How Appealing

Thursday, October 19, 2006

"Ruling Is Due for Justice Who Lobbied for Bush Pick": The New York Times on Friday will contain an article that begins, "A year after the Bush administration enlisted a Texas Supreme Court justice in its unsuccessful bid to put Harriet E. Miers on the United States Supreme Court, a special state court is to announce Friday whether the judge was guilty of 'willful and persistent' violations of judicial ethics for his role in that effort."
Posted at 11:10 PM by Howard Bashman

"O'Connor Sits on 9th Circuit Panel; Also in San Francisco this week, Justice Anthony Kennedy is honored at Lawyer's Club event":'s Justin Scheck provides this report.
Posted at 11:05 PM by Howard Bashman

"Judge defends journalist over leaked Arar papers": The Toronto Globe and Mail provides a news update that begins, "An Ontario judge dealt a landmark blow for press freedom Thursday, striking down a secrecy law that was used to justify RCMP raids on a journalist they suspected of having received leaked material in the Maher Arar affair."

Canadian Press reports that "Secrets law 'unconstitutional.'"

And The Associated Press reports that "Parts of Canada Secrecy Law Struck Down."
Posted at 07:42 PM by Howard Bashman

The Associated Press is reporting: Now available online are articles headlined "Judge's SUV Hits Police Officer in Conn."; "Judge Orders Cheney Visitor Logs Opened"; "U.S. Anti-Terror Law Concerns Red Cross"; and "Texas Death Row Inmate Commits Suicide."
Posted at 07:33 PM by Howard Bashman

Did the government improperly entrap the defendant into "traveling across state lines for the purpose of engaging in illegal sexual activity with a minor and attempting to entice a minor to engage in illegal sexual activity"? A unanimous three-judge panel of the U.S. Court of Appeals for the Second Circuit today issued a lengthy and interesting opinion that begins, "This case requires careful consideration of the affirmative defense of entrapment." Today's ruling affirms the rejection of the defendant's entrapment defense.
Posted at 06:05 PM by Howard Bashman

Maybe a key provision of the federal tax code isn't unconstitutional after all: "TaxProf Blog" today provides a post titled "Is D.C. Circuit Leaning Toward Granting Rehearing En Banc in Murphy?"

My initial coverage of the ruling in question appears at this link.
Posted at 05:54 PM by Howard Bashman

"'But the judges have changed'": Columnist James J. Kilpatrick has an essay today that begins, "Seventeen years have passed since Jeffrey Landrigan murdered Chester Dean Dyer, but the story won't go away. Now the record is resting in the U.S. Supreme Court on Arizona's appeal from a regrettable decision in the 9th Circuit. It's time to mark this case closed."
Posted at 05:44 PM by Howard Bashman

"Plaintiffs challenge the validity of legislation requiring health insurance policies that provide coverage for prescription drugs to include coverage for contraception." So begins an opinion that the Court of Appeals of New York, that State's highest court, issued today. The unanimous opinion for the court, with one judge not participating, goes on to state: "Plaintiffs assert that the provisions they challenge violate their rights under the religion clauses of the federal and state constitutions. We hold that the legislation, as applied to these plaintiffs, is valid."

In early news coverage, The Associated Press provides a report headlined "Court: Religious social service groups must cover contraceptives."
Posted at 03:30 PM by Howard Bashman

To what extent does the Bankruptcy Code waive the federal government's sovereign immunity to claims that the debtor seeks to assert, by means of set-off, against the federal government? The en banc U.S. Court of Appeals for the Fifth Circuit today issued a decision that addresses this complicated statutory question. The original three-judge panel's ruling in this case, which reached a different result than today's en banc decision, can be accessed here.
Posted at 03:14 PM by Howard Bashman

Today's rulings of note from the U.S. Court of Appeals for the Seventh Circuit: The Class Action Fairness Act of 2005 expanded the jurisdiction of federal district courts over class action lawsuits seeking in the aggregate a large amount of damages. One issue that has been frequently litigated in the aftermath of that law's enactment is whether, and if so under what circumstances, cases pending in state court before CAFA became law could be removed to federal court once the law took effect. The added wrinkle in the decision that the Seventh Circuit issued today is that the removal of a case from California state court to a California federal court was originally upheld by a federal district judge in California, and the plaintiffs failed to appeal to the Ninth Circuit. Thereafter, the federal Multidistrict Litigation Panel ordered the case transferred to a federal court in Chicago, where the plaintiffs renewed their challenge to the case's removal to federal court. The federal district judge assigned to hear the case in Chicago agreed that the case had been wrongfully removed and ordered it remanded. Today, the Seventh Circuit affirms, while simultaneously rejecting "the plaintiffs' argument that an erroneous refusal to remand a case under the Class Action Fairness Act is a jurisdictional error, which must therefore remain corrigible until the litigation becomes final by issuance of a final judgment and exhaustion of appellate remedies." Circuit Judge Richard A. Posner issued the decision on behalf of a unanimous three-judge panel.

In a second opinion, also written by Judge Posner for a unanimous three-judge panel, the Seventh Circuit instructs criminal defense counsel that appeals challenging a federal district judge's exercise of sentencing discretion in this post-Booker regime will often qualify as frivolous. According to today's opinion, "a defendant has no right to file a frivolous appeal, and his lawyer has a duty to file an Anders brief rather than to argue frivolous grounds for reversal."

Finally, by means of a per curiam ruling on an Order to Show Cause, the Seventh Circuit today requires counsel to pay a financial sanction for failing to comply with "Circuit Rule 28(a)(1)[, which] requires that the jurisdictional statement in a diversity suit name the states of which the parties are citizens." The conclusion of today's order states:

It is therefore ORDERED that counsel for the plaintiff--[names of the attorneys and their law firm omitted]--jointly, and counsel for the defendant--[names of the attorneys and their law firm likewise omitted]--also jointly, shall pay to the court as a sanction for violating Rule 28 the sum of $1,000.
Now the only question that remains is whether the Seventh Circuit is ordering that each side's lawyers pay the sum of $1,000, for a total of $2,000 into the Seventh Circuit's coffers, or whether each side's lawyers need only pay the sum of $500, for a total of $1,000 into the Seventh Circuit's coffers.
Posted at 02:54 PM by Howard Bashman

So you'd like to hear and decide appeals on the U.S. Court of Appeals for the Federal Circuit? After a period of approximately seven years (if my Westlaw skills in this respect can be trusted) during which the Federal Circuit did not utilize visiting judges sitting by designation to decide pending cases, a bit earlier this year the Federal Circuit has again started using visiting judges. Two U.S. District Judges who have recently sat by designation with the Federal Circuit are T.S. Ellis, III of the Eastern District of Virginia and Patti B. Saris of the District of Massachusetts.

If anyone has any insights into why the Federal Circuit has reopened its doors to visiting judges, I'd be happy to pass them along to "How Appealing" readers. This blog's "20 questions for the appellate judge" feature included two interviews with judges who have frequently sat by designation on federal appellate courts, Third Circuit Judge Ruggero J. Aldisert and Senior District Judge Milton I. Shadur of the U.S. District Court for the Northern District of Illinois.
Posted at 11:50 AM by Howard Bashman

The only thing missing from yesterday's three-judge Third Circuit oral argument panel was any judge from the U.S. Court of Appeals for the Third Circuit: The Philadelphia Inquirer today contains an article headlined "Panel weighs reviving lawsuit against Rendell." The article reports that "All three judges were specially named to hear the appeal after Mayfield asked the Third Circuit's own judges to recuse themselves because Rendell's wife, Marjorie O. Rendell, is a Third Circuit judge appointed by Clinton in 1997."

According to the court's PACER docket entries, the oral argument panel consisted of Senior Eighth Circuit Judge Myron H. Bright, Chief Judge Jane A. Restani of the U.S. Court of International Trade, and Senior Judge Louis F. Oberdorfer of the U.S. District Court for the District of Columbia.
Posted at 10:33 AM by Howard Bashman

"Barred from voting: State laws prohibit millions of ex-felons from voting -- and favor Republicans at the polls; But activists say prisoners who served their time have every right to serve their country by casting a ballot." Katharine Mieszkowski has this essay today at
Posted at 10:00 AM by Howard Bashman

"California, Too! Another judicial setback for same-sex marriage advocates." Law Professor David M. Wagner, author of the "Ninomania" blog, has this essay in the October 23, 2006 issue of The Weekly Standard.
Posted at 09:50 AM by Howard Bashman

"Your Papers, Please! Fighting the Total Surveillance Society." Ronald Bailey has this essay online today at Reason.
Posted at 09:45 AM by Howard Bashman

"Ad aims to instill fear of Yankton; Anti-crime strategy angers Sen. Johnson": The Argus Leader of Sioux Falls, South Dakota contains this article today.

Two weeks ago today, The Yankton Daily Press & Dakotan published an article headlined "Trust Us, You Aren't Here; Beware Of Yankton? Ad Campaign Offers Distorted View To Criminals."

And South Dakota Magazine's web site offers a blog post titled "Hey, That's My Barren Farm!"

You can view the Project Safe Neighborhoods ad in question by clicking here, while the Federal Bureau of Prisons' web page for FPC Yankton is at this link.
Posted at 08:37 AM by Howard Bashman

"Religious groups vie for abortion ban; At rally, former presidential candidate Keyes compares issue to civil rights": This article appears today in The Argus Leader of Sioux Falls, South Dakota.
Posted at 08:25 AM by Howard Bashman

"Retired justice is back in black to help S.F. court": Howard Mintz has this article today in The San Jose Mercury News.
Posted at 08:22 AM by Howard Bashman

"In S.F., justice talks of 'dialog of the deaf'": Today in The San Francisco Chronicle, Bob Egelko has an article that begins, "Supreme Court Justice Anthony Kennedy, speaking in the city where his legal career began, steered clear of his court and its work but had much to say about America's inability to convey democratic ideals to a mistrustful world."
Posted at 08:20 AM by Howard Bashman

"D.A. Won't Alienate Man Over Close Encounters; Witness who reports visits by otherworldly creatures will testify in environmental lawsuit": The Los Angeles Times today contains an article that begins, "Some attorneys might shy away from using a witness who says he has been abducted by bizarre creatures that repeatedly return at night to poke tiny holes in his chest. But a Santa Barbara County prosecutor said Wednesday that he intends to present testimony from just such a witness next week in a civil case against the owner of the county's largest land-based oil and gas producer."
Posted at 08:15 AM by Howard Bashman

"Sullivan Denies Ethical Violation; Former Chief Justice Defends His Conduct": Today in The Hartford Courant, Lynne Tuohy has an article that begins, "The two men at the epicenter of former Chief Justice William J. Sullivan's secret suppression of a Supreme Court ruling each brought his own anguish to the Judicial Review Council's disciplinary proceeding Wednesday, one as instigator, the other as unwitting victim."

The Courant has also posted online "Excerpts From Sullivan Hearing."
Posted at 08:10 AM by Howard Bashman

"N.H. revives death-penalty issue; Officer's killing spurs a debate": The Boston Globe contains this article today.
Posted at 08:05 AM by Howard Bashman

"A Derringer Separates Woman From Obtaining Citizenship": This article appears today in The New York Sun.

The New York Times reports today that "With Citizenship Minutes Away, Gun Is Found in Woman's Bag."

And The New York Daily News contains an article headlined "She's still gunning to be a citizen."
Posted at 07:48 AM by Howard Bashman

"A Dangerous New Order": The New York Times today contains an editorial that begins, "Once President Bush signed the new law on military tribunals, administration officials and Republican leaders in Congress wasted no time giving Americans a taste of the new order created by this unconstitutional act. Within hours, Justice Department lawyers notified the federal courts that they no longer had the authority to hear pending lawsuits filed by attorneys on behalf of inmates of the penal camp at Guantanamo Bay. They cited passages in the bill that suspend the fundamental principle of habeas corpus, making Mr. Bush the first president since the Civil War to take that undemocratic step."
Posted at 07:44 AM by Howard Bashman

"Sending a Message -- Congress to courts: Get out of the war on terror." Law Professor John Yoo has this op-ed today in The Wall Street Journal.
Posted at 07:40 AM by Howard Bashman

"Judge Was Behind The Wheel; Colleagues Keep Vigil For Off-Duty Officer Who Was Seriously Injured When He Was Hit By An SUV While Directing Traffic": The Hartford Courant today contains an article that begins, "A federal appeals court judge who teaches at Yale Law School was behind the wheel of an SUV that struck a popular New Haven police officer on a rainy Tuesday night as the off-duty officer was directing traffic around a construction site in Wooster Square."

And The New Haven Register today contains an article headlined "Cop fights for his life" that begins, "The motorist who struck and critically injured a city police officer working a traffic detail Tuesday is a senior federal judge in New Haven. John M. Walker Jr., who is in his mid-60s, had been chief judge for the 2nd U.S. Circuit Court of Appeals for six years until Sept. 30, when he assumed senior status."
Posted at 06:50 AM by Howard Bashman

"The Cases of Lynne Stewart, Clive Stafford Smith, and Navy JAG Lawyer Charles Swift: Government Retaliation Against Attorneys for Terrorism Suspects." Elaine Cassel has this essay today online at FindLaw.
Posted at 06:44 AM by Howard Bashman

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