Transitional Justice and Inauguration Poems

LESLEY WEXLER

Illinois law professor Lesley M. Wexler describes how Amanda Gorman’s The Hill We Climb and Jericho Brown’s Inaugural,’ an Original Poem—as two inaugural poems—fit within the call of transitional justice. Professor Wexler explains how, read together, the two poems provide a roadmap of the transitional justice terrain the government may choose to tread.

Read More

Atlas Construction Supply v. Swinerton Builders

Docket: D076426(Fourth Appellate District)

Opinion Date: January 26, 2021

Judge: Judith McConnell

Areas of Law: Civil Procedure, Construction Law, Personal Injury

A construction worker was killed when concrete formwork toppled over at a worksite. Plaintiffs, the worker's surviving family members, brought a wrongful death action against the general contractor, Swinerton Builders, and formwork supplier, Atlas Construction Supply, Inc. Atlas cross-complained against Swinerton for equitable indemnity, contribution and declaratory relief. The trial court entered summary judgment in favor of Swinerton as to the wrongful death complaint. Swinerton, in lieu of seeking entry of judgment on the summary judgment order, settled with plaintiffs, wherein plaintiffs agreed to dismiss their case against Swinerton, and Swinerton waived its costs. Apparently under a shared belief that the good faith settlement determination barred Atlas' cross-complaint against Swinerton, Atlas and Swinerton stipulated to the dismissal of Atlas' cross-complaint against Swinerton. Atlas appealed the summary judgment order, the good faith settlement determination, and dismissal of its cross-complaint. Atlas argued that the trial court erred in ruling Atlas lacked standing to oppose Swinerton's motion for summary judgment. Furthermore, Atlas argued if the trial court had considered its opposition brief, the court could have reasonably denied Swinerton's motion, and Swinerton would have never settled the wrongful death complaint, never made the good faith settlement determination, and Swinerton and Atlas would never have stipulated to the dismissal of Atlas' cross-complaint. After review, the Court of Appeal determined Atlas was not aggrieved by the trial court's exoneration of Swinerton in the wrongful death action. Therefore, Atlas lacked standing to appeal the summary judgment order. With respect to the good faith settlement and dismissal of the cross-complaint, the Court determined Atlas waived its challenge by failing to make substantive legal arguments specific to those orders. Therefore, the appeal was dismissed as to the summary judgment motion, and judgment was affirmed as to all other orders.

People v. Williams

Docket: A157283(First Appellate District)

Opinion Date: January 26, 2021

Judge: Petrou

Areas of Law: Criminal Law

M.T. found the door of his house open and two black men walking in the adjoining alley. He lost sight of them as they got into a red Mustang. M.T. could only see their silhouettes. Jewelry and a cash box had been stolen. A window had been pried open; its lock was broken. The responding officer lifted fingerprints from the broken window. A fingerprint analyst compared those fingerprints with Williams’s fingerprints taken from an Automated Fingerprint Identification System (AFIS) report generated when Williams was previously arrested. The report listed Williams's address as 0.3 miles from M.T.’s house. Williams’s home was not searched for the stolen property. None of the property was located in Williams’s possession. Williams did not have a red Mustang registered in his name. There was no evidence tying Williams to the burglary other than the fingerprints. Williams, charged with felony burglary, unsuccessfully argued that fingerprint analysis does not pass muster under "Frye." The court of appeal reversed Williams’s conviction. The trial judge improperly aligned itself with the prosecutor in the minds of the jury by the manner of his questioning of the fingerprint expert, repeatedly interrupting the defense’s cross-examination and implying that the defense could have hired its own expert. The questioning constituted prejudicial misconduct.

Self v. Cher-AE Heights Indian Community of the Trinidad Rancheria

Docket: A158632(First Appellate District)

Opinion Date: January 26, 2021

Judge: Burns

Areas of Law: Government & Administrative Law, Native American Law, Real Estate & Property Law

The Tribe purchased the coastal property and applied to the Bureau of Indian Affairs to take the property into trust, 25 U.S.C. 5108. The federal Coastal Zone Management Act requires that each federal agency whose activity affects a coastal zone must certify that the activity is consistent with state coastal management policies, 16 U.S.C. 1456(c). The Bureau determined the Tribe’s proposal is consistent with state coastal policies, including public access requirements in the Coastal Act. (Pub. Resources Code 30210). The Coastal Commission concurred after securing commitments from the Tribe to protect coastal access and coordinate with the state on future development. If the Tribe violates those policies, the Coastal Commission may request that the Bureau take remedial action. The plaintiffs use the Tribe’s coastal property to access the beach. They allege that the property's prior owner dedicated a portion of it to public use, in 1967-1972 and sought to quiet title to a public easement for vehicle access and parking; they did not allege that the Tribe has interfered with their coastal access or plans to do so. The court of appeal affirmed the dismissal of the suit. Sovereign immunity bars a quiet title action to establish a public easement for coastal access on property owned by an Indian tribe. Tribal immunity is subject only to two exceptions: when a tribe has waived its immunity or Congress has authorized the suit. Congress has not abrogated tribal immunity for a suit to establish a public easement.

Breslin v. Breslin

Docket: B301382(Second Appellate District)

Opinion Date: January 26, 2021

Judge: Arthur Gilbert

Areas of Law: Trusts & Estates

A party receiving notice who fails to participate in court-ordered mediation is bound by the result. Plaintiff, the trustee of decedent's trust, petitioned the probate court to determine the trust beneficiaries. After the probate court ordered the matter to mediation, the potential beneficiaries received notice of the mediation, but some did not participate. The participating parties subsequently reached a settlement that excluded the nonparticipating parties as beneficiaries, and the probate court approved the settlement. In this appeal, the nonparticipating parties challenged the probate court's approval of the settlement. The Court of Appeal held that, by failing to participate in the mediation, the Pacific parties waived their right to an evidentiary hearing. Furthermore, the Pacific parties were not entitled to a determination of factual issues, such as the decedent's intent, and cannot raise such issues for the first time on appeal. The court rejected the Pacific parties' contention that the trustee failed in his duty to deal impartially with all beneficiaries where the Pacific parties' failure to participate was not the fault of the trustee. The court also rejected the Pacific parties' contention that the trustee breached fiduciary duties and failed to keep them reasonably informed. Finally, the court concluded that there was no extrinsic fraud, and that the probate court should decide the issue of attorney fees. Accordingly, the court affirmed the judgment order.