Monday, August 12, 2002

Eleventh Circuit Here's what the Circuit did while I was away last week:

First, they took en banc two cases in which they will – I predict – hold that Georgia sheriffs are State, rather than County, officials. The upshot, if my prediction is correct, will be that you can't sue the County under 42 U.S.C. sec. 1983 for a sheriff's unconstitutional policies, nor can you sue the State (because of that non-textual constitutional doctrine, state sovereign immunity).

Robinson v. Moore is another long opinion affirming the denial of habeas relief to a death-row defendant. The core of the case is trial counsel's failure to present mitigating evidence; the court denies relief anyway.

Kirby v. Norfolk Southern is about bills of lading and a "Himalaya clause". This is one of those areas of law that I don't pretend to understand, even enough to spend the time figuring out how to summarize the case. You're on your own.

U.S. v. Schlaen affirms convictions for money laundering and, on the government's cross-appeal, reverses a downward departure. In a sting operation, the defendants agreed to buy computer equipment for drug lords who paid them cash (actually, they were government agents in disguise) and not to file with the IRS those forms that you've got to file in a cash transaction greater than $10,000. The jury, though, acquitted the defendants on the counts that charged them with failure to file those required forms. How, then, could they be guilty of laundering – especially when the laundering statute at issue includes, as an element of the crime, an intent to avoid a transaction-reporting requirement? Isn't this completely inconsistent with the acquittal on the filing counts? Yes, of course it is! Even the Court seems to agree. But, says the Court,"So what?" That's not a quote from the opinion, but this is: "Even where conviction on one count and acquittal on another count is a logical impossibility, the conviction will stand, unless it was otherwise obtained in error."

Fishermen v. Closter Farms (no Findlaw link yet) holds that a farm wasn't required to have a permit under the Clean Water Act in order to discharge pollutants into a lake where, according to the Court, the water it was discharging into the lake was covered by "agricultural exemptions" to the Act, and there was no sufficient evidence of non-agricultural pollutants (either from the farm or from adjacent properties (whose water was also being discharged into the lake by the farm).


Alabama Court of Civ. App. Six cases from the Ct. Civ. App. last week (as always, if you want links to these, lobby the government to put up a free and functioning web site!):

Horton v. Raspberry: Trial court had granted summary judgment against beneficiaries, holding that the testator was competent at the time she executed the will; Ct Civ App reverses. The only evidence of lack of testamentary capacity was the fact that the will itself said she had five kids, when in fact she had six kids. This in itself is enough to create an issue of fact as to testamentary capacity, says the appellate court. Lesson: if you want to disinherit one of your kids, don't try to add insult to injury by pretending that the kid doesn't exist!

Goolesby v. Wilks is another case showing what a mess can arise when you file too many post-judgment motions. The main holding seems to be that, once having entered a remittitur order (i.e., an order saying that there will be a new trial if the plaintiff does not accept a reduced damage award), the trial court cannot then enter a judgment as a matter of law in favor of the defendant.

Gatlin v. State is an impressive victory for whoever was Gatlin's lawyer: the Court reverses the trial court's order forfeiting a big wad of cash to the State, when the cash was found in his truck along with some pills and dope. Fortunately for Gatlin, he had a good explanation for where the pills and the money came from, so the Ct Civ App reverses the adverse factual findings of the trial court.

Creel v. Creel affirms the trial court on a custody issue.

CDW v. State ex rel JOS: IMPORTANT if you ever practice in this field and don't want to screw up – holds that proceedings to determine paternity are governed by the Juvenile Procedure rules rather than the Rules of Civil Procedure, so you only have 14 days to file a post-trial motion or to appeal.

Browder v. Food Giant affirms summary judgment, holding that it was Ms. Browder's own damn fault that she fell in the grocery store parking lot. Lesson: if possible, get an expert to opine that the hazard would not have been obvious to a reasonable person. And, if possible, don't let your sweet old-lady client indulge her penchant for self-flagellation during her deposition.

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