Dead Letter Office: What’s Left of the Impeachment Power After Trump’s Acquittal

DEAN FALVY

Dean Falvy, a lecturer at the University of Washington School of Law in Seattle, discusses what happens now, after Senate Republicans voted to acquit President Trump. Falvy predicts that (1) President Trump will be emboldened to commit further abuses of power, (2) future presidents will be less constrained by fear of impeachment, and (3) impeachment may become more routine as political practice and significantly less effective as a constitutional remedy.

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Vargas v. Howell

Court: US Court of Appeals for the Ninth Circuit

Docket: 18-15513

Opinion Date: February 5, 2020

Judge: Miller

Areas of Law: Legal Ethics

The Ninth Circuit affirmed in part and reversed in part the district court's award of attorney's fees after settlement in a 42 U.S.C. 1983 action. The district court awarded just 10 percent of the fees plaintiff claimed. The panel held that, given the size of the 90 percent cut in attorney's fees, the district court's explanation was inadequate. The panel reaffirmed its prior decisions holding that a significant reduction requires a more thorough explanation, and concluded that the district court did not adequately justify the dramatic cut that it imposed here. Therefore, the panel remanded for a recalculation of the number of hours reasonably attributable to counsel. The panel also held that the district court erred by denying fees for work performed by two former attorneys on the basis that their law firm lacked standing to seek fees for work they performed at a different firm. Finally, the district court did not abuse its discretion in reducing the hours and rates of the other attorneys that worked on the case.

Primera Beef v. Ward

Court: Idaho Supreme Court - Civil

Docket: 46595

Opinion Date: February 3, 2020

Judge: Moeller

Areas of Law: Civil Procedure, Contracts, Labor & Employment Law, Legal Ethics

Primera Beef, LLC appealed a district court’s grant of summary judgment in favor of Allan Ward. Primera Beef alleged Ward breached the confidentiality provision of a settlement agreement between him and Primera Beef when Ward’s attorney disclosed the terms of the agreement to a prosecutor in a related criminal action. Ward moved for summary judgment, arguing that he was not liable for his attorney’s actions because his attorney was not acting within the scope of his authority when he disclosed the terms. The district court agreed. The Idaho Supreme Court concurred and affirmed the district court.

Texas Brine Co., LLC v. Naquin

Court: Louisiana Supreme Court

Dockets: 2019-OC-01503, NO. 2019-OC-1508

Opinion Date: January 31, 2020

Judge: Per Curiam

Areas of Law: Civil Procedure, Government & Administrative Law, Legal Ethics

In consolidated actions, the common issue presented for the Louisiana Supreme Court’s review centered on whether a writ of mandamus should issue to the clerk of an appellate court for the purpose of directing the clerk to comply with certain rules for the random assignment of panels and cases at that court. In a three-page per curiam, the First Circuit explained its allotment procedures were changed in 2019 after the 2018 amendment to La. R.S. 13:319. The First Circuit stated it adopted rules requiring a procedure for random allotment by the Clerk’s office of both appeals (Internal Rule 2.3(d)(l)(c)) and writ applications (Internal Rules 3.9(a)),4 with consideration for recusals and emergencies. In a supplemental per curiam, the First Circuit discussed composition of judicial panels, each regular panel comprising of one member randomly chosen through mechanical means from the four members of each of the Court's three election districts. The random composition of the initial three-judge panels was adopted pursuant to a five-year plan of rotation of members among the panels. To further ensure random composition of the panels, panel members of particular panels did not sit as an intact panel in the following year. The four randomly drawn regular panels also sat on writ duty throughout the Court's six appeal cycles. Petitioner Texas Brine’s petition alleged the First Circuit’s composition of judicial panels “dramatically limits the number of unique panels that can hear writs, appeals, and contested motions before the First Circuit from 220 unique combinations to 64 unique combinations - a reduction of approximately 70.9%.” It concluded this policy was an “affront to the requirement of randomness.” The Solomon plaintiffs’ mandamus petition was premised on the First Circuit’s practice, used between 2006-2018, of assigning subsequent appeals or applications for writs to a panel which included a judge who sat on the original panel and may have taken the lead or authored the first opinion/ruling in the case. The Supreme Court determined the First Circuit’s assignment system was reasonably designed “to select judges for panels in a random fashion which does not permit intentional manipulation by either the judges or the litigants.” The Court therefore denied Texas Brine’s mandamus petition, and dismissed the Solomon plaintiffs’ application as moot.

Washington v. Yishmael

Court: Washington Supreme Court

Docket: 96775-0

Opinion Date: February 6, 2020

Judge: Steven González

Areas of Law: Constitutional Law, Criminal Law, Legal Ethics

Naziyr Yishmael, who was not an attorney, advised clients that they could "homestead" in apparently abandoned properties and, after a period of time, acquire title through adverse possession. After some of his clients were arrested for taking up residence in other people's houses, he was charged with and convicted of misdemeanor unlawful practice of law. On appeal, he contended: (1) the jury was improperly instructed that the unlawful practice of law was a strict liability offense; (2) the trial court's use of GR 24 to define the practice of law violated separation of powers was an inappropriate comment on the evidence; (3) the Statute was unconstitutionally vague; and (4) the evidence presented was insufficient to sustain his conviction. Finding no reversible error, the Washington Supreme Court affirmed Yishmael’s conviction.