Probate lawyers can use this one to guide their drafting. Our interest is why CA2 did something that we were hoping against hope that the Supreme Court might note but it didn’t.

Mary Riley left her estate to her many children, two of whom were appointed PRs and spent ten years administering it. When they went to close it another of the kids objected, claiming excessive costs of administration. He became the new PR, apparently by agreement. The new and old PRs then signed a settlement agreement, as part of which one of the old PRs gave up his claim on the estate. Over the objection of still other kids, the probate court approved this. The objectors appealed.

The Court of Appeals, sua sponte, raised the issue of whether the agreement violated 14-3952 (probate compromise must be signed by “all competent persons . . . having claims”) since the objecting kids hadn’t signed. After allowing briefing on the point the court held the settlement agreement void for lack of all the heirs’ signatures.

The Supreme Court accepted review and comes to almost but not quite the same conclusion, so it vacates the CA2 opinion. It holds that the agreement is not binding on the non-signors but (contra CA2) is not necessarily void for all purposes. Mostly, though, the court gently points out that the agreement might have been structured in ways that avoided the statute.

Our question is: why did CA2 chose to suggest to the objectors a substantive argument they hadn’t made – and that the court had, probably already, decided was the wining argument for them? It wasn’t a jurisdictional thing. CA2 noted that the other side didn’t argue that the issue hadn’t been raised in the court below. But what if it did? Would the court have ignored the issue it ordered briefed? Or would it have constructed an excuse to decide the parties’ lawsuit on an issue they never put in it? And why weren’t the CA2 judges listed at the beginning of the opinion – as counsel for some of the parties – rather than merely at the end?

(link to opinion)

This is the tattoo parlor case. We blogged the Court of Appeals opinion here; go there for the facts.

The Supreme Court also reverses the trial court but substitutes its opinion for that of the Court of Appeals, which it vacates. Like that court, it follows Anderson – tattooing is free speech – though it explains in rather more detail why it doesn’t follow the courts that held otherwise.

But the court differs by saying that intermediate scrutiny, not strict scrutiny, applies to the First Amendment, equal protection, and due process claims.

The court says that whether Mesa acted reasonably in not allowing Coleman to open a tattoo parlor at a particular place is fact question, not a matter for dismissal.

(link to opinion)

The Supreme Court took this case because CA1’s opinion in it (which we reported here) conflicts with CA2’s opinion in McCloud v. Kimbro.

The court affirms Engler and rejects the McCloud analysis. Respondeat superior depends on the employers right to control, which is measured at the time of the tort.

The opinion does not expressly disapprove McCloud, pretending that it depended on an administrative regulation that was not involved in Engler. “But to the extent that McCloud II suggests that employees generally are acting within the course and scope of their employment when ‘driving to a restaurant’ while off duty during an extended out-of-town assignment ‘because eating is incidental to a multiple-day assignment,’ we disagree.”

(link to opinion)