There was only one published opinion by the Ninth Circuit today. But it's a pretty good example of competing approaches to justice. So it's definitely worth a read.
Other people will focus on the facts. And they're definitely fascinating. If only because you might be extremely sympathetic to the plaintiff (as the majority is) or much less so (e.g, the dissent).
I'll instead focus entirely on the doctrine. Because whether someone was unjustly in prison for two decades based upon a false confession coerced by misconduct is . . . well, a tough question.
But for me, the doctrine is not only where my intellectual interest lies, but also determinative of the appeal.
Let's start off where one of the Ninth Circuit judges gets it wrong.
Judge Ikuta argues in dissent that the Court of Appeals has no jurisdiction to hold the way it does. Whatever the merits of the remainder of her dissent, that part's not right.
Constitutional law aside, here are basic facts needed to understand the doctrinal issues raised by the case: (1) When plaintiff originally sued, he asserted a Fourteenth Amendment claim. (2) Two years or so later he moved to amend to change/add a Fifth Amendment claim. (3) The motion to amend was denied. (4) Defendant successfully got the remaining Fourteenth Amendment claim dismissed on summary judgment. (5) Plaintiff appealed the resulting judgment. (6) Plaintiff's briefs alleged that summary judgment was improperly granted but didn't mention anything about the refusal to allow the amendment. (6) The Ninth Circuit affirms the dismissal of the Fourteenth Amendment claim but remands to allow the plaintiff an opportunity to amend.
Judge Ikuta's beef is with the last part of (6). The basic thrust of her dissent is that the Ninth Circuit shouldn't "play lawyer" and raise (and decide) issues not raised by the parties. She begins her dissent by asserting that this is not only a jurisprudential (pragmatic) principle, but also one that is founded on jurisdiction, and argues that what the panel did was jurisdictionally improper because the plaintiff only filed a notice of appeal with respect to the adverse summary judgment order, not the denial of the motion to amend.
But, with respect, that's clearly wrong. Parties appeal judgments, not orders. Plaintiff appealed the final judgment entered in the matter. It so happens that this final judgment came shortly after (as it often does) the order granting defendants summary judgment, but that's irrelevant. Appeals are -- as they must be -- to final judgments. When you appeal that final judgment, you thereby appeal all prior orders that are merged into that judgment. Including, as here, prior motions to amend that the court previously denied. That's what we mean by merger, and that's why the prior orders aren't subject to interlocutory appeal. You appeal them at the end when you file your notice of appeal with respect to the resulting judgment. Which is exactly what plaintiff did here. Entirely proper.
Judge Ikuta objects that the notice of appeal doesn't say anything at all about the prior orders. But that's irrelevant. Again: You appeal judgments, not orders. Any order that is merged into a final judgment is automatically appealed when you appeal that final judgment. It may well be true that some lawyers make clear in their notice of appeal that they're also appealing one or more specific prior orders. But they do that for the same reason they wear both belts and suspenders. To play it safe. Not because it's required. Because it's not. They do it just so no one gets confused and to minimize the risk that some appellate judge might erroneously conclude that s/he lacks jurisdiction because the notice of appeal doesn't specifically mention one of the prior interlocutory orders merged into the judgment.
So I'm confident that this part of Judge Ikuta's dissent isn't persuasive. Because it's clear that as long as the party appeals a final judgment, the court properly has jurisdiction to entertain all objections to that judgment, including those manifested by an earlier order merged into that judgment. As here.
By contrast, the prudential point of Judge Ikuta's argument is far more credible. She says that even were the Court of Appeal permitted to entertain objections like the ones here (which, again, they are), the court shouldn't do so when those objections aren't made in the briefs, but are instead identified by the court. This seems generally right to me. We expect parties to raise the right issues. When they don't that's their bad. It's their job, not ours.
Even the majority -- Judges Nelson and Gould -- agree with this general proposition. But they hold that this is an exceptional case because of the magnitude of the injury, its genesis (at the hands of the government), and the resulting wrongs. So it's one of those rare cases in which we're okay with going beyond the issues raised by the parties and making sure that "justice" is indeed done.
Judge Ikuta's not persuaded. Moreover, it's not that surprising that these competing visions are both held and expressed by their respective authors -- Judge Nelson on the one hand, and Judge Ikuta on the other. Their visions of what "justice" entails are indeed very different from one another, and you see that over and over again, particularly (but by no means limited to) here.
But on this issue, I find myself somewhat closer to Judge Ikuta than Judge Nelson. There are indeed situations we sometimes go beyond the issues the parties raise. We don't want innocent people kept in jail, for example. We sometimes raise issues on their behalf when there's plain error and when the consequences of ignoring those errors are too severe. That's when we step in, and rightly so.
But we don't generally do that in civil cases. And there are two reasons why. First, because the parties generally (as here) have lawyers, and when a lawyer messes up and advances the wrong argument, that's on the party, not us. Should have hired a better lawyer. I've read plenty of cases where the losing party would/should have won had they had a better lawyer. Plenty. It happens. Clients are responsible for what their lawyers do. There are some exceptions to that general rule (e.g., incompetent counsel in criminal cases), but not in civil realms like this. Plaintiff hired his lawyer and his lawyer didn't make the right argument. Deal with it. Happens every day. Is not an "extraordinary circumstances" where we'll step in and make the right argument on his behalf.
Second, unlike criminal cases, in civil cases like this one, clients also have a remedy if their lawyers mess up. It's called a malpractice action. You may not be able to do that in criminal cases, and even if you could, money from a lawyer doesn't make up for decades in prison. The two are not equivalent so we sometimes step in ourselves. But when -- as here -- all you want (or at least are permitted to seek) from the defendant is money, if your lawyer messes up and you lose that money, we can fix that problem simply by letting you seek that money from your lawyer. The possibility that you might lose money generally doesn't justify us intervening and making arguments on your behalf, since money's what you can get from your lawyer is s/he's indeed incompetent. Otherwise we'll be working 24/7 making arguments for everyone.
Judge Nelson says that this is an unusual case, and it is. But it's still about money. Pure and simple. And I'm not sure that really justifies a departure from the usual rule.
I have other reactions to other parts of the opinions as well. But this post is already too long, so I'll just mention them briefly. First, as to the merits of the denial of the motion to amend, it seems to me significant that it was nearly two years after the filing of the complaint. You wait that long, you're begging to be denied, and it's tough to argue that it's an abuse of discretion. Especially when, as in this case, the trial's scheduled right around the corner. Judge Ikuta's arguments in this regard seem to me to be fairly strong. It's true, as Judge Nelson argues, that the "new theory" didn't radically differ from the original theory of the case, so there might not be as much prejudice as you might think. But a new theory two years in and right before trial nonetheless still mucks things up quite a bit.
But -- and here's my second point -- I'm not sure this is really the right way to think about it anyway. We plead facts, not theories. The proposed amendment didn't add any new facts, but rather merely changed the label. Why does that even require an amendment, much less justify refusing one? We are keen to say nowadays that you've got to plead facts, not legal conclusions, and although lawyers love to do the latter, as long as they do the former, we're fine. Viewed in that light, the discussion of the motion to amend seems somewhat misplaced. The complaint already says that defendants did X, Y and Z and that this violated plaintiff's rights. Not sure you're required to do anything else.
Anyway, great case. Read it all.
