In Uncategorized on 03/24/2016 at 16:00

It’s appropriate that my fifteen hundredth (count ‘em, 1500!) blogpost should be a designated hitter from…drumroll…The Great Dissenter, s/a/k/a The Judge Who Writes Like a Human Being, s/a/k/a The Implacable, Indelible, Irrefragable, Indefatigable, Illustrious, Indomitable, Ineluctable, and Incontrovertible Foe of the Partitive Genitive, and Old China Hand, Judge Mark V. Holmes…cymbal clash…

And it’s our old friends claim preclusion and issue preclusion revisited, in Linda J. Martin & John A. Martin. Docket No. 11015-15, filed 3/24/16.

Lin & John claimed they settled out two tax years on the key issue raised in the latest go-round, the stipulated decision was entered, and so it’s res judiciata (that is, claim preclusion). Or “rees judy-cater,” as a professor remarked on The Hill Far Above, so long ago.

Judge Holmes: “And so it is — but only for their 2007 and 2008 tax years, not their 2009 and 2010 tax years that led to this case.” Order, at p. 1.

Every year is a brand-new year. What was decided in the past for a year no longer at issue doesn’t apply, except….

Don’t you just love exceptions? Makes my day.

“The doctrine that the Martins might plausibly invoke is collateral estoppel, which bars re-litigation of an issue that was tried and decided in a previous case. But ‘decided’ here means decided by a judge — they settled their earlier case and that means that they do not got [sic] the benefit of collateral estoppel.” Order, at p. 2.

Entering a decision off a stipulation is only a pro forma agreement to what the parties agreed.  It invokes neither claim preclusion nor issue preclusion.

It’s not the fifteen hundredth time I’m saying it; it only feels that way.

Stipulate, don’t capitulate.


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