The Two Most Important Unanimous Supreme Court Decisions of 2024 Have One Thing in Common

In our last post, "Six of the most important California and Federal Appellate Opinions of 2024," (https://appellatespectator.blogspot.com/2025/02/six-of-most-important-california-and.html)

we noted two unanimous United States Supreme Court opinions in 2024 which broadly interpreted the Bill of Rights:

1.  National Rifle Association v. Vullo (May 30, 2024) no. 22-842

 
https://appellatespectator.blogspot.com/2024/06/nra-v-vullo-unanimous-supreme-court.html

 

2.  Sheetz v. County of El Dorado, No. 22–1074 (April 12, 2024)

https://appellatespectator.blogspot.com/2024/04/breaking-news-supreme-court-rules.html

What is so remarkable about these two decisions is not only that they were unanimous, nor that Justice Sotomayor wrote a strongly-worded opinion against government overreach against individual freedom of expression where these individuals utilized a corporate entity to express these viewpoints.  What is most remarkable is  how wrong-headed the lower courts in the respective states of California and New York were.  Worse, appellate courts were shockingly stubborn in not addressing blatant legal errors even when presented the clear opportunity to do so upon appellate review. 

This is even more shocking because, in an era of Westlaw, Lexis/Nexis, and, ChatGPT, one may find relevant precedent in seconds.  Which means a court and its research attorney may find such precedent instantly as well.  So why did courts in New York and California risk being overturned by a unanimous United States Supreme Court when a quick ChatGPT search would have revealed adverse authority in mere nanoseconds?

A cynical answer might be the tendency of our courts, as part of the apparatus of power, to uphold decisions of others likewise in power.  But I think another answer is equally obvious: political bias and the desire to hold on to his bias is so strong it outweighs the risk of being declared wrong in a nationwide public forum by Justices from both sides of the aisle and from different backgrounds and judicial philosophies.

For example, California government is biased against those with private property who wish to do something with their property; in particular, there is a bias against private single-family homeowners, including those who wish to something as simple as build a house without paying rapacious fees.  Likewise, New York and its Attorney General, Letitia James, are so biased against those who argue for their Second Amendment Rights that that the First Amendment be damned — these people must be stopped from joining together to speak.  

Lessons for practitioners

 

This begs the question of what to do when faced with a lower court, or, even worse, a Federal Court of Appeal, that ignores prior precedent due to its bias against interpreting the Bill of Rights to favor citizens rather than the government.  The obvious answer is to stress precedent after precedent to show the long arc favoring applying the Bill of Rights as a constraint against the massive power of cities and states.

 

Another important consideration may be the use of amicus briefs to show that, for example, there is a consensus in favor of giving effect to the Fifth Amendment’s "takings clause" to prevent imposition of a "fee” which has no relation to the supposed service provided.  But even this is may not be enough, because in the case of the National Rifle Association case, lower courts would not fully take into account important First Amendment issues even though the plaintiff’s case was supported by numerous organizations, including the American Civil Liberties Union.

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2024 Recap - the most important California and Federal Appellate Opinions

Six of the most important California and Federal Appellate Opinions of 2024

Blauser v. Dubin (November 19, 2024) G063715 

 
https://appellatespectator.blogspot.com/2024/12/blauser-v-diubin-whether-order-is.html

A California appellate court opined a signed minute order granting a motion for nonsuit could not be appealed as it did not constitute a final judgment or order appealable by statute.  As the Fourth District, Division Three explained, such a “signed dismissal order” or a “judgment” is a prerequisite to filing a notice of appeal:

Though now signed, the minute order is (still) not labeled as a “judgment” and it (still) does not purport to enter “judgment.” (§ 577.) Nor does it order the “dismissal” of appellant’s first amended complaint (though the cross-complaint was dismissed at the request of respondent). (§ 581d [a written, signed dismissal order “shall constitute” a judgment].)


JCC Crandall LLC v. County of Santa Barbara (October 29, 2024) B33320
 

https://appellatespectator.blogspot.com/2024/10/new-case-law-because-cannabis-is.html

The Second District, Division Six, of California has declared that no matter what one may think, possession of cannabis remains illegal under Federal law and therefore cannot be "legal" under the laws of California or any other state:

Many Californians have high expectations that cannabis is legal in California. This is a reasonable assumption because Civil Code section 1550.5 says it is. We regret to inform that cannabis is illegal in California because federal law says so. (Id., p. 1.)


National Rifle Association v. Vullo (May 30, 2024) no. 22-842

 
https://appellatespectator.blogspot.com/2024/06/nra-v-vullo-unanimous-supreme-court.html

In this unanimous decision, issued a mere 73 days after it was argued, the United States Supreme Court confirmed a state government may not seek to block the expression of opinions by a political organization by deliberately interfering with its relations with other companies or organizations.

When one imagines the legitimate role of a sovereign state, one likely does not imagine attempting to silence political views the Governor and Attorney General find repugnant, which political views cannot be banned outright due to those pesky restrictions found in the First Amendment.  Nonetheless, as Justice Sotomayer wrote, the NRA alleged the State of New York did exactly that.  Specifically, the State of New York, targeting "affinity products" in the insurance marketplace, sought  to discourage these businesses from doing lawful business with the NRA in order to "weaken" it.  

The NRA sued Vullo in Federal District court. While the case survived a motion to dismiss, it did not survive a review of this ruling in the Second Circuit, which, much to its discredit, held the NRA could not state a First Amendment claim.  With the assistance of the American Civil Liberties Union, the NRA sought and was granted certiorari by the United States Supreme Court, which found the alleged coercion of other entities, if proven, violates the First Amendment rights of the NRA.  As the unanimous held, a governmnent official may not use their power to do something indirectly that they may not do directly; namely, punish an entity that does not disassociate itself from a political opponent whose advocacy offends those in power.

Shikha v. Lyft (May 17, 2024) B321882

 
https://appellatespectator.blogspot.com/2024/05/ride-sharing-service-has-no-duty-to.html

California's Second District, Division Three, ruled that the general duty of due care one owes to another does not extend to include a duty owed by ride-share platforms to its drivers to perform "background checks" on all passengers.  The Second District explained there was no justification for imposing such a duty despite the general rule that all persons owe a duty of due care to others to act reasonably found in California's Civil Code section 1714.1.  As the Second District opinion teaches, the statutory duty to verify the criminal record of a driver does not extend to doing so for passengers. As to any common-law duty, Shikha found no duty was owed to its own drivers even though Lyft was admittedly in a "special relationship" with these persons. This conclusion required analysis of the factors enunciated by the Supreme Court in 1969's Rowland v. Christian, including the crucial factor of “foreseeability,“ which factor did not indicate the ride-sharing service had a duty to vet the background of each and every passenger.


Sheetz v. County of El Dorado, No. 22–1074 (April 12, 2024)

https://appellatespectator.blogspot.com/2024/04/breaking-news-supreme-court-rules.html

A unanimous United States Supreme Court found California courts had it entirely wrong when they found an outrageous "fee" a landowner must pay to build a home -- the fee having no relationship to the services provided or the cost of the project to local government -- did not implicate the Fifth Amendment's bar against the "taking" of private property. The practical effect of ignoring the full effect of the "takings clause" is that "fees" enacted by a legislative body have no upward limit yet a property owner may not even bring a Fifth Amendment claim.

The opinion authored by Justice Barrett found these courts had utterly failed to properly apply relevant prior precedent on the issue of whether a California county could impose a $23,420 "traffic impact fee" upon an ordinary residential landowner unlucky enough to own a lot in El Dorado County and who therefore wished to build a home.

Neither the trial court, the Third Appellate District of California, or the California Supreme Court (which denied review) gave full effect to precedent indicating a fee with no nexus to the effect of the actual property development is a "taking."  However, a unanimous Supreme Court did apply this precedent and agreed the fact a fee was imposed by a legislative body, rather than being imposed by a regulatory power, did not insulate said fee from scrutiny. Simply put, the provisioins against the taking of private property without just compensation apply equally to the executive and legislative branches of government. 
 

Sunholm v. Hollywood Press Association (February 27, 2024) B324842

 
https://appellatespectator.blogspot.com/2024/03/attorney-disqualification-is-improper.html

The Second District, Division Seven, of California ruled that while an attorney who fails to produce documents and/or produce a privilege log may be subject to sanctions, or perhaps even referral to the State Bar, a trial court erred when it instead disqualified said counsel from representing one of the parties.  This is true even though the document withheld may have contained the other party's privileged information and, further, the to-be-disqualified counsel was less than forthright about whether he currently possessed privileged material.

In Sundholdm privileged documents were accidentally filed and served upon counsel for plaintiff, who had sued the Holywood Foreign Press Association.  Counsel Quinto of One LLP, attorney for plaintiff Sundholm, was the subject of a motion to disqualify after it was alleged that he kept a copy of the privileged material. The appellate court overturned the trial court’s grant of the motion to disqualify, but not because it endorsed Quinto’s conduct; rather, such was not the proper remedy for Quinto’s action; this was because, inter alia, there was no real showing of prejudice from Quinto’s retention of the privileged material.

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Gaslighting update - perhaps the most massive cover-up in world history

 

Gaslighting on a global scale - the origins of COVID-19 in a laboratory in Wuhan China

As we have discussed, gaslighting — whether in litigation, governance, or corporate communications — involves not simply spreading a falsehood but doing everything possible to encourage anyone stating the truth to doubt their own sense of reality and/or have others doubt the sanity of the person doubting the falsehood.  See our prior posts discussing several examples of gaslighting:

 

• https://appellatespectator.blogspot.com/2024/08/first-post-in-our-series-gaslighting.html
• https://appellatespectator.blogspot.com/2024/08/second-post-in-our-series-gaslighting.html
• https://appellatespectator.blogspot.com/2024/08/third-post-in-our-series-gaslighting.html
• https://appellatespectator.blogspot.com/2024/11/gaslighting-post-election-update.html

During the Biden/Harris administration, we were told that if we believed COVID originated in a Chinese lab we were racist, xenophobic, and prone to believe conspiracy theories.  No matter the fact the World Health Organization and the Communist Part of China were less than forthright, the legacy corporate media and the Biden/Harris administration made it clear:  if you thought the “lab leak” theory was the most likely explanation for COVD-19 you were censored on social media (at the express urging of the Biden Administration) and therefore your posts and tweets were limited in terms of dissemination; more to the point, it was likely your YouTube videos were demonetized. The problem, of course, was you for believing the lab leak theory, and not China's cover-up regarding a novel virus that killed more than 100 million persons and appeared out of nowhere.

However, as of March 21st the gas-lighting has ended and President Trump and his Republican administration have shone some light on this sordid attempt at government manipulation of the public discourse.  Central Intelligence Agency analysis dating back to the Biden administration has now been made public, and, well, wouldn’t you know it, the most likely source was a leak from a laboratory in Wuhan China. 

As the stenographers for the prior administration, the New York Times (https://www.nytimes.com/2025/01/25/us/politics/cia-covid-lab-leak.html) recently reported after Trump took office:

C.I.A. Now Favors Lab Leak Theory to Explain Covid’s Origins

 

A new analysis that began under the Biden administration is released by the C.I.A.’s new director, John Ratcliffe, who wants the agency to get “off the sidelines” in the debate.

But, you, of course, were irresponsible and anti-Chinese if you looked at the same evidence and came to the same conclusion that the CIA did when Mr. Biden was President.

 

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Blauser v. Diubin: Whether order is signed or unsigned, appeal must be from final judgment and not "minute order" granting nonsuit

 

Appellate court explains the crucial difference between a minute order and a judgment 

The old maxim holds true:  appealability is jurisdictional, meaning that an appellate court lacks jurisdiction to consider an appeal from a non-appealable order.  In California and most other jurisdictions, an appeal must be taken from a final judgment or an order made appealable by statute.  This is illustrated by the opinion of the Fourth District, Division Three, in Blauser v. Dubin (November 19, 2024) G063715 (https://law.justia.com/cases/california/court-of-appeal/2024/g063715.html).

In one of the typically concise and well-written opinions from the Fourth District, Division Three, the court explained the appellant's opening brief referenced a "judgment of dismissal" despite the fact the trial court adopted the increasingly common practice of not issuing any sort of final judgment.  Rather, the court granted a motion for nonsuit, a motion arguing the claim of one party against another cannot go forward, by way of an unsigned "minute order."   Such are prepared by the Clerk and entered in the record, often without the Judge's signature.

This caught the appellate court's attention, which asked the parties to brief the issue of whether the appeal was proper.  The appellant then obtained a signed copy of the minute order, filing a "notice of entry of judgment" attaching the signed order, and then filing the notice of entry of judgment in the trial and appellate courts.

The appellate court explained this signed minute order did not constitute a final judgment or order appealable by statute:

Though now signed, the minute order is (still) not labeled as a

“judgment” and it (still) does not purport to enter “judgment.” (§ 577.) Nor does it order the “dismissal” of appellant’s first amended complaint (though the cross-complaint was dismissed at the request of respondent). (§ 581d [a written, signed dismissal order “shall constitute” a judgment].)

Orders granting nonsuit motions are not among the appealable orders listed in section 904.1. “Although an order granting a nonsuit is nonappealable, an appeal can be taken from the subsequent judgment of nonsuit.” (4 Cal.Jur.3d (2024) Appellate Review, § 58; see Smith v. Roach (1975) 53 Cal.App.3d 893, 895, fn. 1.) “[I]nsofar as the appeal purports to be from the minute order granting the motion for nonsuit, it is premature and must be dismissed.” (Bauer v. Jackson (1971) 15 Cal.App.3d 358, 363, fn. 1.) (Id., p. 3.)

The Fourth District rejected the argument the a minute order and judgment are "functionally equivalent," noting such an approach would lead to confusion as to what is and is not appealable.  Moreover, the court noted California's Code of Civil Procedure section 581c(c) regarding dismissals contemplates a motion for nonsuit shall be followed by an actual signed judgment. 

The appeal was therefore dismissed without prejudice to be refiled once a final judgment or appealable order had been obtained.

Lessons for practitioners

Even though section 581c(c) provides a motion for nonsuit shall be an "adjudication on the merits," unless there is a judgment as a to particular party, that party may not appeal the granting of the nonsuit.  Alternatively, a signed "order of dismissal" is equivalent to a judgment per Code of Civil Procedure section 581d.  However, an order of dismissal must actually state a party is dismissed and should be entitled an "Order of Dismissal of [name of party]" and make specific reference to section 581d in order to make this crystal clear.

More broadly, for the sake of clarity any "minute order" or other order of the court that a party wishes to appeal should be reduced to a judgment.  Further, this judgment should be signed by the Court and attached to a "notice of entry of judgment" filed with the trial court and served upon all parties, this being crucial because doing so starts the 60-day period in which an opposing party may appeal.  If this notice is not given the other party may have up to 180 days to appeal resulting in a surprise "notice of appeal" once the case has been long-closed.  Of course, in any timely appeal, this "notice of entry of judgment" should be made part of the appellate record.

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President Biden, Pardons, and the Limits of Appellate Review

 

 

The power of a President to pardon anyone for a Federal Crime is limited only by the provision of U.S. Const. Art. II, section II that prevents pardons for verdicts of “impeachment:”

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

Therefore, it is almost impossible to seek meaningful appellate review of a Presidential pardon.  This appears to be intentional, as the Federal Judiciary operates with little oversight from the Legislative or the Executive Branches, other than, of course, the fact the House of Representatives controls the purse and the Senate must approve the President’s Judicial nominees — as well as the oft-forgotten power of Congress to set the jurisdiction and scope of Federal Courts by virtue of Article III, Section II:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office. (Emphasis added.)

Given this broad power, I was neither shocked nor offended by President Biden's broad pardon of his neer-do-well son Hunter, so broad as to include any claims his son was guilty of influence-peddling with the consent of his father by, for example, serving on the Board of Directors of Ukrainian oil company Burisma despite his lack fo involvement in either Ukraine or the energy industry. (See, e.g., https://www.pbs.org/newshour/politics/report-hunter-biden-sought-u-s-government-help-for-gas-company-burisma.)  The power conferred is not only broad but is personal to the President rather than being conferred on any other portion of the government.

This is separate, of course, from criticism of any of the lies or prevarications from the President and/or his White House minions.  Indeed, The New York Times has reported that the pardon has been in the works for months, during which time it was said by the President and his Press Secretary — over and over again —  that no pardon or clemency would be forthcoming. (See https://www.nytimes.com/2024/12/01/us/politics/biden-pardon-son-hunter.html.)

It has often been said that a grand jury can indict a ham sandwich.  To the extent this is true, the President could later pardon the sandwich, the son of the sandwich, or the wife or husband of the sandwich. 

 

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"Martha" on Netfilx: Revisiting Martha Stewart, the FBI, and James Comey's "Trophy"

 

This weekend I watched the Netflix documentary Martha. As an appellate lawyer and a civil libertarian it brought two crucial points to mind, the first being Martha Stewart's decision to end the appeal of her criminal conviction.  

Recall that after being wrongfully, in my humble opinion, convicted of “lying” to the FBI about her supposed insider trading, Ms Stewart initially filed an appeal.  This is hardly surprising given the fact that she was not convicted or even charged with insider trading.  In fact, she could not be charged because the evidence did not show that she traded on "insider" information.  Rather, Stewart was convicted of lying to the FBI when she truthfully said she had not engaged in insider trading.  If this seems nonsensical, remember that President Donald Trump was convicted of fraudulently failing to disclose payments to a mistress as a campaign contribution even though such payments do not fit the definition of a campaign contribution or expenditure, this last point illustrated by the failure of the Department of Justice to prosecute Mr. Trump on any campaign finance charges.

Though this appeal might have set useful precedent, Stewart courageously withdrew her appeal in order to put this incident behind her.  The FBI, of course, is not required by any law to tell the truth when it interviews someone, but is still very fond of claiming it has been "lied to" when it cannot bring any other charges.  Though Ms. Stewart's appeal did not proceed, this area is ripe for appellate review given the prosecutorial abuses of the Department of Justice and their cohorts at the FBI.

Which brings us to the second point, to wit, the role of our good friend James Comey in all this.  Ms. Stewart does not mince words when she notes how the sanctimonious Comey, then a Federal Prosecutor, decided to take down the first self-made female billionaire as what Stewart calls his "trophy."

This, of course, is the same James Comey who signed, under penalty of perjury, a FISA warrant application central to the entire Russia Hoax, a hoax which wasted millions and millions of dollars and countless hours in a vain attempt to prove a claim for which there was no evidence:  that Trump was a Russian Asset.  Indeed, following the report of Inspector General noting the errors and mischaracterizations in the FISA warrant application, Comey continued to defend his use of the "pee dossier" from Michael Steele as the basis for the FISA warrant application.

And so it is ironic that before James Comey did this to Donald Trump, he did it to Martha Stewart.  Comey was nonetheless later permitted to be named Director of our nation’s top Law enforcement agency, FBI, the era where the FBI was let by Comey seguing into the current era of political “lawfare" we have just lived through.

Martha, then, is a must-see because it shows us how Comey took down his first "trophy" before he later went after Trump. 

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