How Appealing

Thursday, July 13, 2006

“How to Measure a Federal Appellate Court’s Record of Success Before the U.S. Supreme Court”: That’s the provisional title of the next installment of my “On Appeal” column for It is due to appear online by 11 p.m. tomorrow night.

Posted at 10:45 PM by Howard Bashman

“Ethics Essentials: A Primer for New Judges on Conflicts, Outside Activities, and Other Potential Pitfalls.” The Committee on Codes of Conduct of the Judicial Conference of the United States has issued this very interesting document.

Posted at 10:14 PM by Howard Bashman

Various federal appellate courts have begun to issue proposed local rules to address Federal Rule of Appellate Procedure 32.1, which will allow citation to all non-precedential federal court opinions issued on or after January 1, 2007: I enthusiastically favor removing all limitations and prohibitions on the citation of non-precedential opinions, and for that reason I strongly favor Rule 32.1. But, for the reasons I explained at length in an earlier column, I wish that the rule did not contain its prospective-only limitation, which makes the rule applicable only to non-precedential decisions issued on or after January 1, 2007.

I am pleased to report that some federal appellate courts have begun the process of adopting local rules that specifically address whether those circuits will allow or prohibit the citation of their own non-precedential opinions issued before January 1, 2007. As best as I can tell, the circuits that have thus far issued proposed local rules plan to continue as to their pre-2007 non-precedential decisions the rule either allowing, prohibiting, or discouraging citation now in place in those circuits.

For example, the Fourth Circuit has proposed a local rule that continues to discourage citation of non-precedential rulings issued before January 1, 2007. The Federal Circuit has proposed a local rule that, at least by implication, appears to continue to prohibit the citation to its non-precedential rulings issued before January 1, 2007. And the Fifth Circuit has proposed a local rule that continues to allow the citation to all of its non-precedential rulings regardless of when issued, although that local rule mistakenly suggests that citation to non-precedential rulings issued before January 1, 2007 will be allowed pursuant to Rule 32.1(a). In actuality, Rule 32.1(a) is expressly limited in its effect to opinions issued on or after January 1, 2007. Perhaps my friends in the Fifth Circuit who read this post can have the proposed local rule altered to fix this minor error.

Posted at 8:33 PM by Howard Bashman

“Court Says Recording Calls Violates Rights”: The Associated Press provides a report that begins, “The state Supreme Court unanimously ruled Thursday that Californians’ privacy rights are violated when their telephone conversations are secretly recorded by out-of-state callers.”

Today’s unanimous ruling of the Supreme Court of California begins:

The complaint in this case alleges that employees at the Atlanta-based branch of defendant Salomon Smith Barney (SSB) — a large, nationwide brokerage firm that has numerous offices and does extensive business in California — repeatedly have recorded telephone conversations with California clients without the clients’ knowledge or consent. These facts give rise to a classic choice-of-law issue, because the relevant California privacy statute generally prohibits any person from recording a telephone conversation without the consent of all parties to the conversation, whereas the comparable Georgia statute does not prohibit the recording of a telephone conversation when the recording is made with the consent of one party to the conversation.

You can access the complete decision at this link.

Posted at 2:55 PM by Howard Bashman

Supreme Court of Florida approves stipulated resolution of judicial ethics proceeding against trial court judge who admitted to charge of “Habitual viewing of pornography from the courthouse computer”: You can access today’s per curiam ruling of Florida’s highest court at this link.

According to today’s opinion, “In addition to receiving a public reprimand, the stipulation requires that Judge Downey (1) retire from judicial office at the end of his term on January 1, 2007; (2) not serve as a senior judge; (3) provide a formal letter of apology; (4) continue to have restricted email and internet access; (5) continue his psychological counseling; and (6) not file for reelection and never again seek election or appointment as a judge.”

Posted at 2:45 PM by Howard Bashman

“Both Pebble Beaches can exist, court says; Golf course loses suit against British bed and breakfast”: Bob Egelko has this article today in The San Francisco Chronicle. My earlier coverage appears here.

Posted at 12:24 PM by Howard Bashman

Eighth Circuit panel rejects constitutional challenges to provisions of Arkansas Sex Offender Registration Act requiring sex offenders to register with the State as well as an Arkansas criminal statute prohibiting certain registered sex offenders from living within two-thousand-feet of a school or daycare center: You can access today’s ruling at this link.

Posted at 11:55 AM by Howard Bashman

“Suit Seeks Identity of Bloggers Who Claimed Abuse by Rabbi”: The blog “Religion Clause” today offers a post that begins, “Public Citizen last week announced the filing of two motions in a pending California case in which Rabbi Mordecai Tendler, who was accused of sexually propositioning women who came to him seeking spiritual guidance, is trying to force Google to disclose the identities of four anonymous bloggers.”

Posted at 11:48 AM by Howard Bashman

Archived video of interest available online from C-SPAN: By clicking here, you can view online Tuesday’s confirmation hearing for both Fourth Circuit nominee William J. Haynes II and Frances Marie Tydingco-Gatewood, a Justice on the Supreme Court of Guam who has been nominated to serve on the Guam federal district court.

By clicking here, you can view online yesterday’s “House Armed Services Committee Hearing on the Hamdan Ruling.”

Finally, by clicking here, you can view online a segment from yesterday’s broadcast of “Washington Journal” described as follows: “Michael Noone, Catholic University Law School Research Professor, discusses the Geneva Conventions, focusing particularly on humane-treatment provisions of Article 3.”

RealPlayer is required to launch these video segments.

Posted at 11:10 AM by Howard Bashman

“[W]e must determine who has the right to conduct a review for privilege of documents subject to a grand jury subpoena directed to a third party who possesses the documents but has not yet produced them to the government: the targets of the investigation whose rights of privilege are potentially implicated, or the federal government, operating a ‘taint team’ behind a ‘Chinese wall’ or protective screen.” Chief Judge Danny J. Boggs today issued this interesting opinion on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Sixth Circuit.

Posted at 10:44 AM by Howard Bashman

“Would you hire this lawyer?” The Chicago Tribune today contains an editorial that begins, “He went to prison. She went to law school. That’s what happened when Nadine Walter and William Nally Sr. went their separate ways after hatching a scheme to kill Walter’s ex-husband’s lawyer.”

Posted at 9:00 AM by Howard Bashman

“Could M.D.s face death in abortions? DAs think some cases could bring capital charges; AG asked to clarify recent laws.” The Dallas Morning News today contains an article that begins, “Doctors who perform illegal abortions in Texas could be subject to the death penalty because of the way the Legislature has strung together recent statutes, according to the state’s top prosecutor association.”

The Houston Chronicle reports today that “State rule sought on doctors, new abortion laws; An official asks if physicians can be criminally charged for performing banned procedures.”

And The Austin American-Statesman reports that “Abbott asked whether some abortions are murder; Lawmaker says murder charges not appropriate.”

Posted at 8:58 AM by Howard Bashman

“Schiavo nurse may lose license; The state says she broke the rules by discussing the case on national television”: This article appears today in The St. Petersburg Times.

Posted at 8:55 AM by Howard Bashman

“Lawmakers delay vote on gay marriage measure”: This article appears today in The Boston Globe, along with an article headlined “Delay frustrates amendment backers; But they vow to keep fighting until it passes.”

The Boston Herald reports today that “Pols do chicken dance over gay wed.”

The Republican of Springfield, Massachusetts reports that “Lawmakers recess, avoid gay ban vote.”

And The New York Times reports that “Vote on Same-Sex Marriage Is Delayed in Massachusetts.”

Posted at 7:23 AM by Howard Bashman

In commentary available online at FindLaw: Sherry F. Colb has an essay entitled “At the End of its Term, The Supreme Court Denies Mentally Ill Defendants’ Right to a Fair Trial.”

Joanna Grossman and Deborah Brake have an essay entitled “The Supreme Court Rules in Favor of Broader Protection for Employees Who Suffer Retaliation When They Complain About Discrimination: Part Two.”

And Marci Hamilton has an essay entitled “A Court Rules That Privately Editing Films for Content Violates Studios’ Copyright: The Decision in Clean Flicks v. Steven Soderbergh and Its Cultural Context.”

Posted at 6:58 AM by Howard Bashman

“Embattled Bush judge disputes Salon report; Judge Terrence W. Boyle responds to conflict-of-interest charges”: Will Evans has this article today at

Posted at 6:54 AM by Howard Bashman

“‘Gang’ Returns As Fight Looms”: Roll Call today contains an article (subscription required) that begins, “The bipartisan ‘Gang of 14′ will meet for the first time in two months this afternoon in a gathering intended to determine group members’ attitudes on a series of outstanding judicial nominations, according to sources.”

Posted at 6:50 AM by Howard Bashman