Justice Sotomayor and Per Curiam Orders

In Ricci vs. DeStefano, more than a dozen white firefighters, as well as one Hispanic, sued New Haven, Conn., for discrimination after the city threw out the results of its lieutenant and captain exams because black firefighters performed disproportionately poorly and wouldn't have been promoted. A federal district court judge found in 2006 that the city was justified. The firefighters appealed, and the case was assigned to a three-judge panel of the 2nd Circuit Court of Appeals that included Sotomayor. In February 2008, the panel issued a summary order, without comment, upholding the lower court's finding. Another 2nd Circuit judge asked the full appeals court to rehear the case, but the court's other judges declined. After that, Sotomayor and the other two judges on the panel issued a new "per curiam" order that adopted the lower court's ruling as their own, calling it "thorough, thoughtful, and well-reasoned."

The issue of the per curiam order came up during the Senate confirmation hearings.

In a July 1, 2009, column in Human Events headlined "So much for wise Latinas," conservative columnist Coulter wrote that "Sotomayor threw out their lawsuit in a sneaky, unsigned opinion — the judicial equivalent of 'talk to the hand.'" Coulter's criticism was unfair.

Practicing lawyers understand that "unsigned" means the ruling was "per curiam," or "for the court" — simply, that everyone on the panel agreed with the decision and decided to issue a single opinion. The panel that heard the case stands behind its decision. Coulter's attempt to distort the truth by accusing Sotomayor of hiding behind a "bad decision" is disingenuous. There was nothing sneaky or underhanded about the decision made in this case, even if you do not agree with it. Moreover, federal judges cannot be removed for making unpopular decisions so what motivation would Sotomayor, or any other federal judge have to "hide behing a per curiam order?" The court's file, a public record, will reveal which judges heard the case even if they are not identified in the per curiam opinion.

Perhaps this discussion raises the question of whether judges should be required to at least sign or be identified as the author of an opinion. If a per curiam opinion represents the opinion shared by the three-judge panel that heard the case, why should they not be identified or sign off on the opinion?

Lawyer Advertising Rules Challenged in Federal Court

On August 3, 2009, U.S. District Court Judge Martin L.C. Feldman issued an order and reasons ruling on cross motions for summary judgment. Judge Feldman's order upheld most of the challenged provisions of the Louisiana advertising rules scheduled to go into effect on October 1, 2009, while also denying the defendants' motion to dismiss. Washington D.C.-based Public Citizen, Inc. and lawyers Morris Bart, William N. Gee III and Scott G. Wolfe, Jr. sued the Louisiana Attorney Disciplinary Board, its chair and its chief disciplinary counsel to block enforcement of the Rules claiming that they were unconstitutional.

Citing the U.S. Supreme Court in Edenfield v. Fane, the Court stated, "The State may not by scatter-shot condemn lawyer advertising, but does indeed have a substantial interest in addressing the ethical standards of the profession, as well as in preventing public confusion or deception."In its 39-page Order, the Court upheld:

Rule 7.2 (c) (1) (D) - References to Testimonials of Past ResultsThe Court stated that "reference to past results, even if truthful,...could... be inherently misleading."

Rule 7.2 (c) (1) (E) - Communications that Promise ResultsThe Court said "prohibition of communications that promise results regulates only speech that is inherently misleading."

Rule 7.2 (c) (1) (J) - Portrayal of a Judge or JuryThe Court said it agreed that "portrayal of a judge or jury in an ad is inherently misleading." It further stated "such material simply conveys an untrue message. It is compellingly misleading."

Rule 7.2 (c) (1) (L) - Use of Mottos that State or Imply An Ability to Obtain ResultsThe Court found that this provision "materially advances the State's interest in preventing deception of the public, and is narrowly tailored to achieve those ends."

Rule 7.2 (c) (1) (I) - Non-Authentic ScenesThe Court cited Zauderer, which held that "an advertizer's (sic) rights are adequately protected as long as the disclosure requirements are reasonably related to the State's interest in preventing deception of consumers." The Court stated "such dramatizations are in and of themselves capable of unintended guile or delusion."

Rule 7.2(c)(10) - Disclosures and DisclaimersFurther citing Zauderer, the Court stated that "the written disclaimer requirements of Rule 7.2(c)(10)" do not violate the First Amendment and "this Court believes such disclaimers would have a beneficial purpose."

Rule 7.2(c)(11) and Rule 7.6(c)(3) - Payment by Non-Advertising Lawyer and Electronic Mail CommunicationsThe Court noted that the plaintiffs did not address these Rules in their motion for summary judgment, "thus, their attack does not reach those Rules."

Finding a lack of evidentiary support, Judge Feldman struck down the additional disclosure requirements for a non-lawyer spokesperson under Rule 7.5(b)(2)(C) and also struck down Rule 7.6(d), and Rule 7.7 as it applies to the filing requirements for Internet advertising.

To review the court's order go to this link:

http://www.lsba.org/2007MemberServices/Advert0609/OrderandReasons8-3-09.pdf