Federal appellate court certifies questions of federal law to a state supreme court: In response to my earlier post noting an order that the U.S. Court of Appeals for the Ninth Circuit issued today, a reader with a bit of experience on the subject has emailed:
You’re right to raise questions about the Ninth Circuit certifying a federal question to the California Supreme Court. The Eleventh Circuit has said that is a no-no:
“We cannot and do not certify to the Alabama Supreme Court in this case the federal preemption issues, if any, that may exist after the state law questions are answered. While state and federal courts have concurrent jurisdiction to decide federal law issues such as preemption, federal courts have the responsibility for deciding those issues when they arise in federal court, and that is no less true when federal jurisdiction is based upon diversity of citizenship. Stated somewhat differently, a federal court may not certify federal law issues to a state supreme court, and we do not purport to do so.”
Spain v. Brown & Williamson Tobacco Corp., 230 F.3d 1300, 1312 n.17 (11th Cir. 2000).
I have never heard of a federal court doing that before.
It will be interesting to see whether the Supreme Court of California accepts the Ninth Circuit’s invitation to answer those certified questions that seek the state court’s opinion on matters of federal constitutional law.
Available online from National Public Radio: This evening’s broadcast of “All Things Considered” contained a segment entitled “Moussaoui Trial Will Continue Without Key Testimony.”
Today’s broadcast of “Talk of the Nation” contained a segment entitled “Moussaoui Trial Update.”
Today’s broadcast of “Day to Day” contained segments entitled “Slate’s Jurisprudence: A Mistrial for Moussaoui?“; “Slate’s Jurisprudence: Moussaoui Sentencing Resumes“; and “The Marketplace Report: Web Searches and Privacy.”
And today’s broadcast of “Morning Edition” contained segments entitled “Witness Coaching Halts Moussaoui Sentencing Trial“; “Tone Shifting in Abortion-Rights Movement“; and “Enron CFO Finishes Testimony.”
RealPlayer is required to launch these audio segments.
“Souter home safe, symbolic vote in his favor”: The Associated Press provides this report.
U.S. Court of Appeals for the Fifth Circuit rejects argument that federal law criminalizing transportation of obscene materials for sale or distribution is unconstitutional in the wake of Lawrence v. Texas: You can access today’s ruling at this link.
“Roberts Has High Court Singing in Harmony”: law.com’s Tony Mauro provides this report.
“Legal Decisions, Legislation & Forces of Nature Influence Federal Court Caseload in FY 2005”: The Administrative Office of the U.S. Courts issued this news release today. According to the release, “For the tenth consecutive record-breaking year, filings in the 12 regional courts of appeals rose 9 percent to an all-time high of 68,473.” The statistics can be accessed via this link.
Available online from law.com: In news from Texas, “Fastow Admits He Lied to Vinson & Elkins Lawyers; Former Enron CFO says he was not truthful because ‘I had done wrong things and I didn’t want them to come to light.’”
Meanwhile, in commentary available online from The National Law Journal, U.S. District Judge John M. Roll (D-Ariz.) has an essay entitled “9th Circuit split: Court is too big, too slow.” And George Wheeler has an essay entitled “BlackBerry settlement: NTP patents are strong.”
Available online from Slate: Bert Brandenburg has a jurisprudence essay entitled “Rushmore to Judgment: South Dakota ups the ante in the national war over judges.”
In addition, Dahlia Lithwick and Robert Weisberg have a jurisprudence essay entitled “Causation Inflation: Did Zacarias Moussaoui really ’cause’ 9/11?”
“Justice Ginsburg’s speech draws 850 to UT; Clinton appointee discusses gender equality”: This article appears today in The Toledo Blade.
And The Associated Press reports that “Supreme Court’s Ginsburg says too early to predict a court shift.”
“The Bashman & Berman Show”: At his “Law Dork” blog, Chris Geidner has this report on my lunchtime appearance today in Columbus, Ohio.
“Moussaoui Trial to Continue Without Key Witnesses”: Neil A. Lewis of The New York Times provides a news update that begins, “A federal district judge today dealt a potentially fatal blow to the government’s efforts to execute Zacarias Moussaoui for the deaths that occurred in the terrorist attacks of Sept. 11, 2001.”
The Washington Post provides a news update headlined “Judge Rules That Prosecutors Can Seek Death for Moussaoui; Witnesses Coached by Government Lawyer Won’t Be Permitted to Testify.”
The Los Angeles Times provides a news update headlined “Government Cleared to Pursue Execution of Moussaoui.”
And CNN.com reports that “Judge: Death penalty still on the table; Judge quizzes Moussaoui trial witnesses.”
“Most Judges Want Gov’t-Paid Home Security”: The Associated Press provides this report.
And the Administrative Office of the U.S. Courts today issued a news release entitled “Conference Supports Shift in Responsibility for Courthouses.”
Programming note: I’ll be traveling back to Philadelphia shortly, but I wanted to say what a wonderful time I’ve had visiting with so many fans of this blog in Columbus, Ohio. This afternoon’s Federalist Society event had a great turnout of interested lawyers, judges, and judicial law clerks.
Earlier today, I had the pleasure of seeing some oral arguments at the Supreme Court of Ohio and taking a behind-the-scenes tour of the Ohio Judicial Center. The building houses some wonderful public exhibits that make the Judicial Center a great destination for anyone interested in the law and the judicial process.
Additional posts will appear here this evening.
“Judge indicates Google must turn over some data; Government scales back scope of controversial requests”: Howard Mintz of The San Jose Mercury News provides this update.
And The Associated Press reports that “Judge to Order Google to Give Up Some Data.”
U.S. Court of Appeals for the Ninth Circuit certifies interesting First Amendment free speech issues to the Supreme Court of California: In an order issued today, a three-judge Ninth Circuit panel certified the following issues to California’s highest court:
Does the California Supreme Court’s decision in Gates v. Discovery Communications, Inc., 34 Cal.
4th 679, 21 Cal. Rptr. 3d 663, 101 P.3d 552 (2004), cert. denied, 126 S. Ct. 368 (2005), overturning Briscoe v. Reader’s Digest Association, Inc., 4 Cal. 3d 529, 93 Cal. Rptr. 866, 483 P.2d 34 (1971), and finding no invasion of privacy, under the First Amendment, in the publication of facts about past crimes obtained from public records, apply only to publication by media defendants? Can there be liability under an invasion of privacy theory where a non-media defendant, with a commercial interest in or a malicious motive for publishing facts about a plaintiff’s past crimes, does so? Under the commercial speech doctrine, is the speech of a non-media defendant with a commercial interest in or malicious motive for publishing facts entitled to less protection under the First Amendment than that of a media defendant?
This certification raises some questions in my mind. Although the Supreme Court of California certainly should have the final word on the scope of that State’s invasion of privacy tort, isn’t the extent to which the First Amendment provides the defendant with a valid defense a question of federal law that the Ninth Circuit must decide independently? If so, isn’t the certification of several of these questions a meaningless exercise?
No escheating: The U.S. Court of Appeals for the Ninth Circuit today issued an opinion that begins, “We are called upon to decide the extent to which the federal courts are open or closed by the Eleventh Amendment of the Constitution to persons who claim a state has improperly taken their property under a state’s escheat system.” The answer, of course, is “it depends.”
“Judge Weighs Next Steps in Moussaoui Trial”: The Associated Press provides this report.
“Middle finger salute leads to federal lawsuit”: The Pittsburgh Post-Gazette today contains an article that begins, “A New Castle man filed a federal lawsuit yesterday claiming his free-speech rights were violated last year when he was cited for using an obscene gesture at a construction worker.”
“Federal appeals court has vacancy; Judge Bruce M. Selya’s decision to assume senior status presumably opens a seat on the Boston-based court for another Rhode Islander”: This article appears today in The Providence Journal.
And Third Circuit Judge Franklin S. Van Antwerpen has announced that he will take senior status on October 23, 2006, giving rise to a vacancy in that Philadelphia-area-based federal appellate court seat.
“Legal Times Supreme Court Correspondent Tony Mauro answers your questions about the current Supreme Court term LIVE at 1:00 p.m. today”: You can view and participate in the online chat via this link.
“Judge Halts Moussaoui Terror Trial; She calls a government lawyer’s coaching of seven witnesses an ‘egregious violation’; The death penalty may be ruled out”: This article appears today in The Los Angeles Times, which also contains an article headlined “Moussaoui Case Is Latest Misstep in Prosecutions; ‘There have been a lot of flubs,’ a law professor says of the U.S. record in terrorism trials.”
The Richmond Times-Dispatch reports today that “Moussaoui trial jeopardized; Judge angrily halts trial after learning U.S. lawyer had coached witnesses.”
The Washington Post contains a front page article headlined “Judge Halts Terror Trial; Lawyer E-Mailed Court Transcripts To 7 Witnesses.”
In The New York Times, Neil A. Lewis reports that “Judge Calls Halt to Penalty Phase of Terror Trial.”
And USA Today reports that “Moussaoui sentencing jeopardized; Judge may bar death penalty after lawyer’s ‘blatant violation.’”
“Mich. paternity law dispute: A weak man, weaker case”: Today in USA Today, DeWayne Wickham has this op-ed.
“Fastow Leaves Stand Insisting Lay and Skilling Knew”: The New York Times contains this article today.
The Los Angeles Times reports today that “Fastow’s Credibility Assailed on Stand; Testimony by Enron’s former chief financial officer is challenged by the defense, but he is consistent with previous witnesses.”
And in The Houston Chronicle, Mary Flood reports that “Observers say Fastow held up well on the stand; Former CFO winds up 4 days of testimony and grueling questions.”
“Appeals court grants DeLay subpoena win; DA’s requests for details on finance activities ‘null and void'”: This front page article appears today in The Houston Chronicle.
And The Austin American-Statesman reports today that “Judges halt subpoenas in DeLay case; Congressman scores legal victory.”
“O.C. Sex Assault Trio Reportedly Rejected Offer of Shorter Term; Prosecutors are said to have offered three years in prison last year; The defendants each got six”: The Los Angeles Times today contains an article that begins, “Gregory Haidl and two other young men sentenced last week to six years in prison for the videotaped sexual assault of an unconscious 16-year-old turned down a plea deal last year that would have given them only three years, it was revealed Monday.”
And The Orange County Register reports today that “Haidl trio rejected prosecutors’ plea bargain.”
“Supreme Home Makeover”: Today in The New York Times, columnist John Tierney has an op-ed (TimesSelect subscription required) that begins, “When we reached Justice David Souter’s home, a ramshackle old farmhouse along a dirt road, Keith Lacasse explained his plans for it if he’s voted onto the town’s Board of Selectmen in the election today. The first plan, which Lacasse and his friends drew up right after hearing of Souter’s vote in the Kelo eminent-domain case last year, was for the town to seize Souter’s property and turn it into a park with a monument to the Constitution.”
“Google, Justice Department face off on search/privacy issue”: This article appears today in USA Today.
And BBC News reports that “Google set for court in data spat; Google is to take on the US government in court on Tuesday as the internet search engine fights demands to hand over records and lists of data.”
“Blawg Review #48”: Available here, at “Rethink(IP).”
In commentary available online from FindLaw: Elaine Cassel has an essay entitled “The Battle over Abortion and Contraception, Part One: How It’s Playing Out in the States and in the Supreme Court.”
And Julie Hilden has an essay entitled “Will Teachers’ First Amendment Rights Be a Casualty of the War on Terror? Why the Supreme Court Should Rethink the Rules that Apply to Public School Teachers.”
