Thursday, May 4, 2017

"Best" Opening Lines of Judicial Opinions

The Incorporated Council of Law Reporting for England and Wales (@theILCR) publishes English law reports.  Last week, the ICLR published this article on the “best opening lines of published  judgments. Some are clever; some are sarcastic; some are funny because of the subject matter (I'm talking to you, hunny bunny judgment). 

I loved the article, and my Twitter friend, David Allen Green (@davidallengreen), challenged me to locate the best” opening lines in United States legal opinions. Many great opinions by great writers didn't make the list because the opening lines or paragraphs weren't particularly interesting or compelling. This was a tall task, but below are some of my favorites, in no particular order. 

Note: To use the parenthetical term coined by Jack Metzler of @SCOTUSplaces, I cleaned up the opinions for ease of reading.

Feel free to tweet me (@ladylegalwriter) or comment below and offer your favorite opening from a reported (or available on Westlaw/Lexis) United States case.

Concurring opinion by Justice Willett in Patel v. Texas Department. of Licensing and Regulation, 469 S.W.2d 69 (Tex. 2015)

Justice Don Willett
To understand the emotion which swelled my heart as I clasped this money, realizing that I had no master who could take it from me—that it was mine—that my hands were my own, and could earn more of the precious coin.... I was not only a freeman but a free-working man, and no master Hugh stood ready at the end of the week to seize my hard earnings.

Frederick Douglass's irrepressible joy at exercising his hard-won freedom captures just how fundamental—and transformative—economic liberty is. Self-ownership, the right to put your mind and body to productive enterprise, is not a mere luxury to be enjoyed at the sufferance of governmental grace, but is indispensable to human dignity and prosperity.

Texans are doubly blessed, living under two constitutions sharing a singular purpose: to secure individual freedom, the essential condition of human flourishing. In today's age of staggering civic illiteracy—when 35 percent of Americans cannot correctly name a single branch of government—it is unsurprising that people mistake majority rule as America's defining value. But our federal and state charters are not, contrary to popular belief, about “democracy”—a word that appears in neither document, nor in the Declaration of Independence. Our enlightened 18th- and 19th-century Founders, both federal and state, aimed higher, upended things, and brilliantly divided power to enshrine a promise (liberty), not merely a process (democracy).

One of our constitutions (federal) is short, the other (state) is long—like really long—but both underscore liberty's primacy right away….

Judge (now Justice) Gorsuch in United States v. Rentz, 777 F.3d 1105 (10th Cir. 2015)

Few statutes have proven as enigmatic as 18 U.S.C. § 924(c). Everyone knows that, generally speaking, the statute imposes heightened penalties on those who use guns to commit violent crimes or drug offenses. But the details are full of devils. Originally passed in 1968, today the statute says that “any person who, during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime ... be sentenced to a term of imprisonment of not less than 5 years.” That bramble of prepositional phrases may excite the grammar teacher but it's certainly kept the federal courts busy. What does it mean to “use” a gun “during and in relation to” a drug trafficking offense? The question rattled around for years until Bailey v. United States and even now isn't fully resolved.

Brown v. State, 134 Ga. App. 771 (1975) (the entire opinion in written in rhyme)

The D. A. was ready
His case was red-hot.
Defendant was present,
His witness was not.

He prayed one day's delay
From His honor the judge.
But his plea was not granted
The Court would not budge.

So the jury was empaneled
All twelve good and true 
But without his main witness
What could the twelve do?

The jury went out
To consider his case
And then they returned
The defendant to face.

‘What verdict, Mr. Foreman?’
The learned judge inquired.
‘Guilty, your honor.’
On Brown's face-no smile....

Justice Roberts in dissent on denial of cert petition, Pennsylvania v. Dunlap, 555 U.S. 964 (2010) (I think of The Maltese Falcon every time I read this one.)

North Philly, May 4, 2001. Officer Sean Devlin, Narcotics Strike Force, was working the morning shift. Undercover surveillance. The neighborhood? Tough as a three-dollar steak. Devlin knew. Five years on the beat, nine months with the Strike Force. He'd made fifteen, twenty drug busts in the neighborhood.

Devlin spotted him: a lone man on the corner. Another approached. Quick exchange of words. Cash handed over; small objects handed back. Each man then quickly on his own way. Devlin knew the guy wasn't buying bus tokens. He radioed a description and Officer Stein picked up the buyer. Sure enough: three bags of crack in the guy's pocket. Head downtown and book him. Just another day at the office.

35 Bar and Grille, LLC v. City of San Antonio, 943 F. Supp. 2d 706 (W.D. Tex. 2013)



An ordinance dealing with semi-nude dancers has once again fallen on the Court's lap. The City of San Antonio (“City”) wants exotic dancers employed by Plaintiffs to wear larger pieces of fabric to cover more of the female breast. Thus, the age old question before the Court, now with constitutional implications, is: Does size matter?

Judge Kozinski in Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894 (9th Cir. 2002)

If this were a sci-fi melodrama, it might be called Speech-Zilla meets Trademark Kong.

Barbie was born in Germany in the 1950s as an adult collector's item. Over the years, Mattel transformed her from a doll that resembled a “German street walker,” as she originally appeared, into a glamorous, long-legged blonde. Barbie has been labeled both the ideal American woman and a bimbo. She has survived attacks both psychic (from feminists critical of her fictitious figure) and physical (more than 500 professional makeovers). She remains a symbol of American girlhood, a public figure who graces the aisles of toy stores throughout the country and beyond. With Barbie, Mattel created not just a toy but a cultural icon.

With fame often comes unwanted attention. Aqua is a Danish band that has, as yet, only dreamed of attaining Barbie-like status. In 1997, Aqua produced the song Barbie Girl on the album Aquarium. In the song, one bandmember impersonates Barbie, singing in a high-pitched, doll-like voice; another bandmember, calling himself Ken, entices Barbie to go party. (The lyrics are in the Appendix.) Barbie Girl singles sold well and, to Mattel's dismay, the song made it onto Top 40 music charts.

Schatz v. Republican State Leadership Committee, 669 F.3d 50 (1st Cir. 2012)

Campaigning for public office sometimes has the feel of a contact sport, with candidates, political organizations, and others trading rhetorical jabs and sound-bite attacks in hopes of landing a knockout blow at the polls. It is not for the thin-skinned or the faint-hearted, to use two apropos clichés.  And because political speech is the life-breath of democracy, the First Amendment—applied to the states via the Fourteenth—bars public figures from recovering damages under state defamation laws unless they show that the defamer acted with “actual malice,” legalese that might suggest ill will or evil motive to the uninitiated but really means knowledge of falsity or reckless disregard for the truth.

Judge Posner concurring in Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339 (7th Cir. 2017)

I agree that we should reverse, and I join the majority opinion, but I wish to explore an alternative approach that may be more straightforward.

It is helpful to note at the outset that the interpretation of statutes comes in three flavors. The first and most conventional is the extraction of the original meaning of the statute—the meaning intended by the legislators—and corresponds to interpretation in ordinary discourse. Knowing English I can usually determine swiftly and straightforwardly the meaning of a statement, oral or written, made to me in English (not always, because the statement may be garbled, grammatically intricate or inaccurate, obtuse, or complex beyond my ability to understand).

Sir William Blackstone
The second form of interpretation, illustrated by the commonplace local ordinance which commands “no vehicles in the park,” is interpretation by unexpressed intent, whereby we understand that although an ambulance is a vehicle, the ordinance was not intended to include ambulances among the “vehicles” forbidden to enter the park. This mode of interpretation received its definitive statement in Blackstone’s analysis of the medieval law of Bologna which stated that “whoever drew blood in the streets should be punished with the utmost severity.” Blackstone asked whether the law should have been interpreted to make punishable a surgeon “who opened the vein of a person that fell down in the street with a fit.” (Bleeding a sick or injured person was a common form of medical treatment in those days.) Blackstone thought not, remarking that as to “the effects and consequence, or the spirit and reason of the law ... the rule is, where words bear either none, or a very absurd signification, if literally understood, we must a little deviate from the received sense of them.” The law didn’t mention surgeons, but Blackstone thought it obvious that the legislators, who must have known something about the medical activities of surgeons, had not intended the law to apply to them. And so it is with ambulances in parks that prohibit vehicles.

Finally and most controversially, interpretation can mean giving a fresh meaning to a statement (which can be a statement found in a constitutional or statutory text)—a meaning that infuses the statement with vitality and significance today. An example of this last form of interpretation—the form that in my mind is most clearly applicable to the present case—is the Sherman Antitrust Act, enacted in 1890, long before there was a sophisticated understanding of the economics of monopoly and competition. Times have changed; and for more than thirty years the Act has been interpreted in conformity to the modern, not the nineteenth- century, understanding of the relevant economics. The Act has thus been updated by, or in the name of, judicial interpretation—the form of interpretation that consists of making old law satisfy modern needs and understandings. And a common form of interpretation it is, despite its flouting “original meaning.” Statutes and constitutional provisions frequently are interpreted on the basis of present need and present understanding rather than original meaning—constitutional provisions even more frequently, because most of them are older than most statutes.

Green v. Board of County Commissioners of County of Haskell, 450 F. Supp. 2d 1273 (E.D. Okla. 2006) (reversed)

Located in Southeastern Oklahoma, Haskell County has a population of about 15,000 people. The seat of county government is in Stigler, which is home to approximately 2,500 souls. Everyone knows each other.
Haskell County, Oklahoma

Highway 9 is one of the major state highways in Haskell County. It becomes Main Street as it runs through Stigler and passes directly in front of the Haskell County courthouse. It is the busiest street in Stigler.

The courthouse sits in the middle of approximately one square block of county property. Parking lots exist on both sides and in back of the courthouse. No parking exists at the front of the property except a few parallel parking spaces on Highway 9 itself. Most people who come to the courthouse to conduct business park in the side or rear parking lots.

The setting of the courthouse grounds is somewhat bucolic. Squirrels run across the grass, tall trees shade the lawn and neat sidewalks criss-cross it to converge at the front and side entrances. A small, rustic log cabin housing the Haskell County Historical Society is on the northeast side of the property. A picturesque gazebo, suitable for anything from political rallies to orchestral performances, stands on the northwest corner. Indeed, a number of public and private events take place on the courthouse lawn and at the gazebo.

The courthouse itself is not, from all appearances, an architectural marvel. To the court's untrained eye, its style could be described as “muscular brick and concrete with turquoise trim.” A cheerful looking building it is not; however, no question has been raised regarding its functionality.

Spread willy-nilly over the front lawn of the courthouse is a mélange of marble monuments of various styles, sentiments and construction. Private citizens paid for and erected most of the monuments. The largest monument sits smack dab in the center of the lawn. It lists and honors Haskell County citizens who died in World Wars I and II. In front of it are smaller monuments for KIAs in Vietnam and Korea. Behind the war memorial is a small rose garden with a birdbath. Nearby, straight and tall, stands a flagpole from which Old Glory proudly waves.

A large marble monument honoring the Choctaw Nation also stands on the front lawn. No other Indian tribe is represented by a monument on the courthouse lawn in Haskell County. Near the gazebo, a large marble monolith honoring all unmarked graves in Haskell County looks out majestically over Main Street.

Not last, and certainly not least, the courthouse lawn holds two sturdy marble benches dedicated to and inscribed respectively by the Class of 1954 and the Class of 1955. The names of members of the graduating class are inscribed in (mostly) alphabetical order on the tops of the benches. The court is unsure why no other class demonstrated the wherewithal or initiative to erect a monument to themselves, or why the County perhaps approves of no other high school graduating class.

Anderson v. Terhune, 516 F.3d 781 (9th Cir. 2008)

It is likely that few Americans can profess fluency in the Bill of Rights, but the Fifth Amendment is surely an exception. From television shows like “Law & Order” to movies such as “Guys and Dolls,” we are steeped in the culture that knows a person in custody has “the right to remain silent.” Miranda is practically a household word. And surely, when a criminal defendant says, “I plead the Fifth,” it doesn't take a trained linguist, a Ph.D, or a lawyer to know what he means. Indeed, as early as 1955, the Supreme Court recognized that in popular parlance and even in legal literature, the term  “Fifth Amendment in the context of our time is commonly regarded as being synonymous with the privilege against self-incrimination.

Denny v. Radar Industries, Inc. 184 N.W.2d 289 (Mich. Ct. App. 1971) (the entire opinion). 

The appellant has attempted to distinguish the factual situation in this case from that in Renfroe v. Higgins Rack Coating and Manufacturing Co., Inc. He didn't. We couldn't.

Affirmed. Costs to appellee.

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