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2nd Amend. Litigation Updates & Legal Discussion Discuss California 2A related litigation and legal topics here. All advice given is NOT legal counsel.

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  #1  
Old 08-21-2013, 1:04 AM
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Default Richards v. Prieto (CCW)

Richards v. Prieto [Yolo County]
(FKA Sykes v. McGinness)
Issue: 2A Right to Bear Arms Outside the Home

Current Status:
As of 3/24/2014: Richards' response due 4/11/2014; possible en banc review.

3/21/2014: Court directs Richards to file response to petition NLT 4/11/2014.
3/18/2014: Prieto/Yolo petition for rehearing en banc.
3/5/2014: 9CA Panel Opinion (unpublished); (attached pending RECAP)
11/26/2013 - SAF's 28(j) reply letter (Piszczatoski/Drake v. Filko), and 28(j) letter (U.S. v. Chovan).
11/13/2013 - Yolo's 28(j) letter (Piszczatoski/Drake v. Filko)
9/16/2013 - SAF's 28(j) letter (People v. Aguilar)
12/6/2012 - Oral Argument (Audio)
12/2/2012-5/29/2013 - Various 28j / Supp. Auth. filed


Trial Court: E.D. Cal.
Case No.: 2:09-cv-01235
Docket: http://ia700408.us.archive.org/4/ite...26.docket.html

Appellate Court: 9CA
Case No.: 11-16255
Docket: http://ia601700.us.archive.org/8/ite...55.docket.html

Links:
CGF Wiki for this case: http://wiki.calgunsfoundation.org/Richards_v._Prieto
CGF Wiki Litigation page: http://wiki.calgunsfoundation.org/Li...st_and_Present
Attached Files
File Type: pdf 11-16255_Documents.pdf (196.2 KB, 104 views)

Last edited by fizux; 03-24-2014 at 7:12 PM.. Reason: updates
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Old 08-21-2013, 5:11 AM
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Interesting that the same exact 3-judge panel has both this and the Peruta cases. I guess if they can get in line with Heller/MacDonald it could work out well for us!
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Old 08-21-2013, 9:19 AM
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Originally Posted by hardlyworking View Post
Interesting that the same exact 3-judge panel has both this and the Peruta cases. I guess if they can get in line with Heller/MacDonald it could work out well for us!
UHHHH, maybe because they were heard one after the other on the same day?

Just an FYI
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Old 08-21-2013, 2:53 PM
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Does anyone know if there is a date either of these decisions by the 9th have to be made by? Or is it just whenever they feel like it?
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Old 08-22-2013, 1:02 AM
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Curious also. Was thinking of trying to get my ccw before Christmas.
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Old 08-22-2013, 7:11 AM
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The have no deadline but average 6 months to a year.
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Old 08-22-2013, 8:08 AM
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Does anyone know if there is a date either of these decisions by the 9th have to be made by? Or is it just whenever they feel like it?
Part of the delay may be related to another case (Mehl) which had procedural priority at 9CA, so the decision in this case would have had to follow Mehl's holding if it was on point. Mehl came out recently, and thankfully didn't do any damage, so the coast is clear for the Richards/Peruta/Baker panel.
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Old 08-22-2013, 12:10 PM
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Does anyone know if there is a date either of these decisions by the 9th have to be made by? Or is it just whenever they feel like it?
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Old 08-24-2013, 5:19 AM
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Originally Posted by fizux View Post
Part of the delay may be related to another case (Mehl) which had procedural priority at 9CA, so the decision in this case would have had to follow Mehl's holding if it was on point. Mehl came out recently, and thankfully didn't do any damage, so the coast is clear for the Richards/Peruta/Baker panel.
Curious if the panel would even start working on their opinion before Mehl was decided? If not then we could be waiting a while, to the point where if this were THE case to go to SCOTUS it wouldn't happen until the 2014-2015 term.
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Old 08-24-2013, 2:29 PM
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Just for info, Mehl was unpublished, but could it still be cited as direct application? Did Boyd v. Benton County (a case I'm thinking off the top of my head) make mention of that or is it not optional for judges to cite unpublished material? When I listen to oral arguments (every night at work) in the 9th Cir., I hear Counsel sometimes cite unpublished holdings, and they (for the most part) will make sure that it's known that whatever is cited is unpublished.

Edit:
One other quick note, the 3 cases in Peruta, Richards & Baker were heard by the same panel in one court session.

Erik.

Last edited by Window_Seat; 08-24-2013 at 2:40 PM..
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Old 08-26-2013, 1:47 PM
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Originally Posted by Window_Seat View Post
Just for info, Mehl was unpublished, but could it still be cited as direct application? Did Boyd v. Benton County (a case I'm thinking off the top of my head) make mention of that or is it not optional for judges to cite unpublished material? When I listen to oral arguments (every night at work) in the 9th Cir., I hear Counsel sometimes cite unpublished holdings, and they (for the most part) will make sure that it's known that whatever is cited is unpublished.

Edit:
One other quick note, the 3 cases in Peruta, Richards & Baker were heard by the same panel in one court session.

Erik.
Unpublished cases generally cannot be cited as binding precedent to support an argument. (Why they choose to avoid publication is a mystery.) As you say, if you want the court to consider an unpublished case, you MUST declare it as unpublished. As such, the case is persuasive, non-binding authority. "Justice O'Scannlain, You might want to consider this case."
The court must follow binding case law and authority, but can dismiss persuasive authority without comment or consideration.
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Old 08-26-2013, 2:39 PM
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Why they choose to avoid publication is a mystery.
Because the case doesn't add any useful jurisprudence in the eyes of the panel. In Mehl, the case went away for administrative reasons (didn't complete application, etc.) that were unrelated to the 2A issues raised.
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Old 08-26-2013, 5:10 PM
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Originally Posted by Window_Seat View Post
Just for info, Mehl was unpublished, but could it still be cited as direct application? Did Boyd v. Benton County (a case I'm thinking off the top of my head) make mention of that or is it not optional for judges to cite unpublished material? When I listen to oral arguments (every night at work) in the 9th Cir., I hear Counsel sometimes cite unpublished holdings, and they (for the most part) will make sure that it's known that whatever is cited is unpublished.

Edit:
One other quick note, the 3 cases in Peruta, Richards & Baker were heard by the same panel in one court session.

Erik.
I thought I read in another thread that they went back and published it
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  #14  
Old 08-26-2013, 5:40 PM
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Originally Posted by stix213 View Post
I thought I read in another thread that they went back and published it
I just looked around the ca9 and ecf.ca9 pages, and nothing about going back to publish it. The only thing that is moving about the case is the petition for rehearing en banc, and that is a pending decision. My hope is that it is not reheard. I don't even know if briefs are due or not at this point.

I'm starting to wonder at this point if Peruta, Richards & Baker are being delayed pending the Mehl en banc reconsideration decision.

Erik.
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Old 08-26-2013, 6:35 PM
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Originally Posted by Nick Justice View Post
Unpublished cases generally cannot be cited as binding precedent to support an argument. (Why they choose to avoid publication is a mystery.) As you say, if you want the court to consider an unpublished case, you MUST declare it as unpublished. As such, the case is persuasive, non-binding authority. "Justice O'Scannlain, You might want to consider this case."
The court must follow binding case law and authority, but can dismiss persuasive authority without comment or consideration.
That about makes sense, and the authority for that might be here in Boyd v. Benton County, 374 F.3d 773, 781 (9th Cir. 2004), no?

"In the Ninth Circuit, we begin our inquiry by looking to binding precedent. See Capoeman v. Reed, 754 F.2d 1512, 1514 (9th Cir. 1985). If the right is clearly established by decisional authority of the Supreme Court or this Circuit, our inquiry should come to an end. On the other hand, when ‘‘there are relatively few cases on point, and none of them are binding,’’ we may inquire whether the Ninth Circuit or Supreme Court, at the time the out-of-circuit opinions were rendered, would have reached the same results. See id. at 1515."

But Boyd doesn't tell us that cases which look to unpublished authority must be rendered unpublished, correct?

The Supreme Court talks about their own precedent "ha[ving] direct application in a case, yet appear[ing] to rest on reasons rejected in some other line of decisions", and how "the Court of Appeals should follow the case which directly controls," (Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989)), but I think that this was an admonition to the lower courts from the Supreme Court that thou shalt not tinker with long standing Supreme Court precedent, even if it has no stare decisis effect before any court, which is probably why the Boyd Court didn't mention Rodriguez for that purpose, no? Anyone care to chime in on that one? I've been kinda interested in that part of case law lately.

Erik.

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Old 08-30-2013, 8:31 AM
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Does anyone know if there is a date either of these decisions by the 9th have to be made by? Or is it just whenever they feel like it?
From the 9th Circuit FAQs:
18. How long does it take from the time of argument to the time of decision?

The Court has no time limit, but most cases are decided within 3 months to a year.
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Old 08-30-2013, 8:19 PM
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From the 9th Circuit FAQs:
18. How long does it take from the time of argument to the time of decision?

The Court has no time limit, but most cases are decided within 3 months to a year.
I don't think 2013 is going to be the year. Hopefully the first half of 2014 will be fruitful, since we are looking at 3 cases together.
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Old 08-31-2013, 2:53 PM
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I think its partially what Erik said and I think the Ninth Circuit is waiting to see whether Drake is granted cert. If so they will hold off on rendering a decision in the three cases. Its been eight months since arguments I doubt that its going to be much longer if Drake cert is denied. I am merely speculating. There have been a lot of 28j letters filed by both parties in Baker. Every case in the country has been good for us. Most recently the Mass. Supreme Court issued a decision I filed which is just spot on. This is the 28j notice and the attached case.


http://www.scribd.com/doc/160149338/Filed-Simkin-Notice

As to citing unpublished sources. I am horrible at citations but the way you tell the court a decision is unpublished is simply by how you do the citation
this is just a example Holder, 342 F. App’x 907, 908-09 (4th Cir. 2009)
that is unpublished
this is published Tucson Woman’s Clinic v. Eden, 379
F.3d 531, 544 (9th Cir. 2004)

You really should not cite to unpublished cases unless you literally have nothing else to cite to. They do not have a lot of value especially if they are from another jurisdiction. The reason cases are not published is the Court thinks the case was poorly done and does not want it as precedent or the case is not very important.

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Old 09-01-2013, 8:23 AM
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I think its partially what Erik said and I think the Ninth Circuit is waiting to see whether Drake is granted cert. If so they will hold off on rendering a decision in the three cases. Its been eight months since arguments I doubt that its going to be much longer if Drake cert is denied. I am merely speculating.
If SCOTUS grants cert. in Drake, would the 9th inform the parties that they're holding off in Peruta-Richards-Baker pending a decision in Drake or do they just hold off w/o informing anyone?

Either way, could SCOTUS tell the 9th not to hold off, to come to a decision in Peruta-Richards-Baker because they want the benefit of the opinion of the 9th before deciding Drake? That's what I'm hoping for.

Could Alan word his brief in such a way that he raises this issue (basically suggest to SCOTUS that they "ask" the 9th to come to a conclusion ASAP for the benefit of SCOTUS)?
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Old 09-01-2013, 4:40 PM
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If SCOTUS grants cert. in Drake, would the 9th inform the parties that they're holding off in Peruta-Richards-Baker pending a decision in Drake or do they just hold off w/o informing anyone?

Either way, could SCOTUS tell the 9th not to hold off, to come to a decision in Peruta-Richards-Baker because they want the benefit of the opinion of the 9th before deciding Drake? That's what I'm hoping for.

Could Alan word his brief in such a way that he raises this issue (basically suggest to SCOTUS that they "ask" the 9th to come to a conclusion ASAP for the benefit of SCOTUS)?
I believe that there is a very strong chance that the panel would issue a stay if Drake were taken. It is up to them.

My understanding is SCOTUS can not order that and I don't know of a situation where they've even asked a Circuit panel to render a opinion before it was ready.
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Old 09-01-2013, 6:33 PM
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I believe that there is a very strong chance that the panel would issue a stay if Drake were taken. It is up to them.

My understanding is SCOTUS can not order that and I don't know of a situation where they've even asked a Circuit panel to render a opinion before it was ready.
Not before it is ready, but rather request/suggest/instruct them not to put it on ice until SCOTUS decides Drake.

IIRC, all lower fed cts are creations of SCOTUS, just the way that all local gov'ts are creations of a state.

Maybe they could even say we'd like that opinion by 2014 Jan 01. That way both sides could deal w/any new arguments the 9th raised, if any, in supplemental briefs and in oral arguments.

I mean, its not like the judges on the 9th never had a due date for an assignment before.... It's just telling them, this is an important issue that we, SCOTUS, are going to deal w/so we'd like your input in a timely manner, esp since this is a FUNDAMENTAL and ENUMERATED right we're dealing with. Make writing an opinion in this case a high, or even your highest, priority.

Has SCOTUS has faced this situation before? If so, any Con. law experts here know what happened then?
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Old 09-01-2013, 6:50 PM
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Article III Section 1:
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.
So while the Supreme Court has the final judicial say, the lower courts are in fact, creatures of the legislature.
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Old 09-01-2013, 7:30 PM
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Article III Section 1:
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.
So while the Supreme Court has the final judicial say, the lower courts are in fact, creatures of the legislature.
Ah, thx. Haven't gone over Art. III in quite awhile.

Do you know if SCOTUS can request the 9th to release their opinion in time for SCOTUS to review it this term in re. Woollard?
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Old 09-02-2013, 12:03 AM
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If SCOTUS grants cert. in Drake, would the 9th inform the parties that they're holding off in Peruta-Richards-Baker pending a decision in Drake or do they just hold off w/o informing anyone?

Either way, could SCOTUS tell the 9th not to hold off, to come to a decision in Peruta-Richards-Baker because they want the benefit of the opinion of the 9th before deciding Drake? That's what I'm hoping for.

Could Alan word his brief in such a way that he raises this issue (basically suggest to SCOTUS that they "ask" the 9th to come to a conclusion ASAP for the benefit of SCOTUS)?
Um, I see that you were talking about Drake, so I just started talking about Drake even though Drake is pending a decision re. going en banc.

I meant to talk about Woollard which Gura has already requested cert. for.
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Old 09-02-2013, 2:24 PM
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Neither Woollard or Drake would have no impact on what the 9th does, and more likely the reverse. Scotus will deny both and wait for the 9th to complete their work to get a comprehensive opinion addressing all of the Circuits. Circuit Courts are independent courts' of final determination. There is no appellate right beyond their decision other than a request for cert.
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Old 09-03-2013, 12:30 PM
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Originally Posted by Al Norris View Post
Article III Section 1:
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.
So while the Supreme Court has the final judicial say, the lower courts are in fact, creatures of the legislature.
Congress authorizes ordains and establishes inferior Courts. They can abolish and re-institute if/as they want (hasn't happened in 200 years).
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Old 09-03-2013, 2:11 PM
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Um, I see that you were talking about Drake, so I just started talking about Drake even though Drake is pending a decision re. going en banc.
I meant to talk about Woollard which Gura has already requested cert. for.
Already denied by a vote of 8-4. Clock is ticking on a cert petition.
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Old 09-03-2013, 9:29 PM
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Already denied by a vote of 8-4. Clock is ticking on a cert petition.
You're right! On 2013 Aug 27 the request was denied. They've got 90 days from then to ask for cert.

Somehow, I don't think they'll wait until the last minute to decide whether to ask for cert or not....
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Old 09-04-2013, 3:18 AM
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Agreed. If they take the whole 90 days, add in the guaranteed "I need more time!", and you may find yourself waiting until NEXT term (2014-2015).
They can probably wait until SCOTUS decides on Woollard and stay in this term.
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Old 10-04-2013, 8:50 AM
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Still in a holding pattern?

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Old 11-12-2013, 7:01 AM
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Still in a holding pattern?
Yarp.
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Old 11-14-2013, 11:21 PM
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Cool FRAP 28(j) authority by Appellees

FRAP 28(j) letter filed by "Appellees County of Yolo and Ed Prieto" to note the holding in Drake v. Filko, 724 F.3d 426, 428 (3d Cir. 2013), Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013) and the fact that SCOTUS denied cert in Woollard and Kachalsky. People getting all excited over SCOTUS denying cert.

I'm still wondering if 28(j) Authority will be filed by our side regarding the interesting holding I note here.

Erik.
Attached Files
File Type: pdf 28(j) by Prieto - 11-13-2013.pdf (53.9 KB, 43 views)

Last edited by Window_Seat; 11-14-2013 at 11:25 PM..
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Old 11-15-2013, 1:27 AM
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FRAP 28(j) letter filed by "Appellees County of Yolo and Ed Prieto" to note the holding in Drake v. Filko, 724 F.3d 426, 428 (3d Cir. 2013), Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013) and the fact that SCOTUS denied cert in Woollard and Kachalsky. People getting all excited over SCOTUS denying cert.

I'm still wondering if 28(j) Authority will be filed by our side regarding the interesting holding I note here.

Erik.
Who signs a legal document "very truly yours"... are they sleeping together or what?
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Old 11-15-2013, 6:34 AM
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Originally Posted by Window_Seat View Post
FRAP 28(j) letter filed by "Appellees County of Yolo and Ed Prieto" to note the holding in Drake v. Filko, 724 F.3d 426, 428 (3d Cir. 2013), Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013) and the fact that SCOTUS denied cert in Woollard and Kachalsky. People getting all excited over SCOTUS denying cert.

I'm still wondering if 28(j) Authority will be filed by our side regarding the interesting holding I note here.

Erik.
SCOTUS has said that denials of cert are just that; it is not an endorsement of the judgement below. Yolo is obviously trying to give CA9 the impression that SCOTUS rubber stamped Kachalsky and Woolard.
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Old 11-15-2013, 7:24 AM
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Who signs a legal document "very truly yours"... are they sleeping together or what?
Nearly all attorneys do when engaged in official correspondence with people they are not familiar with. That includes your attorneys.
I would note that they should have attached the decision and there is not much point in filing one since the government's attorney in Baker already filed a 28j letter regarding Drake.

Last edited by wolfwood; 11-15-2013 at 7:27 AM..
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Old 11-15-2013, 10:21 AM
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Nearly all attorneys do when engaged in official correspondence with people they are not familiar with. That includes your attorneys.
I would note that they should have attached the decision and there is not much point in filing one since the government's attorney in Baker already filed a 28j letter regarding Drake.

Very truly yours belongs in a love letter! You lose cool points if you do that :P. Clearly, no man card exists if you are signing letters like this!
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Old 11-15-2013, 1:13 PM
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fair enough brother
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Old 11-16-2013, 11:05 PM
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My elementary school teachers would address their signatures with "very truly yours" when there was a letter to my parents, which would have resulted in certain punishment.

Erik.

Last edited by Window_Seat; 11-16-2013 at 11:07 PM..
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Old 11-20-2013, 2:59 PM
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Just for info, Mehl was unpublished, but could it still be cited as direct application? Did Boyd v. Benton County (a case I'm thinking off the top of my head) make mention of that or is it not optional for judges to cite unpublished material? When I listen to oral arguments (every night at work) in the 9th Cir., I hear Counsel sometimes cite unpublished holdings, and they (for the most part) will make sure that it's known that whatever is cited is unpublished.

Edit:
One other quick note, the 3 cases in Peruta, Richards & Baker were heard by the same panel in one court session.

Erik.
Citing to unpublished decisions is sanctionable conduct, as attorneys have a duty of candor to the tribunal to only put forward meritorious legal theories:
In Alicia T. v. County of Los Angeles (2nd Dist. 1990) 222 Cal.App.3d 869, 271 Cal.Rptr. 513, the court found that a lawyer's conduct in failing to address adverse controlling authority and instead persisting in citing to an unpublished case, despite knowledge of these defects, warranted sanctions. Nevertheless, the court could not (and did not) point to the CRPC in support of its order to impose sanctions; rather, the Court first attempted to find that the lawyer had violated a local court rule governing the form of briefs. The court then "rejected these options because the violations in issue here involve more than the mere form of the brief." Id. at 886. The Court proceeded to order "a more severe sanction than those set forth in California Rules of Court, rule 18," though its struggle to find authority for such sanctions is apparent in the decision. Id.
Best regards.
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Old 11-20-2013, 3:53 PM
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SCOTUS has said that denials of cert are just that; it is not an endorsement of the judgement below.
A notion that doesn’t fool anyone.
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