May It Please The Court: Weblog of legal news and observations, including a quote of the day and daily updates
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Quote of the Day - Instead of giving a politician the keys to the city, it might be better to change the locks.
Land Use In The Courtroom LimelightWhile we weren't watching last week, a jury in Santa Barbara was.The jury awarded some $5.5 million against the County's Planning Department, two former employees, one current employee and a consultant of the County. Personally against the former and current employees and consultant, plus punitives. The jury sent a message. This case has been hotly litigated from the beginning, and it's not over yet. It stems from the County's efforts to designate some 95 of 262 acres as wetlands and prevent Adams Bros. Farming from farming the land. Seems that the jury thought the wetlands delineation was a foregone conclusion and that the land was not actually wetlands. The County had big plans for its Orcutt Community Plan, but the jury saw through those plans, and held for the farmers whose land got redesignated. They found that the County's actions to rezone the farmers' lands as wetlands violated the farmers' rights, and were intentional, despicable and done with "malice, oppression or fraud." Ouch. The USEPA is pursuing a criminal action in LA against the Adams Brothers for filling the wetlands. Although I haven't seen that case, my guess is that with this jury verdict, the USEPA's case just got a lot harder to prove. 
New Channels To Keep You InformedThe long weekend's over for most, but some are still trapped in Reno.Here at MIPTC, we've been busy this holiday weekend. We've added a Tech channel, where I will occasionally review tech-related items. You know, gizmos and gadgets, and anything that plugs in. Sometimes even things that don't plug in. It will give you some ideas, but if you buy her a big screen TV for the holidays, I'm not going to be able to help you with that one, buddy. Plus, we've added a new feature called "How To Get Sued." Right now, I've populated it with selected items from old MIPTC posts that both took a lighter look at the law and at the same time provided some educational value on what not to do in the world of law. It's still in development, so take an occasional look there too. I'll be posting every once in a while. Since lawyers are constantly disclaiming liability, I figured I might as well come right out and tell you how to go about getting sued. You won't be able to blame that one on me, either.
Sermonizing for the GovernmentThose Thanksgiving Proclamations are pretty long-winded.I can't imagine what they'd be like tacked on to a Congregational sermon. Haven't caught my drift yet? Neither had I when my mother told me today. Let me explain. She doesn't have a computer. She's 72. So, I've tried to explain to her about this blog, but she only gets it when I equate it with a column in a newspaper. She asked me what I wrote about for Thanksgiving, so I told her. You can skip down to the day before yesterday and read it. Once I told her about the proclamations, she told me that my father, God rest his soul1, was required to read government proclamations during his Sunday morning church services. These readings happened in the First Congregational Church in Middleboro, Massachusetts, before I was born. Every proclamation that was issued by the President, Governor, Borough or Town fathers. It was expected. As you can imagine, she was referring to the way it was in the fifties. Now, you're reading them in a blog. I had no idea I was repeating history. MIPTC's footnotes 1 Imagine my shock when I found my father's obituary on the internet. I was there for the funeral and burial, and remember it quite clearly. But there's nothing like having it emblazoned into my forehead when I looked at the result of my vanity search using my father's name and finding his (previously undiscovered) obituary on the internet. There are just some reminders I'm not ready for, especially around the holidays.back
Perry Mason for AG and Madonna for Secretary of StateMaybe Bush should reconsider his nomination of Condoleezza Rice. Excuse me, I meant Dr. Rice.I think he may want to consider Madonna. You think I'm joking? Not at all. I'm completely serious. Right before Thanksgiving, I read that Madonna had expressed her views on terrorism. After all, Madonna did attend the University of Michigan, where she studied ... dance. Oh, did I forget to mention that she dropped out? But, she did graduate from high school. Now I'm not here to offend Madonna fans. I enjoy some of her music. Neither I am here to offend college dropouts or high school graduates. Or, for that matter, anyone. I'm just trying to make a singular point about why we listen to celebrities comment on things other than their celebrity or their chosen field of expertise. In fact, I could have picked any one of a number of celebrities who make political comments. Admittedly, no one is immune from gaffes. But I wanted to stick with celebrity comments. You can check the politicians, if you'd like. Before we do, however, let's take two slight detours just to make sure I've got my head screwed on straight. First of all, there are exceptions to the rule - we already have celebrity politicians, some revered, some TV stars turned Congressmen, and even a Senator turned TV star and movie star (Ok, he was a movie star first). Second, I don't think for a minute that my comments on the arts performed by celebrities would be reported in worldwide media, despite whatever education I may have. [Even though I did play the Stage Manager in Thorton Wilder’s play Our Town in 11th grade, a role I seem to continue in today]. For that matter, think back to how many politicians you’ve heard or read about expressing their views on the arts. Stumped? How about the other way around? Probably no shortage on the latter. The lines have blurred between celebrities and politicians. But that doesn't mean the line between celebrities and politics should blur, too. Somewhere along that second line though, we seem to have let it. Otherwise, why would the BBC have reported Madonna's comments? Are the Brits just as star struck as we seem to be? The question I pose is whether we should lend credence to celebrity comments on issues outside the scope of their expertise? Should we even listen? If you agree that perhaps we should not, then ask yourself this question: what does that tell us about journalists, news reporters, editors and even networks that print, reprint and broadcast this stuff? Do they have real questions or just fluff? Or, more likely, should we just follow the media money? Here’s another way to look at it. Could Perry Mason really practice law?
A History of Thanksgiving ProclamationsThe First Thanksgiving Proclamation issued by the governing council of Charleston, Massachusetts, is when the Pilgrims got Thanksgiving started. Think about it. Back then, Thanksgiving was when it was warm enough in the New England colonies to actually eat outside with the Indians. Here's what Council Clerk Edward Rawson wrote: June 20, 1676 People v. Decker: A Moral Dilemma for the Second Appellate District? (Part 2)A. Sliding-Scale Test Prone to MisuseSecond, and more problematic, the use of a sliding-scale test in emotionally-charged counts – where the gravamen of the case appeals to the feelings but distorts the judgment – unfairly introduces, albeit unintentionally, a moral factor into a legal equation. As the Adami court foreshadowed, “Merely soliciting one to do an act is not an attempt to do that act. In a high, moral sense, it may be true that solicitation is attempt; but in a legal sense, it is not.” By applying the “sliding-scale” test to the same general set of facts that were present in Adami, the Decker court came to an exactly opposite conclusion, to wit: “Decker attempted her murder.” I suggest the “moral factor” explains this different result. For example, most telling are the 2nd District’s own words: “[Decker’s] specific intent to cause her death could not have been more unequivocal or emphatic,” and “[t]here was nothing more for Decker to do to bring about the murder of his sister.” Without question, Decker – like Adami some 30 years before him– intended for the crime of murder to be committed. Both defendants are morally reprehensible and deserve to be punished for their despicable conduct. However, the issue here is not about their specific intent; rather, the issue here is whether the second element for the count of attempted murder has now been obfuscated through 2nd District’s judicial activism. Ask yourself, what act (other than preparation or solicitation) did Decker commit so that the murder of his sister “[would have been] consummated unless interrupted by circumstances independent of the will of the attempter”? B. Murder-for-Hire Cases In murder-for-hire cases, courts in other jurisdictions have uniformly looked at the actions of the agent to determine whether any steps toward perpetrating the crime took place. This is precisely the analysis that the Adami court went through before concluding that such a count could not be maintained under California law. Thus, in situations where, like here, the agent is really an under-cover policeman, an attempted murder charge can never be sustained because the agent lacks any intent whatsoever to carry out the crime. And that is the real rub here because, from a moral standpoint, it goes against our natural instincts to let anyone, who would commit such a heinous crime, get off on a mere technicality. Convinced of Decker’s specific intent to kill his sister, the 2nd District misused the sliding-scale test to characterize Decker’s acts of preparation and solicitation as acts toward the commission of the crime to commit murder. When I handed my friend the Daily Journal and told him what I believed the 2nd District had done, he suggested that I was getting soft on crime (Me?), that – since Decker clearly possessed the requisite mental state to convict on solicitation and attempted murder – he should be punished for the more severe crime, and that Decker should not benefit from the fact that the would-be assassin was a police officer. C. The Moral Pitfall A problem arose, of course, when I asked him to step down off his lofty moral perch and simply explain the distinction between the two separate crimes in this murder-for-hire fact pattern: solicitation for murder and attempted murder. Using the 2nd District’s approach, there is none. That’s what happens when moral values influence legal decisions: waters become muddied and the law becomes less bright. The problem is not a new one. The maxim that “hard cases make bad law” was coined from an opinion by Justice Oliver Wendell Holmes in 1904. Time-tested, the point is equally applicable here. After all, it doesn’t take a rocket scientist to figure out that neither the California Supreme Court nor the State Legislature have taken any steps in over a quarter of a century to overcome or reverse the result reached in Adami. So I ask: why the change now and why is the 2nd District leading the charge for change? Although Decker makes perfectly clear that the 2nd District didn’t think that solicitation of murder carried a stiff enough sentence, it is the Legislature’s province to determine the scope of punishment. Thus, by punishing defendants who are guilty of solicitation for the crime of attempt, the 2nd District has crossed over this well-known line and exceeded its jurisdictional powers. More to the point, its actions have needlessly created a conflict among the district courts, thereby contributing additional confusion in an area of law that has already seen too much. Word and Word Perfect Wars Are About To Enter The CourtroomLet's talk word processors and litigation. My two favorite subjects: law and technology.Two disclaimers here: I'm a MicroSoft devotee. I think the company has done wonders for computers and software, and although there may be some truth to the rumors, the monopoly arguments don't bother me. Of course, I used to work for AT&T before it was broken up. Despite my devotion, however, I much prefer Word Perfect over Word. In my humble opinion, Word Perfect makes it much easier to format documents than Word. Admittedly, I don't know Word all that well because I don't use it everyday, but I have struggled to use it. In fact, I generally have to convert to Word if I'm going to send a document to a client. It should be easier. Word Perfect itself has had a checkered history. It was started by the Word Perfect Corporation, and then sold to Novell, who owned it for two years, and then to Corel. We have found upgrades difficult to install, so we just keep it on the last one that works. Perhaps Corel hasn't invested enough into the program. So, what's happening now? Novell is about to sue Microsoft for its monopolistic treatment of Word, to the exclusion of Word Perfect. Novell has tried to reach a settlement with MicroSoft, but hasn't been able to get satisfaction. I'm sure Corel will be watching these developments closely. Word has become so prevalent, and is such an inferior product, that I hope Novell gets some recovery for losing market share to MicroSoft. Maybe I have to rethink that MicroSoft devotion.
People v. Decker: A Moral Dilemma for Second Appellate District? (Part 1)I. A Conflict DevelopsLast week, the Court of Appeal, Second Appellate District (“2nd District”), issued its decision in People v. Decker, 2004 Cal.App. LEXIS 1921. The fact that the Second Appellate District chose to disagree with precedence established by the First Appellate District (“1st District”) over thirty years ago, while nothing novel, still raised enough curiosity in me to read about it in the Daily Journal. But truth be told, it was the knee-jerk reaction from my long-time colleague -- who is one of the smartest attorneys that I know -- during a discussion about Decker that prompted me to go further and write this blog. A. The Adami Case As you may know, in 1973, the 1st District decided People v. Adami (1973) 36 Cal.App.3d 452, a case involving a man who had solicited an under-cover policeman to murder his wife, giving him a down payment, a photograph of his wife, and written instructions on where she could be found. The defendant was charged with soliciting the crime of murder in violation of Penal Code section 653f, and attempted murder under Penal Code section 187 and 664. Under California law, the elements of attempted murder are: (1) the specific intent to murder a human being; and (2) a direct, unequivocal but ineffectual act in furtherance of such intent. In construing the second element, the California Supreme Court has held that acts of preparation alone are insufficient and that “some appreciable fragment of the crime must have been accomplished.” In other words, the crime “must be in such progress that it will be consummated unless interrupted by circumstances independent of the will of the attempter.” See, e.g., People v. Gallardo (1953) 41 Cal.2d 57; People v. Buffum (1953) 40 Cal.2d 709. After the trial court granted Adami’s motion to eliminate the attempted murder count, the 1st District affirmed the ruling, holding that Adami’s acts consisted solely of solicitation or “mere preparation.” Looking at decisions from other jurisdictions, the Adami court focused on the conduct of the third-party agent, or “solicitee,” and whether the would-be assassin had taken any steps toward carrying out the crime. Finding that the under-cover policeman in its own case had done nothing in that regard, the 1st District concluded that the crime Adami had committed could be no greater than solicitation of murder. B. The Decker Decision Facing almost identical facts in Decker, the 2nd District rejected the application of Adami, claiming it to be “inconsistent with later decisions of our Supreme Court.” In an effort to marginalize Adami, the Decker court relied upon language from the Supreme Court’s more recent decision in People v. Memro (1985) 38 Cal.3d 658, which noted that some appellate courts have been using a “sliding-scale” test to determine whether in fact the crime of “attempt” has occurred. In such cases, when “the design of a person to commit a crime is clearly shown, slight acts done in furtherance of that design will constitute an attempt.” The emphasis is mine. II. The Second Appellate District's Flawed Approach In my opinion, the 2nd District’s application of Memro to justify the reinstatement of an attempted murder charge against Decker is incorrect for at least two reasons. First, nothing in Memro is inconsistent with earlier holdings from the Supreme Court in either Gallardo or Buffum, both of which were relied upon by the 1st District in Adami. The Memro court did not dispatch the requirement that some act – however slight – must occur in furtherance of the crime after all preparations have been made. Consequently, the 2nd District’s excuse for disagreeing with the conclusion reached in Adami lacks merit. (See Part 2, Wednesday 11/24/04)
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