Appellate Law

More Early Decisions on Gay Marriage Cases - Vermont

Posted on May 15, 2008
The first real break-through case for those arguing in favor of same-sex marriage was Baker v. State, 744 A.2d 864 (1999).  There, the Vermont Supreme Court decided that the “common benefits” clause of the Vermont Constitution required the state to offer same sex couples the same “statutory benefits, protections, and security” available to married couples...

Gay Marriage Cases in State Courts ? Earlier Decisions

Posted on May 15, 2008
For those wanting to compare the analysis in the forthcoming California Supreme Court decision with the approach taken by other state high courts, the following are some of the decisions from those courts on this issue: Baker v. Nelson, 191 NW 2d 185 (1971) — The Minnesota Supreme Court rejected a federal constitutional challenge to the state [...

Cal Supreme Court: State law on marriage unconstitutional

Posted on May 15, 2008
By a 4-3 vote the California Supreme Court has struck down that state statute that limits marriage to opposite sex couples. The combined opinions run about 200 pages, so it will take a while to digest.  But the decision is based on the state constitution, and the court rules that sexual orientation is a suspect classification [...

Early Cases - ?Privileges and Immunities?

Posted on May 15, 2008
State equal protection jurisprudence will differ from federal when the states take into account the difference in text.  The state charters, when originally adopted, did not contain an express “equal protection” clause (note - the California Constitution was amended to add such a clause)...

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Early Cases Massachusetts

Posted on May 15, 2008
In Goodridge v. Department of Public Health, 798 N.E.2d 941 (2003), the Supreme Judicial Court of Massachusetts ruled that the ban on same-sex marriages did not survive rational relationship review under the state constitution’s equal protection guarantee...

Decision in Gay Marriage Cases Due Thursday at 10:00am

Posted on May 14, 2008
The California Supreme Court has announced that it will issue its decision in In re Marriage Casesat 10:00 am on Thursday, May 15, 2008.  Whatever the ultimate result in the case, this should prove to be a significant addition to the state’s jurisprudence on that Equal Protection guaranty in the California Constitution...

No Job Protection for Medical Marijuana Users

Posted on January 25, 2008
The California Supreme Court issued its decision in Ross v. RagingWire this morning holding that while medical marijuana use may be lawful under state law, that law does not prohibit employers from terminating employees based on that use:  We conclude that the lower courts were correct:  Nothing in the text or history of the Compassionate Use [...

City?s pre-election challenge to initiative not a SLAPP

Posted on January 21, 2008
(Bumped — note the comment from the attorney for the petitioner inviting amicus participation)  Tackling the ever more difficult question of when a lawsuit “arises out of” protected activity, the Fourth District Court of Appeal ruled Friday that Riverside’s pre-election challenge to an initiative restricting the city’s power of eminent domain was not subject to special [...

Appellate Advocacy Seminar in Florida

Posted on January 21, 2008
Here is the chance for you to travel to the sunshine state and brush up on you appellate advocacy skills (while the rest of the family hangs out at that Magic Kingdom place).  DRI (the defense side of the civil trial bar) is putting on a two-day appellate advocacy seminar...

Paint a Picture with Your Words ? But Not that Picture

Posted on January 17, 2008
At the end of the day, litigators (trial and appellate) are in the communications business.  We must get a point across to our audience and win them over to our point of view.  Writing instructors say to “tell a story” or to “paint a picture with your words...

Arguing the ?Political? Case

Posted on January 10, 2008
It is fashionable to accuse courts of rendering decisions based on political preferences.  Whether or not this is true, appellate counsel need to be aware that the courts are sensitive to the accusation.  SCOTUSblog has a post on this week’s argument before the United States Supreme Court on the Indiana photo-identification law entitled “The Partisan Elephant [...

Section 1988 Fees Need Not Be Proportional to Damages

Posted on January 09, 2008
Litigating cases against government entities can be frustrating.  In some cases, it seems that a city or state agency will spare no expense in litigation to defend against a claim with the result that the cost of litigation will greatly exceed the damages awarded...

Court OK?s 1021.5 Fees for Pre-Litigation Activities

Posted on January 08, 2008
Unlike fees awarded under 42 USC §1988 for civil rights claims, the private attorney general attorney fees provision in California (Code of Civil Procedure §1021.5) permits an award of fees if the subject litigation was the “catalyst” for the government’s change of position even where the litigation did not result in a successful judgment or court [...

New Year?s Resolution for Appellate Counsel?

Posted on January 02, 2008
The ABA Journal quotes Justice Kennedy saying “I’ve never read a brief I couldn’t put down in the middle.  It is not the best part of the job.” (Thanks for the pointers from The California Blog of Appeal and Legal Writing Prof Blog)...

No damage award for violations of Right to Privacy

Posted on December 10, 2007
The California Constitution includes a right to privacy that protects against both government and private snooping.  Prior cases have noted that individuals can win injunctive relief to enforce this right and prevent snooping in the future.  What relief is available, however, if all of the spy work has been completed?  According to the Court of [...

Burned by the (lack of a) record

Posted on December 07, 2007
Judge Kleinfeld let the Department of Justice know that he was on their side — if only they could have supported their case with a record and appropriate references in their brief.  The judge’s note appeared in his concurring opinion in Sierra Club v...