They Don’t Call it a Brief for Nothing

Even though the First District Court of Appeal sided with San Francisco attorney Mark Clausen last week in a ruling against Oakland’s “beat feet ordinance,” the justices tweaked him a bit for wandering off topic in his sometimes wordy, sometimes off-topic written arguments.

Perhaps they were grumbling about Clausen’s odd reference, in a 55-page reply brief, to the islands of Micronesia, a citation that appeared to have more significance for a jet-setter than the judiciary.

While arguing that the Oakland ordinance violates due process by failing to offer a speedy “probable cause” hearing, Clausen noted that the Federated States of Micronesia requires such hearings. Then, with little indication of why Clausen chose to mention Micronesia (a former U.S. territory that gained independence in 1986) he quickly assumed the tone of a silver-tongued travel agent.

“Thus, in addition to beautiful beaches, ocean views, tranquility, an effervescent innocence and the absence of a police oversight monitor at taxpayer expense,” Clausen wrote, “the Federated States offer another attraction over the City of Oakland; adherence to principles embodied in the Fourth Amendment and Due Process Clauses of the state and federal constitutions.”

Demonstrating judicial restraint, the court did not reply specifically to Clausen’s sales pitch on behalf of the Micronesia visitors’ bureau. Rather the justices, in the footnotes of a 16-page unpublished ruling, simply said one of his briefs “range[d] considerably beyond those discrete points” they asked him to address.

Still, it’ll be interesting to see if any of the justices go island hopping in the Pacific when the court breaks for summer recess.

— Matthew Hirsch


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