How Appealing

Monday, December 22, 2008

“Religious displays to be debated in court; California jurists next year will rule on the constitutionality of crosses on public land, teachers’ speech rights and students’ Bible clubs”: This article appears today in The Los Angeles Times.

Posted at 10:52 PM by Howard Bashman

“Pentagon sets court date in Cole death penalty case; With clock ticking toward end of Bush administration, there is a flurry of activity planned for the Pentagon’s special war crimes court at Guantanamo”: Carol Rosenberg of The Miami Herald has this news update.

Posted at 10:47 PM by Howard Bashman

“New appellate judge says he never forgets; A Palm Beach County judge who talked about getting even with lawyers who challenge him was appointed to the Fourth District Court of Appeal by Gov. Charlie Crist”: The Miami Herald today contains an article that begins, “Gov. Charlie Crist promoted Palm Beach Judge Jorge Labarga to a seat on a South Florida appellate court last week despite Labarga’s comments from the bench last year that judges will get even with lawyers who cross them, even if it takes years.”

And in related coverage, on Wednesday, December 10, 2008, The Palm Beach Post reported that “Crist appoints two Palm Beach County judges to appellate bench.”

Posted at 3:14 PM by Howard Bashman

“To those who question whether the results in constitutional and other cases depend on the membership of the panel, * * * the result in the case currently before our panel is merely a minor illustration of how the judicial system currently operates.” So writes Ninth Circuit Judge Stephen Reinhardt, in an opinion concurring in the judgment issued today.

Judge Reinhardt’s separate opinion begins:

Six months ago, the original panel in this case filed a majority opinion holding that Washington state law creates a liberty interest in an inmate’s early release into community custody. We held that the prisoner’s liberty interest is protected under the Due Process Clause of the Fourteenth Amendment and that, accordingly, when an inmate becomes eligible for a transfer to community custody, the prison authorities may deny his request for a transfer only for one of the reasons specified in the Washington statute — and only if he is afforded a minimal opportunity to present his side of the story before they do so. In short, we held that Washington prison authorities must follow Washington law and abide by the United States Constitution. Joining me in that opinion was Judge Warren J. Ferguson, who died before we could deny the petition for rehearing; dissenting was Judge Milan Smith. As a result of Judge Ferguson’s death, it was necessary to replace him on this case with another member of this court drawn at random. There were no intervening decisions that changed the law between the time Judge Ferguson and I issued our opinion holding that a liberty interest exists that protects the prisoners’ rights at issue and the time that Judge Smith, joined by our colleague who replaced Judge Ferguson, issued a substitute opinion holding that no such liberty interest exists.

The unnamed colleague who replaced now-deceased Senior Circuit Judge Warren J. Ferguson on this particular three-judge panel is Circuit Judge Richard C. Tallman.

Apropos of my observation in a blog post published a little over one year ago that “[i]n the Ninth Circuit, to a degree not seen in any other federal appellate courts, published opinions often resemble works in progress,” today’s majority opinion, written by Circuit Judge Milan D. Smith, Jr., responds to Judge Reinhardt’s separate opinion by noting, among other things, that “in the ninety days between July 11, 2008, and October 9, 2008, at least ten published opinions were withdrawn and at least ten opinions were amended in our circuit.” (footnotes omitted).

Judge Reinhardt wrote the original panel’s opinion in this case. That opinion was withdrawn on August 26, 2008 after Judge Tallman replaced Judge Ferguson on the panel.

Posted at 2:38 PM by Howard Bashman

“Hicks keen to clear name and be a boring person”: The Sydney Morning Herald today contains an article that begins, “A free man seven years after his arrest in Afghanistan, David Hicks has signalled his wish to clear his name and remove his terrorism conviction from his record. Almost seven years to the day after he went into custody and one month before a new US president takes office and closes Guantanamo Bay, Mr Hicks regained his freedom yesterday with the expiry of the control order covering his actions.”

Posted at 8:44 AM by Howard Bashman

“Circumstantial Evidence May Prove Lack of Informed Consent, Says Pa. Supreme Court”: Today in The Legal Intelligencer, Amaris Elliott-Engel has an article that begins, “The Pennsylvania Supreme Court has ruled that circumstantial evidence provided by a plaintiff’s spouse may be sufficient to prove a lack of informed consent claim.”

You can access last week’s ruling of the Supreme Court of Pennsylvania at this link.

Posted at 8:22 AM by Howard Bashman

“We Don’t Need Guantanamo Bay: Here’s how to hold the detainees elsewhere, without damaging U.S. security.” Thomas B. Wilner has this op-ed today in The Wall Street Journal.

Posted at 7:58 AM by Howard Bashman