The Article Is About Two Extraordinary Cases In Which Judges Exercised The Summary Contempt Power.
Thanks to the generous permission of California Litigation, The Journal of The Litigation Section, State Bar of California, “Summary Contempt and Due Process: England, 1631, California, 1888” is now available on my website by clicking here.
An abbreviated version of this article appeared earlier as an August 6, 2014 post on California Attorney’s Fees, a blawg to which I co-contribute.
I know, I know, this has nothing whatsoever to do with the subject of my blawg. And yet I couldn’t resist passing on this tidbit to you from one of yesterday’s unpublished cases decided by our local Court of Appeal:
“There is one matter that requires minor modification of the judgment. The judgment includes an order that, literally, imposes a lien on a human being. In this case, the trial judge put a constructive trust lien on Tran’s father, Tom Tran. We can find no authority for a lien on a human being so we hereby strike from the judgment the provision putting a constructive trust lien on Tom Tran personally.”
Vu v. Tran, Case No. G04587 (4th Dist. Div. 3 May 29, 2014) (Bedsworth, Rylaarsdam, Moore) (unpublished).
The California State Bar offers a useful collection of “Arbitration Advisories” that I wanted to share with my readers. These advisories come with the following disclaimer:
“Points of view or opinions expressed in this document are those of the Committee on Mandatory Fee Arbitration. They have not been adopted or endorsed by the State Bar’s Board of Trustees and do not constitute the official position or policy of the State Bar of California.”
2012-03 Handling Legal Malpractice Claims and Ethical Issues During Arbitration
Agreement Providing To Mediate Did Not Satisfy Burden of Showing Clear Intent of Tribe to Waive Immunity
Our next case, involving tribal sovereign immunity, does not fit into one of our convenient sidebar categories. Miller v. Wright, Case No. 11-35850 (9th Cir. Nov. 13, 2012) (Rawlinson, J.) (published). In Miller, a panel of the Ninth Circuit held that the Puyallup Tribe did not implicitly waive its sovereign immunity by agreeing to dispute resolution procedures or by ceding its authority to Washington State when entering into a cigarette tax contract (CTC). The opinion describes the case as “the latest iteration of cigarette vendors’ challenge to taxes imposed by virtue of the authority vested in the tribe.”
A waiver of tribal immunity must be clear. C&L Enters., Inc. v. Citizen Band Potawatomi Indian Tribe of Okla., 532 U.S. 411, 418-419 (2001). In C&L, waiver of tribal immunity was clear, where a clause stated that contractual disputes should be resolved according to AAA Rules, the arbitrator’s award was to be enforced in accordance with applicable law in any court having jurisdiction, and the contract provided for Oklahoma choice of law. In contrast to C&L, no waiver occurred in Demontiney v. U.S. ex rel. Dep’t of Interior, Bureau of Indian Affairs, 255 F.3d 801 (9th Cir. 2001). In Demontiney, the dispute resolution clause “did not ‘reference or incorporate procedures that provide for non-tribal jurisdiction for enforcement . . . ‘”.
The panel in Miller concluded that the facts were “more akin to those in Demontiney than to the facts in C&L.” Critically, the dispute resolution provision in Miller called for “mediation”, not “arbitration”, and mediation “generally is not binding and does not reflect an intent to submit to adjudication by a non-tribal entity.”
BLAWG BONUS: Objections to a tobacco tax are nothing new. See the print below, dating from 1790, and the explanatory note.
“A British satire on efforts by William Pitt, George Rose, and some members of Parliament to impose new "Excise" duties on tobacco (cf. Tobacco Excise Bill). The additional tax burden on British citizens is implied by the image of a bull, muzzled and blindfolded, with legs chained to a stump, being harassed by dogs (depicted with heads of members of Parliament). Edward Thurlow, also shown as a dog, registers his opposition to these "New Excise Fetters for John Bull" by urinating on tobacco leaves. Among the members of Parliament depicted are: William Wyndam Grenville, Henry Dundas, Charles Lennox Richmond, Charles Jenkinson, Richard Pepper Arden, Sir Charles Pratt Camden, and possibly Francis Osborne Carmarthen.” James Gillray. 1790. Library of Congress.
In a March 18, 2012 post, we spoke of “the sheer ingenuity of the anonymous attorney who drafted the arbitration clause at issue” in AT&T Mobility v. Concepcion. After poking around the web a bit, we learned that the “anonymous attorney” is actually Archis Parasharami, a partner at Mayer Brown.
In a May 28, 2012 opinion piece in the National Law Journal, Andrew J. Pincus saw the precedent he had made, and, behold, it was very good. (Cf. Gen. 1:31 King James Version). Mr. Pincus is the attorney at Mayer Brown heralded for arguing and winning Concepcion before the Supreme Court in 2011. He laments that opponents of arbitration, motivated by “reflexive hostility”, are not capitulating. Instead, they are mounting attacks against arbitration in Congress and federal agencies.
Mr. Pincus expresses the argument in favor of arbitration in the strongest declarative terms: “Our courts are expensive, overburdened and virtually impossible for nonlawyers to navigate. For these claims, it is arbitration or nothing.”