Sunday, February 12, 2012

Case o' The Week: The Kimsey Report - Berzon Rules Against Rules, Criminal Contempt

"In a colloquy ascribed to Sir Thomas More and his daughter: More's daughter urged her father to arrest someone, saying, 'Father, that man's bad.' More replied, 'There's no law against that.... [G]o he should if he was the Devil himself, until he broke the law!'

Here, the government may have proven that Kimsey is, if not the Devil, no saint. But it has failed to persuade us that Kimsey was in criminal contempt under the applicable federal statute."

     United States v. Kimsey, 2012 WL 386338, *11 (9th Cir. Feb. 8, 2012) (footnote omitted), decision available here.

    Kimsey's a keeper.

Players: Decision by Judge Berzon, joined by Judges Bybee and Sr. D.J. Graham. Big win by former Nevada Federal Defender Franny Forsman.   

Facts: A big, messy personal injury lawsuit in the Nevada federal district court spawned over 500 pleadings. Id. at *1. Plaintiff’s counsel finally withdrew. The plaintiff then filed awkward pro se motions –  for awhile. Id. Suddenly, however, while still proceeding pro se the plaintiff suddenly filed documents that were more legally sophisticated. Id. at *2. The civil defendants’ “ghost-busting” investigations, id., revealed these pleadings were in fact written by James Kimsey, a non-lawyer. Id. Kimsey was tried and convicted for criminal contempt, in violation of 18 USC § 402. Id. at *3. Central to the finding of guilt were Kimsey’s violations of the district’s local rules, which prohibit the unauthorized practice of law.  Id. at *4.

Issue(s): “Kimsey contends that he cannot be convicted under § 402 for violation of local rules.” Id. at *6.
Held: “We agree. We hold that § 402 does not permit convictions for criminal contempt for violations of standing rules of court.” Id. “[L]ocal court rules . .  do not constitute ‘rules’ within the meaning of § 402 and thus cannot serve as predicates for criminal convictions under that statute.” Id. at *11.

Of Note: Kimsey articulates a welcome new rule for the Circuit. Section 402 criminalizes contempt if a defendant willfully disobeys a “rule,” and that violation would be a crime under the law of any state. Id. at *6. Are local district “rules” what this old statute had in mind? Judge Berzon thinks not, and explains why in a beautifully-written decision. A century ago, when this statute was written, “rule” meant an order or decision of the court – not local “rules” as we think of them today. Id. at *8-*9. Moreover, punishing as contempt a violation of local rules would lead to absurd results: jail time for using the wrong font or incorrect margins, as dictated by local rule. Id. at *10. The Ninth now joins D.C. (and splits from the Seventh) in holding that violations of a court’s local rules cannot create § 402 liability. Id. at *7-*8.

How to Use: Kimsey is a go-to statutory interpretation case. Judge Berzon blows the dust off of the 1910 Black’s Law Dictionary to determine just what “rule” meant back when the statute was written. Id. at *8. “[N]oscutur a sociis . . .  a word is known by the company it keeps,” is one of the many handy principles of construction explained in the Court’s deconstruction of Section 402. Id. at *9.

   Another bon mot is Judge Berzon’s rejection of the precedential value of a previous Ninth Circuit case, dismissing that language as “unstated assumptions on non-litigated issues . . .” Id. at *7. (N.B.: This is valuable stuff for the defense, showing us how to properly characterize non-precedential language in previous decisions. Add to your list of notable quotes.) 

   Kimsey is classic Berzon: rigorous and careful analysis of the real precedential value (or lack thereof) of previous decisions, while evaluating the precise issue before her. See, e.g., United States v. Rodriguez-Preciado, 399 F.3d 1118, 1138 (9th Cir. 2005) (Berzon, J., dissenting and analyzing exact holding of Supreme Court’s plurality decision in Seibert). Holdings aside, Kimsey is worth a close read solely as an example of statutory analysis done right.
For Further Reading: Franny Forsman argued Kimsey. She’s our hero. The former Nevada Federal Defender, Franny’s life has been as rich and complex as they come – a proud “old Hippie” who lived on a commune, writes fiction, headed a huge Defender’s office for many years, and argued before the Supremes. For an interesting article describing her remarkable career – and future plans – see here.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at

Image of "ghostbuster" from


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