How Appealing

Friday, December 14, 2007

“High court: Barzee to be forcibly medicated.” The Deseret Morning News provides an update that begins, “Doctors at the Utah State Hospital have been given the green light to forcibly medicate accused Elizabeth Smart kidnapper Wanda Barzee. Friday, the Utah Supreme Court issued its opinion that 3rd District Judge Judith Atherton’s ruling allowing forced medication will stand. The state’s high court voted 3-2 in favor of upholding Atherton’s ruling in a 52-page opinion. Chief Justice Christine M. Durham and Justice Ronald E. Nehring dissented.”

And The Salt Lake Tribune provides a news update headlined “Justices to accused Elizabeth Smart kidnapper: You will take your meds.”

You can access today’s ruling of the Supreme Court of Utah at this link.

Posted at 11:12 PM by Howard Bashman

“Practitioners Guide to Oral Argument Before the Utah Supreme Court”: The Supreme Court of Utah has posted online this guide, which contains much advice that is useful not merely in that court but anywhere one might present an appellate oral argument.

I especially enjoyed the following passage found in the guide: “The allotted time for argument is consumed quickly, especially when numerous questions come from the Court. Counsel should be prepared to present the strongest or most significant elements of the case concisely. The Court does not measure the persuasive force of an argument by its duration. The Court encourages counsel to submit the matter with time remaining if appropriate.”

Posted at 11:08 PM by Howard Bashman

“‘Potty-mouth’ case dismissed”: The Times-Tribune of Scranton, Pennsylvania today contains an article that begins, “Dawn Herb won’t have to spend up to 90 days in jail. She won’t have to pay a $300 fine. And she can use any language she wants to celebrate. Magisterial District Judge Terrence V. Gallagher said the 31-year-old West Scranton woman did nothing wrong when she cursed at her overflowing toilet Oct. 11, then cursed at a neighbor — an off-duty Scranton cop — who told her to watch her language.”

Posted at 11:00 PM by Howard Bashman

“High court clarifies residency ruling: Home-owning sex offenders exempt.” Today’s edition of The Atlanta Journal-Constitution contains an article that begins, “The Georgia Supreme Court ruling that struck down residency restrictions for registered sex offenders now applies only to offenders who own their homes, the state attorney general’s office said Thursday.”

Yesterday, the Supreme Court of Georgia issued this news release explaining the alteration to last month’s ruling.

Posted at 10:57 PM by Howard Bashman

“Whose Prisoners Are They, Anyway? The Americans you’ve never heard of who are being held in Iraq.” Online at Slate, Justin Florence and David Fontana have a jurisprudence essay that begins, “Last Friday, the Supreme Court voted to take up the appeals of two American citizens being held by the United States in Iraq. So far, these cases are little known, but they may end up being crucial to the Supreme Court’s interventions in the war on terror.”

Posted at 7:40 PM by Howard Bashman

“Kansas AG Resigns After Admitting Affair”: The Associated Press provides a report that begins, “Attorney General Paul Morrison announced his resignation Friday, less than a week after he acknowledged having an extramarital affair with a former employee who has accused him of sexual harassment, and of professional misconduct aimed at his predecessor.”

Posted at 5:15 PM by Howard Bashman

“ Updates”: Law Professor Eric Goldman has this post today at his “Technology & Marketing Law Blog.”

The U.S. Court of Appeals for the Ninth Circuit has just made available for download via this link (9.53MB Windows Media audio file) the audio of Wednesday’s en banc reargument in the case.

With regard to the en banc court’s order issued yesterday rejecting the amicus brief filed in the case by, et al., Eric writes: “This is an unfortunate development for two reasons. First, the brief was first-rate advocacy. Second, the list of parties signing onto the brief was very impressive and really illustrated the depth and breadth of parties that are affected by the ruling. I hope the panel internalizes that point anyway.” Because the amicus brief is just one click away on the internet, I’m sure it will be read by those on the en banc panel, which further illustrates the absurdity of the order rejecting the brief’s official filing.

In response to my post from yesterday about the Ninth Circuit’s order rejecting the amicus brief, a reader emails:

Regardless of where one stands on the question whether a judge should recuse based solely on the participation of an amicus (and I tend to agree with your position), the CA9 rule that you quote in your post makes no sense to me. If one is of the view that the position taken by a proposed amicus creates a conflict requiring recusal, I don’t see how refusing to permit the filing of the amicus brief cures the conflict. In the case that gave rise to your post, the position taken by Amazon, et al. is known to all regardless of whether their amicus brief is formally accepted for filing or not. Any judge who feels that his or her relationship with one of the amici on the Amazon brief precludes sitting on the case (presumably because a ruling consistent with their brief will benefit the amici) would seem to be equally precluded even though the Court did not accept the brief for filing because the fact remains that those amici will still be benefited if the Court decides the case favorably to the position taken in the amicus brief.

I wrote back to my correspondent agreeing with his observations, while offering these additional thoughts of my own:

At the same time, a federal appellate judge may choose to have a blanket recusal policy from cases in which the law firm where his daughter is employed represents a party, even though she is a real estate associate who doesn’t handle litigation. Yet if that law firm decides to file an amicus brief, I think the judge should relax his recusal rule and not recuse because that law firm doesn’t represent an actual party and his daughter is not actually involved in handling the case. (If she were involved in working on the case even for an amicus, I would see merit to either rejecting the brief or recusing.) Similarly, as you know, owning just one share of stock in a party requires recusal from judging that party’s cases. However, if a judge held an insubstantial interest in an amicus that would not give rise to an appearance of impropriety in a reasonable observer, I don’t think that the judge should recuse simply because that amicus has appeared on the scene.

Perhaps this will someday find itself as the topic of a weekly installment of my “On Appeal” column for

Posted at 1:57 PM by Howard Bashman

“Murphy Files Cert. Petition in U.S. Supreme Court”: This post appears today at “TaxProf Blog,” which also provides this link to the petition for writ of certiorari.

The first question presented asks “Can Congress tax ‘make whole’ personal injury or sickness damage awards that are solely intended as compensation for a loss (or restoration of human capital), as opposed to income or any accession to wealth.”

To be sure, this case was once cert.-worthy, after a three-judge D.C. Circuit panel originally ruled that imposing a tax on such compensation was unconstitutional. Thereafter, following a great outcry that the original decision provoked, the same three judges on panel rehearing held that taxing such compensation is not unconstitutional. My extensive earlier coverage of this case can be accessed via this post.

Posted at 11:44 AM by Howard Bashman

U.S. Court of Appeals for the Sixth Circuit affirms 1,772-month sentence of imprisonment for defendant convicted of brandishing a firearm during six separate robberies: Translated into years, the defendant has been sentenced to serve 147 and two-third years. Still better than a sentence of life without the possibility of parole, some might argue. You can access today’s ruling at this link.

Posted at 10:35 AM by Howard Bashman

“Oakland pot club loses court appeal”: Bay City News Service provides a report that begins, “Three medical marijuana clubs in Oakland, Fairfax and Ukiah today lost what may be their final appeal in a long-running battle against a federal court injunction barring them from giving marijuana to patients.”

You can access yesterday’s non-precedential ruling of the U.S. Court of Appeals for the Ninth Circuit at this link.

Posted at 9:22 AM by Howard Bashman

“‘Justice'”: The Los Angeles Times today contains an editorial that begins, “The motto ‘Equal Justice Under Law’ appears on the west facade of the Supreme Court building, not the White House. But presidents have played an important rolein making good on that aspiration.” The newspaper today also contains an editorial entitled “‘Liberty.’

Posted at 9:15 AM by Howard Bashman

“Terror trial falters again; With the mistrial in Miami, the government extends its mixed record”: This news analysis appears today in The St. Petersburg Times.

Posted at 8:40 AM by Howard Bashman

“New Jersey Moves to End Its Death Penalty”: The New York Times contains this article today.

The Newark Star-Ledger reports today that “Assembly OKs measure to end N.J. executions.”

The Philadelphia Inquirer reports that “N.J. Legislature approves abolishing death penalty.”

Henry Weinstein of The Los Angeles Times reports that “New Jersey lawmakers vote to end death penalty; Gov. Jon Corzine says he will sign the bill into law, which would make the state the first to repeal capital punishment since 1965.”

And The Washington Post reports that “N.J. Approves Abolition of Death Penalty; Corzine to Sign.”

Posted at 8:05 AM by Howard Bashman

“Living a comfortable life on the third rail”: The Washington Times today contains an article that begins, “Supreme Court Justice Clarence Thomas was in a happy mood, talking about stereotypes — racial or religious — and how he enjoys defying them in the pursuit of impartiality.” The article reports on Justice Thomas’s interview over lunch yesterday with editors and reporters at The Washington Times.

Posted at 7:50 AM by Howard Bashman

“The Investigations of the Destruction of CIA Torture Tapes: How An ACLU Lawsuit Might Force the Bush Administration To Reveal What Actually Happened.” John W. Dean has this essay online today at FindLaw.

Posted at 7:40 AM by Howard Bashman