Didn’t Read For Class Reboot. Brought to You by J.A.G.

Over a year ago, I mentioned that I may start briefing SCOTUS cases. Specifically, I said I would: (1) Find SCOTUS cases I was interested in, (2) Brief the cases cited in the Amicus Briefs, (3) Brief the Amicus themselves; and (4) Provide an opinion about the case. This will start on May 24th. Prepare yourselves loyal followers (who don’t exist).

Looking for Ideas

Howdy all:

I’m looking for ideas to make this a little more useful. Awhile back, I mentioned maybe just giving me your syllabus and I’d just brief the additional cases. Another Idea I’m toying with is to find the upcoming SCOTUS cases that interest me (Whole Women’s Health had oral argument yesterday), and brief all the cases cited by the actually parties and the Amici Briefs. Do either of these ideas sound good? let me know!

An Idea I’d Like To Play With

Hello everybody!

I’ve been toying with an idea lately. If you are in law school and have specific cases you’d like briefed for purpose of coursework, please e-mail me your syllabus (or just a list of case cites), and I’ll see if I can’t get them all done before your semester is over! Obviously, it may not work… so I wouldn’t put all your eggs in that basket, but why the heck not try!


Jx/DATE/CITE: Court of Appeal of California, Second Appellate District, Division Five, (1992)
In re Marriage of Liss, 10 Cal. App. 4th 1426, 1428, 13 Cal. Rptr. 2d 397, 397 (1992)
DECISION BELOW: In a dissolution proceeding of a marriage of 13 years, the trial court entered a judgment of dissolution, and resolved a few other issues; it reserved Jx over spousal support (SS) . At a subsequent proceeding to resolve issues that were left unaddressed at the previous hearing, the Court decline to provide H SS. However because of the length of the marriage [13 years], and H’s statement at the hearing that he would not waive SS, the Court retained Jx over SS until either party’s death, remarriage or further order of the court. The Court did this despite the fact that H’s initial response failed to request SS, and further, the Husband argued in his trial brief that the Court should not retain, or grant, SS to the parties.
RULE: 1)      Where the Respondent does not waive his right to Spousal Support, the Court may retain Jx over Spousal Support despite Respondent’s failure to request it in his initial response.

2)      Due process is satisfied when the other party is present, and able to object (as opposed to a default).

P ARGUMENT: 1)      Since H failed to request Spousal Support in his initial Response, he waived his right to Spousal Support in the future and argued that Spousal Support should not be granted, and the Court should not retain JX.

2)      Because H failed to request Spousal Support initially, the Trial Court did not have the power to retain jurisdiction on an issue that was not raised by H in the initial pleading stage.

R ARGUMENT: The reservation of jurisdiction over spousal support after a lengthy marriage is supported by strong policy, and the parties were married for 13 years. Further, H expressly stated that he was not waiving his claim to Spousal Support. Thus, the Court has the right to retain Jx over the issue.
ANALYSIS: A trial court has wide discretion in a nondefault matter to permit parties to amend their pleadings in furtherance of justice or to conform to proof. ( Code Civ. Proc., § 469, 473, 576; Cal. Rules of Court, rule 1215(d) [amendment of family law pleadings]. There is no abuse of discretion when, taking the length of marriage into account, the Court finds that Jx is properly retained despite H’s initial failure to request Spousal Support. Had the Court found that H waived his claim to Spousal Support, the case would be different.

In response to W’s Lippel argument, the Court noted that there is a fundamental difference between a contested dissolution, and default dissolution. In a default setting, the other side does not appear, and thus, any award beyond what was requested in the pleadings would violate due process (including retaining jurisdiction over something not requested in the initial Petition, or an Amended Petition [one amended Petition by right before Response is filed]). [NOTE: The Lippel argument can only work for the Petitioner then, because by definition, dissolution becomes contested when a response is filed]. The Court found that because it was a contested case, the Court could retain Jx over SS, despite it not being requested initially, because W was able to object to the Court retaining jurisdiction, and have her argument heard.

USE OF THIS CASE It is unfortunately common, but people sometimes forget to check all the appropriate boxes on Judicial Forms in Family Court proceedings. Much like the Petitioner in this case, the opposing side may argue that failure to request amounts to a waiver; this is not the case.

Beam v. Bank of America (1971)


NAME: Beam v. Bank of America
Jx/DATE/CITE: Supreme Court of California (1971)
DECISION BELOW: The trial court determined that the total community property at the time of trial was $38,000. W appeals on the grounds that the Court failed to adequately compensate the community for H’s skill and efforts in managing his separate property.
RULE: Pereira test: The Court will allocate a fair return on the separate business, and the remainder is presumed to be a result of individual effort; which makes it community property.Van Camp test: The Court will determine the “reasonable value” of the husband’s services (salary), and allocate that amount as community property; the remainder is credited as separate property.
FACTS: Married 1939, and divorced in 1968 (29 years). H inherited $1.6M (separate property). H did not work at all, but focused his efforts on managing his sep. prop. over 29 years H’s value increased to $1.8M. The only money received and spent for the family came from the profits stemming from H’s separate property. The community expenses came out to $2,000/month.
P ARGUMENT: The Pereira test would lead to the conclusion that none of the separate property’s growth was a result of H’s skill and effort, but this test does not achieve “substantial justice” between the parties, the Court should apply Van Camp. Under Van Camp, H would be entitled to 1% of the corpus, or $17,000 a year. This would amount to $357k; W is entitled to ½ of that.
D ARGUMENT: Even under the Van Camp test, the community is not entitled to any growth in the business because community expenditures are balanced against the community income. Since community expenses were $2k/month, or $24k/year; clearly the community expenses exceed the $17k community income under Van Camp.
RULE: As a general rule, profits accruing from separate property remain separate, but since income arising from a person’s skill and effort is considered community property, the community should be credited to the extent the profits were a result of those efforts.
ANALYSIS: The Court may select whichever formulation of the rule will achieve substantial justice between the parties. The Court below had all the information, and determined that the Pereira test, was the appropriate test toapply; adopting 7% as a “reasonable return” on H’s capital investment. Based on the 7% base, the Court ruled that H’s separate property was $4.2M, and therefore, none of the growth is attributable to H’s skill ad effort.

Maryland v. Shatzer, (2010) – 130 S. Ct. 1213


Case Name: Maryland v. Shatzer
Date: 2010
Jurisdiction: Supreme Court of the United States
Rule: If a Defendant invokes his rights, and then experiences a break of 14 days or more from Miranda custody, the police have scrupulously honored his invocation, and may approach the Defendant for questioning again.
Brief Analysis: Shatzer experienced a break in Miranda custody lasting more than two weeks between the first and second attempts at interrogation, Edwards does not mandate suppression of his 2006 statements.
Topic Area: 5th Amendment


Facts: In 2003, a police detective tried to question respondent Shatzer, who was incarcerated at a Maryland prison pursuant to a prior conviction, about allegations that he had sexually abused his son. Shatzer **1216 invoked his Miranda right to have counsel present during interrogation, so the detective terminated the interview. Shatzer was released back into the general prison population, and the investigation was closed. Another detective reopened the investigation in 2006 and attempted to interrogate Shatzer, who was still incarcerated. Shatzer waived his Miranda rights and made inculpatory statements. The trial court refused to suppress those statements, reasoning that Edwards did not apply because Shatzer had experienced a break in custody prior to the 2006 interrogation. Shatzer was convicted of sexual child abuse.
Court(s) Below: Defendant was convicted in Maryland for sexual abuse. The Maryland Court of Appeals reversed and remanded because the mere passage of time does not constitute a break in custody.
D Argument:
Rule: The Edwards rule, under which a suspect who has invoked his right to the presence of counsel during custodial interrogation is not subject to further interrogation until either counsel has been made available or the suspect himself further initiates exchanges with the police, does not apply if a break in custody lasting 14 days has occurred, and

Defendant’s return to the general prison population, after he had invoked his right to the presence of counsel during custodial interrogation regarding allegations of criminal conduct separate from the conduct underlying the defendant’s convictions, constituted a break in custody.

Analysis: “[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights…. [He] is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” The rationale of Edwards is that once a suspect indicates that “he is not capable of undergoing [custodial] questioning without advice of counsel,” “any subsequent waiver that has come at the authorities’ behest, and not at the suspect’s own instigation, is itself the product of the ‘inherently compelling pressures’ and not the purely voluntary choice of the suspect.” A judicially crafted rule is “justified only by reference to its prophylactic purpose,” and applies only where its benefits outweigh its costs. The Edwards ‘ presumption of involuntariness has the incidental effect of “conserv[ing] judicial resources which would otherwise be expended in making difficult determinations of voluntariness.” Its fundamental purpose, however, is to “[p]reserv[e] the integrity of an accused’s choice to communicate with police only through counselby “prevent[ing] police from badgering a defendant into waiving his previously asserted Miranda rights,” Thus, the benefits of the rule are measured by the number of coerced confessions it suppresses that otherwise would have been admitted. When a suspect has been released from his pretrial custody and has returned to his normal life for some time before the later attempted interrogation, there is little reason to think that his change of heart regarding interrogation without counsel has been coerced. It is far fetched to think that a police officer’s asking the suspect whether he would like to waive his Miranda rights will “wear down the accused,”

Interrogated suspects who have previously been convicted of crime live in prison. When they are released back into the general prison population, they return to their accustomed surroundings and daily routine—they regain the degree of control they had over their lives prior to the interrogation. Sentenced prisoners, in contrast to the Miranda paradigm, are not isolated with their accusers. They live among other inmates, guards, and workers, and often can receive visitors and communicate with people on the outside by mail or telephone. Thus, they have returned to their normal lives for some time. Being an in inmate does not change the anlysis

Concurrence: Thomas – Agrees with the judgment, but doesn’t want to extend Edwards (14 days) beyond the specific facts in that case. Thomas has an issue with where 14 days came from, as it assumes that this is “plenty of time to shake off the residual effects of interrogation”.

Steven – Dislikes the hard line of 14 days. “The most troubling aspect of the Court’s time-based rule is that it disregards the compulsion caused by a second (or third, or fourth) interrogation of an indigent suspect who was told that if he requests a lawyer, one will be provided for him. When police tell an indigent suspect that he has the right to an attorney, that he is not required to speak without an attorney present, and that an attorney will be provided to him at no cost before questioning, the police have made a significant promise. If they cease questioning and then reinterrogate the suspect 14 days later without providing him with a lawyer, the suspect is likely to feel that the police lied to him and that he really does not have any right to a lawyer.”

Lewis v. Florida, (1988) 486 U.S. 1036 Cer’t Denied White (D)


Case Name: Lewis v. Florida
Date: 1988
Jurisdiction: Supreme Court of the United States
Rule: Interrogation” under Miranda does include conditions that are its “functional equivalent,” that is, “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. We also have observed that a “psychological ploy” of any significance would also be treated as the “functional equivalent” of interrogation.
Brief Analysis: Showing Defendant videos of him committing the crime after he invoked his right to remain silent is a psychological ploy, and is the functional equivalent of interrogation.
Topic Area: 5th Amendment


Facts: Defendant was arrested, Mirandized, and invoked his right to remain silent. While in custody, the police showed him videotapes of him committing the crime. During the viewing Defendant made several incriminating statements, which were introduced at trial.
Court(s) Below:
D Argument:
Cases Cited: