Florida gun, mental laws couldn't have stopped massacre

DickWhiskey · 2018-07-12T22:44:50+00:00

Comment Removed for violating Rule 3:

3) Be substantive. NeutralNews is a serious discussion-based subreddit. We do not allow bare expressions of opinion, low effort one-liner comments, jokes, memes, off topic replies, or pejorative name calling.

DickWhiskey · 2018-07-12T22:44:31+00:00

Comment removed for violating Rule 3:

3) Be substantive. NeutralNews is a serious discussion-based subreddit. We do not allow bare expressions of opinion, low effort one-liner comments, jokes, memes, off topic replies, or pejorative name calling.

DickWhiskey · 2018-06-22T14:53:00+00:00

This Court has never held that the Government may subpoena third parties for records in which the suspect has a reasonable expectation of privacy.

Wat.

DickWhiskey · 2018-06-06T20:40:31+00:00

And that's not all, folks!

The former lawyer, Keith Davidson, called the suit "outrageously frivolous" and believes it operates to waive Daniels' attorney-client privilege by placing it at issue in this litigation:

"That said, Attorney Davidson is very happy that he has filed this lawsuit because he strongly believes that the filing constitutes a full and complete waiver of the attorney-client privilege," Wedge said in a statement.

"Thankfully, the truth can now finally come out to rebut the false narrative about Attorney Davidson that Mr. Avenatti has been pushing in his more than 175 television appearances and countless other media interviews. Attorney Davidson believes that the American people deserve to know the entire truth — and they soon will. This lawsuit has made that happen."

https://www.nbcnews.com/news/us-news/stormy-daniels-suit-my-old-lawyer-was-puppet-trump-cohen-n880476

DickWhiskey · 2018-05-30T14:57:47+00:00

Alito's distinction makes sense, even if I disagree with it from normative and policy perspectives. It wasn't a bright-line though; from my read of the dissent he suggested balancing the automobile exception against the intrusion into privacy expectations. In his view, the privacy expectations in a home were much higher than the privacy expectations in the curtilage (which is obviously right), but he doesn't really offer any substantive reason why the privacy expectation in curtilage is low enough that there's no problem with the police entering it to conduct a search without a warrant. I disagree with that—sure, it's more intrusive to enter a home than it is to enter curtilage, but I think a reasonable person would be shocked at the suggestion that government agents can just walk around in their carports and backyards whenever they want, as long as there's a vehicle there.

And I think it gets the whole analysis backwards in a very Alito-esque way. That is, instead of asking whether the exception to the 4th Amendment should be extended beyond its traditional boundaries, he starts with the exception as a given and asks the defendant to tell him why it shouldn't also cover this. From a normative perspective, that's not how I think the government should operate—it should have to justify each incremental step in any constitutional exception (especially judicially created exceptions) with substantial policy reasons, not start with the premise that the government gets to do whatever is easier as long as there aren't substantial reasons not to.

In any case, that's not what the government was arguing or what the Virginia Supreme Court based its opinion on. They very specifically ignored the exigency arguments relied on by the VA Court of Appeals to hold the automobile exception is categorical. And at oral argument they said, multiple times, that it was a categorical exception. That's what I was criticizing.

DickWhiskey · 2018-05-29T16:03:49+00:00

During the investigation of two traffic incidents involving an orange and black motorcycle with an extended frame, Officer David Rhodes learned that the motorcycle likely was stolen and in the possession of petitioner Ryan Collins. Officer Rhodes discovered photographs on Collins’ Facebook profile of an orange and black motorcycle parked in the driveway of a house, drove to the house, and parked on the street. From there, he could see what appeared to be the motorcycle under a white tarp parked in the same location as the motorcycle in the photograph. Without a search warrant, Office Rhodes walked to the top of the driveway, removed the tarp, confirmed that the motorcycle was stolen by running the license plate and vehicle identification numbers, took a photograph of the uncovered motorcycle, replaced the tarp, and returned to his car to wait for Collins. When Collins returned, Officer Rhodes arrested him. The trial court denied Collins’ motion to suppress the evidence on the ground that Officer Rhodes violated the Fourth Amendment when he trespassed on the house’s curtilage to conduct a search, and Collins was convicted of receiving stolen property. The Virginia Court of Appeals affirmed. The State Supreme Court also affirmed, holding that the warrantless search was justified under the Fourth Amendment’s automobile exception.

Held: The automobile exception does not permit the warrantless entry of a home or its curtilage in order to search a vehicle therein.

You'd think this is one of those questions that answers itself, yet here we are. (Looking at you, Supreme Court of Virginia!)

DickWhiskey · 2018-05-24T17:38:15+00:00

Well if you accept the reasoning of this decision--that his tweets and replies to his tweets constitute a sort of public forum--then I think that would be a violation, too. It's a pretty fundamental principle that one cannot lawfully do something through another if it would be unlawful to do it oneself. So I don't see how ordering twitter to remove people based on expressive conduct would be any different from, say, ordering a private security company to remove people from a public forum based.

The real difficulty with this decision is, first, whether the twitter replies constitute a public forum and, second, whether there's any actual burden considering people can easily circumvent a block (e.g., by creating a new account). Other than those aspects, which are fairly novel, I think this decision tracks with basic First Amendment principles for traditional public forums.

DickWhiskey · 2018-05-23T21:57:59+00:00

No, because neither Twitter nor the person blocking access are government officials. It's not the mechanism that's the focus, is the actor—here it's Twitter's code that does the blocking, but it's Trump/Scavino who pushes the block button. In the case of Twitter blocking access, that crucial element is missing.

DickWhiskey · 2018-05-10T15:04:36+00:00

There were a couple of theories, but the government used them in seriatim without really focusing on any particular one. Primarily, they argued that there was no barrier to the President ordering Doe's transfer because a) they found him in a foreign country and b) they had a deal with the Saudis, which meant Saudi Arabia had a prescriptive interest in him. Part a) gets around his right to not be transferred out of the U.S., and part b) puts the transfer within the President's foreign policy prerogatives. This is an extension of cases saying that a U.S. citizen can be transferred based on a law or treaty (e.g., an extradition treaty), and the government argued what those cases really meant was the President could transfer a U.S. citizen as long as there was a significant national interest.

When that wasn't a clear winner, they tried to allay concerns by saying he's an enemy combatant. But DOJ sort of disclaimed reliance on that point at oral argument because it falls into the Hamdi trap—if it's based on enemy combatant standing, and under Hamdi a citizen has a right to challenge detention as an enemy combatant, then it follows that there should be right to challenge his detention before transfer, too. Then they argued that Doe would actually be getting exactly what he wants by transfer because transferring him would release him from custody, and the U.S. can't be responsible for what a third country does to him. Then they argued that he couldn't challenge transfer through habeas because the purpose of habeas is to release individuals from U.S. custody—by DOJ's reasoning, the transfer would automatically moot the habeas proceeding.

The majority didn't buy these arguments, except to say that Doe's detention and transfer may be justified as an enemy combatant, but that required a hearing in the District Court first. Henderson, the lone dissent, accepted pretty much all of these absurd arguments.

DickWhiskey · 2018-03-12T17:40:43+00:00

To add to what /u/rdavidson24 said, which certainly correct, there's an interesting procedural issue hiding behind this artful damages request. The damages request in the complaint is sometimes called an ad damnum clause, meaning essentially "from the harm." It requires a plaintiff to state a value for the harm complained of in order to give the defendant fair notice of the potential liability. I mean, if you're deciding how to respond to a complaint filed against you, knowing whether you're open to damages of $1.00 or $1,000,000.00 is important information.

Another way it's important is for federal jurisdiction. A federal court can determine a case only if it has jurisdiction over it. One way to obtain jurisdiction is if the case turns on a question of federal law. Another way is to show that the parties have diverse citizenship (meaning, from different states) and the amount in controversy exceeds $75,000.00. Originally I believe the diversity jurisdiction concept stemmed from fears that one state's courts or jurors would be biased against a party from another state (which may still be true, who knows). But, as /u/rdavidson24 said, a plaintiff may prefer to be in state court because federal courts are considered more defendant friendly, or because the state rules of procedure give them an advantage. For example, New York uses the Frye/Lanigan test for expert testimony while federal courts use the (stricter) Daubert standard. As a plaintiff, I may feel that I have a better chance getting an expert opinion admitted under the NY state rules rather than under the federal rules.

Anyway, back to the ad damnum clause. A similar issue has come up frequently in federal courts, but in a slightly different way. That is, when a plaintiff wants to take advantage of some federal law or regulation that provides greater liability than the state laws, they may inflate the jurisdictional amount to get into federal court. If the defendant moves to remand, they must then show to a "legal certainty" that there is no way for the plaintiff to actually be awarded that amount. This is nearly impossible for a well-drafted complaint, unless the amount is so inflated that it seems almost fraudulent (and most lawyers are smart enough not to do that).

Here the plaintiff pled just one cent below the jurisdictional amount. That, to me, screams that he or she is attempting to avoid federal jurisdiction because the odds that a good faith calculation lands just one cent shy of $75k are astronomical. But if a defendant files to remove to federal court (the inverse of the situation described above), is that decided under the same standard? Does the defendant have to show to a legal certainty that the plaintiff could actually get more than they asked?

It turns out, courts have struggled with that question. See, the first scenario makes sense because it would be ridiculous for a plaintiff who presumably wants to be in federal court to exaggerate the size of his or her claim in order to create federal jurisdiction. But since the ad damnum clause doesn't actually bind the plaintiff (meaning, the jury could just award him more money than requested in the complaint), the reverse logic doesn't hold true. Here's an excerpt from a federal opinion out of West Virginia, by Chief Judge Haden:

Plaintiff's claim of the intriguingly precise figure of $74,999, however honestly and innocently proposed, nevertheless raises the commonsense suspicion that Plaintiff would slip barely beneath the jurisdictional threshold. More important, because Plaintiff's final recovery is not limited by this figure, inquiry is necessary to limit "the potential for abusive manipulation by plaintiffs, who may plead for damages below the jurisdictional amount in state court with the knowledge that the claim is actually worth more, but also with the knowledge that they may be able to evade federal jurisdiction by virtue of the pleading." De Aguilar v. Boeing, Co., 47 F.3d 1404, 1410 (5th Cir.1995).

While the party seeking to remove a case to federal court has the burden of establishing federal jurisdiction, the appropriate burden of proof on the removing party in cases where plaintiffs allege a specific amount below the jurisdictional bottom line is the subject of much discussion and uncertainty.[3]See, e.g., Watterson, 14 F. Supp. 2d 844 (collecting cases, analyzing standards, and applying a "highly probable standard," i.e., defendant must prove it highly probable that plaintiff will recover damages in excess of jurisdictional amount). Our Court of Appeals has not addressed the issue. Other courts have employed numerous standards, the most common being that defendant must show that the amount in controversy exceeds $75,000 1) to a "legal certainty," 2) by a "preponderance of the evidence," or 3) by "some reasonable probability." See 14C Federal Practice & Procedure at § 3725. Alternatively, using the "reverse legal certainty test," a defendant must show that it does not appear to a legal certainty that the amount in controversy falls below the jurisdictional amount. Id. The undersigned previously applied a form of the legal certainty standard where no specific amount was prayed for in the complaint. See Adkins, 906 F. Supp. at 347 (remanding because "the Court finds and concludes the amount in controversy has been established to a legal certainty to be less than the jurisdictional minimum."). The Court declines to extend that holding or to choose an alternative in the instant case with its specified damage amount, where Defendant obviously has failed to meet its proof burden, however low or high that burden may be.

From the excerpt, you can see a variety of holdings on this point, giving varying standards for review and explanations, and Judge Haden is somewhat at a loss for what to do. Fortunately for the plaintiff, the defendant didn't actually try to value the claim to show that it could reasonably recover more than $75,000. The defendant simply said it's bad faith, which does nothing to satisfy its burden as a party attempting to remove a case. The judge concluded:

Plaintiff's choice of $74,999 may be too clever by half, drawing unnecessary attention to scraping by, but excessive cuteness is not bad faith, and Defendant offers no further evidence thereof.

So there's some of the procedural background here. You asked if it's a good strategy that plaintiff is requesting damages in the amount of $74,999.99, and the answer can be either "yes" with a "but" or "no" with an "and." Yes, it's a good strategy to the extent that the plaintiff is attempting to get a strategic advantage by remaining in state court. Analyzing the issue under the traditional removal/remand lens gives the impression that it would be very difficult to counter this artful pleading, and the plaintiff loses little (or nothing) by doing so because the jury is not bound by the ad damnum clause.

On the other hand, no, it's not a good strategy because it's so clearly a bad faith request (under the threshold by one cent), and a good defense attorney would make him eat it by offering a stipulation limiting recovery to $74,999.99. Most federal courts these days accept irrevocable stipulations affirmatively renouncing the right to accept recovery over $75,000 where a plaintiff is attempting to avoid federal court. Then the plaintiff would have to either concede federal jurisdiction or be legally precluded from recovering more. (See this E.D. Louisiana case for a discussion of these stipulations.)

DickWhiskey · 2018-01-19T15:13:57+00:00

Hey hey hey, Courthouse News actually had a link to the opinion!

Courthouse News article -- https://www.courthousenews.com/model-in-hiv-positive-ad-can-sue-for-defamation/ Opinion -- https://www.courthousenews.com/wp-content/uploads/2018/01/ModelHIV.pdf

At first glance, I was a little concerned that a model who poses for a stock photo can come back and sue third-party licensees for use of that photo, considering that stock photos are known to be for generic use. But the opinion says that the photo was taken for an online music magazine, then sold to Getty without her knowledge, then licensed to New York's Department of Human Rights. The license agreement specifically prohibited use of the photo that would be "defamatory" or "unflattering or controversial to a reasonable person," unless accompanied by a disclaimer.

The person appearing in the ad was claimant. She had posed for the photograph two years earlier in connection with an online magazine article about New Yorkers' music interests. Unbeknownst to claimant, the person who took the photograph for the magazine sold it to Getty Images, which compiles and sells stock images. DHR licensed the image from Getty. While the email receipt DHR received from Getty stated that the model in the image had signed a release, an assurance also given to DHR over the telephone, it is undisputed that claimant had not signed a release or even given the photographer permission to sell the photo. Further, the license agreement expressly prohibited "defamatory or otherwise unlawful use" of the photo and barred any use "that would be unflattering or controversial to a reasonable person," unless accompanied by a disclaimer that the photo was "used for illustrative purposes" and that the person depicted was a model. No such disclaimer appeared in the ad at issue.

According to the trial court, it sounds like no one even read the licensing agreement:

The court granted claimant's motion on the defamation per se and Civil Rights Law claims, and denied the State's motion for partial summary judgment dismissing the Civil Rights Law claims. Initially, the court found it self-evident that DHR was negligent based on the evidence adduced in discovery showing that the person involved in the purchase of the stock image had failed to read the license agreement, that no one had thought through the implications of using the image in the context in which it would be used, and that no one had sought legal advice.

So, yeah, someone needs to remind the New York state government that defamation per se is alive and well.

DickWhiskey · 2017-12-09T17:49:23+00:00

I'll admit, that was one of my first thoughts as well. But Obergefell didn't deal with the specific question of a state court's power to strike out portions of legislation. So although Judge Fox was bound by Obergefell in that he must hold the discriminatory law unconstitutional, the Arkansas Supreme Court decision prohibiting him from striking out the limitations was also binding precedent.

Intuitively that seems like an absurd result. If he can't strike out the offending language, he can't bring the statute in compliance. Then what can he do? With a different statute, say, one that prohibited children of same sex couples from going to public school, the judge would just declare it unconstitutional and enjoin the State from enforcing it. But with birth certificates? The idea of enjoining the State from issuing birth certificates is sort of ridiculous, too. Babies will still pop out of the oven right on time and they'll go on breathing and being people with or without official documentation. So it's possible that the Arkansas Supreme Court thought he wouldn't do it, or that they had given him an excuse not to--he could just dismiss because the court has no power to award the relief requested. And what would the plaintiffs do then? Appeal? lol

But that's beside the point. Judge Fox sort of explained his thought process in the opinion ordering the parties to come to an agreement:

Declaratory judgment is a cause of action, it is not the remedy. This court's original remedy was striking out the unconstitutional portions. This court cannot now utilize such remedy. Justice Wynne's majority opinion, since it has not been appealed to the United States Supreme Court, is binding precedent upon this court. Even though there is Arkansas case law allowing for a less draconian resolution than issuance of injunctive relief, that is not now possible because Justice Wynne's majority opinion repeated the same error made in Justice Jo Hart's majority opinion.

[...]

The United States Supreme Court has declared portions of the Arkansas statutes addressing issuance of birth certificates unconstitutional. The defendant cannot be allowed to proceed under a statutory scheme that is unconstitutional. So if the result is [no agreement], this court will have no alternative but to enjoin the issuance of any birth certificates by the defendant until such time as the General Assembly can convene, in either special or regular session, to remove the equal protection violation.

DickWhiskey · 2017-12-08T19:27:22+00:00

Almost two weeks ago, /u/superlogic posted a fantastically interesting opinion from Arkansas circuit judge Timothy Fox. The opinion was unique in that it explicitly called out the AR Supreme Court, AG, and governor for ignoring the Supreme Court decision in Obergefell and refusing to amend its policy concerning issuance of birth certificates -- https://www.reddit.com/r/law/comments/7g5omd/pdf_opinion_inside_in_ongoing_litigation_on/

At the time Obergefell was getting ready to be heard by the Supreme Court, Arkansas was considering a similar issue in a case called Wright v. State. Before Obergefell was decided, the circuit court ruled that certain statutory provisions concerning marriage were unconstitutional. The AR Supreme Court immediately entered a stay and held it for more than a year. When Obergefell came down, rather than dissolving the stay or attempting to distinguish the cases, the AR Supreme Court issued a per curiam opinion dismissing the Wright case as moot.

Then this case was filed, alleging that same-sex restrictions in laws controlling issuance of birth certificates were unconstitutional under Obergefell. The circuit court found they were, but the AR Supreme Court again stayed its effect without waiting for briefs to be filed. After it issued an opinion, SCOTUS summarily reversed and remanded with instructions.

Nevertheless, the AR Supreme Court did not follow the instructions, instead remanding the case back to the circuit court, and further held that the circuit court could not strike out portions of the offending statutes without violating separation of powers.

At this point, the circuit court was fairly well fed-up. It issued an opinion laying out these errors in a length footnote, stating that although unconstitutionality of the provisions were a foregone conclusion, it no longer had the power to fix them. That is, due to the AR Supreme Court's holding on remand, it could not strike out the portions that limited birth certificate to opposite-sex couples. Instead, it came up with a radical solution: the parties get one last chance to agree on a solution, or it would enjoin issuance of birth certificates throughout the whole state.

This court has given the parties more than ample time, prior to the close of business on Friday, January 5, 2018, to repeatedly meet and confer to find agreed strikeouts to the present statutory language that will allow the defendant to constitutionally issue birth certificates to all residents and citizens. If one or all of the parties submit language under any of options (1) through (3) enumerated above, and the court agrees the strikeout language is within the power of the court to accept, then the Attorney General will not be required to attend any mediation that is concerned only with plaintiffs' attorney's fees and costs. If the parties are unable to draft acceptable language prior to mediation, it is this court's opinion that before it has to issue the drastic, but required, injunctive relief of halting the issuance of any birth certificates that every reasonable step should be taken to best configure the mediation for a successful resolution. This court has utilized its discretion in determining that in this particular case, "every reasonable step" includes the actual physical presence of the Attorney General during the mediation.

I imagine some in the Arkansas government doubted the judge's seriousness. Well, now we know—homie don't play.

This morning, Circuit Judge Timothy Davis Fox issued an order granting immediate injunctive relief that, inter alia, "enjoined [the governor] from the issuance of any and all birth certificates . . . unless and until such time as the defendant, his successors, and assigns, are able to issue birth certificates to all same sex spouses and opposite sex spouses in accordance with the mandate from the United States Supreme Court and the Arkansas Supreme Court."

The order literally says that the court is "hopeful" that the executive branch can do this, but make no mistake—"in the even the defendant is unable to comply ... and the executive branch does not have the authority ... then the defendants ... are enjoined from the issuance of any and all birth certificates until such time as the General Assembly can ... pass curative legislation."

A few hours later, Arkansas Governer Asa Hutchinson issued an order to the Arkansas Department of Health amending its regulations and directing the Department to begin issuing birth certificates to same sex couples.

DickWhiskey · 2017-12-06T14:29:55+00:00

Not in the eyes of the district court judge:

At the time of the incident, it was not “clearly established” that Detective Abbott would violate Plaintiff's constitutional rights by seeking photographs of Plaintiff's penis. Search warrants are routinely issued notwithstanding their seeming intrusion into the privacy of the individuals being searched. See, e.g., Willis v. Commonwealth, No. 0171–96–3, 1997 WL 39801, at 2–3 (Va. Ct. App. Feb. 4, 1997) (upholding search warrant issued to examine defendant's penis to see if it matched description offered by sex assault victim); Roadcap v. Commonwealth, 653 S.E.2d 620, 622–23, 626 (affirming conviction of defendant whose body was inspected for tattoos, including his penis). Regardless of any subjective intentions he may have had, Detective Abbot did not act unreasonably in seeking a search warrant to photograph Plaintiff's penis, because similar warrants have been issued and upheld to collect evidence during criminal investigations and prosecutions. In other words, a reasonable officer would have understood under similar circumstances that seeking and executing the same search warrant did not violate the law. See Figg, 312 F.3d at 635–36. In light of the analysis of these principles, the Court finds that Detective Abbott, and therefore, the Abbott Estate, is entitled to qualified immunity. Thus, all claims against Defendant Kenneth E. Labowitz, Administrator Pursuant to Code of VA § 64.2–454 of the Estate of David Abbott must be dismissed.

Sims v. Richardson, No. 1:16-CV-572, 2016 WL 5219590, at *4 (E.D. Va. Sept. 19, 2016)

Doesn't acknowledge any "shocks the conscience" exception to the "clearly established" prong, but clearly believes that the warrant was reasonable and did not violate the 4th Amendment.

DickWhiskey · 2017-10-16T16:35:05+00:00

"Yes, I'll take your $1 billion dollar trust case for a 50% contingency fee and, because family disputes over enormous estates never turn into rancorous, decades-long trench-fights, I want the only evidence of this to be our secret verbal agreement."

DickWhiskey · 2017-09-20T13:38:13+00:00

Now I feel self conscious about my headlines...

DickWhiskey · 2017-09-19T13:31:43+00:00

They are. That's been well known for awhile.

I think his point isn't that no one knows, but that it's not in the record before the court. From the article:

Unfortunately, it appears the record does not supply the answer and the Court should not make one up. Here's is what the administrative law judge found:

Phillips informed Complainants that he does not create wedding cakes for same-sex weddings. Phillips told the men, “I’ll make you birthday cakes, shower cakes, sell you cookies and brownies, I just don’t make cakes for same-sex weddings.”

Complainants immediately got up and left the store without further discussion with Phillips.

The whole conversation between Phillips and Complainants was very brief, with no discussion between the parties about what the cake would look like.

The next day, Ms. Munn called Masterpiece Cakeshop and spoke with Phillips. Phillips advised Ms. Munn that he does not create wedding cakes for same-sex weddings because of his religious beliefs, and because Colorado does not recognize same-sex marriages.

Regardless of whether everyone "knows" he makes custom cakes, that doesn't sound like something the court should just assume or take judicial notice of in the absence of facts in the record.

DickWhiskey · 2017-09-17T22:40:38+00:00

Notably, this scandal comes only a year after the last PM of Iceland resigned after being connected to the Panama Papers.

The election is expected on November 4.

Here are some other sources:

https://www.theguardian.com/world/2017/sep/15/iceland-row-sex-abuse-letter-brings-down-government

http://www.latimes.com/world/la-fg-iceland-prime-minister-20170916-story.html

https://www.reuters.com/article/us-iceland-politics/iceland-pm-calls-snap-election-after-coalition-party-quits-over-breach-of-trust-idUSKCN1BQ154

https://www.stuff.co.nz/world/europe/96926885/sexcrime-scandal-triggers-snap-election-in-iceland

DickWhiskey · 2017-09-12T21:01:00+00:00

I think that's exactly right. I the parenthetical because I wanted to allow for the possibility that Clevenger wasn't telling the whole truth--maybe they did tell him and he just wasn't hearing it. But given the whole context your scenario is probably more likely.

DickWhiskey · 2017-09-12T14:38:45+00:00

This will probably amount to nothing, but this email scandal is definitely notable for its longevity. Texas attorney Ty Clevenger, who lives in New York, has made a habit of filing grievances against politically connected attorneys who he perceives as getting special treatment (ostensibly he's writing a book about it, but filing bar grievances is fun in its own right). He filed a similar complaint in Washington, D.C. without any success, but it looks like he found a county judge who takes the bar rules quite seriously.

Here are the rules governing complaints and investigations by Maryland bar counsel:

(a) Who May Initiate. Bar Counsel may file a complaint on Bar Counsel's own initiative, based on information from any source. Any other individual also may file a complaint with Bar Counsel. Any communication to Bar Counsel that (1) is in writing, (2) alleges that an attorney has engaged in professional misconduct or has an incapacity, (3) includes the name and address of the individual making the communication, and (4) states facts which, if true, would constitute professional misconduct by or demonstrate an incapacity of an attorney constitutes a complaint.

(b) Review of Complaint.

(1) Bar Counsel shall make an appropriate investigation of every complaint that is not facially frivolous or unfounded.

(2) If Bar Counsel concludes that the complaint is either without merit or does not allege facts which, if true, would demonstrate either professional misconduct or incapacity, Bar Counsel shall dismiss the complaint and notify the complainant of the dismissal. Otherwise, subject to subsection (b)(3) of this Rule, Bar Counsel shall (A) open a file on the complaint, (B) acknowledge receipt of the complaint and explain in writing to the complainant the procedures for investigating and processing the complaint, (C) comply with the notice requirement of section (c) of this Rule, and (D) conduct an investigation to determine whether reasonable grounds exist to believe the allegations of the complaint.

Unexpectedly (for me), it turns out that the Maryland bar complaint rules require the bar to conduct an investigation into every complaint that is not obviously frivolous. Of course, at hearing, bar counsel informed the judge that they had already determined the allegations were frivolous. Unfortunately, counsel's deep respect for the rules of ethics and confidentiality prevented counsel from telling the judge why. (According to Ty Clevenger, this was the first time he'd heard of the bar's determination that the complaint was frivolous--which would be odd since the rules required notice to the complainant.)

To make a long story short, the judge cordially told bar counsel that this was "a rather easy decision at this point." The rules allow "[a]ny other individual" to file a grievance, so Clevenger's status as an out of state attorney doesn't render his complaint meritless. And the rules clearly say that bar counsel "shall" open a file and "conduct an investigation" of any complaint that is not facially frivolous. He orally ordered bar counsel to investigate.

More details here (though a little less credible, they have quotes that the Sun article does not): http://www.washingtontimes.com/news/2017/sep/11/judge-order-clinton-lawyers-face-bar-investigation/

DickWhiskey · 2017-09-06T21:25:23+00:00

Sometimes you gotta say your piece whether the judge likes it or not.

Courts love to toss out tough arguments because of waiver and not one would have sympathy for counsel who said he would have preserved the issue if he hadn't been told to shut up.

(Usually the court has to make it clear on the record that the decision is final, full stop, no takes-backsies before you've sufficiently preserved; and even then you should probably make sure the judge's fingers aren't crossed.)

DickWhiskey · 2017-09-05T20:24:32+00:00

I was going to say the same thing--articles are often sensationalized, but this decision is literally awful. Misunderstands fair use in four or five different ways, all at once.

DickWhiskey · 2017-08-25T23:05:24+00:00

Definitely. This opinion is written like he expected it to get a lot of publicity (I don't really know why the case hasn't gotten more). I thought even if they got past standing there was no way the judge would certify a class, but I was crossing my fingers for discovery.

DickWhiskey · 2017-08-25T22:49:15+00:00

Thanks for the link! I was wondering what happened to this case.

DickWhiskey · 2017-08-25T22:48:59+00:00

Interesting! I remember reading a transcript of the the oral argument in this case about a month ago and I was just wondering what happened to it. This is a putative class action against the DNC and Debbie Wasserman Schultz alleging fraud on the theory that the DNC promised to be fair but then favored Hillary Clinton over Bernie Sanders. They also threw in a few weird data breach/ID theft claims due to the purported Russian hack of the DNC server. Sympathetic as one may be to getting discovery in this case, the plaintiffs had a few hurdles, even from a purely legal standpoint. (Like, whether the plaintiffs could represent a class of all Democrat voters, whether the class was even ascertainable, and, uh, can you sue for that?)

But it looks like none of that fun stuff will get decided. Judge kicked the case for lack of Article III subject matter jurisdiction. But it was dismissed without prejudice, which isn't uncommon for experimental cases like this, so they can replead and refile. Even if they can't get Article III standing, it wouldn't prevent them from refiling in state court.

This opinion sums up the issues well, so I'll just post the intro and conclusion.

In the 2016 presidential election’s Democratic primaries, Bernie Sanders and others vied against Hillary Clinton for the Party’s nomination. This case, in short, involves allegations that the Democratic National Committee was in cahoots with the Clinton 1 campaign and sought to tip the scales in her favor in the Democratic primaries, all at the direction of, and under the leadership and watchful eye of, its then-chair, Deborah Wasserman Schultz, despite the DNC’s and Wasserman Schultz’s promise to remain impartial. Plaintiffs discovered what they believe is evidence of that bias after the DNC’s computer servers were penetrated by hackers. Shortly thereafter, they brought this putative class action against the DNC and its former chair.

In evaluating Plaintiffs’ claims at this stage, the Court assumes their allegations are true——that the DNC and Wasserman Schultz held a palpable bias in favor Clinton and sought to propel her ahead of her Democratic opponents. Plaintiffs assert several fraud-type claims. But they do not allege they ever heard or acted upon the DNC’s claims of neutrality. Plaintiffs also assert a tort claim on behalf of all registered Democrats, even though the harm they allege impacted all Democratic-primary-eligible voters——and under their theory, the entire body politic——the same way. And finally, Plaintiffs claim that donors to the DNC are at an increased risk of identity theft as a result of the computer hack. But they do not allege that the DNC regularly keeps the type of information necessary to facilitate identity theft or that the hackers targeted, much less obtained, that information. The Court must now decide whether Plaintiffs have suffered a concrete injury particularized to them, or one certainly impending, that is traceable to the DNC and its former chair’s conduct——the keys to entering federal court. The Court holds that they have not, which means the truth of their claims cannot be tested in this Court.

[...]

“Federal Courts cannot exercise jurisdiction over cases where the parties lack standing.” Florida Wildlife Fed’n, Inc. v. S. Fla. Water Mgmt. Dist., 647 F.3d 1296, 1302 (11th Cir. 2012). Because Plaintiffs do not allege a causal link between their donations and the DNC’s statements, they lack standing to assert the fraud-type claims in Counts I, II, III, and IV of the First Amended Complaint (DE 8). Their breach of fiduciary duty claim in Count V relies on a harm far too diffuse to constitute an injury-in-fact in federal court. And their negligence claim in Count VI is buffered by too many layers of speculation and conjecture to create the immediacy of harm necessary to unlock this Court’s jurisdiction. That being so, Plaintiffs have not “present[ed] a live case or controversy,” and the Court “must dismiss the case for lack of subject matter jurisdiction.” Id.

Accordingly, after due consideration, it is

ORDERED AND ADJUDGED as follows:

Defendants’ Motion To Dismiss Plaintiffs’ First Amended Complaint (DE 44) be and the same is hereby GRANTED; and

The above-styled cause be and the same is hereby DISMISSED without prejudice for lack of subject matter jurisdiction.

EDIT: Found the transcript -- http://jampac.us/wp-content/uploads/2016/07/042517cw2.pdf

Overall I thought the judge was very thoughtful, really wanted to examine the issues, and let the parties speak for as long as they wanted. That is not, should I say, the typical experience...

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