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Bikinis, Coffee and Strippers: Just Another Day in the Ninth Circuit

What do bikinis, coffee and strippers have in common?  Nothing except for the fact that they all play a role in the Ninth Circuit’s opinion in Edge v. City of Everett, 929 P.3d 657(2019).  Edge takes us to Washington, the land of bikini barista coffee stands, where women wear next to nothing (and sometimes nothing) while serving coffee at road side stands.   After the City of Everett enacted ordinances requiring the baristas to wear a few more inches of fabric, several of the baristas complained that the City of Everett had unconstitutionally infringed on their freedom of expression under the First Amendment.  The Ninth Circuit disagreed.

THIS JUST IN: STRIPPING IS PROTECTED BY THE FIRST AMENDMENT

That actually is not just in, but it is new information to me.  Since the 1970’s, SCOTUS has protected stripping as a freedom of expression under the First Amendment. 

The First Amendment is the constitutional amendment that protects “freedom of speech.”  U.S. Const., amd. I.  Although the text of the amendment only refers to “speech,” SCOTUS has long held that the First Amendment’s protections extend to both orally expressed statements and physically “expressive conduct” that is used to communicate something to another person.  Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984).

In California v. LaRue, 409 U.S. 109 (1972), SCOTUS applied this logic to uphold California’s legislation barring liquor in strip clubs.  Noting that the First Amendment freedom of expression had been extended to motion pictures and theatre performances, and that stripping was, in some cases, basically a really erotic theatre performance, SCOTUS found that strippers do have some limited First Amendment rights.  Id. But, because California sought to regulate liquor sales rather than the actual um, performance, the California law was upheld.  Id.

In Schad v. Borough of Mount Ephraim,452 U.S. 61 (1981), SCOTUS again noted that nudity does not exclude conduct from the protection of the First Amendment.  Id. In Schad, SCOTUS found that a local ordinance attempting to ban an adult bookstore from allowing a live nude dancer was unconstitutional.  Id.

This does not mean that strippers have a carte blanche right to roam about dancing in the nude.  As SCOTUS explained in Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991), the states still have the right to enact laws limiting when and where public nudity may occur and/or requiring strippers to wear “scant clothing” while dancing.  Id. at 571.  Barnes concerned an Indiana law banning all nudity in strip clubs, but allowing dancers to wear pasties and a g-string.  Id.  Reasoning that states can regulate morality provided that the state’s interpretation of “moral” conduct does not completely prohibit protected expressive conduct, SCOTUS upheld the state law. Id.  Since the dancers could still dance, and since the clothing required gave the audience the basic gist of nudity, the Indiana law was fine. 

These were family establishments after all.  We must have some standards. 

(Kidding. These were actually just strip clubs with no minors allowed). 

BUT, “BIKINI BARISTAS ARE NOT STRIPPERS”

According to the Bikini Baristas, they are not strippers.  Strippers wear little to no clothing in exchange for tips.  Bikini Baristas, in contrast, wear little to no clothing in exchange for tips. 

Wait a minute. 

I think we need to start from the beginning with this one. 

THERE’S CORRUPTION IN THIS COFFEE STANDS

If you are like me, you may not have ever heard of a bikini barista.  Seriously, I’ve learned so much today.  A bikini barista wears a “bikini” while serving coffee at a road side coffee stand. 

In Washington.  Which is not exactly known for balmy weather. 

If that sounds like a recipe for prostitution and trafficking . . . well, it is.  After receiving complaints that the baristas had a pretty fast and loose term for the phrase “bikini” and that patrons observed physical contact with customers occurring, the City of Everett mounted an undercover police investigation.  Edge, 929 F.3d at 660-61.  The police discovered that many of these road side coffee stands were fronts for prostitution and trafficking, that many of the baristas were paid solely in tips and encouraged to wear little or no clothing for larger tips, and that assaults frequently occurred.  Id. at 661. This undercover operation lasted for five years, and after five years, the Everett police were unable to solve the problems the coffee stands presented with the means available to them.  Id. Partially because they discovered that a sheriff deputy was involved in covering up one of the coffee prostitution rings (he’s been convicted, it’s all fine now). 

Anyway, after five years, the Everett police told the City that the bikini baristas were the City’s problem to solve.  And the City responded by, among other things, creating a dress code ordinance for the stands that required the baristas to wear more.  Id. at 662. 

THE BIKINI BARISTAS SUE FOR THEIR RIGHT TO BARE IT ALL

After the City’s enactment of the new dress code ordinance, several bikini baristas (and an owner of a stand) sued the City and argued, among other things, that the City’s dress code ordinance unconstitutionally infringed on their freedom of expression.  According to the baristas, the bikini (or whatever they were or were not wearing) was a symbol of “female empowerment” because it celebrated the female body and made women seem “approachable.”  Id. at 662-64.  The trial court agreed with the bikini baristas that the dress code ordinance might infringe their freedom of expression, and entered an order temporarily enjoining the City from enforcing the dress code while the lawsuit was pending. Id. at 664. The Ninth Circuit disagreed.

The  Ninth Circuit explained that protected freedom of expression requires that the “expressive conduct” convey a specific message for which there is a great likelihood that it will be understood by those to whom it is being conveyed.  Id. at 668. For example, SCOTUS has protected the rights of protestors to wear “F—- the Draft” shirts, Cohen v. California, 403 U.S. 15, 18 (1971), and black arm bands to protest the Vietnam war.  Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 505-06 (1969). 

In contrast to the situations in which SCOTUS has protected freedom of expression, the bikini barista’s claim arose in a commercial setting.  The Ninth Circuit found that “the commercial setting and close proximity to the baristas’ customers makes the difference” because the “baristas’ act of wearing pasties and g-strings in close proximity to paying customers” where the “baristas indisputably solicit tips . .. creates a high likelihood  that the message sent by the baristas’ nearly nonexistent outfits vastly diverges from” the messages of “female empowerment” the baristas claimed to be sending.  Edge, 929 F.3d a 669.  In other words, the message conveyed may have been one of empowerment, but the message received was most likely “give me more money.”  And, given the high rates of prostitution, trafficking and assault found by the City’s police department, the “empowerment” part of the message was clearly lost in translation. Id.

IT MIGHT BE DIFFERENT IF THEY WERE STRIPPERS

Although the Ninth Circuit found that the bikini baristas will have a hard time prevailing on their freedom of expression claim, it did throw them a bone.  To paraphrase the gist of what Judge Christen was hinting at in the opinion:

Hey, bikini baristas, you keep claiming that you are not strippers, and therefore, we cannot find a constitutional basis to protect your claimed freedom of expression.  But if you were to say that you are strippers – you know, those other women who take their clothes off for tips just like you – maybe we could talk. 

Clearly the moral of this story is to claim you are a stripper, even if it subjects your employer to all kinds of zoning violations. 

DISSECTING CROSS-APPEALS

WHAT IS A CROSS-APPEAL?

A cross appeal is an appeal filed by a respondent.  Normally, when you are the respondent (or appellee) on appeal, you have won and your focus is on defending what the lower court did.  But, sometimes, neither side wins. 

When neither side wins, the first party to file an appeal becomes the appellant. If you want to challenge the district court’s findings as well, you do not have to file a separate appeal.  You can file a cross-appeal.

WHEN SHOULD YOU FILE A CROSS APPEAL?

You should file a cross-appeal “when acceptance of the argument [you] wish[ ] to advance would result in reversal or modification of the judgment rather than an affirmance.”  Hamilton Beach Brands, Inc. v. f’real Foods, LLC, 908 F.3d 1328, 1337 (Fed. Cir. 2018) (internal quotations omitted).  Cross-appeals must be filed if you “seek to alter the judgment below.”  Nw. Airlines, Inc. v. Cnty. of Kent, Mich., 510 U.S. 355, 364, 114 S. Ct. 855, 862, 127 L.Ed.2d 183 (1994). 

A common example of a cross-appeal is a party who prevails on summary judgment, but then is denied their requested attorney fees.  That party wants the summary judgment ruling to be upheld, but the attorney fee denial reversed.  They can cross-appeal the denial of fees. 

A cross-appeal cannot be filed when you generally agree with the outcome the court reached, but not with the court’s reasoning behind it.  “[A] party that is not adversely affected by a judgment lacks standing to cross-appeal.”  Vanda Pharm. Inc. v. W.Ward Pharm. Int’l, Ltd., 887 F.3d 1117, 1140 (Fed. Cir. 2018).  Instead, a responding party on appeal “may urge in support of a decree in any matter appearing before the record, although his argument may involve an attack upon the reasoning of the lower court.”  Jennings v. Stephens, 135 S. Ct. 793, 798, 190 L.Ed.2d 662 (2015) (internal quotations omitted).  And, “[a] prevailing party need not cross-[appeal] to defend a judgment on any ground properly raised below, so long as that party seeks to preserve, and not change, the judgment.”  Nw. Airlines, Inc., 510 U.S. at 364, 114 S. Ct. at 862. 

HOW DO YOU FILE A CROSS APPEAL?

You file a notice of cross appeal.  NRAP 28.1(b); FRAP 28.1(b).  After the appellant files their opening brief, you file a combined answering brief and opening brief on cross-appeal.  NRAP 28.1(c)(2); FRAP 28.1(c)(2).  You do not need to include a statement of the case or a statement of the facts in this brief, but it must comply with Rule 28’s requirements for opening briefs (not answering briefs) in all other respects. Id.

The appellant then gets to file a answering brief to the cross-appeal opening brief, and can combine that answering brief with their reply brief.  NRAP 28.1(c)(3).  You get to file a reply brief in support of your opening brief on cross-appeal.  NRAP 28.1(c)(4).  This must be limited to the issues presented in the cross-appeal. 

Page limits are different for briefs in a cross-appeal.  Usually, opening and answering briefs are limited to 30 pages.  On cross-appeal, the appellant’s opening brief is limited to 30 pages, but the combined answering and opening brief on cross-appeal is expanded to 40 pages.  Usually, reply briefs are limited to 15 pages, but the appellant’s combined reply and answering brief on cross-appeal is expanded to 30 pages.  The respondent’s reply brief on cross-appeal is still limited to 15 pages.  NRAP 28.1(e); FRAP 28.1(e). 

The time limits to file a brief in a cross-appeal generally remain the same.  In Nevada, opening briefs are due 120 days after the date the appeal is docketing or briefing is reinstated following the settlement program.  NRAP 28.1(f)(1)(A).  Combined answering and opening briefs on cross-appeal are due 30 days after the initial brief.  NRAP 28.1(f)(1)(B).  The reply brief and combined answering brief is due 30 days after that, and the final reply brief on the cross-appeal is due 14 days after that.  NRAP 28.1(f)(1)(C)-(D). 

In the Ninth Circuit, the opening brief is due 40 days after the record is filed, the combined answering and opening on cross-appeal is due 30 days after that, the combined reply and answering brief on cross-appeal is due 30 days after that, and the final reply brief is due 21 days after that (unless oral argument will occur prior to that, then it is due no later than 7 days before oral argument).  FRAP 28.1(f).

FOOD FOR THOUGHT

Cross-appeals are a highly strategical decision.  If you won a favorable substantive decision, you might not want to file a cross-appeal. As I repeatedly say, it is not persuasive to argue “The judge is an absolute idiot who really screwed up… so you should totally affirm them.”

Hovercraft Moose Hunting: Never Mind, It’s Fine.

I previously wrote about the saga of John Sturgeon, the hunter from Alaska who was told to literally pound sand after he attempted to access moose hunting grounds on his hovercraft. You can read that post HERE.

To recap, the saga of John Sturgeon is a fight about who owns and can regulate the Nation River in Alaska under the Alaska National Interest Lands Conservation Act (“ANILCA”). ANILCA is also discussed in depth in my previous post and I cannot promise my summary of it is entirely accurate. Even SCOTUS has difficulty understanding that law.

After the National Park Service ejected John from the Nation River for purportedly violating the National Park Service’s ban on hovercrafts, John began his twelve (12) year legal battle to vindicate the rights of hovercrafting Moose hunters in Alaska. And he won. Sturgeon v. Frost, 587. U.S. ___, 139 S. Ct. 1066 (March 26, 2019).

THE NATION RIVER IS NOT A “PUBLIC LAND” UNDER ANILCA

When we last left John, the Ninth Circuit had determined that the Nation River qualified as a “public land” under ANILCA because the federal government had an “interest” in the running water under the “reserved water rights” doctrine. Sturgeon v. Frost, 872 F.3d 927 (9th Cir. 2017). SCOTUS disagreed.

SCOTUS found that reserved water rights do not give “title” to water rights. Sturgeon, 139 S. Ct. at 1079. Because the reserved water doctrine does not grant the federal government “title,” the federal government does not own an interest in the waters of the Nation River. Id.

Even if it did, SCOTUS pointed out that a reserved water right is a limited right that only allows the federal government to “take or maintain a specific amount of water” necessary to fulfill the purpose for which the government is regulating the adjacent land. Id. It does not give the federal government the right to enact laws regulating the use of that water in general. Id. This means that the federal government can take water from the Nation River to support the adjacent wildlife preserve, but it cannot enforce its general hovercraft ban on the Nation River.

Which means John is now, finally, free to hovercraft to moose-land.

THE MORAL OF THIS STORY IS…

The moral of the saga of John Sturgeon is that if at first you don’t succeed, sue everybody for twelve years.

Just kidding. That is a terrible moral. The actual moral is to never stop fighting for what you believe in, even if it really, really annoys the Ninth Circuit.

Dem Bones: Murray v. BEJ Minerals

In 2006, on a hot day in Hell Creek, Montana, the Dinosaur Cowboy stumbled upon the remains of a theropod (maybe a T. Rex) and a ceratopsian (maybe a triceratops) engaged in mortal combat.  While it cannot be known for certain which may have had the upper hand, both lost as they are now dead and preserved in mortal combat for time immemorial. 

            Aside from being one of the largest scientific discoveries in modern times, the Dueling Dinosaurs also raised an interesting legal question:  Who owns them? According to the Ninth Circuit, whoever owns the mineral rights to the land.  Murray v. BEJ Minerals, LLC, 908 F.3d 437 (9th Cir. 2018). 

FOSSILS FOUND ON PRIVATE LAND

The answer to the Dueling Dinosaur’s ownership should be simple because fossils found on private land typically belong to the landowner.  When the Dueling Dinosaurs were discovered, Hell Creek was owned by Lige and Mary Ann Murray.  Id. at 439.

The issue regarding the Dueling Dinosaurs arose because the Murrays had purchased Hell Creek one year earlier from Jerry and Robert Severson.  The Seversons sold the Murrays Hell Creek (a ranch), and one-third of the mineral rights in Hell Creek, but reserved the remaining two-thirds mineral rights in themselves.  Id.

Mineral rights and land rights work like this:  If you own the land, you can do whatever you want with it (within the bounds of the law).  If you find gold on your land, you presumably own that too unless someone else owns the “mineral” rights, i.e., the right to extract and sell gold from your land. 

So, the question of who owns the Dueling Dinosaurs boiled down to one simple question:  Are dinosaur fossils “minerals?”

ACCORDING TO THE NINTH CIRCUIT, DINOSAUR FOSSILS ARE MINERALS

The district court found that dinosaur fossils are not “minerals” because dinosaurs were once living, breathing animals and their fossils are not mined or subject to traditional methods of extraction as most other traditional minerals.  Id. at 441.  However, the Seversons argued, and the Ninth Circuit agreed, that all minerals are the product of decomposed plant matter.  Id. at 443.  Furthermore, most fossils are sold for economic gain, the same as traditional minerals like gold, silver and oil.  Id. at 443-44.  The Ninth Circuit also found that prior editions of Black’s Law Dictionary defined “minerals” to include fossils.  Id. at 444.

Reasoning that reliance on dictionary definitions, alone, of the phrase “mineral” would be insufficient since everything on the earth could plausibly fall within those definitions, the Ninth Circuit looked to Montana precedent on how Montana defines a mineral.  Id. It found that Montana determines whether something qualifies a “mineral” under Montana law by asking whether it is “rare and exceptional in character or possesses a peculiar property giving it special value.”  Id.  

The Ninth Circuit found that the Dueling Dinosaurs are unquestionably “minerals” under this definition because they were worth millions, and are among one of the largest scientific fossil finds in recent history.  We all know dinosaurs must have fought, but these are the first fossils to preserve a fight in the fossil record.  Id. at 445-47.

Therefore, according to the Ninth Circuit, the Seversons own 2/3 of the Dueling Dinosaurs and the Murrays own 1/3.   

Now, if we could just find fossil evidence of dinosaur’s skin, because I have not completely ruled out the possibility that they might have been covered in blue hair. 

Anatomy of an Answering Brief

I recently discussed what an appellant must include in their opening brief HERE.  This post breaks down what a respondent (Nevada) or appellee (Ninth Circuit) needs to include in their answering brief.

WHAT YOU CAN LEAVE OUT

The good news for respondents/appellees who are wordy (or lazy) is that you do not need to include every item in an opening brief in your answering brief.

Items that you do NOT need to include are:

1.  jurisdictional statement;

2.  Routing statement (Nevada);

3.  statement of the issues;

4.  statement of the case;

5.  statement of the facts;

6.  standard of review; and

7.  conclusion.

NRAP 28(b); FRAP 28(b). 

These items may be left out of the brief if you agree with the appellant’s statement of them.  Beware, however, that anything you leave out gives the appellant the only say on this matter.  As a respondent/appellee, your answering brief is your one shot at telling the court your story.

WHAT YOU MUST INCLUDE

1.  The Rule 26.1 Corporate disclosure statement;

2.  table of contents

3.  table of authorities;

4.  summary of the argument;

5.  argument;

6.  compliance certificate.

These items are discussed HERE

Anatomy of an Opening Brief

A

One of the biggest differences between litigation and appellate practice is the briefing.  When you litigate, you can get creative with how you draft motions, what you title them, and what you include within the body of the brief.  You cannot do that on appeal.  Here’s how you structure an opening brief, and what you must include. 

CORPORATE DISCLOSURE STATEMENT

After the title page, the very first thing you should include in the brief is a corporate disclosure statement under either NRCP 26.1, or FRAP 26.1.  NRAP 28(a)(1); FRAP 28(a)(1).  The purpose of a corporate disclosure statement is to identify the immediate ownership of entities so that the presiding Justices can determine whether they need to recuse themselves.  For example, if a Justice owns a lot of stock in one of the entities that owns the appellant, they should probably recuse themselves so as to avoid any appearance of improper bias towards the respondent. 

Corporate disclosure statements must be filed any entity that is not a natural person or a government agency.  NRAP 26.1(a); FRAP 26.1(a).  The disclosure must identify the owners (whether it is a corporation or not).  If a publicly held corporation owns 10% or more the company, that company must be identified.  If the entity is not owned by a public corporation, then the corporate disclosure statement needs to specifically state that fact.  Id

The corporate disclosure statements only require you to identify immediate ownership.  If your client is a limited liability company that is wholly owned by another company, you only need to identify that company.  You do not need to go further up the chain of ownership.  See NRAP 26.1; FRAP 26.1.

In Nevada, you must also list all counsel who appeared on behalf of your client before the lower court, and who are expected to appear on appeal.  NRAP 26.1(a). 

The corporate disclosure statement is the first thing you file on appeal, which means that you must file it if you engage in briefing prior to the opening brief (motions, etc.).  FRAP 26.1(b); NRAP 26.1(b). Even if you have already separately filed a corporate disclosure statement, you must include one in your brief.  FRAP 26.1(b); NRAP 26.1(b). 

IN NEVADA, YOU ALSO NEED A ROUTING STATEMENT

Following the corporate disclosure statement, you must include a routing statement under NRAP 17, specifying which court should hear your appeal and why.  NRAP 28(a)(5).  How appeals and the routing process work in Nevada is discussed HERE.

TABLE OF CONTENTS AND TABLE OF AUTHORITIES

The next two items you must include are a table of contents, with page numbers, and a table of authorities.  FRAP 28(a)(2)-(3); NRAP 28(a)(2)-(3).  The table of authorities should contain every case, statute, rule, regulation, and secondary source that you cite, with the page number where each citation appears.  FRAP 28(a)(3); NRAP 28(a)(3).  Authorities should be listed alphabetically (case law and secondary sources), or numerically (statues and rules).  Id

JURISDICTIONAL STATEMENTS

The next item that should appear is a jurisdictional statement, identifying the source of the Court’s jurisdiction.  This must include the rule of appellate procedure that provides jurisdiction in the Supreme Court or Court of Appeals.  NRAP 28(a)(4); FRAP 28(a)(4)  The primary rule in Nevada is NRAP 3A.

You must include the filing dates of the notice of appeal, and the date the judgment was entered to establish that your appeal was timely brought within the 30-day period to appeal.  NRAP 28(a)(4)(b); FRAP 28(a)(4).  

You must also certify that your appeal is either from a final judgment or order, or from some other order over which the Supreme Court or Court of Appeals have jurisdiction.  NRAP 28(a)(4)(c); FRAP 28(a)(4).  Appealable orders which are not final judgments under Nevada law are listed in NRAP 3A(b). 

STATEMENT OF THE ISSUES

The next item is a statement of the issues on appeal.  NRAP 28(a)(6); FRAP 28(a)(5).  The “issues” on appeal are the errors you contend the District Court made.  “The District Court abused its discretion in granting sanctions because  . . . “  The District Court erred in granting summary judgment because … etc.

STATEMENT OF THE CASE

Following the statement of the issues, you must present a statement of the case.  NRAP 28(a)(7); FRAP 28(a)(6).  A statement of the case is a brief synopsis of the underlying facts of the case and the procedural background underlying the appeal. 

It is not a place for you to go off on a rant about the raving injustice your client suffered.  Opening briefs have word limits, and those limited words should not be wasted in the statement of the case. The key word here is “brief.”  The statement of the case should identify the nature of the underlying case (this is an appeal from a personal injury lawsuit, this is an appeal from a jury verdict of guilty in a first-degree murder trial, etc.).  It should briefly explain the facts and the procedural history leading up to the appeal. 

STATEMENT OF THE FACTS

The statement of the facts is exactly what it sounds like:  the statement of the factual and procedural background relevant to the appeal.  NRAP 28(a)(8).  Every sentence in this portion should have a citation to an appendix or a record on appeal page. 

You do not have to include every fact or every piece of evidence and every motion that was filed.  Your statement of the facts only needs to include those facts which are directly relevant to the issues on appeal.

SUMMARY OF THE ARGUMENT

The next item that must be included is a summary of the argument.  NRAP 28(a)(9); FRAP 28(a)(7).  The summary of the argument is similar to an introduction in a motion.  It is your real first chance to tell the Court why you are appealing, what the legal wrongs were that were suffered, and why the District Court was wrong. 

Do not simply restate your headings from your argument in your summary.  The Court hates this so much that they specifically put in their rule not “do not repeat the argument headings.”

THE ARGUMENT

The argument portion also speaks for itself.  This is where you get to argue why your client was wronged, why the District Court erred, and why the Court should rule in your favor on appeal.

Remember to always include the applicable standards of review for each issue.  You are required to include these by rule.  NRAP 28(a)(10); FRAP 28(a)(8).  You can learn what standards apply to your issues HERE.

THE CONCLUSION

Congratulations! You’ve made it to the end of your brief.  You still have to write a conclusion.  NRAP 28(a)(11); FRAP 28(a)(9).  The conclusion must state the relief sought.  Are you seeking reversal of some, but not all? Are you seeking remand?  Tell the Court what you want. 

But keep it brief.  The conclusion is not a place to rehash all of your arguments. 

RULE 28.2 CERTIFICATE

Your brief must also contain a certificate of compliance. NRAP 28(a)(12); FRAP 28(a)(10).  This certificate certifies that your brief conforms to the type and format requirements of the court, meets the word count, and is otherwise, basically, a legitimate filing.  NRAP 28.2; FRAP 32(a)(7).  If you are not represented by an attorney, you do not need to include this certificate. 

This Just In: Monkeys Cannot Sue Humans

You might want to sit down for what I am about to write: According to the Ninth Circuit, monkeys cannot sue humans for copyright infringement.  Naruto v. Slater, 888 F.3d 418 (9th Cir. 2018).

A “copyright” protects printed work (photos, books, etc.).  Even though monkeys have opposable thumbs and can, arguably, create printed work capable of being copyrighted, they can’t sue humans for copyright infringement.  Id. at 426.

TECHNICALLY, ANIMALS MIGHT BE ABLE TO SUE HUMANS

In 2004, the Ninth Circuit issued the opinion Cetacean Community v. Bush, 386 F.3d 1169, and has regretted it ever since.

In Cetacean, an attorney appointed himself to represent “all of the world’s whales, porpoises, dolphins (the “Cetaceans”)” for injuries they allegedly sustained from the Navy’s sonar systems.  Id. at 1171.  To sue anyone in federal court, you need what we call “Article III” standing.  “Article III” standing comes from the United States Constitution, and requires you to prove that you have actually been injured, either physically, or by having some judicially recognizable right impaired. Because the Cetaceans were, maybe, actually physically injured by sonar systems, the Ninth Circuit reluctantly agreed that these poor dolphins might have Article III standing.  But they still couldn’t sue humans under the statutory scheme their claims were brought under.  Id.

ENTER NARUTO, A TALENTED PHOTOGRAPHER WHO HAPPENS TO BE A MONKEY

Naruto is monkey who (probably) still lives on a reserve in Indonesia.  He became famous for taking “selfies” of himself on a camera that a wildlife photographer, David Slater, left unattended.  Slater published the Monkey Selfies in a book.

So, obviously, PETA sued Slater.

PETA sued Slater for copyright infringement since Slater admitted that Naruto took the photos.  PETA brought the lawsuit as a “next friend” of Naruto’s, which is fancy legal term for someone who asserts another’s legal rights for them because they cannot assert the rights themselves.  See Coalition of Clergy v. Bush, 310 F.3d 1153, 1159-60 (9th Cir. 2002).

NINTH CIRCUIT TO NARUTO:  “PETA IS NOT YOUR FRIEND”

The Ninth Circuit immediately rejected PETA’s attempt to stand as “next friend” to Naruto.  A “next friend” has to show the existence of some “significant relationship” between the two.  Naruto, 888 F.3d at 421.  PETA failed to show that it had even met Naruto, and, even if could have, there is no statute which allows “next friends” to represent animals in federal court.  Id. at 422-23.

But PETA’s failure as a “friend” does not end there.  The Ninth Circuit was not amused by PETA’s attempt to “settle” the case without dismissing Naruto’s claims but still requiring Slater pay a portion of the proceeds from his book to miscellaneous charities:

But now, in the wake of PETA’s proposed dismissal, Naruto is left without an advocate, his supposed ‘friend’ having abandoned Naruto’s substantive claims in what appears to be an effort to prevent the publication of a decision adverse to PETA’s institutional interests.  Were he capable of recognizing this abandonment, we wonder whether Naruto might initiate an action for breach of confidential relationship against his (former) next friend, PETA, for its failure to pursue his interests before its own.  Puzzlingly, while representing to the world that ‘animals are not ours to eat, wear, experiment on, use for entertainment, or abuse in any other way,’ see PETA, https://peta.org . . . PETA seems to employ Naruto as an unwitting pawn in its ideological goals.

Id. at 421, n.3.

The concurring opinion by Judge Smith further elaborated on the issues inherent with “next friend” representation of animals.  As Judge Smith notes, this would allow various parties “to bring suit on behalf of those animals  or objects with no means or manner to ensure that the animals’ interests are truly being expressed or advanced.”  Animals do not speak our language; therefore, how can a “next friend” truly know “whether animals or objects wish to own copyrights or open bank accounts to hold their royalties from sales of pictures.”  Id.  at 432.

Even more alarming is the natural consequence of allowing animals to sue:  If they can hold humans accountable for civil wrongs, can we hold them accountable for other civil infractions?  “Are animals capable of shouldering the burden of paying taxes? . . . Should animals be liable for intentional torts as well?”  Id. at 432, n.6.

AND, JUST TO BE CLEAR, MONKEYS CANNOT SUE HUMANS FOR COPYRIGHT INFRINGEMENT

Having disposed of PETA and its “next friend” status, the Ninth Circuit tackled the next possible approach a self-serving animal “friend” could take:  Self-appointing themselves as the lawyer and representing Naruto directly as the “client.”  This is what happened in Cetaceans. The dolphins did not have a “next friend.”  They just had some attorney with too much time on his hands.

Federal jurisdiction is limited, which means that federal courts only get to hear the specific cases from the specific plaintiffs that Congress specifically allows them to consider in a statute.  So, the Ninth Circuit looked to the Copyright Act to see if monkeys can use humans.

Shockingly, Congress has not specifically stated that monkeys can sue humans for copyright infringement.  (I KNOW.  What’s the point of opposable thumbs if you can’t protect what you create with them?!).

Therefore, the Ninth Circuit held that monkeys can’t sue humans for copyright infringement.  Id. at 425-26.

WHAT YOU NEED TO REMEMBER ABOUT THIS CASE. 

Nothing.  This case will probably never have any relevancy to your life, unless you have a habit of encountering litigious wildlife.

However, the Ninth Circuit is desperately hoping that someone, somewhere, will take the issue of animal standing to sue humans up to the Supreme Court so that they can finally stop having to admit that, yes, they issued Cetaceans, yes, the “plaintiff” was every whale and dolphin in the entire world, and yes, maybe they did, sort of, somewhat say that every whale and dolphin has Article III standing to possibly sue a human.

 

Havensight v. Nike: Just Do . . . Not Do What Havensight Did.

I wrote last week about the general requirements for a notice of appeal here.  This week, I’m discussing the oversights of Havensight Capital, LLC in its notice of appeal from its lawsuit against Nike, Inc.

HAVENSIGHT HATES NIKE (AND THE FEELING IS PROBABLY MUTUAL)

Havensight is a competitor of Nike who sued Nike for infringement on Havensight’s soccer brand and lost.  Havensight Capital v. Nike, 891 F.3d 1167, 1169 (9th Cir. 2018).  The day after Havensight lost, it filed a new lawsuit against Nike.  Id.

Havensight then engaged in a bunch of procedural shenanigans that would only confuse you if I tried to relay them here.  Basically, Nike was litigating against the equivalent of an angry toddler armed with permanent markers and rocks.  This resulted in the judge dismissing Havensight’s lawsuit, awarding attorney fees and sanctions against Havensight’s lawyer under Rule 11, and denying Havensight’s motion to reconsider these orders.  Id. at 1169-70.

Undeterred, Havensight continued its ineffective barrage of dull objects at Nike, resulting in the court entering an order declaring Havensight a “vexatious litigant,” and awarding Nike more attorney fees.  Havensight then filed an appeal with the Ninth Circuit.  Id. at 1170-71.

HAVENSIGHT’S DEFECTIVE NOTICE OF APPEAL

As I stated here, you must include all orders you intend to challenge on appeal in your notice of appeal.  In Havensight’s notice, it only mentioned the orders dismissing its complaint, and imposing the Rule 11 sanctions.  It did not mention the later orders denying Havensight’s request for reconsideration, imposing additional sanctions, and declaring Havensight a vexatious litigant.  Id. at 1171.

Under FRAP 3, you must state the orders you are challenging on appeal.  FRAP 3(c)(1)(B).  Appellate courts are courts of limited jurisdiction, and they do not have jurisdiction over orders that are not included in the notice of appeal.  Smith v. Barry, 502 U.S. 244, 248 (1992).

Your failure to designate the order might not be fatal to your appeal, if it is clear from the notice of appeal that you intend to challenge the order and you will be prejudiced by your mistake.  West v. United States, 853 F.3d 520, 523 (9th Cir. 2017).

The Ninth Circuit found that it could not infer any intent from Havensight’s notice of appeal to challenge the subsequent orders, and dismissed Havensight’s appeal to the extent it challenged those rulings.  Havensight, 891 F.3d at 1171.

HAVENSIGHT’S UNTIMELY APPEAL

Once judgment is entered, you must file your notice of appeal within thirty days.  FRAP 4(a).  The time to file the appeal can be extended if a post-judgment tolling motion is filed.  FRAP 4(a)(4)(A)(iv).  Motions to alter or amend a judgment under Rule 59 are considered “tolling motions,” and the time to appeal does not run until 30 days after the grant or denial of those motions.  Id.  A motion to reconsider is generally viewed as a Rule 59 motion for purposes of appeal.

In this case, the district court dismissed Havensight’s complaint on February 18, 2015.  Havensight filed a motion for reconsideration the next day, on February 19, 2015.  The court denied that motion on April 22, 2015.  Judgment was entered on July 18, 2015.  Havensight, 891 F.3d at 1172.   Havensight filed its appeal on October 15, 2015.

Apparently, Havensight argued that because it filed a “tolling” motion, it was entitled to an additional sixty-two days to file its appeal after judgment was entered.  The Ninth Circuit rejected this argument because Havensight’s motion for reconsideration was both filed and resolved before judgment was entered.  Id. at 1173.  Because Havensight did not file its appeal by August 17, 2015, the Ninth Circuit dismissed Havensight’s appeal of the order dismissing its complaint as being untimely.  Id. at 1174.

If you still have any doubt as to whether you should specify every order you intend to appeal in your notice of appeal, follow Nike’s lead and JUST DO IT.

The ABC’s of Notices of Appeal

To begin your appeal, you must file a notice of appeal.  NRAP 3; FRAP 3.  Although it seems simple, you can really screw your appeal up if you do not know what the notice of appeal must contain.  Here’s a quick breakdown:

WHO CAN FILE THE NOTICE OF APPEAL

A lawyer with client authority

Generally, your counsel (or yourself, if you are unrepresented and appearing pro se) files the notice of appeal.  However, an attorney cannot file a notice of appeal on your behalf without your consent.  The Comm’n on Ethics of the State of Nev. v. Hansen, 134 Nev., Adv. Op. 40, 419 P.3d 140, 142 (Nev. 2018).  If your attorney files a notice of appeal on your behalf before you have given them consent, the notice of appeal is defective. Id.

Hansen is the most recent decision of the Nevada Supreme Court to address effective notices of appeal.  Hansen involves the tragic tale of poorly placed hunting traps, two assemblyman, one self-proclaimed “local watchdog,”  the Nevada Commission on Ethics, and a partridge in a pear tree.  Id. at 140.

In a crazy plot twist, the partridge was not snared by the traps.  Instead, the assemblyman who placed them was snared, or cited, by the Nevada Department of Wildlife for violating a statute regarding their placement.  After his fellow assemblyman requested a Legislative Counsel Bureau opinion as to whether the traps violated the statute, a local watchdog then filed an ethics complaint against both men with the Commission for allegedly abusing their positions.   Id. at 140.

After the Commission refused to dismiss the ethics complaint, the assemblymen filed a petition for judicial review.  Id.  The district court agreed that the ethics complaint should be dismissed.  Id.  The Commission did not, and filed a notice of appeal.  Id.

When I say “Commission,” I actually mean the Commission’s counsel filed the notice of appeal, and he did so after only consulting with the chair and executive director rather than the entire Commission.  Id.  When you are a lawyer, and you represent an organization, the entire organization is the client.  NRPC 1.13(a).

In Hansen, the Nevada Supreme Court dismissed the appeal because the “client,” i.e., the Commission, did not give the attorney authorization prior to filing the notice of appeal.  Id. at 142.  The Court reasoned that an appeal is a decision that a public body must hold a public meeting and vote upon because it requires commitment of public funds.  Id.  Since that did not happen prior to filing the notice of appeal, the Court dismissed the appeal for being defectively noticed.  Id.

Multiple parties with common interests on appeal

With authority, your attorney can file a notice of appeal on your behalf.  If you are an attorney who represents multiple clients, you can file a “joint notice of appeal.”  NRAP 3(b)(1); FRAP 3(b)(1).  If you have co-parties whose interests are aligned with yours but who are represented by separate counsel, you can also file a joint appeal.  Id.  On appeal, the parties will be treated as individual appellants. Id.   You can also file separate notices of appeal, and seek consolidation or joinder.  NRAP 3(b)(2); FRAP 3(b)(2).

WHAT HAPPENS IF YOU SCREW UP THE NOTICE OF APPEAL 

Even if you screw up the notice of appeal, the district court clerk must still file it and notify the Nevada Supreme Court, and the Nevada Supreme Court clerk must accept it and assign it an appeal number.  NRAP 3(a)(2)-(3).  The Ninth Circuit does not require the same of its courts, and a procedurally defective notice of appeal may result in immediate dismissal without prejudice.  See FRAP 3.

The only court that can dismiss an appeal for a defective notice of appeal is the appellate court, not the district court.  The district court’s obligation is to keep a clear record of the case, including any deficiency in the notice of appeal.  Whitman v. Whitman, 108 Nev. 949, 951, 840 P.2d 1232, 1233 (1992).  While the district court should inform the appellant of procedural deficiencies, it must still file the notice of appeal. Id.

WHAT YOU NEED TO INCLUDE IN THE NOTICE OF APPEAL 

The notice of appeal needs to include three main items:

1.  The Identity of the Parties on Appeal 

The notice of appeal should designate the appellant, the respondent, and any other interested parties.  NRAP 3(c)(1)(A); FRAP 3(c)(1)(A).  If you have counsel, the notice of appeal should also state which parties that attorney represents on appeal. Id.

2.  The Judgment or Order Being Appealed 

This is the most important thing to include in your notice of appeal.  Any “appealable judgment or order that is not designated in the notice cannot be considered on appeal.”  Abdullah v. State, 129 Nev. 86, 91, 294 P.3d 419, 422 (2013).  If you leave it out, you have not appealed it.  Always identify all orders and judgments on appeal.  NRAP 3(c)(1)(B); FRAP 3(c)(1)(B).

3.  The Court To Which You Are Appealing 

You must state the court to which you hope to appeal.  NRAP 3(c)(1)(C); FRAP 3(c)(1)(C). This is very simple. In Nevada, all appeals are first filed in the Nevada Supreme Court.  If you appeal from district court, you simply have to state you are appealing to the Nevada Supreme Court.  Once the appeal is docketed, and your briefs are filed, the Nevada Supreme Court will determine whether to assign the case to the Court of Appeals.  NRAP 17.

In the Ninth Circuit, your appeal will almost always go to the Ninth Circuit Court of Appeals.

HOW YOU FILE A NOTICE OF APPEAL

Your notice of appeal must be filed with the district court clerk.  NRAP 3(d); FRAP 3(a).  In Nevada, you must serve a copy on all other parties by either mailing it to their last known address, or their lawyer.  NRAP 3(d)(1).  In the Ninth Circuit, the federal district court clerk must serve the notice on all parties.  FRAP 3(d)(1).  If the federal district court clerk fails to serve the notice of appeal, your notice of appeal is still effective.  FRAP 3(d)(3).

 

The Costs of an Appeal: What You Have To Pay to Play

You probably know you have a right to an appeal, but do you know what that right costs?  Here’s a breakdown of the filing fees associated with appeals:

FEE TO APPEAL

To file an appeal, you have to pay a fee in the district court.  For appeals and cross-appeals to Nevada appellate courts, that fee is $250.  NRS 2.250.  For Ninth Circuit Appeals, the fee is $505.

If you wish to file an appeal with the United States Supreme Court, the fee to appeal is paid directly to the United States Supreme Court.  The cost to file a petition for a writ of certiorari, jurisdictional statement, or original action is $300. Sup. Ct. R. 38.

FEES FOR OTHER PROCEEDINGS

Remember, an appeal is not the only way that you can seek appellate review.  To file a petition for an extraordinary writ to the Nevada Supreme Court and/or Nevada Court of Appeals, you must pay a fee of $250 to the district court.  NRS 2.250.  However, there is no fee for criminal proceedings and habeas corpus petitions.

To file a petition for review or a petition for a writ of mandamus in the Ninth Circuit, you must pay a fee of $500.

To file an original action in the United States Supreme Court, you must pay a fee of $300.

PETITIONS FOR REHEARING OR EN BANC RECONSIDERATION 

In Nevada, following a decision by the appellate court, you can  seek  rehearing or en banc reconsideration.  The cost to file a petition for rehearing is $150.  NRS 2.250.

You can also file a petition for rehearing or a motion for leave to seek rehearing in the United States Supreme Court.  The costs for these rehearing petitions and/or motions is $200. Sup. Ct. R. 38.

MISCELLANEOUS COSTS 

There are miscellaneous costs which the appellate court may charge you of which you should be aware.  These include (1) copies, (2) certified copies, (3) duplication of audio files (i.e., oral argument), and (4) transcript examination fees.  These costs are generally minimal.  (For example, copies in both Nevada and the Ninth Circuit are 50 cents per page).

Both the Ninth Circuit and the United States Supreme Court will also charge you fees for returned checks, so make sure your bank account is current.

WHEN COSTS ARE WAIVED 

In certain types of appeals, costs are waived.  For example, the United States Supreme Court does not charge the above costs for appeals in: (1) Veteran’s re-employment cases; (2) seamen’s cases; and (3) cases initiated by persons who have been accused by the Court of Appeals for the Armed Forces.  Sup. Ct. R. 40.1; Sup. Ct. R. 40.2; and Sup. Ct. R. 40.3.

The most common appeals in which costs are not charged are those in which the appellant is granted leave to proceed in forma pauperis.  An appellant will granted leave to proceed in forma pauperis upon a finding that they cannot afford to pay the appellate fees.  NRAP 24; FRAP 24; Sup. Ct. R. 39.  In both Nevada and the Ninth Circuit, the appellant must first file a motion in the district court that sets forth their inability to pay the costs on appeal.  NRAP 24(1); FRAP 24(1).  The motion must (a) show financial inability to pay appeal fees, (b) demonstrate that the appellant is entitled to some form of relief, and (c) state the issues on appeal.  Id.  If, and only if, the motion is denied by the district court, may the appellant  file a motion with either the Nevada appellate courts or the Ninth Circuit again seeking leave to proceed in forma pauperis. NRAP 24(5); FRAP 24(5).

In the United States Supreme Court, the party seeking leave to proceed in forma pauperis must file a motion with the Supreme Court which complies with the Ninth Circuit’s requirements (i.e., it must (a) show financial inability to pay appeal fees, (b) demonstrate that the appellant is entitled to some form of relief, and (c) state the issues on appeal).  Sup. Ct. R. 38(1).

Although these fees may seem steep, they are a necessary evil for the orderly operation and administration of appellate courts.  If you are contemplating an appeal, or have a client contemplating an appeal, always be aware of what you have to pay to play.