Monday, February 09, 2009

Denedo Respondent's Merits Brief Filed

As promised in TWIMJ, here is a link to the Denedo merits brief at SCOTUS. More analysis tonight.
Posted by Mike "No Man" Navarre at 3:36 PM
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14 comments:

Anonymous said...

With all respect to MJ cites - "We know they'll take the cases. That's why this case is here." -- Justice Scalia, oral argument, Clinton v. Goldsmith.

Mon Feb 09, 06:22:00 PM EST
Anonymous said...

How are Mr. Ceballos' alcoholism and subsequent disciplinary problems relevant to the QP? Speaking of...I thought SCOTUS granted on just one issue. Sure, jurisdictional questions can be raised any time, but Respondent identifies two questions presented. That's incorrect. Am I missing something? How much liberty do respondents generally have to reconfigure the QP's?

Mon Feb 09, 07:47:00 PM EST
Anonymous said...

Anon 1947,

Not much liberty allowed at all, and they're likely to get bench-slapped pretty good at oral argument. Wouldn't want to be the attorney arguing this one. Looks like Clinton v. Goldsmith, part deux, to me.

Mon Feb 09, 07:59:00 PM EST
Dwight Sullivan said...

Anonymous commentators often provide useful information, but anonymous commentators can also sometimes provide inaccurate perspectives. Supreme Court Rule 24.1(a), which governs merits briefs, expressly provides, "The phrasing of the questions presented need not be identical with that in the petition for a writ of certiorari . . . ." The SG routinely rewrites the QPs in its briefs -- as the Court's rules expressly allow and as effective advocacy principles would suggest.

Mon Feb 09, 09:37:00 PM EST
Anonymous said...

Oooh, anon 1959 just got bench-slapped.

Mon Feb 09, 09:47:00 PM EST
Anonymous said...

Nice try, Mr. Sullivan. But you fail to account for the fact that, here, we're not talking about "rewriting" the QP. We're talking about adding an additional issue. Please cite me the rule that says you can just add an issue to the docket via the answer brief. Can't do it? Then you're dismissed...

Mon Feb 09, 10:36:00 PM EST
Dwight Sullivan said...

Anon 2236,

I'll give you the benefit of the doubt and assume you were unsuccessfully trying to be clever rather than successfully trying to be boorish. Rule 14.1(a) provides, "The statement of any question presented is deemed to comprise every subsidiary question fairly included therein. Only the questions set out in the petition, or fairly included therein, will be considered by the Court." The question of SCOTUS's jurisdiction is faily included in the original QP. Not only is it a general proposition of law that a court's jurisdiction is always in issue, but that rule is actually reflected by SCOTUS R. 15.2. In EVERY granted case where there is a jurisdictional question, it's appropriate for the respondent to highlight that question by including it as a QP, since it's necessarily included within the petitioner's QP.

Mon Feb 09, 10:57:00 PM EST
Cloudesley Shovell said...

I agree with Col Sullivan on this one; jurisdiction is always at issue. Heck, that's how this whole thing got started.

That being said, I also wonder about the wisdom of arguing jurisdiction again on the merits after having made that argument to no avail at the cert stage.

Anon 1947--If the law is against you, argue the facts. The facts of this case (or at least the facts for purposes of the present writ, having yet to be tested in any adversarial proceeding) present Denedo in an incredibly sympathetic light. Why touch the fact that your client got caught red-handed stealing money from a community college (Denedo endorsed and deposited the fraudulent student aid checks into his own bank account) when you can beat up on your drunken and disbarred lawyer? If anything wins this case for Denedo, it'll be the facts.

Should be an interesting argument; both parties have written good briefs.

Tue Feb 10, 06:17:00 AM EST
Anonymous said...

This issue of what QP's can be briefed is interesting. My question is, if this question was presented/briefed at the cert stage, how can the rule cited possibly apply. If the rule applies as it has been presented here, it would allow for smuggling in of tons of issues. SCOTUS can't be in the business of addressing new arguments at the merits stage very often...can they?

Tue Feb 10, 07:44:00 AM EST
Anonymous said...

I'll take the lack of responses as a concession to the last comment that that all the hubbub about some rule allowing this chicanery is a bunch of poppycock.

Wed Feb 11, 10:10:00 PM EST
Dwight Sullivan said...

2210 Anon,

If you want to have a serious discussion about whether the QPs in the respondent's brief were permissible, please send me an e-mail and I'll be happy to set out in detail why, according to my reading of the SCOTUS rules and understanding of SCOTUS practice, the two QPs were permissible. If, on the other hand, you just want to play games, have fun playing solitaire.

Wed Feb 11, 11:01:00 PM EST
Anonymous said...

Ooooh, Mr. CAAFlog just told you to go play with yourself...burn!

Now, on with the countdown...

Thu Feb 12, 02:22:00 AM EST
Anonymous said...

Discounting Anon's attitude (or an Islamic-like love for perfected textual authority) in fairness to him/her, I have often heard audio of oral argument where a Justice chides or reprimands a counsel "that's not the question we granted cert on." So, there can be some danger in tweaking the questions too much. But, it also seems that Denedo's counsel did a good job in splitting the QP into two subsidiary questions "fairly included."

My favorite QP: from Pete Townsend, of The Who: "Who are you? (Who, who...I really want to know...)" Plenty of subsidiary questions there.

Thu Feb 12, 05:01:00 AM EST
John O'Connor said...

I'll one up you, Socrates, with another Pete Townshend QP:

"What is happening in his head? Oooooh, I wish I knew, I wish I knew."

or this:

"How do you think he does it? What makes him so good?"

Thu Feb 12, 08:05:00 AM EST

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