Does this ruling issued today exemplify or refute the Second Circuit’s supposed distaste for en banc rehearings? I and others have remarked on occasion about the Second Circuit’s notable unwillingness to use the rehearing en banc procedure provided under the Federal Rules of Appellate Procedure. A decision that a three-judge panel issued today (see page 4 of the PDF ruling) shows that the Second Circuit is not reluctant to use a procedural shortcut to a full-flung rehearing en banc to overrule an earlier Second Circuit ruling.
If a co-conspirator in a bank robbery is accidentally killed in a car crash that occurs while attempting to flee from police, does federal law mandate life sentences for those convicted of the offense? A divided three-judge panel of the U.S. Court of Appeals for the Sixth Circuit issued this interesting decision today.
The federal statute at issue, 18 U.S.C. sec. 2113(e), provides:
Whoever, in committing any offense defined in this section, or in avoiding or attempting to avoid apprehension for the commission of such offense, or in freeing himself or attempting to free himself from arrest or confinement for such offense, kills any person, or forces any person to accompany him without the consent of such person, shall be imprisoned not less than ten years, or if death results shall be punished by death or life imprisonment.
According to the lead opinion issued today:
Read literally, this suggests that a killing carries a mandatory minimum sentence of ten years, but a killing in which death results carries a mandatory minimum sentence of life imprisonment. Needless to say, this purports to set out a nonsensical distinction, since every killing, by definition, results in death.
To be sure, the statute is not a praiseworthy example of legislative draftsmanship, yet the statute seem to be saying that if someone is taken hostage in an escape or attempted escape, the minimum penalty is ten years in prison, but where death results from an escape attempt, the minimum sentence is life imprisonment. Thus, the statute could be construed in a way that is not entirely nonsensical, although it certainly can also be construed in a nonsensical manner.
“White House readies phone-tap case concession”: At Politico.com, Josh Gerstein and John Bresnahan have an article that begins, “The Obama administration may be on the verge of a major concession in a long-running legal battle over records about so-called telecom immunity.”
“3rd Circuit Rejects Online Activists’ Free-Speech Defense of Attacks on Animal Testing Firm; Defense attorney says he expects the ruling will be appealed and is ‘fairly sure we will wind up in the U.S. Supreme Court'”: Shannon P. Duffy has this article today in The Legal Intelligencer.
My earlier coverage of Wednesday’s Third Circuit ruling appears here and here.
“Queen Elizabeth II opens new UK Supreme Court”: The Associated Press has this report.
And at “The BLT: The Blog of Legal Times,” Tony Mauro has a post titled “Isaac Lidsky: From Supreme Court to London for Akin Gump.”
“Judge sex case: High court says state judiciary exempt from open records; The state Supreme Court has ruled that the judiciary branch of government is exempt from the state’s Public Records Act.” The Associated Press has a report that begins, “The judiciary in Washington is exempt from public disclosure requirements under the state’s Public Records Act, the state Supreme Court ruled today, creating what a critic called a ‘huge black hole’ in government accountability.”
Today’s ruling of the Washington State Supreme Court consists of a majority opinion, a concurring opinion, and a dissenting opinion.
“Firefighter Test Brings New Haven a Fresh Suit”: This article will appear Friday in The New York Times.
And The Associated Press reports that “New Haven Firefighter Sues Over Promotion Test.”
“Former chief justice hired godchild’s grandmother”: The Providence (R.I.) Journal has a news update that begins, “Frank J. Williams, former chief judge of the Rhode Island Supreme Court, acknowledged yesterday that he hired the grandmother of his 6-year-old godchild as a cleaning lady at the courthouse two years ago.”
“Skilling, Black Say Ditch ‘Honest Services’ Law”: Bloomberg News columnist Ann Woolner has this essay.
“Obama Criticized as Too Cautious, Slow on Judicial Posts”: Michael A. Fletcher will have this article Friday in The Washington Post.
“Holder: Guantanamo Detainee Decision Soon.” This audio segment (RealPlayer required) appeared on this evening’s broadcast of NPR’s “All Things Considered.”
And Warren Richey of The Christian Science Monitor has an article headlined “Obama’s Guantanamo, counterterror policies similar to Bush’s? Afghanistan’s Bagram is becoming the new Guantanamo, one legal scholar said at a gathering of the American Constitution Society.”
“Gay-rights opponents to appeal ruling on Ref. 71 names”: The Seattle Times has a news update that begins, “Protect Marriage Washington, which collected the signatures to get Referendum 71 on the November ballot, said it will appeal today’s federal appeals court ruling that cleared the way for public release of the names of those who signed petitions for the measure.”
And The Associated Press reports that “Court allows release of domestic partner petitions.”
“Court upholds verdict against tobacco firms”: Today in The San Francisco Chronicle, Bob Egelko has an article that begins, “A state appeals court has upheld a San Francisco jury’s award of $2.85 million in damages to the family of a woman who died of lung cancer after smoking cigarettes for 27 years, ruling that she relied on tobacco companies’ claims that their products were safe.”
You can access yesterday’s unpublished ruling of the California Court of Appeal for the First Appellate District, Division Two, at this link.
Is the New York Thruway toll discount for residents of Grand Island, New York unconstitutional? Today’ a three-judge panel of the U.S. Court of Appeals for the Second Circuit issued a ruling that reinstated, in part, a lawsuit challenging as unconstitutional a toll discount for residents of Grand Island, New York when crossing the Grand Island Bridges.
Today’s decision holds both that “plaintiffs have stated a claim under the dormant Commerce Clause” and “plaintiffs have stated a claim for infringement of their right to travel in violation of the Equal Protection Clause and the Privileges and Immunities Clause of the Fourteenth Amendment.” As a result, today’s ruling overrules in various respects a federal district court’s decision that had dismissed the case in its entirety.
“Supreme Court Hands Petrocelli ‘First Breakthrough’ for Skilling”: Tony Mauro has this post today at “The BLT: The Blog of Legal Times.”
The Chicago Sun-Times reported earlier this week that “Supreme Court’s tackling of ‘honest services’ law could affect Blagojevich’s corruption case.”
And at the blog “Houston’s Clear Thinkers,” Tom Kirkendall has a post titled “The reeling prosecution in the Skilling case.”
“ACLU Back as a Whipping Boy”: At “The BLT: The Blog of Legal Times,” David Ingram has a post that begins, “As Republicans try to block some of President Barack Obama’s nominees for the federal judiciary, they’re focusing on a familiar target: the American Civil Liberties Union.”
“Commenter Incensed over Onion Report on Sotomayor’s Dead Kennedys Tactic”: Debra Cassens Weiss has this post today at the ABA Journal’s “Law News Now” blog.
“Ginsburg briefly hospitalized, released Thurs.” The Associated Press has a report that begins, “Supreme Court officials say Justice Ruth Bader Ginsburg, who had cancer surgery earlier this year, was briefly hospitalized overnight after having a bad reaction to some medicine.”
Reuters reports that “Justice Ruth Ginsburg hospitalized for drowsiness.”
At his “Washington Briefs” blog, Lawrence Hurley of The Daily Journal of California has a post titled “Justice Ginsburg In Hospital Again” in which he reports that “Ginsburg was on her way to London for the official opening of the new U.K. Supreme Court along with Chief Justice John G. Roberts Jr., Justice Stephen G. Breyer and Justice Antonin Scalia. Breyer was the only one of the other justices to be on the same flight. He disembarked with Ginsburg but then took a later flight to London, according to the court.”
And at “The BLT: The Blog of Legal Times,” Tony Mauro has a post titled “Ginsburg Released After Hospital Stay.”
“Federal court upholds convictions of animal-rights activists that threatened Somerset County lab”: The Associated Press has this report.
And today’s edition of The Times of Trenton, New Jersey has an article headlined “Court upholds verdicts” that begins, “A federal appeals court yesterday upheld the convictions of six activists, including a Hamilton resident, found guilty of using their internet website to incite threats and harassment against a company that tests products on animals.”
My earlier coverage of yesterday’s Third Circuit ruling appears at this link.
“Why Filling Lower Federal Court Vacancies Must Be A Top Priority”: Law professor Carl Tobias has this essay online today at FindLaw.
“Skilling review fuels debate over Enron prosecutors”: Today in The Houston Chronicle, Mary Flood has an article that begins, “Was it faulty prosecution or brilliant defense work that made Jeff Skilling’s case the third Enron-related conviction to be chosen for scrutiny by the very selective U.S. Supreme Court?”
“Justices Hear Arguments on Property Seized by Police”: Adam Liptak has this article today in The New York Times.
Jess Bravin of The Wall Street Journal reports today that “Justices Focus on Procedural Rules in Police-Confiscation Case.”
And The Chicago Sun-Times reports that “Asset seizure law challenged; High court hears case of Chicago woman who waited 3 years to get car back” and “U of C law students help prepare case challenging forfeiture law.”
“N.J. High Court Weighs Limits of Fair-Reporting Privilege”: law.com provides this report.
The Associated Press reports that “Reporting on lawsuits is challenged in libel case.”
And columnist Bob Braun of The Newark (N.J.) Star-Ledger has an essay entitled “For defendants in bogus lawsuits, a lost reputation is high price for freedom of the press.”
“When lawyers don’t matter”: Mark Sherman of The Associated Press has a report that begins, “Chief Justice John Roberts once famously and controversially described a judge’s role as akin to an umpire who merely calls balls and strikes.”
Today in The Washington Post, Robert Barnes reports that “Justices Weigh $4.5 Million Bonus Awarded Lawyers in Ga. Litigation; Judge Was Impressed by Attorneys’ Work on Foster-Care Case.”
And online at Slate, Dahlia Lithwick has a Supreme Court dispatch entitled “The $5 Million Man: Paul Clement schools the high court on why some attorneys are worth every last penny.”
“High Court Justices Doubt Lawyers Should Be Paid Extra for Winning”: law.com’s Tony Mauro has an article that begins, “The nine justices of the U.S. Supreme Court are all lawyers, but most showed little empathy for their fellow attorneys on Wednesday as they debated whether legal fee awards can be enhanced for superior performance or exceptional results under a federal fee-shifting statute.”
You can access the transcript of today’s U.S. Supreme Court oral argument in Perdue v. Kenny A., No. 08-970, at this link.
“William Jefferson’s sentencing pushed back to Nov. 13”: Bruce Alpert of The Times-Picayune of New Orleans has a news update in which he reports, among other things, that today “the 4th U.S. Circuit Court of Appeals released a March 2007 ruling that allowed the Justice Department to use material from Jefferson’s congressional office.”
You can access the Fourth Circuit‘s ruling from March 2007, unsealed today, at this link.
“Convictions of animal rights activists upheld”: The Times of Trenton, New Jersey has a news update that begins, “A federal appeals court Wednesday upheld the convictions of six activists, including a Hamilton resident, found guilty of using their internet website to incite threats and harassment against a company that tests products on animals.”
The three judges on the panel that issued today’s ruling unanimously rejected the argument that the federal law known as the Animal Enterprise Protection Act violates the First Amendment.
You can access today’s ruling of a partially divided three-judge panel of the U.S. Court of Appeals for the Third Circuit at this link.
“Court decision seen as good sign for ex-Ala. gov”: The Associated Press has a report that begins, “Attorneys for former Alabama Gov. Don Siegelman and ex-HealthSouth CEO Richard Scrushy said Wednesday they see a positive sign in the U.S. Supreme Court’s decision to hear the appeal of former Enron CEO Jeff Skilling.”
“Judge refuses to toss suit challenging Prop. 8”: Bob Egelko of The San Francisco Chronicle has a news update that begins, “A federal judge refused today to dismiss a lawsuit challenging California’s ban on same-sex marriage, setting the stage for the nation’s first trial on the constitutionality of a law allowing only opposite-sex couples to wed.”
And Howard Mintz of The San Jose Mercury News has an update headlined “U.S. judge refuses Prop. 8 backers’ request to dismiss gay-marriage case.”
Update: The Associated Press reports that “Judge refuses to dismiss gay marriage ban lawsuit.”
“$6.4M fine in Ohio for illegal practice of law”: The Associated Press has a report that begins, “The Ohio Supreme Court on Wednesday ordered two estate planning companies and their co-owners to pay nearly $6.4 million, the state’s largest-ever fine for the fraudulent practice of law.”
And The Columbus (Ohio) Dispatch has a news update headlined “Companies that duped thousands of Ohio senior citizens fined $6.4 million.”
You can access today’s ruling of the Supreme Court of Ohio at this link. The court also issued a related news release headlined “Court Imposes $6.3 Million Civil Penalty on ‘Trust Mill’ Companies and Owners.”
“N.J. Supreme Court hears libel case involving The Record’s report on lawsuit”: The Newark (N.J.) Star-Ledger has a news update that begins, “The state Supreme Court today considered the right of the press to report on court documents in cases that have not yet gone to trial. In a libel suit against the Record of Bergen County, a state appeals panel decided last year that media outlets should not be allowed to publish material from pretrial filings and may be sued if the allegations are determined to be false.”
“Cases could affect gay marriage; How New York defines same-sex marriages could hinge on decisions by state high court”: This article appears today in The Times Union of Albany, New York.
And The New York Times reports today that “Top State Court Hears Cases on Gay Marriage.”
“Top NY court hears challenge to arena land-taking”: The Associated Press has this report.
“Lawyers in federal appeals invariably frame their arguments in language taken from Supreme Court opinions. In this case, which involves a First Amendment issue, the lawyers have treated us to a barrage of unhelpful First Amendment jargon.” So writes Circuit Judge Richard A. Posner in an opinion issued today on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit in a case about asbestos contamination at Illinois Beach State Park.
“Court may re-examine pretrial publicity”: Tony Mauro has this news analysis online today at the First Amendment Center.
