The Heller Gun Decision Week Nine – Some Legal Updates

The memorandum said that, in addition to a base amount on hourly rates, a multiplier had been added because this was an “exceptional case.” The resulting fee claim was based, for example, on an hourly rate for Gura of $557 per hour, times a 2.0 enhancement for 1,661 hours, resulting in a claim for $1,850,354, and an hourly rate of the same size for Neily times the same enhancement for 808.3 hours, resulting in $900,446.20.

Levy’s claim was for $663,498.40. Overall, the claim for seven attorneys’ time totaled $3,559,097.20. Among the expenses and costs claim totaling $13,215.30, the largest sums were for payments to attorneys Stephen Halbrook ($3,250), and Don Kates ($4,400). Halbrook is the lead attorney in Heller Two which challenges the revised DC regulations. Heller 2 is now pending before District Judge Ricardo M. Urbina. The District government’s response to the lawsuit is now due on Thursday of this week.

I don’t quarrel with a very-very large fee award in this case though I did receive a number of querulous comments from Republicans who is asked about this. I think a multiplier is appropriate though I did not realize the hourly rate in DC was that high.

I should note that on Friday of this week, the Court of Appeal for the Second Appellate District decided The Utility Reform Network v. Public Utilities Commission (Southern California Edison Company)

TURN petitioned for review of an order of the PUC awarding TURN only part of the attorney fees it sought for participating in lawsuits about deregulation of the electrical power market in California. The PUC declined to award TURN compensation under the Intervenor Compensation Provisions of the Public Utilities Code (which are comparable to 42 USC 1988 fees) for TURN’s unsuccessful court challenge to the PUC’s settlement of a lawsuit with a utility.

The PUC concluded that TURN’s failed litigation did not make a substantial contribution to the PUC’s proceedings. Applying the required deference, we cannot say that the PUC’s decision bore no reasonable relation to the purpose and language of the governing provisions of the Public Utilities Code. Nor did the PUC err in denying a multiplier. But the Court of Appeal held that PUC did err in awarding TURN’s outside counsel hourly rates of up to $470/hour instead of the $550/hour they asked for and it was agreed that the $550 was a market rate.

Because one of my first bills was a revise of the cost awards procedures in 1986, I am intimately familiar with this issue. In California, except as otherwise expressly provided by statute, the party who prevails in any action or proceeding "is entitled as a matter of right to recover costs per Code of Civil Procedure (“CCP”) § 1032(b). Those costs become part of and are enforceable as part of the judgment. The 1986 revision codified existing case law and set forth the items of costs which may or may not be recoverable in a civil action. Van De Kamp v. Gumbiner, (1990) 221 Cal.App.3d 1260, 1291. An

CCP § 1033.5 (a) contains a list of items specifically allowed as recoverable costs, and subdivision (b) contains a list of items that "are not allowable as costs, except when expressly authorized by law." An item neither specifically allowable under subdivision (a) nor prohibited under subdivision (b) may be allowed or denied in the discretion of the court if certain requirements are satisfied. (CCP § 1033.5(c)(4).) In particular, the item "shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation" and "shall be reasonable in amount" per Section 1033.5,(c)(2) & (c)(3).)

Per Judicial Council rules, we follow a cost bill process for all fees where they are listed in a memorandum of costs save attorneys fees plus a discrete motion for attorneys fees which is after being awarded is then included in the overall memorandum of costs. See: CCP § 1033.5(a)(10). See: Allstate Ins. Co. v. Loo, (1996) 46 Cal.App.4th 1794, 1797–1798; Bankes v. Lucas, (1992) 9 Cal.App.4th 365, 370–371.

The significance of this is when items are listed in a memorandum of cost, a motion to tax (eliminate) in whole or part the cost bill has to be brought by the opponent of the request and the burden is on that party to strike or eliminate the relief in whole or part.

If the items on a verified cost bill appear proper charges they are prima facie evidence that the costs, expenses and services therein listed were necessarily incurred. However, where the items are properly objected to, they are put in issue, and the burden of proof is upon the party claiming them as costs. Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion. However, because the right to costs is governed strictly by statute a court has no discretion to award costs not statutorily authorized. Wagner Farms v. Modesto Irrigation District, (2006) 145 Cakl.App.4th 765, 773-774.

However, as to attorney fees, a noticed motion to obtain the same is required and as thus the initial burden is to show entitlement to an award and the amount. Only after the court makes the required findings and sets forth the amount of the fee award are those fees included in the cost bill and the overall amount is put into the judgment.

Five, as everyone knows from reading my articles, I am not exactly a fan of Randy Scheunemann who is a former NRA staffer and Senator McSame’s foreign policy advisor. While I have pointed out why the so-called “terror gap” in gun and ammunition possession is a canard, Newsweek last week reported in the magazine itself that Scheunemann, was hired by the National Shooting Sports Foundation, a gun manufacturers' trade association, to lobby against the Bush Administration’s proposal to close this non-loophole. While NSSF stated that it opposed the proposal for the same reasons I did, Scheunemann’s role raised eyebrows.

According to Newsweek, “Registration documents filed by Scheunemann's company, Orion Strategies, list the terror-gap bill as one of its specific lobbying objectives, and the registrations listed Scheunemann as a lobbyist until he took a leave. McCain's campaign refused to answer questions about whether the senator supports or opposes the White House plan to close the loophole, and it also declined to say if Scheunemann had ever lobbied McCain on gun-control bills. ‘Randy Scheunemann is a foreign-policy adviser to Senator McCain, and he is on leave from Orion Strategies. We have no further comment,’ says Jill Hazelbaker, a campaign spokeswoman.” Hmmm…

Last, but not least, the 10th Circuit Court of Appeals in Wyoming v. United States, 2008 Lexis (official citation yet to be assigned) on Wednesday upheld the ruling by United States District Court Judge Alan Johnson of Wyoming (a Reagan appointee) that upheld a Federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) ruling that Wyoming could not expunge a record solely for purposes of that person being exempt from a federal prohibition on possessing or acquiring a firearm or ammunition.

As I have noted in prior blogs, the Gun Control Act’s stated purpose is to assist States’ in enforcing their own firearms laws which is why there is – and must be – a “commerce nexus” in terms of persons being barred from having ammunition or firearms. As such, in most cases GCA is a statutory style version of the 21st Amendment which bars the bringing into or importation of alcohol into a state in violation of state law. It has been my view that if a State did not bar people from possessing guns or ammunition, then neither should the federal government on that basis. This is an underlying issue in terms of the “relief from disabilities issue” I have written on in the past in discussing Caron v. United States, 524 U.S. 308 (1998).

Federal law prohibits anyone convicted of a domestic violence misdemeanor from possessing firearms or ammunition (18 USC 922(g)(9)) and federal law also prohibits anyone from supplying firearms or ammunition to anyone he or she knows or has reasonable cause to believe is so prohibited (18 USC 922(d)(9))

Wyoming ex rel. Crank, Wyoming Attorney General v. United States (2008 U.S. App. LEXIS 18224) no official cite assigned yet) concerned a Wyoming statute (Wyo.Stat.Ann. § 7-13-1501) that allowed domestic violence misdemeanants to regain their right to possess firearms by expunging misdemeanor convictions, but only for purposes of ammunition and/or firearm possession. The 2004 Wyoming law at the center of the lawsuit allowed people convicted of misdemeanor domestic violence to petition in state court to expunge their conviction and restore their gun rights. The law requires that petitioners must have completed probation, and it limits people to just one such request. The Wyoming Attorney General's Office stated that Wyoming courts expunged 63 misdemeanor convictions from 2005 through last October.

The BATF objected to the provision of the state law that specified that an "expunged" conviction would be kept by the state Division of Criminal Investigation and could be used to enhance penalties for future domestic violence convictions. BATF – relying on federal court precedent on “relief from disabilities” - that the records weren't truly expunged within the meaning of Caron. The context where this arose was in the utility of a Wyoming concealed weapons permit acting as a NICS bypass permit which would allow a Federal Firearms Licensee to deliver a gun to a person without the recipient being subject to a NICS check. Only one person with an expunged record had gone on to receive a state-issued concealed weapons permit as of last October.

The ruling was not unexpected. Mike Blonigen, Natrona County District Attorney (Casper) and president of the Wyoming Prosecutors Association, said Wednesday that options for the state apparently include appealing the 10th Circuit Court of Appeals ruling to the U.S. Supreme Court, or rewriting the state law. Blonigen said his office has been advising people interested in petitioning for restoration of their gun rights that a decision on the case was pending. The state law requires prosecutors to review restoration petitions. Significantly, Blonigen noted:

“‘We in fact had told applicants that we're very concerned on whether this was going to be upheld on appeal on not," Blonigen said. ‘We said, ‘you're probably fine in Wyoming, but what are you going to do if you're duck hunting in Delaware?'

“Blonigen said that the Wyoming Legislature may choose to change the law to address whether conviction records are truly expunged.

“ ‘I think it's one of these situations, where if you're going to call it an expungement, it has to have all the characteristics of an expungement, and frankly this law didn't get there,’ Blonigen said. ‘You can't say you're going to take it away for these purposes, but not for these three purposes over there.’"

In fact, next year the United States Supreme Court will hear a case from West Virginia (United States v. Hayes, 482 F.3d 749 (4th. Cir. 2007) US Supreme Court certiorari granted by United States v. Hayes, 2008 U.S. LEXIS 2713 (U.S., Mar. 24, 2008) involving when a State conviction for misdemeanor domestic violence precludes as a matter of federal law the possession of firearms and/or ammunition by and the supplying ammunition and/or firearms to that person.

Hayes is not a Second Amendment case but it occurs against a 2nd Amendment backdrop. The issue in Hayes is how specific a state statute has to be to act as a disqualifier in order to bar a person from possessing firearms and ammunition based being convicted of a domestic violence offense.

In 1994, Hayes pleaded guilty to a misdemeanor battery offense under West Virginia law, in the magistrate court of Marion County, West Virginia (the "1994 State Offense"). The victim of the 1994 State Offense was Hayes's then wife, Mary Ann (now Mary Carnes), with whom he lived and had a child. As a result of the 1994 State Offense, Hayes was sentenced to a year of probation.

Ten years later, on July 25, 2004, the authorities in Marion County were summoned to Hayes's home in response to a domestic violence 911 call. When police officers arrived at Hayes's home, he consented to a search thereof, and a Winchester rifle was discovered. Hayes was arrested and, on January 4, 2005, indicted in federal court on three charges of possessing firearms after having been convicted of a misdemeanor conviction of domestic violence (MCDV), in violation of 18 U.S.C. §§ 922(g)(9) and 924(a)(2).

Hayes filed a motion challenging the validity of the indictment and, on May 4, 2005, the grand jury returned a superseding indictment against him. The superseding indictment included the same three charges contained in the initial indictment, plus a "Notice of Additional Factors," alleging that Hayes had been convicted in West Virginia state court in 1994 on a misdemeanor battery offense that satisfied the definition of an MCDV.

The Winchester rifle found in Hayes's home was the subject of Count Three of the indictment. Hayes had sold a Marlin rifle in January or February 2004, and it was the subject of Count One of the indictment. Three additional rifles were the underpinnings of Count Two of the indictment. The Notice of Additional Factors in the superseding indictment alleged that he had been convicted of a MCDV.

Hayes sought dismissal of the superseding indictment, maintaining that it was legally flawed because his 1994 State Offense was not an MCDV under federal law. On June 11, 2005, the district court, by a bench ruling, denied Hayes's motion to dismiss. On July 5, 2005, Hayes entered a conditional guilty plea to Count One of the superseding indictment, pursuant to Rule 11(a)(2) of the Federal Rules of Criminal Procedure thus reserving his right to appeal the denial of his motion to dismiss. Hayes thereafter filed a timely notice of appeal, and we possess jurisdiction pursuant to 28 U.S.C. § 1291.

Hayes maintained on appeal that the district court erred in denying his motion to dismiss the superseding indictment in that his 1994 State Offense did not have as an express element a domestic relationship, and it was thus not an MCDV. The issue is whether the statute defining the offense has to have an express element of the offense a domestic relationship. The Court of Appeals held 2 to 1 that it did though all three Judges agree at a minimum that the defendant in the underlying case which results in the prohibition had to specifically notified in the charging document that the facts that bring someone within the prohibition.

The Fourth Circuit had previously reached a different conclusion as to the “elements” issue in an unpublished decision. The Hayes majority was in odds with the decisions of every other Circuit Court of Appeal that has ruled on the issue. See United States v. Heckenliable, 446 F.3d 1048, 1049 (10th Cir. 2006); United States v. Belless, 338 F.3d 1063, 1067 (9th Cir. 2003); White v. DOJ, 328 F.3d 1361, 1364-67 (Fed. Cir. 2003); United States v. Shelton, 325 F.3d 553, 562 (5th Cir. 2003); United States v. Barnes, 295 F.3d 1354, 1358-61 (D.C. Cir. 2002); United States v. Kavoukian, 315 F.3d 139, 142-44 (2d Cir. 2002); United States v. Chavez, 204 F.3d 1305, 1313-14 (11th Cir. 2000); United States v. Meade, 175 F.3d 215, 218-21 (1st Cir. 1999); United States v. Smith, 171 F.3d 617, 619-21 (8th Cir. 1999).

When a conflict of this nature comes up the United States Supreme Court almost always grants certiorari to resolve the conflict. Hayes may not fit a neat ideological peg in terms of who votes how and instead raises state’s rights issues which Justice Stevens is very sensitive to.

Since the mid 1980's Irwin Nowick has worked for the California State Assembly and State Senate on a plethora of policy issues, m ost notably firearms legislation. He has been described as "The Assembly's resident genius" by a former Speaker of the Assembly and is seen frequently in the Capitol hallways and offices assisting legislators in drafting and amending pending legislation.