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State v. Lewandowski (CA2 3/31/09)

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This is not a bad opinion, and we will assume that it is legally correct, but it does something that bothers us about many criminal opinions.

The case holds that a criminal restitution order can’t be entered until the end of the sentence/probation (because that’s what the statute says) and that doing so before then is fundamental error (because now that such orders bear interest an early entry constitutes an excessive sentence).

That’s about it. So why does the opinion tell us what the crime was, how Lewandowski acted at the scene, what color truck he was doing drugs in, what the evidence of his drug use was, and how he fled and was captured after doing a typical dumb-criminal thing? None of that has anything to do with the holding, which involves issues of law.

Criminal opinions do this all the time. No matter what the issue on appeal, we get all the lurid details. This is a waste of the court’s time and of ours. And in some cases it blurs the point of the opinion.

Some opinions, of course, have to do it; we’re not talking about those. We know why opinions in capital cases, for example, spend pages detailing the evidence. The opinion must say as much as the issues need. But they shouldn’t say more.

We don’t know whether it makes things better or worse that the court in this case saw the problem. It issued a memorandum opinion on some other issues raised in the case (under the rule we just chided CA1 for ignoring), an opinion that probably did require discussion of the crime; for the published opinion, it said, it was stating facts “to provide a context for our discussion.”

Context? What context? The context for the court’s discussion was the sentencing, which the text mentions so briefly that more had to be added in a footnote. How does the arresting officer’s name or the color of the truck or the size of the bag of crystal meth, for example, give any context to anything else in the opinion?

Sometimes it seems that opinions are written to a template. The template apparently contains a heading called “Facts and Procedural Background” and somebody must get points for plugging stuff in under that heading – even though whoever’s doing it has no conception of what facts or procedural background ought to be there. We don’t necessarily criticize the use of templates but they ought not to be a substitute for thought.

Brethauer v. General Motors (CA1 3/31/09)

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We review this case as part of our ongoing griping about memorandum opinions. This isn’t one – but most of it should be.

This was a products-liability case alleging a defective seatbelt. Plaintiff lost at trial. He appealed on the basis of several evidentiary rulings and a jury instruction.

The instruction issue was of legal substance. The appellate court ruled that the trial court gave the wrong strict-liability instruction but that it wasn’t reversible because it was at least a strict-liability instruction, not a negligence instruction, and was therefore close enough for government work. (We kid, but only a little.)

Before you get to that, though, you have to wade through fourteen pages that discuss (at some length; Judge Timmer has never, to our memory,  risked terseness) very routine evidentiary rulings. Little, if any, of this comes within a mile of being publishable.

ARCAP 28(g) requires that only the publishable parts be published; the court “shall” issue the rest as a memorandum. To be honest, we don’t really like that rule, as we don’t approve of an opinion in one case being split up into pieces. But at least it has the virtue of reducing the extraneous garbage that lawyers have to read every day. And as long as its on the books, ignoring it will get that extraneous garbage cited back to the courts in other cases. If it wasn’t important, after all, why was it in a published opinion?

The courts should obey the rule or abolish it.

In re The Matter of the Jury Selection Process (CA1 03/26/09)

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This one is hard to believe.

In 2002, the (then) Presiding Judge of the Maricopa County Superior Court changed the jury selection process. The court, according to the opinion, didn’t bother to give the public or the Bar any notice.  (Sound incredible and ridiculous? Then you don’t understand the degree to which the courts are bureaucracies unto themselves and you haven’t known many Presiding Judges.) People didn’t find out about it until 2006. Then they began to object that the new system violates the jury statues. (Their argument is good enough to make it doubly astonishing that the court slipped this in without telling anyone. Although not ruling on whether the new system violated the statutes, the opinion describes the system [albeit briefly] and quotes the statutes in full. Whether these deliberate dicta are intended to signal something remains to be seen.)

In April 2006 the (current) Presiding Judge ordered, in three of the cases in which the issue had been raised, that that issue alone be heard by an out-county judge. In August a Pinal County judge ordered that the issue, which had by then been brought up in thirty-seven cases, be given its own cause number, that objectors to the new system would be Petitioners, and that those defending it would be Respondents. Yes, he turned thirty-seven motions into their own lawsuit. (How could thirty-seven lawyers – or even a few, assuming some consolidation of representation – sit in a courtroom and not see the problems with that? We’re charitably going to assume that all, or at least a few, or at least one of the “Respondents’” lawyers saw the problem and realized that it could be to their advantage not to mention it.)

Over a year later, the judge from Pinal ruled in favor of the new system. (One assumes that the thirty-seven cases were on hold in the mean time. Civil lawyers are used to waiting but eleven of the cases were criminal.  Did they all just wait a year for a ruling on some motions in a combined civil/criminal “proceeding” of some sort?) The “Respondents” appealed.

At that point, good sense began to break out: the First Division dismissed the appeal for lack of jurisdiction.

There was neither a final judgment nor a judgment with Rule 54(b) language. You can’t have an appeal without one of those, as all involved should have learned in about their fourteenth minute of law school. All that had happened was a ruling on some motions. Couldn’t anyone have seen that this would be a problem for an appeal? Shouldn’t they at least have filed a special action instead? That wouldn’t have succeeded, either, but would have made more sense than most of what had happened so far.

The court recognized but declined to use its discretion to rule on the matter as a special action. No action had ever been created in the court below in any manner recognized by the Rules. The situation was more like a certified question than than a special action; the appellate courts have no authority to take certified questions from the Superior Court. And if its ruling were against the new jury procedure, that would still leave for resolution the question of whether litigants in any of the individual cases had been prejudiced.

The court dismissed without prejudice, pointing out that the thing to do would be to seek relief in the individual cases.

The opinion is written in an eyebrows-mildly-raised sort of way. Maybe getting something so out of the ordinary put the judges in a good mood. But they had to be wondering “What were they thinking down there? Was anybody thinking down there?”

In fairness, there may well be some extenuating circumstances that don’t appear in the opinion. It surely can’t be true that so many people could make so many mistakes that were just plain dumb.