How Appealing

Thursday, December 13, 2007

“In the courtroom, timing can be everything”: Michael Doyle of McClatchy Newspapers has an article that begins, “Sometimes the courthouse clock can mean the difference between victory and defeat. Soon, the Supreme Court will decide a crucial private property rights case that turns on timing.”

Posted at 10:09 PM by Howard Bashman

“High court deadlocks on Smart Growth; Donations prompt Ziegler to step aside on moratorium case”: The Milwaukee Journal Sentinel today contains an article that begins, “The state Supreme Court deadlocked on a Smart Growth decision Wednesday after Justice Annette K. Ziegler stepped aside because of campaign contributions she received.”

Posted at 10:07 PM by Howard Bashman

“Lawyer may lose license for blog entry on Broward judge”: The South Florida Sun-Sentinel today contains an article that begins, “A defense attorney’s law license is at risk because he posted an angry description on the Internet of embattled Broward Circuit Judge Cheryl Aleman, calling her an ‘evil, unfair witch.’ Last week, as Aleman was on trial for alleged misconduct before the Judicial Qualifications Commission, The Florida Bar signed off on its finding that Sean Conway may have violated five bar rules, including impugning the judge’s qualifications or integrity. In the Halloween 2006 posting on a blog, Conway denounced Aleman for what he said was an ‘ugly, condescending attitude’ and questioned her mental stability after, he says, she unlawfully forced attorneys to choose between unreasonable trial dates or waiving their clients’ rights to a speedy trial. Conway, a former Broward assistant public defender now in private practice, said Wednesday he feels justified in his comments.”

Posted at 5:10 PM by Howard Bashman

“This appeal requires us to determine whether section 3009 of the Postal Reorganization Act, 39 U.S.C. sec. 3009 (2000), which regulates the shipment of unordered merchandise, provides an implied private right of action.” So begins the majority opinion that a divided three-judge panel of the U.S. Court of Appeals for the Third Circuit issued today. The majority concludes that Congress did not intend to create a private right of action.

In her dissenting opinion, Circuit Judge Dolores K. Sloviter expresses a lament with which numerous federal appellate judges would agree:

There is a Wonderland quality about the majority’s enunciation of the inquiry before us: only if Congress intended to create a personal right and a private remedy, may a court hold that an implied right of action exists under a federal statute. I do not suggest that the majority misconstrues the recent Supreme Court precedent. Quite the contrary. The majority scrupulously reviews the relevant decisions in articulating its version of our task. The fact that I arrive at a different conclusion should not obscure the inescapable truth that we are both engaged in an illusory errand. The search is to determine whether Congress, the Congress that enacted the statute, also intended to create a private right of action. Do we really believe that Congress, with its legislative aides, lawyers, paralegals and assorted staff, is unable to state in simple declarative language that anyone injured by a violation of that statute may file suit in federal court? Do we really believe that it simply forgot? But whatever the reason Congress chose to remain silent, the Supreme Court set our course decades ago and we have the responsibility to follow by looking for clues that Congress intended that which it did not say.

You can access the complete ruling at this link.

Posted at 4:00 PM by Howard Bashman

“Here we consider what action is required of an attorney who receives privileged documents through inadvertence and whether the remedy of disqualification is appropriate.” So begins a ruling that the Supreme Court of California issued today.

The court’s unanimous opinion continues, “We conclude that … an attorney in these circumstances may not read a document any more closely than is necessary to ascertain that it is privileged. Once it becomes apparent that the content is privileged, counsel must immediately notify opposing counsel and try to resolve the situation. We affirm the disqualification order under the circumstances presented here.”

Posted at 3:50 PM by Howard Bashman

Access online the oral argument audio from Tuesday’s Ninth Circuit en banc oral arguments: As noted in my update to this post from earlier this afternoon, the U.S. Court of Appeals for the Ninth Circuit is hearing en banc oral arguments this week.

On Tuesday, the court heard en banc oral argument in Villegas v. City of Gilroy, which involves whether motorcycle club members should be allowed to wear clothing bearing their club’s insignia while attending the Gilroy, California garlic festival. You can download that oral argument audio via this link (9.52MB mp3 audio file). My earlier coverage of the Ninth Circuit’s actions in this case can be accessed here and here.

Also on Tuesday, the court heard en banc oral argument in Navajo Nation v. United States Forest Service, an action brought by Indian tribes and environmental groups under the Religious Freedom Restoration Act, the National Environmental Protection Act, and the National Historic Preservation Act, challenging the Forest Service’s approval of a proposed expansion of the Arizona Snowbowl ski area on Humphrey’s Peak. In particular, the case involves an objection to using reclaimed water produced from sewage for snowmaking. You can access that audio file via this link (9.96MB audio file). My earlier coverage of the Ninth Circuit’s actions in this case can be accessed here and here.

Posted at 3:35 PM by Howard Bashman

“The Hattiesburg Incident”: At “The BLT: The Blog of Legal Times,” Tony Mauro has a post that begins, “The U.S. Marshals Service has released, with minor redactions, the report on its internal investigation of what it calls the ‘Hattiesburg Incident’ of April 7, 2004. That is when a deputy U.S. marshal in the Mississippi city directed two local reporters who were covering a speech by Justice Antonin Scalia to erase their recordings of the speech, believing she was enforcing the justice’s policy against recording his public talks.”

Update: You can access the report online by clicking here.

Posted at 3:24 PM by Howard Bashman

“Mo. high court to rule on death benefits”: The St. Louis Post-Dispatch today contains an article that begins, “As Floyd Wilcut lay dying in a hospital bed from a work-related truck accident, he saw a choice between survival and salvation. He chose to spare his soul, refusing a blood transfusion that likely would have saved his life. And in dying, the devout Jehovah’s Witness stayed true to a tenet of his faith. In the eight years since, the courts, an insurance company, his employer and a state commission have second-guessed his decision. Each has offered ideas of whether his choice to refuse medical care was, in legal terms, ‘reasonable.’ And each has wrestled over whether that decision disqualifies his widow from collecting death benefits for his work-related injuries. Now, the question lies before the state’s highest court, in a case that raises questions about freedom of religion and who’s responsible for decisions based on faith.”

Posted at 3:20 PM by Howard Bashman

Ninth Circuit rejects amicus brief from, et al. on rehearing en banc in Fair Housing Council v. Some people may be wondering what is the meaning of this published order that Chief Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit issued today.

Chief Judge Kozinski’s order does not provide any explanation beyond citing to Circuit Advisory Committee Note to 9th Cir. R. 29-2 (click here and scroll down to access that text). The advisory committee note states, in what I presume to be pertinent part, “The court will ordinarily deny motions and disallow stipulations for leave to file an amicus curiae brief where the filing of the brief would result in the recusal of a member of the en banc court. Any member of the court who would be subject to disqualification in light of the amicus curiae brief may, of course, voluntarily recuse, thereby allowing the filing of the amicus curiae brief.”

Thus, it appears that the proposed amicus brief (the text of which you can access online at this link, courtesy of Eric Goldman) would have led to one or more recusals. I don’t know whether “the en banc court” for purposes of the advisory committee note means the full Ninth Circuit or just that subset of eleven judges who have been selected to hear and decide this case en banc now that en banc review has been granted.

The Ninth Circuit granted en banc review in this case on October 12, 2007. My earlier extensive coverage of this case consists of an installment of my column and various blog posts (see here and here, in particular). The original three-judge panel’s divided ruling, from May 2007, can be accessed at this link.

The February 2005 installment of my “Upon Further Review” column published in The Legal Intelligencer was headlined “A Federal Appellate Court Attempts To Thwart Strategic Recusals On Appeal.” Therein, I wrote: “In my experience, some federal appellate judges will be more reluctant to recuse where the recusal is triggered by an amicus than if the same grounds for recusal involve a party to the appeal.” The more that I think about this question, the more I conclude that it is appropriate for a federal appellate judge to be more reluctant to feel an obligation to recuse if the recusal would be based solely on the participation of an amicus or counsel for an amicus. Readers who wish to share their views on this issue are invited to do so via email.

Update: Because this case was reargued en banc yesterday, the original version of this post was incorrect in stating that the identity of the eleven judges on the en banc panel was not yet known. Those eleven judges are Chief Judge Alex Kozinski and Circuit Judges Stephen Reinhardt, Pamela A. Rymer, Barry G. Silverman, M. Margaret McKeown, William A. Fletcher, Raymond C. Fisher, Richard A. Paez, Carlos T. Bea, Milan D. Smith, Jr., and N. Randy Smith. Regrettably, Circuit Judge Sandra S. Ikuta, who wrote a very persuasive dissent from the original three-judge panel’s ruling, was not randomly selected to serve on the en banc panel. But looking at who is on the panel, I can still envision six or more votes for the outcome that Judge Ikuta favors. Notably, Judge Paez was on the unanimous three-judge panel that issued an earlier decision whose reasoning Judge Ikuta relied on in her dissent.

Posted at 1:50 PM by Howard Bashman

“In jury selection, ‘race-neutral’ isn’t: New rules are needed to keep prosecutors from concealing racial bias when choosing jurors.” The Los Angeles Times today contains an editorial that begins, “It seemed like a good idea at the time. In 1986, the U.S. Supreme Court ruled that prosecutors could not use peremptory challenges of prospective jurors — challenges for which no cause need be offered — to exclude individuals because of their race.”

Posted at 10:03 AM by Howard Bashman

“Court will review challenge to Prop. 83’s sex offender restrictions”: Today in The San Francisco Chronicle, Bob Egelko has an article that begins, “The state Supreme Court took up the incendiary issue of sex criminals’ residency requirements Wednesday, agreeing to decide the constitutionality of a voter-approved law prohibiting paroled rapists and other sex offenders from living within 2,000 feet of a school or park.”

Posted at 10:01 AM by Howard Bashman

“C.I.A. Chief Cites Agency Lapse on Tapes”: This article appears today in The New York Times, along with a news analysis headlined “C.I.A. Agents Sense Shifting Support for Methods.”

The Washington Post today contains articles headlined “CIA Chief: Hill Should Have Been Told More; Probe of Videotapes May Be Drawn Out” and “Even at Cheney’s Holiday Party, CIA Chief Faces Interrogators.” In addition, columnist David Ignatius has an op-ed entitled “Intelligence Oversight In Free Fall.”

And The Los Angeles Times reports that “CIA failed to fully inform Congress on tapes, director says; Michael Hayden said the agency should have kept lawmakers better apprised on videotaped interrogations.” The newspaper also contains an editorial entitled “The CIA tapes: Congressional outrage over their destruction should lead to new anti-torture rules.” And columnist Rosa Brooks has an op-ed entitled “Torture’s blame game: Who gave the green light to ‘enhanced’ interrogations? We all did.”

Posted at 9:50 AM by Howard Bashman

“Bush plays politics with judicial nominations”: Glenn Sugameli has this op-ed today in The Providence (R.I.) Journal.

Posted at 9:34 AM by Howard Bashman

“Discrimination claimant gets access to documents”: Friday’s edition of The Sydney Morning Herald contains an article that begins, “Secrets of the inner sanctum, including legal advice to key players, unguarded in-house notes and other possibly embarrassing details must be revealed to the woman who is pressing a bitterly fought $10 million sex discrimination case against a giant in corporate consulting. Lawyers for PricewaterhouseCoopers were in crisis mode yesterday after a ruling by a NSW Federal Court judge, Catherine Branson, concerning information that the firm’s partners had fought to keep private. The company is involved in a legal battle with Christina Rich, a star tax lawyer who is a deposed partner of the firm.”

Posted at 9:22 AM by Howard Bashman

“Florida Court Rejects Claim, a Boon for Morgan Stanley”: The New York Times today contains an article that begins, “The Florida Supreme Court on Wednesday rejected an appeal by the financier Ronald O. Perelman, who asked the court to restore a $1.58 billion verdict against the investment bank Morgan Stanley.”

Bloomberg News reports that “Perelman Loses Appeal of Morgan Stanley Jury Award.”

The Associated Press reports that “Court rejects Perelman appeal.”

And Reuters reports that “Perelman’s Morgan Stanley suit comes to an end.”

I covered the March 2007 ruling of Florida’s Fourth District Court of Appeal, which the Supreme Court of Florida declined to review yesterday, in posts that you can access here and here.

Posted at 9:20 AM by Howard Bashman

“Milestone: Gitmo captive census drops below 300.” Carol Rosenberg of The Miami Herald has an article that begins, “The Pentagon said Wednesday it sent home 15 presumably long-held captives from Guantanamo, reducing the prison camp population to fewer than 300 for the first time since the earliest days of the detention center.”

Posted at 9:06 AM by Howard Bashman

“Rush to free crack inmates not expected despite ruling on sentence disparities; State prisoners not affected by U.S. ruling on sentence reductions”: This article appears today in The Dallas Morning News.

Posted at 8:44 AM by Howard Bashman

“Guns Case Is a Test Of Discretion”: Today in The New York Sun, Joseph Goldstein has an article that begins, “A gun trafficking case out of Brooklyn is emerging as the next test over how much discretion federal judges have in setting prison sentences. In two decisions this week, the U.S. Supreme Court offered judges greater leeway in deciding for how long to put criminals away. Neither case addressed the vexing question of whether more time can be tacked on just because the crime occurred someplace urban such as New York City, where the chances seem higher that innocent bystanders will be hurt any time a crime is committed.”

My coverage of the Second Circuit’s most recent ruling in the case that is the subject of this article can be accessed here.

Posted at 8:25 AM by Howard Bashman

“Judge in death case violated policies; Keller, who shut out appeal, says new written rules reflect unwritten ones on that day”: The Houston Chronicle today contains a front page article that begins, “Texas Court of Criminal Appeals Presiding Judge Sharon Keller apparently violated court policies for handling death penalty cases when she closed the court clerk’s doors on Michael Richard’s efforts to file a last-minute appeal before his execution.”

Posted at 8:15 AM by Howard Bashman

“Justice Clarence Thomas: A new book and some tough questions; He opposes use of TV cameras in the highest court.” This article appears today in The South Florida Sun-Sentinel.

The Palm Beach Daily News today contains an article headlined “Justice Thomas: ‘There’s a reason to hope’; His book is about ‘the life of an ordinary person to whom extraordinary things happened.’

And The Palm Beach Post reports that “Justice recounts rise from poverty.”

Posted at 8:14 AM by Howard Bashman

“Swinger sues Duncanville over sex club ban; Resident says ordinance violates his privacy, due process rights”: The Dallas Morning News today contains an article that begins, “A Duncanville swinger sued the city Wednesday, contending that a new ordinance banning sex clubs violates his privacy and due process rights. Jim Trulock, 59, and his partner, 29-year-old Julie M. Norris, call themselves advocates for the swinging lifestyle. On weekends, they turn their home near Cedar Ridge Drive and Interstate 20 into the Cherry Pit, where guests can mingle, dance and have sex.”

Posted at 8:08 AM by Howard Bashman

“Kent hires DeGuerin in harassment case; Top defense attorney says judge committed ‘no crime'”: This front page article appears today in The Houston Chronicle. According to the article, “The 5th Circuit judicial council used a Baton Rouge law firm for its investigation. The firm, whose Houston office regularly conducted business in Kent’s court, was hired to review McBroom’s complaint and take sworn statements from witnesses. Three investigating judges also interviewed witnesses, including McBroom.”

The Galveston County Daily News reports today that “Kent’s lawyer says allegations are false.”

Texas Lawyer reports that “U.S. District Judge Samuel Kent Hires Dick DeGuerin, Meets With FBI.”

And The Associated Press reports that “Attorney confirms suspended federal judge being investigated.”

Posted at 7:54 AM by Howard Bashman