How Appealing

Wednesday, February 8, 2006

“Angels Name Change Case Goes to Jury”: The Los Angeles Times provides a news update that begins, “The month-long trial between the city of Anaheim and the Angels over the name of the baseball team will go to the jury Thursday after attorneys for each side presented closing arguments Wednesday.”

Posted at 11:08 PM by Howard Bashman

Dead judges providing the dispositive vote: A reader who closely follows the work of federal appellate courts emailed to draw my attention to D.C. Circuit opinions that issued after Circuit Judge Edward A. Tamm had died in 1985.

For example, in Greenberg v. FDA, 803 F.2d 1213 (CADC 1986), the majority opinion explains:

The case was argued before a panel of this court on May 16, 1985. On October 25, 1985 the panel, in a 2-1 decision, affirmed the District Court’s decision. Shortly before the opinion issued, however, Judge Tamm, a member of the majority, died. Because he had concurred in the majority opinion before his death, the panel issued the opinion, together with a dissenting opinion. In light of the circumstances, appellant petitioned the court to rehear the case and to appoint a third judge to consider the petition. The court granted the petition, vacated the panel opinions, and appointed a third judge to reconsider the case. We now reverse the District Court’s grant of summary judgment and remand this case for further proceedings.

The same email reports that “The Supreme Court never counts the votes of deceased Justices.” My earlier post on this topic can be accessed at this link.

Posted at 10:45 PM by Howard Bashman

Further remembrance of Senior Third Circuit Judge Max Rosenn: In a post that originally appeared at “How Appealing” on July 26, 2003, I wrote, “Senior Third Circuit Judge Max Rosenn was born in 1910 and is still getting the job done (and done well), writing opinions and participating vigorously at oral argument. Indeed, Judge Rosenn was 90 years old way back in July 2000 when The Third Branch newsletter featured him in an article entitled ‘Senior Judges Give New Meaning to “Volunteer.”‘” You can access the complete post at this link.

Posted at 10:30 PM by Howard Bashman

On this date in “How Appealing” history: On February 8, 2003, I linked here to an article appearing in the next day’s edition of The New York Times Magazine under the headline “Everybody Has a Mother” (pass-through link) profiling Zacarias Moussaoui’s mother.

And on this date in 2005, I had three posts (here, here, and here) arising from the fact that the U.S. Court of Appeals for the Ninth Circuit had been sued over the image of the Ten Commandments in its official seal. Does anyone know the status of that lawsuit today?

Posted at 10:15 PM by Howard Bashman

“The growing role of bloggers”: Today in The Washington Times, Jim Geraghty has an op-ed in which he writes, “The withdrawal of the Miers nomination and the subsequent dynamics of the fight over Supreme Court Justice Samuel Alito demonstrate that the debate in Washington is now set by blogs — and that this phenomenon has dramatically different effects on each of the two parties.”

Posted at 10:00 PM by Howard Bashman

“Justice Stephen Breyer visits Lowell”: Video from Justice Stephen G. Breyer’s visit Monday to the high school from which he (was) graduated in 1955 can be accessed via this link. (Thanks to “Confirm Them” for the pointer.) Yesterday, I collected press coverage of the visit in a post that you can access here.

Posted at 9:04 PM by Howard Bashman

New nominations to the U.S. Courts of Appeals: Today the White House announced the following two nominations:

Sandra Segal Ikuta, of California, to be United States Circuit Judge for the Ninth Circuit, vice James R. Browning, retired.

Michael Brunson Wallace, of Mississippi, to be United States Circuit Judge for the Fifth Circuit, vice Charles W. Pickering, Sr., retired.

Additional information about Ms. Ikuta can be accessed here, while Mr. Wallace’s law firm bio is here.

Posted at 8:28 PM by Howard Bashman

“Jury convicts smugglers in trailer deaths of 19”: The Houston Chronicle provides a news update that begins, “A federal jury announced this morning it has convicted a ring of three people blamed in the deaths of 19 illegal immigrants who died in a failed smuggling attempt.”

Posted at 8:02 PM by Howard Bashman

In news from Hawaii: The Honolulu Star-Bulletin reports today that “U.S. Supreme Court Justice Kennedy visits Farrington.”

And The Honolulu Advertiser today contains an article headlined “Enlightening ‘trustees of freedom’” that begins, “Supreme Court Justice Anthony Kennedy posed a difficult question to a panel of 15 high school students at Farrington High School yesterday: As an American, do you have a moral obligation to promote freedom in the world?” A photograph of Justice Anthony M. Kennedy sporting a lei can be accessed here.

Posted at 6:00 PM by Howard Bashman

“US plans massive data sweep; Little-known data-collection system could troll news, blogs, even e-mails; Will it go too far?” This article will appear Thursday in The Christian Science Monitor.

Posted at 5:50 PM by Howard Bashman

“Judge Max Rosenn, Longtime Fixture on 3rd Circuit, Dead at 96”: Shannon P. Duffy of The Legal Intelligencer has written this obituary (free access).

Posted at 5:24 PM by Howard Bashman

“Should Sexually Active Minors Have a Right to Privacy? A Kansas Case Reveals the Dark Side of Mandatory Reporting.” FindLaw commentator Sherry F. Colb has this essay today.

Posted at 5:10 PM by Howard Bashman

Deceased judge casts dispositive vote on divided three-judge panel of the U.S. Court of Appeals for the Third Circuit: Late yesterday, and earlier today, I linked to coverage justifiably singing the many praises of Senior Third Circuit Judge Max Rosenn, who died yesterday morning at the age of 96.

Today, the Third Circuit issued an opinion written by Judge Rosenn on behalf of the majority on a divided three-judge panel. An asterisk footnote to Judge Rosenn’s name as listed in the coram states:

The Honorable Max Rosenn, Sr. submitted this opinion to the Clerk’s office for processing on February 2, 2006. Prior to the filing of the opinion, Judge Rosenn passed away.

This raises several interesting questions.

I am of course familiar with decisions by unanimous three-judge panels on which the authoring judge has died before the opinion formally issued in which authorship is attributed to the deceased judge, but this is the first opinion that I recall in which the deceased judge’s vote was dispositive to a decision that issued after the judge in question had died. If readers are familiar with any other such federal appellate court rulings, in which the dispositive vote was cast by a judge who had died before the opinion had issued, please send me an email identifying the opinion(s).

Other, related questions, arise. For example, if a U.S. Circuit Judge in regular active service were to cast a vote for rehearing en banc and then die before the voting had closed, would that deceased judge’s vote count or not if the vote was necessary for rehearing en banc to be granted? On a fifteen-judge court, eight votes would be needed to grant rehearing en banc. If the deceased judge had provided the eighth vote, but dies before the voting closed, seven votes would be insufficient to grant rehearing en banc on a court with fourteen active judges remaining.

Similarly, what about the dissenting opinions of judges who have not survived to see the issuance of an opinion? Assume that a lone appellate judge on a three-judge panel writes a dissent but then dies before the decision from which he has dissented issues. Have you ever seen such a dissent published, or would the remaining two judges reconstitute as a quorum and issue the opinion as unanimous, for the two-judge panel, sans dissent.

Obviously, the big question here is whether a judge must be alive on the day on which an opinion issues in order for his or her vote to count. The Third Circuit’s decision issued today suggests not. Is that correct?

Posted at 4:00 PM by Howard Bashman

“Rare Supreme Court Justice John Roberts Bobblehead”: The eBay auction of this item ends later today. The current high bid is $229.50. And the question remains: what organization, person, or group of people commissioned this bobblehead?

Posted at 3:35 PM by Howard Bashman

Divided three-judge Ninth Circuit panel affirms Microsoft X-Box-related insider trading conviction: Today’s decision, rejecting an appeal by a former Nvidia Corporation employee, can be accessed at this link.

Posted at 3:28 PM by Howard Bashman

Put a cork in it: A long-time reader emails to advise that “Supreme Cork Justices” (subtitle: “Finally, Justices you won’t wine about!”) are available for purchase here at eBay. If you’re sober, the Justices’ heads won’t bobble, but if you first consume enough wine, who knows?

Posted at 10:45 AM by Howard Bashman

“Koso gets prison time”: The Lincoln (Neb.) Journal Star today contains an article that begins, “A Nebraska judge, unmoved by emotional testimony about a married couple’s love for each other, sentenced the husband Tuesday to 18 to 30 months in prison for having sex with the underage woman.” The newspaper also contains a related article headlined “Now wait begins for teen mother, wife.”

The Omaha World-Herald reports today that “Sex with wife, 14, gets man jail time.”

And The New York Times reports that “Nebraska Man Sentenced for Having Sex With Girl, 13.”

Posted at 9:28 AM by Howard Bashman

“Former law clerks fondly recall Judge Max Rosenn”: The Citizens’ Voice of Wilkes-Barre, Pennsylvania contains this article today, along with an obituary of Senior Third Circuit Judge Max Rosenn. Today’s newspaper also reports that “WVIA to re-broadcast Rosenn biography tonight” and contains articles that begin, “A bout with pneumonia, failing health and trips in and out of the intensive care unit over the past month did nothing to deter Judge Max Rosenn’s drive” (with quotes from an interview of U.S. Supreme Court Justice Samuel A. Alito, Jr.) and “In a 2004 decision that attracted national attention, Judge Max Rosenn locked horns with the Pennsylvania Board of Parole.”

Meanwhile, The Times-Leader of Wilkes-Barry today contains an obituary headlined “Max Rosenn: 1910 – 2006: Farewell, your honor; Longtime judge, civic leader dead at 96.” An article is headlined “Consummate jurist to the end.” And an editorial is entitled “Judge Max Rosenn left indelible mark on Valley.”

Posted at 8:50 AM by Howard Bashman

“Groups urge inquiry into high court justice; State jurist ruled in cases of donors”: The Chicago Tribune today contains an article that begins, “Public interest watchdog groups filed a complaint Tuesday with the state board that monitors judicial conduct, alleging that Illinois Supreme Court Justice Lloyd Karmeier improperly voted on cases involving big corporations that donated extensively to his campaign.”

And The Chicago Sun-Times reports today that “High court justice accused of conflict.”

Posted at 7:20 AM by Howard Bashman

“Judicial activism unlikely, Breyer says; Supreme Court justice lectures at U. of C.” This article appears today in The Chicago Tribune.

Posted at 7:18 AM by Howard Bashman

“Lawyer of the lost: The US won’t release the Chinese Muslims being held illegally at Guantanamo Bay; Sabin Willett can’t let them go either.” The Boston Globe contains this article today.

Posted at 7:08 AM by Howard Bashman

“Senate Votes to Debate Bill for Asbestos Victims’ Fund”: This article appears today in The New York Times.

The Washington Post reports today that “Asbestos Settlement Advances; Senate Votes To Permit Debate.”

The Los Angeles Times reports that “Asbestos Fund Effort Survives in Senate; Lawmakers hope to end years of lawsuits by creating a $140-billion compensation plan for victims of the cancer-causing material.”

And The Washington Times contains an article deceptively headlined “Senate OKs asbestos bill, 98-1.”

Posted at 7:04 AM by Howard Bashman