How Appealing



Wednesday, February 6, 2008

“White House, Senate clash over frozen nominees”: James Oliphant has this post today at “The Swamp” blog of The Chicago Tribune.

Posted at 11:54 PM by Howard Bashman



“The Terrorist and the Baby-Killer: They met outside a Pennsylvania abortion clinic; What happened next took everyone by surprise.” This article appeared in last week’s issue of the Philadelphia City Paper.

Posted at 11:08 PM by Howard Bashman



“State high court takes up Flesh Club suit”: The Press-Enterprise of Riverside, California provides a news update reporting that “The nude cabaret and San Bernardino officials squared off before the state high court Wednesday in a fight over whether city government should pay a $1.4 million judgment to the club for hurting its business.”

Posted at 8:40 PM by Howard Bashman



“Chief justice proposes more openness in judge selections”: The St. Louis Post-Dispatch today contains an article that begins, “The state’s top judge Tuesday pledged to give the public a peek into the nonpartisan court plan, a system of choosing judges that is under heavy fire from conservatives. Starting this month, court officials will disclose when and where screening panels will meet to fill an opening on the bench, said Missouri Supreme Court Chief Justice Laura Denvir Stith.”

The Kansas City Star reports today that “Changes ahead for selection of Missouri judges.”

And The Columbia Missourian reports that “Chief Justice argues in favor of non-partisan selection of judges.”

Posted at 8:38 PM by Howard Bashman



Fifth Circuit holds that a Louisiana-based federal district court may exercise personal jurisdiction over claims alleging for fraud, breach of contract, and breach of fiduciary duty against the Chicago-based law firm of Winston &Strawn, LLC: Today’s ruling overturns the district court’s dismissal of the case for lack of personal jurisdiction over the law firm.

Posted at 8:20 PM by Howard Bashman



“Court rejects mother’s suit over son’s circumcision; Parents upset with result, said Unity Hospital didn’t offer informed consent”: The St. Paul Pioneer Press today contains an article that begins, “A mother cannot sue Unity Hospital in Fridley and one of its doctors because she didn’t like the way her baby’s circumcision looked, the Minnesota Court of Appeals ruled Tuesday.”

You can access yesterday’s non-precedential ruling of the Minnesota Court of Appeals at this link.

Posted at 5:40 PM by Howard Bashman



“State high court sets hearing on same-sex marriages for March 4”: Bob Egelko of The San Francisco Chronicle has a news update that begins, “The California Supreme Court said today it will hear arguments over the state’s ban on same-sex marriage next month in San Francisco. A court scheduled a special three-hour hearing, three times as long as its usual sessions, for March 4 to consider lawsuits filed by the city of San Francisco and same-sex couples challenging the California law that defines marriage as the union of a man and a woman. A ruling is due within 90 days of the hearing.”

Posted at 4:30 PM by Howard Bashman



“Mukasey Wants to Block Crack Releases”: Lara Jakes Jordan of The Associated Press provides a report that begins, “Attorney General Michael Mukasey wants Congress to act within weeks to prevent the release of thousands of violent criminals from federal prison under new crack cocaine sentencing rules.”

Posted at 4:25 PM by Howard Bashman



When should an appellate judge recuse from deciding an appeal based on having served as a judge on the court that decided the case below? In early January 2008, two new Justices joined the Supreme Court of Pennsylvania from the Superior Court of Pennsylvania, which is one of the Commonwealth’s two intermediate appellate courts. Even more recently, Pennsylvania Governor Edward G. Rendell nominated the former President Judge of the Commonwealth Court of Pennsylvania, the state’s other intermediate appellate court, to fill the third and final vacancy on Pennsylvania’s highest court.

Some legislators who will be able to vote on whether to confirm Governor Rendell’s nominee have questioned the nomination on the ground that the nominee, having served on the Commonwealth Court, will need to recuse himself from too large a number of cases if allowed to serve on the Pa. Supreme Court. Ironically, during the campaign that culminated in elections to the Pa. Supreme Court in November 2007, I did not hear anyone oppose the three candidates from the Pa. Superior Court on the ground that they would need to recuse from too many cases if elected to Pennsylvania’s highest court.

I think there is general agreement that if a judge is promoted from a trial court to an intermediate appellate court, that judge should not hear and decide appeals from orders that he or she entered as a trial judge. [Update: Indeed, as a federal appellate judge who emailed in response to this post observed, a federal statute titled “Disqualification of trial judge to hear appeal” states that “No judge shall hear or determine an appeal from the decision of a case or issue tried by him.”]

If a judge is promoted from an intermediate appellate court to the highest court of a jurisdiction, however, the recusal inquiry becomes more complicated. I think there would continue to be general agreement that the judge, while serving on the jurisdiction’s highest court, should not preside over appeals from rulings issued by panels on which he or she served while sitting on the intermediate appellate court.

But what if the judge in question did not serve on the three-judge intermediate appellate court panel that issued the decision under review but had the ability to vote for rehearing en banc when the losing party sought that relief before the intermediate appellate court? If the order denying rehearing en banc simply said that the requested relief was denied without identifying how any of the judges on the en banc court voted, I would not be of the view that a judge who merely considered a request for en banc rehearing while serving on the intermediate appellate court should be recused from hearing and deciding the case on the jurisdiction’s highest court.

Some intermediate appellate courts, such as the Pa. Commonwealth Court and the U.S. Court of Appeals for the Third Circuit, circulate decisions that are proposed to be issued as precedential opinions to all active non-panel judges before the decisions are officially issued. This pre-release circulation allows non-panel judges to flag any inconsistencies with the court’s earlier precedential rulings and other governing law, and also to call for pre-decision rehearing en banc in the event the proposed decision is objectionable enough. In such a jurisdiction, a non-panel judge has the ability to become intricately involved in a decision, totally hidden from the public’s view. But I would not rely on that possibility as a reason to advocate that a judge who is promoted to the jurisdiction’s highest court must recuse from considering any cases that resulted in precedential rulings of the intermediate appellate court before his or her promotion.

If readers of this blog have views on these issues, which I plan to address in an forthcoming installment of my monthly “Upon Further Review” column for The Legal Intelligencer of Philadelphia, I welcome hearing your thoughts via email.

It is also noteworthy that neither the Pa. Supreme Court nor the U.S. Supreme Court has any provision to allow temporary appointments from other courts to fill vacancies on a case-by-case basis in the event of recusals. By contrast, the highest courts of many other jurisdictions — California and West Virginia come to mind most quickly — maintain a full complement of judges even in cases where some members of the court have recused by replacing the recused judges with judges from lower courts. Is it better to have a system where recused judges of a jurisdiction’s highest court can be replaced by judges serving on an intermediate appellate court? Views on this subject are also welcome via email. Thanks!

Posted at 4:20 PM by Howard Bashman



Unanimous three-judge Seventh Circuit panel rejects constitutional challenges to provisions of the Adam Walsh Child Protection and Safety Act that limit a criminal defendant’s access to alleged child pornography in a child pornography prosecution: Chief Judge Frank H. Easterbrook wrote today’s ruling. This decision represents the first time that a federal appellate court has addressed the constitutionality of these particular statutory provisions, which were enacted in July of 2006.

To access this blog’s earlier posts on this subject, click here and here.

Posted at 1:44 PM by Howard Bashman



“Court disbars two attorneys involved in Demoulas family feud”: The Boston Globe provides a news update that begins, “Two lawyers were disbarred today by the state’s highest court, which ruled that the attorneys violated ethical rules when they tried to find evidence of bias against a former Superior Court judge who was then presiding over the bitter and costly family fight for control of the billion-dollar Demoulas supermarket company. In bluntly written rulings, Supreme Judicial Court Chief Justice Margaret Marshall said the actions of former federal prosecutor Gary C. Crossen and Boston attorney Kevin P. Curry were unprecedented and were also clearly improper and unethical. The attorneys lured a law clerk of then Superior Court Judge Maria Lopez to Canada and New York with a false promise of a job.”

And Massachusetts Lawyers Weekly reports that “Crossen, Curry disbarred by SJC.”

Today’s rulings of the Supreme Judicial Court of Massachusetts issued in In re Kevin P. Curry and In re Gary C. Crossen.

Posted at 1:30 PM by Howard Bashman



In federal death penalty trial of defendant charged with two counts of murder committed while engaged in drug trafficking, the federal district court erred in precluding the prosecution from introducing evidence at the guilt phase related to post-mortem dismemberment: You can access today’s ruling of the U.S. Court of Appeals for the Second Circuit at this link.

Posted at 11:25 AM by Howard Bashman



“Abortion law challenge still in limbo”: Today in The San Francisco Chronicle, Bob Egelko has an article that begins, “It’s been more than three years since California challenged a federal anti-abortion law that threatens the state with huge financial penalties, and more than a year since the opposing sides argued before a federal judge in San Francisco. All that either side has heard since then is a question from the judge about whether the law has expired.”

Posted at 9:07 AM by Howard Bashman



“Three were waterboarded, CIA chief confirms; Director Michael V. Hayden says the Al Qaeda suspects were the only ones subjected to the interrogation method; The CIA needs access to such ‘enhanced’ techniques, he argues to a Senate panel”: This article appears today in The Los Angeles Times.

The New York Times reports today that “Intelligence Chief Cites Qaeda Threat to U.S.

And The Wall Street Journal contains an editorial entitled “Tall Torture Tales.”

Posted at 8:55 AM by Howard Bashman



“Schools’ interim desegregation plan challenged”: The Louisville Courier-Journal today contains an article that begins, “The Louisville lawyer who successfully challenged Jefferson County’s school desegregation policy is now challenging the district’s interim plan, saying it illegally uses race to assign students. Attorney Ted Gordon filed a motion yesterday in U.S. District Court in Louisville, asking Judge John Heyburn II to review the temporary plan adopted last week for the 2008-09 school year.”

Posted at 8:47 AM by Howard Bashman



“Judge dismisses felony charges against ‘gap kids'”: Today in The Providence (R.I.) Journal, Edward Fitzpatrick has an article that begins, “A judge yesterday dismissed felony charges filed against 115 teenagers during the 130 days when the state prosecuted 17-year-olds as adults, but he refused to dismiss the second-degree murder indictment of the state’s most high-profile ‘gap kid,’ Barrington’s Ryan Greenberg.”

And The New York Times reports today that “Judge Rules to Dismiss Cases of 17-Year-Olds Seen as Adults.”

Posted at 8:40 AM by Howard Bashman



“A Shameful Record”: The New York Times today contains an editorial that begins, “The United States leads the world in a shameful category: the number of people it has locked up for life without parole for crimes committed by juveniles.”

Posted at 8:32 AM by Howard Bashman



Available online from law.com: An article reports that “Calif. High Court’s Leanings Hard to See in City of Hope Patent Case; Justices strongly question both sides in highly watched patent case.”

In other news, “New Judge, but Same Obstacles, in Ga. Courthouse Shooting Case; ‘The change in judges doesn’t make the problems go away,’ notes a former judge.”

Amaris Elliott-Engel reports that “Question of Law on Bystander Recovery Sent to Pa. High Court.”

And in news from New York, “Second Suit Proceeds Seeking Pay Raise for Judges; Possible ‘separation of powers’ violation.”

Posted at 8:11 AM by Howard Bashman



“Court panel grills lawyers over firing of former Khalil Gibran principal”: The New York Daily News today contains an article that begins, “A federal appeals court panel Tuesday grilled city lawyers over the way officials handled the ouster of the principal of a controversial Arabic-language school.”

And The Associated Press provides a report headlined “Judges: City overreacted over Muslim principal.”

Posted at 8:07 AM by Howard Bashman



“A New York Appellate Court Gives Effect to a Canadian Same-Sex Marriage: Using Traditional Rules to Validate a Non-Traditional Marriage.” Joanna Grossman has this essay online today at FindLaw.

Posted at 7:44 AM by Howard Bashman