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Salica v. Tucson Heart Hospital (CA2 5/27/10)

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This is a medical malpractice case; the issue was causation. We will not blog it, for one or more reasons set forth in our FAQ. But it raises a question of judicial technique on which we feel free to comment.

Although the opinion does not suggest it, we are informed that the court decided the case using a legal analysis different from that presented by either party.

From time to time the appellate courts have said more or less that they are not bound by the parties’ legal analysis if following it would produce an incorrect result. The principle is salutary; two wrongs don’t make a right and it may be that neither party knows what its talking about. The problem is that the court doesn’t, necessarily, either.

There is a difference between rejecting both parties’ legal conclusions and rejecting their analysis – between deciding that the cases don’t mean what either party argues and deciding that neither even knows what cases or rules of law to argue. A court’s analysis is informed by that of the parties; its decision results from the collective wisdom of them all. This is the system’s way of trying to ensure that that decision is correct, that it is consistent with precedent, and that it hasn’t overlooked any major problem. It is also the way that the people contribute to the making of their common law rather than being in thrall to judicial ukases. If some judicial functionary can discard what the parties have said and start with a tabula rasa then the adversary system is thrown out the window. And respect for the system requires the recognition that not everyone who writes an opinion is an experienced expert on the subject or a supple legal mind. When an appellate court decides that the parties got it all wrong – when their analyses, not just their conclusions, are mistaken – then the thing to do is to solicit supplemental briefing on what the court believes to be the right analysis. That can either let the parties know that they were wrong or let the court know that it was.

When that doesn’t happen a routine case can jump the tracks and turn into a disastrous train wreck that splatters debris all over the law. Not that we’re expressing an opinion about this case, you understand.

Desela v. Prescott Unified (CA1 5/27/10)

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Courts do odd things.

This is an amended opinion; we blogged the original last month. As is its practice, the court instantly removed that opinion from its web site; the internet never forgets, though, so we can compare the two.

As near as we can tell, the amendment does two things. It changes a minor factual point. And it adds a paragraph in which it briefly disposes of an argument the first opinion didn’t substantively address.

The District had presented no authority to support that argument, so the first opinion had considered it waived. The District’s Motion for Rehearing did offer some authority. The court amended the opinion to include it, explaining very briefly why it was wrong and did not change the result.

Apparently, then, you can un-waive a waived argument. This may come in handy when next you’re short of time to finish your brief. Just make that last argument or two and don’t bother to look up the cases. The court will call it a waiver but if you lose you’ll have time to get some cases and, with them, another bite of the apple.

Sarcasm aside, why did the court bother? If the District waived it, it waived it; if not, the court shouldn’t have said so in the first place. Have the courage of your convictions. Considering on rehearing a waived, minor (in the court’s eyes) argument that doesn’t change the outcome makes no legal sense, encourages bad briefs and motions for rehearing, does the court no good, and does these parties no good.

City of Chandler v. ADOT (CA1 5/20/10)

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The question here is whether Chandler or the State has to pay to relocate utility lines for a new Loop 202 interchange. Municipal and utilities lawyers might find it substantively interesting. They might also know why it was brought; the court, at least, clearly thinks the City’s arguments inconsequential.

Our concerns are stylistic. Though neither is well-written, since we just finished praising Young v. Beck for having a good front end its hard not to notice that this one doesn’t.

Both parties filed cross-motions for summary judgment. The ADOT won. Chandler appealed. What did it argue? “The City argues that the trial court erred because it, not ADOT, was entitled to summary judgment.” Well, yes. That’s true. Can’t deny it. Thanks for telling us.

Why does that silly sentence even exist? As an introduction to the boilerplate standard-of-review paragraph. As if they weren’t bad enough to begin with, now those pointless paragraphs get their own lead-ins.

So what did the City really argue? To find that you read. And read. And read. And finally, on page 11 (of 19), the court tells you. The arguments wouldn’t make sense without the context of the court’s prior discussion, you say? On the contrary, its their connection with that discussion that isn’t entirely clear.

What have you been reading up to that point? Page after page of facts, for one thing. The size of the water line installed in 1975 and of the sewer line installed in 1992, the story of the Chandler Improvement Company (1904-1913) – if you want a history of the intersection of Willis and McQueen in Chandler, this is the place. Of course, 90% of this is irrelevant to the holding and none of it is contested. And then there’s the law, mostly a several-page mini-treatise on the law of dedication – law not at issue, since the parties agreed that the roadway was dedicated.

So what’s the holding? That when government reasonably decides to re-do a road, the owner of the utilities has to pay to relocate them. The opinion makes it sound as if this is what the law always was. Maybe so. Turns out, though, when you get to page 17 and look at the footnote, that the City had a case – but it was a California case, of which this court’s analysis is “we think it proper . . .  to follow existing Arizona law.”

Unless there’s more to this than the court lets meet the eye, it could have done that in a two-page memo.