Nottingham fails in Supreme Court appeal

Another fail for Dermot Nottingham, this time the Supreme Court declining leave to appeal. This is entirely predictable, as he was seeking leave to appeal a Court of Appeal decision that said they had no jurisdiction to overturn the High Court declining leave to appeal. More wasting of court time.

Costs of $2500 were awarded against Nottingham, but as he has been insolvent for some time (probably years) and was adjudicated bankrupt in September he is unlikely to be able to pay these, on top of the quarter of a million dollars in various court costs he already owes.

Costs are supposed to be a deterrent to vexatious and hopeless litigation but Nottingham continues to file proceedings regardless. I don’t know if he is ignorant of the judicial processes (he shouldn’t be, he has extensive experience with it) or if it is deliberate abuses of processes as part of campaigns of harassment against various people.

From the Supreme Court judgment DERMOT GREGORY NOTTINGHAM v HEMI TAKA, MARTIN RUSSELL HONEY AND STEPHANIE FRANCIS HONEY [2018] NZSC 102 [5 November 2018]

[1] The applicant seeks leave to appeal against a decision of the Court of Appeal in which he was refused leave to appeal against two High Court decisions. Both had their origins in a private prosecution brought by the applicant against the three respondents in the District Court. All charges were dismissed by Judge Paul and he ordered the applicant to pay costs totalling $117,000 under the Costs in Criminal Cases Act 1967.

[2] The applicant sought leave to appeal against Judge Paul’s decision dismissing the charges and the award of costs.

[3] In the first of the High Court decisions, Paul Davison J refused leave to appeal and, in doing so, he addressed directly the costs argument.

[6] In dealing with the challenge to the judgment of Downs J, the Court concluded that there is no right of appeal to the Court of Appeal from such a decision, citing a number of cases decided under similar provisions of the Summary Proceedings Act 1957. In absence of a right of appeal, the Court found it had no jurisdiction to hear a challenge to the judgment of Downs J.

So the court (Court of Appeal) has no jurisdiction to overturn a lower a court (High Court) decision declining leave to appeal a lower court (District Court).

[7] In support of his application for leave to appeal to this Court, in respect of the judgment of Paul Davison J, the applicant repeats the submissions advanced to and rejected by the Court of Appeal.

[8] Although the judgment of Paul Davison J is lengthy, it is perfectly clear that he dealt with the case as an application for leave to appeal under s 296 and not as a substantive appeal. The order he made was to dismiss the application for leave to appeal. For the reasons given by the Court of Appeal, that decision was final. It was not susceptible to challenge in the Court of Appeal.

[9] We are likewise of the view that there was no jurisdiction to challenge in the Court of Appeal the decision by Downs J to refuse an extension of time.

[10] This Court relevantly has jurisdiction to deal only with appeals authorised by Part 6 of the Criminal Procedure Act. The proposed appeal is not within any head of jurisdiction provided under that Act. As to this, we note that s 213 to which we have already referred provides that an appeal court’s decision to give or refuse leave is final unless otherwise expressly provided for. This provision is as applicable to the Supreme Court as it is to the Court of Appeal and makes it clear that we do not have jurisdiction to entertain appeals against decisions of the Court of Appeal to refuse leave.

[11] The application for leave to appeal is dismissed. The applicant is to pay the respondents costs of $2,500.

So that should be the end of the legal line for Nottingham in this lengthy litigation.

Here is the Court of Appeal decision: NOTTINGHAM v DISTRICT COURT AT AUCKLAND [2018] NZCA 75 [28 March 2018]

[3] In March 2014 Mr Nottingham commenced a private prosecution in the Auckland District Court against the second respondents. Following a Judge alone trial extending over 17 sitting days, on 20 June 2016 Judge Paul dismissed all charges, acquitted the second respondents and made an order that the appellant pay costs totalling $117,000. Mr Nottingham’s application for leave to appeal pursuant to s 296 of the Criminal Procedure Act 2011 was declined by Davison J.

[4] The prequel to the criminal proceedings were complaints by both Mr Nottingham and Mr Honey to the Real Estate Agents Authority which culminated in a decision of the Real Estate Agents Disciplinary Tribunal, an appeal to the High Court and a further appeal to this Court.

So this relates to a failed prosecution that began over four and a half years ago.

And that relates to even longer running litigation – it started with a business deal in 2009 that led to:

[4] In early 2011, Mr Dermot Nottingham lodged a complaint on behalf of PBRL with the Real Estate Agents Authority (the REAA) alleging misconduct by Mr Honey…

This is just one of a number of lengthy proceedings Nottingham has been involved in, including other failed private prosecutions, against myself and three others. My case has ‘only’ been going for three and a half years, with leave to appeal costs being declined Nottingham by the Court of Appeal last week – see Nottingham fails again in Court of Appeal, judicial system faltering. The week before: Nottingham fails another attempted appeal.

In July Nottingham was sentenced after being convicted on two breaches of non-publication orders and five charges of criminal harassment. From the sentencing notes:

[16] Variously, the conduct alleged in respect of the five complainants, and differently as between those five complainants, can be characterised as a combination of some or all of the following:

(g) Engaging in or threatening to engage in vexatious litigation.

[24] It was plain to me from the evidence that a number of these courses of conduct started with Mr Nottingham crossing the path of the individual complainant, either in his own capacity or on behalf of another individual, acting as their advocate.

[53] In his written submissions, Mr Nottingham makes it plain that he disagrees with the findings of the jury and challenges many of the rulings of the Court. As is characteristic of his approach to legal proceedings, I anticipate that Mr Nottingham will pursue all avenues of review and appeal and is unlikely ever to accept that what he did was not only unlawful, but reprehensible.

Nottingham has more proceedings pending in the courts.

Senate vote 50-48 for Kavanaugh

The US Senate is due to vote on the Brett Kavanaugh nomination for the Supreme Court this morning NZ time.

It looks like being a done deal for Kavanaugh, but that may not be the end of the controversy.

New Zealand has a cl;ear separation between the appointment of judges and politicians, as it should be, so it is strange and alarming to see how political important appointments to the highest judicial position are.

The vote was 51-49

Kavanaugh unsuited for Supreme Court

While there is a concerted campaign by Brett Kavanaugh supporters to play down accusations and to discredit accusers, his suitability for the Supreme Court looks increasingly untenable.

There are valid points about ‘innocent unless proven guilty’ to some degree, but a judge of the Supreme Court of the United States must meet higher standards. Kavanaugh’s manner at the Senate hearing last week alone raised questions about his demeanour and his political bias. And claims of drunken behaviour and belligerence keep emerging.

Ana Navarro (CNN): For the good of us all, Brett Kavanaugh should step aside

The ideology of a nominee, and factors like race, gender, ethnicity and creed, are all solely the President’s choice. But there are other requirements for a Supreme Court appointment that should not be optional. A Supreme Court Justice should have intellectual heft, judicial temperament and lifelong fitness of character.

There is no doubt Kavanaugh meets the intellect requirement.

In his first hearings, he came across as calm and deliberative — a cross between a Boy Scout and an altar boy.

That all changed once Professor Ford’s allegations emerged.

Let me say clearly and unequivocally, I believe Christine Blasey Ford.

I believe her because she is not a partisan activist. I believe her because during his hearing, Kavanaugh lied about little things he didn’t need to. I believe her because his good friend, Mark Judge, wrote a book called, “Wasted: Tales of a GenX Drunk,” which mentions a character named “O’Kavanaugh” he frequently got wasted with.

(See FBI interviews Kavanaugh friend Mark Judge)

A lot of people think we should not define a person’s entire life because of grave mistakes made as a teenager. I tend to agree with that. Kavanaugh is certainly not alone in doing things as a teenager that most of us as adults would rather forget.

But his nomination is for the Supreme Court. It is different than any other position in government. Once named, you can’t be fired. You are not accountable to voters or even a President. It is a lifetime appointment. And unlike appointments to lower courts, there is no retirement age and impeachment is almost unheard of. All of this makes the standard for confirmation higher.

I now believe Kavanaugh lacks the judicial temperament and character to serve on the Supreme Court. In the last hearing in front of the Senate Judiciary Committee, he was screaming, crying, disrespectful and partisan.

In his testimony in front of the committee, Kavanaugh was a partisan attack dog. He showed resentment and disdain for Democrats. He questioned Senator Klobuchar about her drinking habits. He brought Trump’s election into it. He blamed Professor Ford’s allegations on Clinton allies seeking revenge for his role in the Starr investigation.

But again, this is for the Supreme Court. Justices are supposed to be free from external political pressures. Given what we heard from Kavanaugh and the emotional scars this process will leave him with, given his animosity for Democrats and his indebtedness to Republicans, would he ever be capable of judicial independence? Every Senator, regardless of party, should ask themselves that question.

If Kavanaugh is appointed to the Supreme Court there will always be questions about his character and his political bias.

Mike Godwin is an attorney, author, and creator of Godwin’s Law.

And more and more facts against Kavanaugh are emerging.

NZH: Brett Kavanaugh and his staff reportedly sent text messages to cover up indecent exposure allegations

Last week, a separate report claimed he exposed himself during a drunken dormitory party in the same period, with various former classmates now publicly weighing in on his alleged out-of-control drinking habits in detail.

And now it has emerged that Kavanaugh and his staff were allegedly sending text messages to silence reports of indecent exposure — before the story had even broken.

Late last month, The New Yorker published a story in which Kavanaugh’s former classmate Deborah Ramirez claimed he exposed himself to others at a party in the early 1980s.

In the report, Ramirez, 53, claimed Kavanaugh exposed himself “at a drunken dormitory party” where she alleged he “thrust his penis in her face, and caused her to touch it without her consent as she pushed him away”.

The story noted she had “gaps” in her memory from drinking, and that she couldn’t clarify his role “with certainty” for six days after first speaking with the journalists who published the story.

Kavanaugh denies the claims.

“This alleged event from 35 years ago did not happen,” he wrote in a statement. “The people who knew me then know that this did not happen, and have said so. This is a smear, plain and simple. I look forward to testifying on Thursday about the truth, and defending my good name — and the reputation for character and integrity I have spent a lifetime building — against these last-minute allegations.”

But it’s now emerged that Kavanaugh, 53, and his staff were reportedly sending text messages to former Yale classmates to underplay these allegations — before the story was actually published.

In one message, Yarasavage said Kavanaugh asked her to go on the record to defend him. Another two messages show communication between Kavanaugh’s team and former classmates before The New Yorker story broke, suggesting Kavanaugh knew about Ramirez’s allegations in advance.

A judge trying to influence potential witnesses should raise legal eyebrows.

A one-time classmate of Kavanaugh said he was a habitual heavy drinker, challenging the judge’s Senate testimony to the contrary.

“I can unequivocally say that in denying the possibility that he ever blacked out from drinking and in downplaying the degree and frequency of his drinking, Brett has not told the truth,” Chad Ludington told reporters.

The North Carolina State University professor, who said he had contacted the FBI with his information, indicated on Sunday in a statement that Kavanaugh was “belligerent and aggressive” when he drank.

A separate report published by The New York Times today claims Kavanaugh has a history of alcohol-related violence during this period of his life.

Sure, valid criticisms can be made of how Democrats have politicised the nomination – but so have Republicans and Trump.

But partisan crap aside, Kavanaugh is looking increasingly risky for, if not outright unsuitable for, a position on the US Supreme Court,

FBI ‘background investigation’ requested before Kavanaugh vote

The US Senate Judiciary Committee has requested that the FBI conduct a background investigation before a vote on Supreme Court nominee Brett Kavanaugh. They want this done in just a week, but it seems a prudent pause in proceedings.

Reuters (Twitter):

Republican Senator Flake says it would be proper to delay floor vote on Kavanaugh for up to one week.

Senate Judiciary Committee will request Trump administration has FBI conduct background investigation into Supreme Court nominee Kavanaugh.

Senate panel says supplemental FBI background investigation would be limited to ‘current credible allegations’ against Kavanaugh, must be completed in one week.

One week isn’t a lot of time for this, but it is better than a highly politicised Senate hearing that proved little apart from vested interests and manipulation of both Republicans and Democrats.

Vox:  Trump says he’ll defer to senators on Kavanaugh’s confirmation vote

President Donald Trump praised his Supreme Court pick, Brett Kavanaugh, for his “riveting” testimony during his Senate Judiciary hearing on Thursday night, then demanded, “The Senate must vote!”

But on Friday, answering reporters’ questions as he met with Chilean president Sebastián Piñera, Trump said he’d defer to senators on how they wanted the nomination to play out. “Well, I’m going to let the Senate handle that, they’ll make their decisions,” Trump told reporters.

When asked if Trump would approve a reopening of an FBI investigation into Kavanaugh, Trump said he would rely on lawmakers. That’s going to “be a decision that they’re going to make,” the president said. “And I suspect they’ll be making some decision soon, whether to take a vote, or to do whatever else they want to do.”

“I will be totally reliant on what Sen. Grassley and the group decides to do,” Trump added.

Also from Vox: Every time Ford and Kavanaugh dodged a question, in one chart

Beyond the style of their testimonies, there was a striking difference in the content of their words. Both Ford and Kavanaugh fielded questions from senators and the prosecutor hired by Republicans, Rachel Mitchell.

But only Ford made an effort to answer every single question.

Kavanaugh actively dodged questions. He often repeated the same non-answer over and over. Other times, he insisted on answering a question with “context” — which inevitably was a long story about his childhood — but never actually answered the question.

It may be up to the FBI now to get some questions answered.

A dramatic last-minute demand by Republican Senator Jeff Flake on Friday prompted the Senate Judiciary Committee to seek an FBI investigation into President Donald Trump’s U.S. Supreme Court nominee Brett Kavanaugh over sexual misconduct allegations that have riveted the country and imperiled his confirmation chances.

The Republican-led committee approved Kavanaugh’s nomination and sent it to the full Senate over Democratic opposition, with Flake providing the decisive vote.

But Flake, a moderate Republican, cast his vote only after asking the panel to request that the Trump administration pursue an FBI probe of the explosive allegations against Kavanaugh and delay a final Senate confirmation vote for up to a week to allow the investigation to run its course.

Flake’s action came a day after the Judiciary Committee’s jarring and emotional hearing into the allegations against Kavanaugh that gripped the country, with a university professor named Christine Blasey Ford accusing him of sexually assaulting her in 1982 when both were high schools students in Maryland. Kavanaugh denied the accusation.

Flake’s action put the confirmation prospects for Kavanaugh, a conservative federal appeals court judge nominated for a lifetime job on the top U.S. court, in further jeopardy in a Senate only narrowly controlled by Trump’s fellow Republicans.

Republican Senate leaders agreed to Flake’s demand but the White House would have to direct the FBI to act. Trump said earlier he would rely on the Senate’s decision about how to move forward.

I think the White House will have to direct the FBI to act, otherwise a could will keep hanging over Kavanaugh’s nomination.

It sounds like Trump may have been given a choice of this or insufficient votes in support of the nomination.

Ford testimony, Kavanaugh response

Christine Blasey Ford has been giving testimony on Donald Trump’s Supreme Court nominee Brett Kavanaugh in the US Senate.

This is on events alleged to have happened a long time ago.

Ford seems like a genuine and credible witness, but memories are no always accurate over long periods of time in particular. However it does seem that she has genuine beliefs about what happened.

Kavanaugh has not looked or sounded convincing in what I have seen of him denying things.

From Reuters:

Supreme Court nominee Brett Kavanaugh testifies on Capitol Hill regarding sexual assault accusations by Christine Blasey Ford

Kavanaugh says he was not at the party described by Dr. Ford

Kavanaugh says he had demanded a hearing, says his family and name have been destroyed by accusations against him

Kavanaugh says Democratic rhetoric, reaction against him aimed to ‘blow me up and take me down’

Kavanaugh cites a long series of false last-minute smears designed to scare him and drive him out of the process, ‘crazy stuff’, says the opposition against him has been a calculated and orchestrated political hit fueled by anger against Trump; ‘This is a circus’

Kavanaugh says he will not be intimidated into withdrawing from this process, says while he may be defeated in the final vote, he will never quit; says due process means listening to both sides

Kavanaugh says he is ‘innocent’ and that he has ‘never done this’ to Ford ‘or to anyone’

Kavanaugh says no one ever accused him of any kind of sexual misconduct through his career; categorically and unequivocally denies the accusations against him by Ford

Williams versus Craig in the Supreme Court

The Jordan Williams versus Colin Craig defamation saga reached the Supreme Court this week. Most media must be over this spat as it was largely ignored.

But for those who aren’t over it yet, Asher Emanuel covered it well for The Spinoff – ‘Who do you despise more?’ Jordan Williams and Colin Craig at the Supreme Court

The jury seem to have despised Craig the most, but the trial judge said that tainted their decision.

Here’s the ‘the very abbreviated version” of the background:

Earlier this year an appeal court said that these long-running defamation proceedings had “exposed serious flaws in the characters of both protagonists”, which is also a fair description of the events which led to this week’s Supreme Court hearing.

In the weeks before the 2014 general election, polls showed the Conservative Party to be a genuine prospect to enter parliament. Two days before the vote, Colin Craig’s press secretary, Rachel MacGregor, resigned unexpectedly. The party ended up falling a percentage point short of the threshold required to make it.

After the election, MacGregor told Williams, an acquaintance of hers, that Craig had sexually harassed her. She later filed a claim of sexual harassment with the Human Rights Tribunal, which was settled in mediation with Craig in early 2015. The settlement included a confidentiality agreement and she considered the matter at an end.

Despite promising MacGregor and her lawyer he would keep her story and documents she’d entrusted to him confidential, Williams used the information in what a judge later described as a “campaign” to have Craig removed as leader of the party. Williams told the party board members, informed Garth McVicar of the Sensible Sentencing Trust that he should prepare to fill the party leadership, and authored posts for Whale Oil under the pen name “Concerned Conservative” alleging Craig sexually harassed MacGregor as well as publishing a poem Craig had sent her.

Craig responded by calling a press conference to announce a pamphlet he’d put together about “the dirty politics agenda and what they have been up to in recent weeks”. There had been a campaign of defamatory lies about him, he said. He’d never sexually harassed anybody, claims otherwise were false, and in the next 48 hours he would be suing Jordan Williams, Cameron Slater, and a member of the Conservative Party board member John Stringer for $300,000, $650,000 and $600,000 respectively.

At a cost of $250,000 he had the pamphlet — replete with strange capitalisation, a cartoon and an obviously fictitious interview between Colin Craig and a Mr X (actually also Colin Craig) — sent to 1.6 million homes.

Williams sued Craig, saying Craig had defamed him by calling him a liar and implying Williams was dishonest, deceitful, a serial liar, not to be trusted, and lacking in integrity. Williams won and was awarded $1.27 million, the largest defamation award ever made in New Zealand. (The trial judge did, though, find there was some evidence that Williams had been dishonest and deceitful, and could not be trusted.)

Both Craig and Williams had their reputations tarnished by the trial, but the jury decided that Craig’s responses to Williams’ attacks were excessive.

The appeal court worried that the size of the original award was more about punishing Craig than vindicating Williams’ reputation. Indeed, Craig’s lawyer had said, pretty candidly, that the he thought the jury “hated” Craig.

And Williams’ reputation was not worth $1.27 million.

“The trial process revealed that Mr Williams had accused Mr Craig of sexual harassment against Ms MacGregor but himself harboured offensive attitudes towards women,” the court said, referring to Facebook messages between Williams and Cameron Slater published by the hacker Rawshark and put in evidence by Craig.

“A damages award should restore Mr Williams’ reputation to the status it ought it to have enjoyed if this element of his character was known publicly. The law must be concerned with the reputation he deserved and compensate accordingly.”

Williams won’t have been well known to the general public but many of those who followed politics and ‘Dirty Politics’ are likely to have not rated his reputation highly before his spat with Craig.

And this week the spat reached the Supreme Court.

The precise legal issues involved are particularly technical and arcane — for instance, which elements of the defence of qualified privilege are for a judge to decide, and which are for a jury.

But the essence of each party’s case is simple enough. Williams wants the jury’s verdict to stand, including the enormous damages award. He disagrees with the trial judge’s decision to order a retrial of the whole case, and the appeal court decision that any damages should be far more modest.

Craig, presumably, just wants it all to go away. The jury shouldn’t have taken away his defence. He had been defending his political standing, his lawyer explained. He had retaliated to “protect his reputation as a man, a husband and a father.” Williams, by contrast, was overly hasty, exaggerated his claims, breached various assurances of confidentiality, was uninterested in evidence which contradicted his views, et cetera.

In this case, the privilege Craig relied on is the right to respond to an attack on one’s reputation. Williams attacked Craig, so Craig was entitled to respond. But there are limits. For instance, Craig would lose the defence if he was mainly motivated by “ill will”, including if he didn’t believe what he was saying was true.

Craig’s lawyer said he honestly believed that he had not sexually harassed MacGregor, and that the relationship was close and to some extent reciprocated. The judge’s instructions to the jury made it seem like it was easy for Craig to lose his defence, the lawyer argued.

Williams’ lawyer said Craig knew he sexually harassed MacGregor, he knew his remarks about Williams were false, and the defence was not available to him, as the jury decided.

The lawyers, who must have already cost their clients huge amounts of money, went over all of this over two days in front of five Supreme Court judges.

The outcome will be awaited. The jury’s verdict could be reinstated. A retrial could be ordered, either in whole or just on damages, which retrial could in turn give rise to further appeals, and so on and so on. Unfortunately, the courts cannot substitute their own view on damages unless the parties consent. And agreement to let the court assess damages has not been reached, despite some pleading from the appeals court.

In time a verdict will come out, but that will only determine who this saga will proceed to yet another court.

And that’s not all for Craig. He is still waiting for a verdict on his defamation and counter claim versus Cameron Slater, now well over a year after the trial. perhaps that has been waiting to see the outcome of this saga, as any monetary award would have to add up alongside whatever Williams ends up with being awarded.

And that’s not all for Slater – Blomfield v Slater trial date set

A defamation proceeding brought by Matthew Blomfield against Cameron Slater that was started in the District Court in 2012 will finally go to trial in the High Court in October. It will be judge only (no jury), and is expected to run for four weeks or six weeks (two recent judgments give different durations).

It’s hard to see there being any winners out of all of this, financially at least. The cost of taking defamation to court is horrendous, and as Williams and Craig have found out the cost to their reputations can be high as well.

Craig versus Williams granted leave to appeal and cross appeal

The Colin Craig versus Jordan Williams defamation saga continues, and it’s getting a bit complicated legally.

Williams won a record payout in a High Court jury trial. However the judge had concerns about that verdict.

Craig took it to the Court of Appeal, which ruled earlier this year hat it was “satisfied that the jury’s award of both compensatory and punitive damages was excessive or wrong, and must be set aside accordingly.”

Today the Supreme Court granted leave to appeal that to Williams, and also leave to cross appeal was granted to Craig.

So it’s looking increasingly likely the only winners will be the lawyers.

NZH: Supreme Court allows Craig v Williams defamation appeal over compensation amount

New Zealand’s highest court will allow challenges to a court’s ruling that $1.27 million in compensation for a man defamed by former politician Colin Craig was “excessive or wrong”.

New Zealand Taxpayers’ Union executive director Jordan Williams sued Craig, the former Conservative Party leader, for defamation after Craig, in 2015, delivered 1.6 million pamphlets criticising Williams to homes across the country and held a press conference.

Williams sought compensatory damages of $400,000 and punitive damages of $90,000 for the remarks against him, and a further $650,000 in compensatory damages and $130,000 in punitive damages for the leaflets.

So this is likely to take at least a few more months, if not longer.

In the meantime Craig is still waiting for a judgment on the judge only defamation he took against Cameron Slater, who also took an action against Craig.

The Court of Appeal ruling: WILLIAMS v CRAIG [2018] NZCA 31 [5 March 2018]

High Court ruling: WILLIAMS v CRAIG [2017] NZHC 724 [12 April 2017]

US Supreme Court

The US Supreme Court has featured in the news two days in a row,

Yesterday:

Fox News: Upholds Trump’s Travel Ban 5-4

The 5-4 ruling marks the first major high court decision on a Trump administration policy. It upholds the selective travel restrictions, which critics called a discriminatory “Muslim ban” but the administration argued was needed for security reasons.

Chief Justice John Roberts, who authored the conservative majority opinion, wrote that the order was “squarely within the scope of presidential authority” under federal law.

“The sole prerequisite set forth in [federal law] is that the president find that the entry of the covered aliens would be detrimental to the interests of the United States. The president has undoubtedly fulfilled that requirement here,” he wrote.

Associate Justice Sonia Sotomayor was among the court’s four liberals that wrote a dissent.

In a written statement, Trump called the ruling “a tremendous victory for the American People and the Constitution.” As critics continued to decry the policy as “xenophobic,” Trump described the court decision as “a moment of profound vindication following months of hysterical commentary from the media and Democratic politicians who refuse to do what it takes to secure our border and our country.”

NPR: In 5-4 Decision, Court Deals Huge Blow to Government Unions

In a blow to organized labor, the U.S. Supreme Court ruled Wednesday that government workers who choose not to join a union cannot be charged for the cost of collective bargaining.

The decision reverses a 4-decades-old precedent and upends laws in 22 states.

The vote was a predictable 5-4. Justice Samuel Alito wrote the majority opinion with the court’s conservatives joining him.

So two decisions split between conservative and liberal judges. And the Supreme Court may get to lean further to the right – judges are appointed by Presidents, but need to be confirmed by the Senate.

CNBC: Kennedy Leaving Supreme Court

Supreme Court Justice Anthony Kennedy announced Wednesday he’s retiring at the end of July, giving President Donald Trump another chance to fundamentally reshape the highest court in the land.

Replacing Kennedy with a conservative could have a massive long-term effect on the highest U.S. court. His decision to leave will have huge implications for the midterm elections, as Democrats and Republicans battle for control of the Senate. The chamber confirms Supreme Court justices.

This will increase interest and pressure in the mid-term elections.

US Supreme Court rules on online sales tax

The US Supreme Court has overturned a ruling that had given online retailers a way of avoiding some state taxes.

NY Times: Supreme Court Clears Way to Collect Sales Tax From Online Retailers

Internet retailers can be required to collect sales taxes in states where they have no physical presence, the Supreme Court ruledon Thursday.

Brick-and-mortar businesses have long complained that they are disadvantaged by having to charge sales taxes while many of their online competitors do not. States have said that they are missing out on tens of billions of dollars in annual revenue under a 1992 Supreme Court ruling that helped spur the rise of internet shopping.

On Thursday, the court overruled that ruling, Quill Corporation v. North Dakota, which had said that the Constitution bars states from requiring businesses to collect sales taxes unless they have a substantial connection to the state.

This could be significant for New Zealand. If internet retailers like Amazon have to comply with all the state taxes in the US (a complex thing) depending on the location of the purchaser,then it should be simple to also comply with tax requirements for other countries.

Writing for the majority in the 5-to-4 ruling, Justice Anthony M. Kennedy said the Quill decision had distorted the nation’s economy and had caused states to lose annual tax revenues between $8 billion and $33 billion.

But there could be a downside. If online retailers are forced to charge more tax in the US they may look for more sales in places where they can get away without charging tax.

Hagaman v Little appeal rejected by Supreme Court

The defamation case Hagaman v Andrew Little has reached a conclusion in the Supreme Court, where an appeal on behalf of Earl Hagaman has been rejected.

In April 2017 a jury could not decide on some claims in a defamation case brought by Earl and Lani Hagaman against then Labour Party leader Andrew Little. The jury found that one comment wasn’t defamatory, one was but they couldn’t decide if ‘qualified privilege’ was an adequate defence, and they couldn’t decide at all on four other claims.

An appeal was filed, but not long after the trial (25 May) Earl Hagaman died.

Since then Lani Hagaman has tried to argue that an appeal should survive Mr Hagaman’s death, but has failed.

The Supreme Court ruling follows a Court of Appeal judgment in November:

[1] Does the late Mr Hagaman’s appeal against a High Court Judge’s ruling in a defamation trial survive his death? That is the question this judgment is concerned with.

Background

[2] Mr and Mrs Hagaman owned a large New Zealand hotel chain. In 2014 Mr Hagaman made a substantial donation to the governing National Party of New Zealand. The Hagamans’ hotel chain later received Niue Government funding to
upgrade a hotel in that country. The ultimate source of that funding was New Zealand Government aid assistance. The Leader of the Opposition Labour Party of New Zealand, Mr Little, drew a connection between these events in a series of six
public statements.

[3] The Hagamans issued proceedings in defamation against Mr Little in June 2016. Trial commenced in April 2017. During the trial Clark J ruled that the six statements were protected by qualified privilege. The jury were agreed that
Mrs Hagaman’s claims failed. They also agreed that two of Mr Hagaman’s six claims failed. But they could not agree on the other four. Judgment was entered in the High Court for Mr Little against Mrs Hagaman. No judgment was entered in relation to Mr Hagaman’s claim.

[4] The present appeal against the Judge’s ruling concerns one only of those four disagreed claims — the second cause of action. The appeal was filed in April 2017. Mr Hagaman died in May 2017. Although his personal representatives have not yet been substituted as appellants, they are responsible for the present conduct of the appeal and accept responsibility for any costs ordered on it.

[5] The question trail on the second cause of action given to the jury by the Judge, and the answers they gave, were as follows:
First named plaintiff (Earl Hagaman): Second cause of action
5. Do the words set out in paragraph 10 of the second amended Statement of Claim carry any of the meanings set out in paragraph 11?
[YES]
6. If the answer to any of issue 5 is “Yes”, is that meaning defamatory of the first named plaintiff (Earl Hagaman)?
[YES]
7. If the answer to issue 6 is “Yes” was the defendant (Andrew Little) motivated by ill-will towards the first named plaintiff (Earl Hagaman) or, did the defendant take improper advantage of the occasion of publication?
[NO ANSWER]
8. If the answer to issue 7 is “Yes”, then assess:
(iii) General damages $
(iv) Exemplary damages $
[NO ANSWER]

[6] The practical question we must decide is whether the jury answers on the second cause of action amount to a verdict for Mr Hagaman. We will now explain why this point matters.

When does an appeal in a defamation claim survive death?

[7] The old common law rule was that personal actions in tort (including defamation) abate upon the death of the plaintiff (or the defendant): actio personalis moritur cum persona. The rationale for the rule is that such an action is personal to the victim and his or her tortfeasor, and should not devolve to their estates. Professor Pollock called it a “barbarous rule”. The effect of the rule, as we will see, rather depended on the stage the claim had reached.

[8] The rule was abolished in part by statute in 1936, permitting the continuation of an action despite the death of a party.

[9] Defamation is excluded from the reforming effect of s 3(1). That simply means that the reform (creating a new statutory survival rule for other torts) does not apply to it. For defamation the old common law rule continues.

[10] Whether a defamation claim abates with death or not ultimately depends on the stage the proceeding has reached.

Does Mr Hagaman’s appeal survive his death?

[14] We are concerned only with the second cause of action. Mr Tizard for Mr Little submits there is neither verdict nor judgment on that cause of action. It follows it has abated and the appeal must be dismissed. Mr Fowler QC for Mr Hagaman’s representatives submits that although there is no judgment, the cause of action does not abate because there is at least a verdict. He submits that the jury answers constitute a special verdict finding that Mr Hagaman was defamed by Mr Little.

[15] A special verdict is one where the jury is asked to respond with answers to a series of questions rather than simply stating whether they find for the plaintiff and in what amount.

[16] But an incomplete set of answers will not amount to a verdict for one party or the other. A verdict is a conclusive determination of all factual issues within a cause of action, for one party or the other. The verdict can then be perfected by entry of judgment. In defamation a verdict for the plaintiff must include the jury’s award of damages; otherwise it is incomplete and void.

[17] It is evident that in this case the jury was asked by the Judge to respond to a series of questions, the intended result of which would be a special verdict on each cause of action. This produced verdicts for Mr Little on the causes of action alleged by Mrs Hagaman. It also produced verdicts for Mr Little on the fifth and sixth causes of action alleged by Mr Hagaman. Here the jury, asked questionse, answered either that the words did not bear the meaning alleged or that the meaning was not defamatory. That meant, as the question trail makes clear, that the jury had no more work to do. The answers were complete, even though not all questions had been answered.

[18] The same cannot be said of the second cause of action. The jury’s work was incomplete. Having answered the first two questions affirmatively, they had to go on and answer the third. But they could not agree on it. That is not a special verdict, because there is no conclusive answer on that cause of action. No judgment upon it could be pronounced.

[19] It follows that no verdict was given on the second cause of action. It therefore abates with the death of Mr Hagaman. No appeal may now be advanced upon it. As the whole of the appeal is confined to that cause of action, it also follows that the appeal itself must be dismissed.

Result

[20] The appeal is dismissed.

[21] The appellant’s estate must pay the respondent costs for a standard appeal on a band A basis and usual disbursements.

This decision was appeared in the Supreme Court. RNZ: Little defamation appeal rejected by Supreme Court

A bid by the late Earl Hagaman’s estate to continue a defamation case against former Labour leader Andrew Little has been dismissed by the Supreme Court.

Mr Hagaman – who died in May last year – and his wife Lianna-Merie sued Mr Little for statements made about a hotel contract.

A jury was not able to reach a conclusive verdict.

Mr Hagaman’s widow tried to continue the case, taking it to the Court of Appeal.

It ruled the case could not continue after Mr Hagaman’s death and the decision was taken to the Supreme Court.

The Supreme Court decision today said the arguments by Mr Hagaman’s representatives were not sufficient to warrant a retrial.

Mr Little has been awarded costs.

So a win and costs award for Little, but it will have (hopefully) been a lesson to him. He will obviously not want to be taken to Court again, especially now he is Minister of Justice and Minister for Courts.