastic' and likely erroneous decision" because it went beyond what the parties asked the Court to decide.  Stevens also asserted that the majority opinion expanded the holding in Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395 (1967), where the challenge was to the validity of the agreement due to fraud in the inducement, and not to the embedded arbitration clause.  Thus, Stevens would have affirmed the Ninth Circuit's decision.

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There's An App For Bar Exam Torture

It was only a matter of time that the iPhone would be used for evil. The ABA Journal reports that bar review courses are now available as an app in the iTunes store, with, sadly, the same four figure price tag as the live course. Sigh, there goes all the fun out of owning an iPhone if you are a recent law school graduate.
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Does Harry Reid Really Need to Resign?

Okay, so there is no court action on which to report here. But I feel compelled to weigh in (along with scores of others) on the present flap surrounding Harry Reid's unfortunate comments about then presidential hopeful Barack Obama, memorialized for all time in the upcoming book Game Change. I won't bore the reader with quoting Reid's comments once again--if anyone really needs reminding, Google "Harry Reid" and "Game Change" and his comments will be readily found.

The most interesting thing about Reid's comments isn't that the comments were made, because people of color know that racist comments still lurk at every corner and pop up even in their own backyards. What is interesting is that Reid was actually trying to say something positive and those were the words he chose to use. Reid was trying to discuss the reasons he felt his party had a good chance of winning the presidential election. In fact, what Reid said is probably true. It probably was a lot easier for a lot of (white) Americans to cast their vote for Obama because (all things being equal) he came across as more mainstream than, say, Al Sharpton or Jesse Jackson.

But, of course, "mainstream" is not the adjective that Harry Reid used. Even if Reid was trying to make a valid point, his words betray an old-time way of thinking. His words echo a time in our history when it was common to hear racist remarks in polite company and no one batted an eye. Really, this is the way a lot of "old white men" (for lack of a better stereotyping, pigeon-holing descriptive phrase) still talk today behind closed doors and amongst themselves. Remember the Texaco scandal from the late 1990's? If not, click here. So, is Reid a racist? After all, Reid was actually trying to complement Obama rather than denigrate him.

Let's look at it from a different angle. If a Republican Senator had made the exact same comments about a Republican candidate, (hypothetically, say, RNC Chairman Michael Steele), would they sound any more or less racist? Would the public or the media be more inclined to forgive a Republican for making the same remarks? Would we chalk it up to ignorance or insensitivity, but not racism because the comments were an attempt, albiet a poor one, at a compliment of a fellow Republican who just happened to be an African-American?

Let's change the angle again. What if Reid had commented on a different hypothetical African-American candidate from the Republican party and had speculated, hypothetically, that the hypothetical candidate had little chance of winning because America was not ready for a president with dark skin color and strong dialect? Let's face it; those conversations probably took place somewhere in the Republican party when Al Sharpton and Rev. Jesse Jackson were campaigning for the Democratic nomination. Perhaps, by itself, that concept may not be objectionable because perhaps it was true. But let's not forget the specific words Reid used, and this hypothetical discussion takes on a more racist feel.

Let's make that angle even more acute. What if a Republican had made the above hypothetical comments about a hypothetical Democratic candidate? It is not as though the Republican party has the reputation of championing racial equality. Now those hypothetical comments sound even more racist. Now it sounds more like the comments made at that Texaco corporate boardroom.

I guess my point is this: Racist comments are made by all kinds of people all the time, whether the comments are about African-Americans, Asian-Americans or even Native Americans. But what makes the speaker a racist is a lot more complicated. Racism in the United States hasn't gone anywhere except underground, which only makes it harder to accurately point out the racists. Reid apologized profusely, appeared contrite and President Obama accepted his apology. So, is Harry Reid a racist? Who knows. Should he resign? Probably not.

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My Afternoon With Erwin....Chemerinsky, That Is.

During my last minute marathon in December to get all my Continuing Legal Education credits before the year's end, I had the pleasure of landing in a CLE lecture given by Erwin Chemerinsky at the Boyd School of Law. Chemerinsky, is of course a reknowned law school Professor of constitutional law, and is the founding Dean of the University of California at Irvin School of Law. Chemerinsky's unique vocal cadence and his particular brand of humor always makes dry legal subjects sound more interesting. Of course, Chemerinsky's area of law is far from dry; who isn't interested in the nuances of the sexy parts of constitutional law? The CLE did not disappoint as Chemerinsky recapped the most interesting and significant U.S. Supreme Court decisions for 2009. Here are summaries of three of the Supreme Court decisions he discussed that have particular relevance to Nevada.

A Complaint Can No Longer Rely on the Notice Pleading Standard to Avoid Dismissal.
Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). Despite being less than one year old, Ashcroft is on the verge of being the most cited case in history, according to Chemerinsky. The reason it is so important is that the circuit courts are treating Ashcroft as a new standard in pleading requirements. Notice pleading is no longer sufficient to avoid dismissal. The plaintiff must allege facts that make his claim "plausible," not just a recital of the elements, and the reviewing court may draw on common sense and its experience within the context of the allegations to determining plausibility.

Litigants May Not Contribute to the Presiding Judge's Election Campaign.
Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252 (2009). Where a judge receives substantial campaign contributions from a litigant, and does not recuse herself, due process is violated. Being that Nevada elects its judges, this ruling has the potential to put a monkey wrench in the Nevada Judiciary. As was reported in depth by the Los Angeles Times back in 2005, Nevada is still a relatively small business and legal community, and it is not unheard of for litigants to contribute to a judge's campaign, even to the judge before which they are appearing. Caperton may change that practice. Even better, Nevada may finally adopt another system for choosing judges.

Certiorari Granted To Decide If Second Amendment Applies to State Governments.
McDonald v. City of Chicago, 129 S. Ct. ___ (2009). According to Chemerinsky, between the years 1791 - 2008, not one law was ever invalidated as violating the Second Amendment. Last year the Supreme Court invalidated a gun control law in Washington DC as barred by the Second Amendment. Now the Court will decide if the Second Amendment applies to state and local government.

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Ninth Circuit Finds NY Attorney Entitled to Additional Fees for Value of Referring Case to Nevada Law Firm

The Ninth Circuit has remanded a fee dispute case between attorneys to the trial court for a recalculation of the fees the referring New York attorney is entitled to for the referral to the Nevada law firm that successfully settled the case.

New York attorney Brian Fitzgerald referred a medical malpractice case to the Nevada law firm and alleged that there was an oral agreement to share the fees 50/50. The trial court rejected this argument, instead awarding Fitzgerald fees based on quantum meruit in an amount totaling one third of the added value to the client for Fitzgerald convincing the Nevada law firm to lower its contingency fee arrangement with the client. Fitzgerald appealed both the rejection of the oral agreement and the award under the theory of quantum meruit. The Ninth Circuit affirmed the trial court's rejection of the oral agreement, but remanded the case for the trial court to recalculate the quantum meruit award. The Court concluded that the trial court did not properly consider the value to the Nevada law firm of Fitzgerald's referral of the case to the firm.

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US Supreme Court Vacates Seventh Circuit's Opinion for Failure to Consider All of Death Row Inmate's Arguments

 The U.S. Supreme Court granted certiorari in Corcoran v. Indiana, 558 U.S. __ (2009), to death row 
inmate Joseph Corcoran in his appeal from the Seventh Circuit's reinstatement of his death sentence. 
Corcoran's habeas corpus Sixth Amendment challenge to his death sentence was granted by the 
district court but overturned by the Seventh Circuit.

In granting Corcoran's Habeas Corpus Petition, the district court stated Corcoran's other arguments 
against his death sentence were rendered moot. On appeal by Indiana, the Seventh Circuit failed to 
provide any explanation for disposing of Corcoran's other arguments, which included claims that the 
trial court committed various errors at sentencing, Indiana's capital sentence statute is unconsti-
tutional, prosecutorial misconduct at sentencing, and that Corcoran should not be put to death 
because he is mentally ill. The Supreme Court concluded the Seventh Circuit erred by not considering 
or explaining its disposal of Corcoran's other arguments, and remanded the case for resentencing.
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US Supreme Court Chief Justice Dissents from Court's Refusal to Hear DWI Case

AOL News reports that Chief Justice John Roberts has expressed his disagreement with the U.S. Supreme Court's decision in Virginia v. Joseph A. Moses Harris, Jr., 558 U.S, __ (2009), to deny certiorari in a DWI guilty verdict overturned by the Virginia Supreme Court. The Virginia Court overturned the conviction because the police were alerted to the defendant's drunk driving by an anonymous tipster without personally observing the defendant breaking any traffic laws prior to stopping the defendant.  
The Virginia Supreme Court concluded that the traffic stop violated the Fourth Amendment's prohibition of unreasonable searches and seizures. Justice Roberts, in a dissent joined by Justice Scalia, pointed out that state and federal courts are divided as to whether a traffic stop based on an anonymous tip to police that the driver is drunk when the investigating officer did not personally observe any traffic violations prior to the traffic stop actually violates the Fourth Amendment. Justice Roberts expressed doubt that a DWI case would fall under the general rule expressed by Florida v. J.L., 520 U.S. 266, 270 (2000), because "[t]he imminence of the danger posed by drunk drivers exceeds that at issue in other types of cases."
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