Wednesday, May 27, 2015

How long should SCOTUS Justices serve?

Legal Times has this article on a move to have future nominees pledge to limit their tenure to 18 years: Initiative Urges Voluntary Term Limits for Future Justices.
“We can and must expect better from the Supreme Court,” said Erwin Chemerinsky, dean of the University of California, Irvine, School of Law, a supporter of the new campaign. “Lifetime appointments lead to too much power exercised by a single person for too long a period of time. Clarence Thomas was 43 years old when he was confirmed for the Supreme Court in 1991. If he remains on the Court until he is 90, the age at which Justice [John Paul] Stevens retired, he will sit on the Supreme Court for 47 years.”
Image result for hall of mirrors

Image result for funhouse mirror reflection"In 1992, the California Legislature enacted the anti-SLAPP statute, Code of Civil Procedure section 425.16,1 to counteract a 'disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.' Eleven years later, the Legislature responded to 'a disturbing abuse of Section 425.16, the California Anti-SLAPP Law,' by enacting section 425.17. Two years after that, section 425.18, the anti-SLAPPback statute, was enacted, to counteract the hall-of-mirrors effect of parties taking turns suing and SLAPPing each other.
This case is a venture into that hall of mirrors."

So begins yesterday's unpub'd decision in a comeback SLAPP case from Justice Beds, here.
The decision also includes a reminder about the "proper tone of appellate briefs," i.e.:
“[H]yperbole, exaggeration, belligerence, disrespect, and arguments belittling your opponent, the trial judge or the appellate court do nothing to advance your client’s position; quite the contrary, a shrill and abusive tone is more likely to diminish the persuasive force of your brief and ultimately injure your client’s case.” [Rutter citation] This is especially true of attacks on the trial court. “Disparaging the trial judge is a tactic that is not taken lightly by a reviewing court. Counsel better make sure he or she has the facts right before venturing into such dangerous territory because it is contemptuous for an attorney to make the unsupported assertion that the judge was ‘act[ing] out of bias toward a party.’ [Citation.]” (In re S.C. (2006) 138 Cal.App.4th 396, 422.) Arguing, as appellants do, that the trial court ruled on the basis of “subjective, almost personal feelings about this case which were substituted by the trial court in this action for proper objective analysis and logic” places them right square in the middle of this dangerous territory."
And also, from fn. 11: "Vituperation is no substitute for facts backed up by citations to the record." Perhaps this should be added (as section 3549) to the Maxims of (Appellate) Jurisprudence near the end of (appropriately enough) the Civil Code. (Civ. Code secs. 3509 to 3548.)
Counsel Press is presenting an MCLE webcast on June 18 from noon to 1 p.m. Details here:
E-Filing and eBriefs in the California Court of Appeals & U.S. Court of Appeals