How Appealing

Wednesday, December 27, 2006

Imagine that -- appellate judges don't take kindly to trial judge's characterization of appellate court as "kangaroo court": Coming hard on the heels of my posting this morning of the petition for writ of certiorari in Fieger v. Michigan Grievance Administrator -- a case asking whether an attorney has a First Amendment right to publicly express non-defamatory personal criticism of a judge -- is this gem of an opinion from California's Court of Appeal for the Third Appellate District.

According to that decision issued today, the trial judge on the record stated to counsel in open court, "You can't offend the kangaroos up there in kangaroo court." Although the Court of Appeal could have brushed off the insult by declaring that the trial judge must have been referring to the Supreme Court of California, instead the appellate judges decided that the trial judge must have been referring to their intermediate appellate court.

Additional coverage of the ruling can be found online at "California Appellate Report" and "PrawfsBlawg."
Posted at 08:55 PM by Howard Bashman

"Gerald Ford's impact on the Court": Lyle Denniston has this commentary online at "SCOTUSblog."
Posted at 08:30 PM by Howard Bashman

What's a federal appellate court to do when the U.S. Supreme Court grants a petition for writ of certiorari in a case in which a timely-filed petition for rehearing en banc remains pending before the federal appellate court? Today, the U.S. Court of Appeals for the Fifth Circuit issued an order denying the petition for rehearing en banc filed in Brewer v. Quarterman.

What makes that otherwise mundane action noteworthy is that the U.S. Supreme Court, on October 13, 2006, granted Brewer's petition for writ of certiorari and agreed to hear and decide that case on the merits. The questions presented can be accessed here, while the Supreme Court's docket entries can be viewed at this link.

The Supreme Court's grant of certiorari appears to have led eight of the Fifth Circuit's fifteen current active judges to abstain from voting on the petition for rehearing en banc. Today's order, entered by Circuit Judge Jerry E. Smith, states that "[t]his order is entered, and the court voted to deny rehearing en banc, solely to resolve any potential question of the judgment's finality in this court and to clarify the Supreme Court's jurisdiction over the case."

Circuit Judge James L. Dennis, listed as one of the eight active judges who refrained from voting on the petition for rehearing en banc, issued a five-page dissent "from the attempt to exercise jurisdiction" in which he writes: "In its haste to attempt to ensure that the Supreme Court keeps the case and reaches the merits, however, the minority of this court's judges attempting to exercise jurisdiction herein have ignored well-established limits on this court's jurisdiction and, in the process, trespassed upon the jurisdiction of the Supreme Court."

Both the order denying rehearing en banc and Judge Dennis's dissent from the attempt to exercise jurisdiction mention the en banc Fifth Circuit's ruling earlier this month in Nelson v. Quarterman, in which the en banc court by a vote of 9-7 overturned a Texas state court death sentence on a finding of a Penry violation. Some of the seven dissenters in Nelson are among the eight who refrained from voting on today's order denying rehearing en banc, so perhaps today's order ought not be viewed as a raw power-play by the dissenters in Nelson who may hope their views will receive a more sympathetic audience from the nine Justices upstairs.

It is interesting to note that, according to the U.S. Supreme Court's docket, Brewer himself on December 14, 2006 filed a motion in the Supreme Court asking that his case be remanded to the Fifth Circuit for reconsideration in light of that federal appellate court's recent en banc ruling in Nelson. That motion is scheduled to be considered at the Supreme Court's conference of January 5, 2007, while the case itself is currently scheduled to be argued on the merits in the Supreme Court on January 17th.
Posted at 08:18 PM by Howard Bashman

"This appeal raises the issue of whether a person arrested in American Samoa for allegedly committing federal crimes in American Samoa may be tried and convicted in the United States District Court for the District of Hawaii." So begins an opinion that the U.S. Court of Appeals for the Ninth Circuit issued today.

The question arises because, although the U.S. Congress made federal criminal law applicable to American Samoa, Congress did not create federal district courts for that territory. As a result, federal criminal charges must be tried someplace else that has a federal district court, and because Hawaii was the federal judicial district to which the defendant/appellant in today's case was "first brought," the Ninth Circuit rejects the defendant's challenge to his conviction.
Posted at 06:14 PM by Howard Bashman

"Court: Feds Entitled to MLB Steroid Data." The Associated Press provides a report that begins, "The names and urine samples of about 100 Major League Baseball players who tested positive three years ago can be used by federal investigators, a court ruled Wednesday - a decision that could have implications for Barry Bonds." You can access today's lengthy ruling of the U.S. Court of Appeals for the Ninth Circuit at this link.

Today's ruling involves three consolidated appeals from three separate U.S. District Courts within the Ninth Circuit. The caption of the second consolidated appeal states that the case arises on "Appeal from the United States District Court for the Southern District of Nevada." As an eagle-eyed reader of this blog has helpfully observed via email, the entire State of Nevada is served by a single U.S. District Court for the District of Nevada.
Posted at 05:54 PM by Howard Bashman

Programming note: My final appellate brief of 2006 is due to be filed tomorrow. As a result, I'll be away from the internet this afternoon while visiting with co-counsel to finalize the document. Additional posts will appear here this evening.
Posted at 11:33 AM by Howard Bashman

"Ohio Gov. Taft Reprimanded Over Ethics": The AP provides a report that begins, "The state Supreme Court on Wednesday publicly reprimanded Ohio Gov. Bob Taft for his ethics violations in office, a black mark that will stay on his permanent record as an attorney."

And the Office of Public Information of the Supreme Court of Ohio has issued a news release headlined "Governor Taft Reprimanded." You can access that court's ruling, issued today, at this link.
Posted at 10:35 AM by Howard Bashman

"Mass. Court Won't Force Marriage Vote": The Associated Press provides a report that begins, "The state's highest court on Wednesday said it had no authority to force lawmakers to vote on a proposed constitutional amendment to ban gay marriage."

You can access this morning's ruling of the Supreme Judicial Court of Massachusetts at this link.
Posted at 10:25 AM by Howard Bashman

"Race ban backers try to lift colleges' delay": On Saturday, The Detroit News published an article that begins, "An anti-affirmative action group headed to the U.S. Sixth Circuit Court of Appeals in a last-minute effort to force the state's three largest universities to comply with Proposal 2 today -- the date when the constitutional amendment was scheduled to take effect."

Yesterday, the Sixth Circuit issued an order calling for expedited briefing of the Emergency Motion for a Stay Pending Appeal and the related petition for writ of mandamus.
Posted at 10:15 AM by Howard Bashman

"D.C. Circuit Panel to Reconsider Tax Ruling": Peter Lattman today has this post, in which I am quoted, at's "Law Blog."
Posted at 10:11 AM by Howard Bashman

"Justices lose one to Fieger; Federal appeals court gives him chance to prove bias": The Detroit Free Press today contains an article that begins, "Southfield lawyer Geoffrey Fieger scored a point in his feud with the state Supreme Court on Tuesday when a federal court ruled he can continue his efforts to disqualify certain justices he claims are biased against him from hearing his cases."

And The Detroit News reports today that "Fieger wins right to fight judges; Southfield attorney can challenge state high court justices' refusal to recuse themselves." The newspaper also contains an editorial entitled "Michigan's high court should have conflict of interest rules; The rules should be limited to real issues, not politics."

My earlier recent coverage of this matter can be accessed here and here.

As I noted in the earlier of those two posts, the Supreme Court of Michigan's ruling on the merits in the Fieger disciplinary case is now the subject of a petition for writ of certiorari pending before the U.S. Supreme Court in a case captioned Fieger v. Michigan Grievance Administrator at No. 06-596. I have obtained an electronic copy of that cert. petition, whose question presented asks:

Does an attorney have a First Amendment right to publicly express non-defamatory personal criticism of a judge when that criticism could not affect any pending trial, as the Ninth Circuit and the supreme courts of Colorado, Oklahoma, and Tennessee have held, or is an attorney subject to discipline for such criticism, as the Seventh Circuit and the supreme courts of Michigan, Mississippi, and Missouri have held?
You can access the complete cert. petition, with appendix, by clicking here.
Posted at 07:45 AM by Howard Bashman

"Iraqi Court Says Hussein Must Die Within 30 Days": This article appears today in The New York Times.

The Washington Post today contains a front page article headlined "Iraqi Court Upholds Hussein's Sentence; Hanging Could Happen Within 30 Days."

The Los Angeles Times reports that "Iraqi court upholds death for Hussein; Execution must take place within 30 days, judges rule; No more appeals are possible."

And USA Today reports that "Saddam to hang within 30 days."
Posted at 07:35 AM by Howard Bashman

"FBI Says Files In Leak Cases Are 'Missing'": Today in The New York Sun, Josh Gerstein has an article that begins, "The FBI is missing nearly a quarter of its files relating to investigations of recent leaks of classified information, according to a court filing the bureau made last week."
Posted at 07:33 AM by Howard Bashman

"Guantanamo needs courthouse, Pentagon says": The Los Angeles Times today contains an article that begins, "Although the Pentagon estimates that no more than 80 of the 400 or so terrorism detainees here will ever be tried, it is moving forward with plans for a $125-million legal complex."
Posted at 07:28 AM by Howard Bashman

"Remnants Of a Trial Prompt a Crusade; Va. Man Seeks End To Security Measures": The Washington Post today contains an article that begins, "Jim Savage has been living in a world of guard shacks, green security poles and Jersey barricades lining the street outside his home next to the federal courthouse in Alexandria. They were put there for the trial of a terrorist, Sept. 11 conspirator Zacarias Moussaoui, and they were supposed to come down when the trial was over. Seven months after it ended, they are still there."
Posted at 07:20 AM by Howard Bashman

"Maryland's Death Penalty: It's time to discuss giving it up." This editorial appears today in The Washington Post.
Posted at 07:18 AM by Howard Bashman

The Associated Press is reporting: An article headlined "Ford Once Sought Impeachment of Justice" reports that "In April 1970, at the request of White House aide John Ehrlichman, Ford led an effort by more than 100 House members to impeach Supreme Court Justice William O. Douglas." Of course, President Gerald R. Ford, who died overnight, was also the President who placed Justice John Paul Stevens on the U.S. Supreme Court.

And an article headlined "Cyberspace Sex Scandal Heads to Trial" begins, "When Robert Steinbuch discovered his girlfriend had discussed intimate details about their sex life in her online diary, the Capitol Hill staffer didn't just get mad. He got a lawyer. Soon, though, the racy tidbits about the sex lives of the two Senate aides faded from the front pages and the gossip pages. Steinbuch accepted a teaching job in Arkansas, leaving Washington and Jessica Cutler's 'Washingtonienne' Web log behind."
Posted at 07:10 AM by Howard Bashman

"Wallace withdrawal opens space; Bush can now select another nominee": The Biloxi Sun Herald today contains an article that begins, "Attorney Michael B. Wallace, in asking President Bush on Tuesday to withdraw his nomination for a U.S. Court of Appeals seat, said 'it is the right thing to do for Mississippi.' Wallace, a Biloxi native and Jackson attorney, was among six appellate court nominees whose approval was stalled earlier this year. Some political analysts have blamed the stall on the new Democrat-controlled Senate's clash with Bush's push to satisfy his conservative base."
Posted at 06:58 AM by Howard Bashman

"Ex-Judges Back Man Who Says U.S. Sent Him To Be Tortured": Today in The New York Sun, Joseph Goldstein has an article that begins, "A group of retired federal judges is backing a lawsuit by a Canadian citizen who claims America sent him to Syria to be tortured. The former judges, who come from the 3rd, 6th, 9th, and D.C. circuit courts of appeals, filed a brief urging the 2nd U.S. Circuit Court of Appeals, which sits in New York, to allow the lawsuit to go forward."
Posted at 06:55 AM by Howard Bashman

"Why the Public/Private Distinction Should Not Govern the Courtroom: The Supreme Court's Flawed Decision in Carey v. Musladin." Sherry F. Colb has this essay online today at FindLaw.
Posted at 06:50 AM by Howard Bashman

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