Don't Make Up Caselaw
This is going to be a short post because the takeaway is simple: Don’t lie about what your cases are about, and don’t make up cases that don’t exist. That’s the lesson from Grant v. City of Long Beach, No. 22-56121 (9th Cir. Mar. 22, 2024).
Background
The background to the case isn’t necessary to understand the opinion, so I’ll be brief. Plaintiffs brought suit against defendants for alleged violations of their constitutional rights, along with some state law claims. Summary judgment was granted against them and in favor of the defendants. Plaintiffs appealed.
The Decision
The Ninth Circuit’s short decision turned on a basic rule of appellate procedure. In their opening brief, an appellant is required to include “citations to the authorities and parts of the record on which the appellant relies.” Fed. R. App. P. 28(a)(8)(A).
According to the Ninth Circuit, this means that you need to be honest about your cases. Unfortunately, the appellants in Grant didn’t heed that requirement. As an example, appellants cited a case that they claimed was about a claim of false imprisonment brought by a parent whose child was removed from the home by government officials. But the case was a class action by individuals civilly confined under California’s Sexually Violent Predator Act—i.e., nothing like what the appellants said it was about. And apparently this was a recurring pattern throughout the brief (I can’t check myself because the Ninth Circuit had the brief stricken, so it’s now inaccessible on PACER).
Appellants didn’t just make up the details of cases, though. They also cited two cases which didn’t exist. And, when questioned about these cases at oral argument, counsel for appellants gave an unclear response about the cases being cited incorrectly, but that appellants didn’t need to rely on the cases anyway.
Needless to say, the court was not pleased. It took the drastic measure of striking the brief and dismissing the appeal without any discussion of the merits.
Takeaways and Questions
The details of this case are fascinating. Was this another case of an attorney using AI to write a brief? It seems like it, but you would think attorneys would know better by now. Was it an attorney who had no good argument and decided to make up cases? That might be worse than misusing AI. In any event, the takeaway is pretty clear: don’t make up caselaw.
If you have questions about this appeal or any other appeal, contact me at JosephLevy@MarkowitzHerbold.com.
Speaking of misrepresenting legal authority, the official court-created documentation twice (in the opening Summary and in the closing words of the Opinion) outright misrepresented that the judges were "compelled" to "strike" the brief. The judges did not (and cannot) support that falsehood with fact. As the judges admitted, they "struck appellants’ opening brief in its entirety pursuant to" nothing more than "Ninth Circuit Rule 28-1." That rule clearly states that it (at most potentially) empowers, but it clearly does not compel, judges to strike a brief: "Briefs not complying with FRAP and these rules may be stricken by the Court."
But can a local court rule really even empower judges to violate the Constitution? Not according to federal law (governing federal court rules) and the Constitution. All “Judges” (state and federal) always are “bound” by the “Constitution” and federal “Laws” (“the supreme Law of the Land”) despite “any Thing” else “to the Contrary.” U.S. Constitution Article VI.
What the judges did egregiously violated "the freedom of speech" and "press" in the First Amendment. Judges engaged in deliberate and unconstitutional "viewpoint discrimination" against the content of speech by a lawyer and litigant specifically because the judges (government employees) held (and even publicly expressed) a negative view of the content of the briefing. Judges did what they could to silence one side of a discussion (about whether either the brief or the court's order was lawful). The judges may have been 100% right about what they wrote. But they may not have been. We should be able to judge for ourselves. They were 100% wrong about how they tried to control our access to the truth and what we think.
Even worse, the judges dismissed an appeal based on their characterization of the content of a brief. When judges take such drastic action, they cannot constitutionally hide the truth about whether their own contentions were true and their own conduct was constitutional. Their action (striking the brief) egregiously violated our rights under the First Amendment. Government action was taken specifically to prevent us from judging for ourselves whether the judges who represent "the people" are actually or lawfully performing their duties as public servants.
I strongly agree with your caption and your bottom line. Far too many people misrepresent what legal authorities say. But please think again about what you did and said about what judges did and said. The judges published their "opinion' about briefing filed by a lawyer and litigant. Then, the judges did what they could to hide the truth from us. As you mentioned, you could not easily access the brief on-line because the judges struck the brief. We should wonder why they did that.
What was the point of striking that brief? It clearly was to remove the public evidence of the truth (the truth about what actually was written, which the judges then publicly characterized in very negative terms). Briefing was removed from public view precisely because judges, themselves, expressed a negative opinion about the content of that brief. That makes no sense to me. Why would judges prevent us from seeing for ourselves how bad the brief was?
So whose writing was worse here, government employees or private persons? The latter certainly could be quite bad, but the Constitution confirms that the former is much worse.
In my experience, this is fairly common. I’ve worked both as a trial court law clerk and in the appellate system. It is worse in the trial courts. Not usually as egregious as the case you reviewed, but briefs frequently included citations to cases that did not support the proposition. Sometimes they were just off by a shade of meaning, yet they still undermined the argument. We all make mistakes, but lawyers are responsible for performing subtle analysis.