Today's rulings of note from the U.S. Court of Appeals for the Second Circuit: The court has once again ruled in a case that challenges the legality of a Vermont campaign finance law imposing expenditure and contribution limitations on campaigns for state office. You can access at this link the majority opinion issued today, while the dissent (all 150 pages of it) is available here.
And if you rue the paucity of appellate opinions discussing to whom copyrights for choreographed dances belong, be sure not to miss this decision, which addresses "several copyright and contract issues relating primarily to dances choreographed by the late Martha Graham, widely regarded as the founder of modern dance."
"'Potential Development' in Peterson Case": The AP provides this report, which is tantalizing simply for its lack of detail.
"Mass. Judge Denies Relief to Gay Couples":The Associated Press reports here that "A state judge on Wednesday declined to halt enforcement of a 1913 state law barring out-of-state couples from marrying in Massachusetts."
BREAKING NEWS -- Sharply divided eleven-judge en banc panel of the U.S. Court of Appeals for the Ninth Circuit holds that the Fourth Amendment permits compulsory DNA profiling of certain conditionally-released federal offenders in the absence of individualized suspicion that they have committed additional crimes: Today's 6-5 ruling rejects a constitutional challenge to the federal law known as the DNA Analysis Backlog Elimination Act of 2000. You can access today's lengthy ruling, in its entirety, at this link.
Judge O'Scannlain wrote the lead opinion, which garnered the votes of only five judges. The other four joining in the lead opinion are Chief Judge Schroeder and Circuit Judges Silverman, Clifton, and Callahan.
Circuit Judge Gould, the sixth and final vote needed to constitute a majority, issued a concurring opinion the first paragraph of which explains: "I write separately because I believe that we should affirm under a 'special needs' theory rather than the totality of the circumstances theory. I further pose a caveat on the limits of what we can properly decide today."
Circuit Judge Reinhardt wrote the lead dissent, in which Circuit Judges Pregerson, Kozinski, and Wardlaw joined. Judge Kozinski also issued a separate dissent. And Judge Hawkins, who did not formally join in Judge Reinhardt's dissent, also issued a dissenting opinion.
The result that the en banc court has reached is the opposite of the result that a divided three-judge Ninth Circuit panel arrived at in a decision that issued on October 2, 2003. That three-judge panel consisted of Circuit Judges Reinhardt, O'Scannlain, and Richard A. Paez. Because Circuit Judge Paez joined Circuit Judge Reinhardt in voting to hold unconstitutional the federal DNA Analysis Backlog Elimination Act of 2000, and because Circuit Judge Paez was not randomly selected to serve on the eleven-judge en banc panel, it appears that of the twelve Ninth Circuit judges to have voted on this law's constitutionality, six view the law as constitutional and six view the law as unconstitutional. My initial coverage of the three-judge panel's ruling can be accessed here.
Eighth Circuit holds that the practice of the Little Rock School District to subject public school students to random, suspicionless searches of their persons and belongings by school officials is unconstitutional: You can access today's ruling by a partially divided three-judge panel of the U.S. Court of Appeals for the Eighth Circuit at this link.
"Judgeship nominees: Twisting the law on interrogating detainees." Law Professor Herman Schwartz has this op-ed today in Newsday.
"Thief challenges dose of shame as punishment":This article appears today in USA Today.
"An unwelcome mat for free speech": Tony Mauro today has this op-ed in USA Today.
"Gays push national right to wed; Justice Minister urged to encourage provinces to license same-sex unions":The Toronto Globe and Mail contains this article today.
"Cocaine tied to court official's exit; The state's chief justice says trace amounts found in John Kennedy's office":This article appears today in The News & Observer of Raleigh, North Carolina. The newspaper also makes available online this related document.
"Luna feared losing job, hired lawyer, sources say; DiBiagio tells staff he lied about prosecutor's status to protect man's family": Wednesday's issue of The Baltimore Sun will contain an article that begins, "Shortly before his body was found in a Pennsylvania field, Assistant U.S. Attorney Jonathan P. Luna was worried about being fired and had asked an experienced former federal prosecutor to represent him in job-related legal matters, sources familiar with Luna and the prosecutor's office said." In related coverage, The Associated Press offers a report headlined "Friend: Slain Lawyer Distressed at Work." These reports follow a related article published today in The Washington Post under the headline "U.S. Attorney's Style, Agenda Faulted in Md."
"Rachel Lea Hunter Supreme Court Campaign Revolutionizes Internet Communication":This press release heralds the fact that a candidate running for the Supreme Court of North Carolina has a "comprehensive web site [that] has garnered tremendous reviews from web development experts from throughout the United States." You can access the web site at this link, and the candidate even has a campaign blog. In looking at the candidate's online bio, I am curious to learn why the candidate now resides in North Carolina given that she grew up in Pennsylvania and clerked for a bunch of different state court appellate judges there. Hunter is one of eight candidates for this single North Carolina Supreme Court vacancy.
"It's Just the 'internet' Now":Wired News yesterday posted an article by its Copy Chief that begins, "Effective with this sentence, Wired News will no longer capitalize the 'I' in internet. At the same time, Web becomes web and Net becomes net."
"Justice stumps with Manchin, raises eyebrows":The Associated Press reports here from West Virginia that "Judicial officers and candidates aren't supposed to stump for or against other office-seekers, but that didn't appear to stop Supreme Court Justice Warren McGraw from campaigning with Joe Manchin, the Democratic nominee for governor."
"Star of Hope may join county in Bible dispute; Demonstrators continue their vigil to support display":This article appears today in The Houston Chronicle.
"Dirty Shame: The Ninth Circuit's dangerous endorsement of shaming punishments." Dan Markel has this essay today online at The New Republic.
License plate not redacted: As I recently noted here and here, some federal judges have opted to "Choose Life" for themselves and their family members by redacting plenty of details from annual financial disclosure forms that are supposed to be publicly available. Arguably running counter to that trend, however, is the seemingly official "U.S. Judge" license plate sported by a luxury SUV in Texas. Of course, as Tony Mauro has reported, even one U.S. Supreme Court Justice has been unable to resist the lure of a potentially revealing vanity plate.
"Confusion reigns in federal, state courts; While Oregon and other states await U.S. Supreme Court clarification, prosecutors may reindict suspects, and sentences may be in limbo":This article appears today in The Oregonian.
"We conclude that the District of Columbia is a state for purposes of Younger abstention": The doctrine of Younger abstention has existed since 1971, but not until today did the U.S. Court of Appeals for the D.C. Circuit issue an opinion deciding whether the District of Columbia is a State for purposes of Younger abstention.
Access online some of the content from the September | October 2004 issue of Legal Affairs magazine: The cover of the magazine contains an image consisting of five Justice Antonin Scalias and four Justice Clarence Thomases and asks, "Is This the Court's Future?"
Accompanying those three quite interesting but rather serious essays is an item titled "Supreme Stats"; it draws on the law review article "Who Would Win a Tournament of Judges?" and includes an illustration that depicts nine potential Supreme Court nominees as a co-ed baseball team.
Hot double bobblehead doll action: As I originally mentioned here yesterday, The Green Bag has begun to ship to subscribers the Justice Sandra Day O'Connor bobblehead doll. The doll arrived at my office yesterday afternoon, and it wasn't until I got home last night that I removed it from the package. I was delighted to see -- as Tony Mauro previously alluded to here (third item) -- that the doll actually contains two bobbleheads: one belonging to Justice O'Connor, and the other belonging to the cow reclining to her left. Next in the series is the Antonin Scalia bobblehead doll, which is slated to feature waterfowl that transform from alive to mortally wounded, pumped full of lead.
"Courts split on sex clubs: l'orage founder goes to supreme court; One cabaret owner is acquitted in Quebec, while another's conviction is upheld."The Montreal Gazette today contains an article that begins, "Quebec's highest court seems to be swinging both ways when it comes to ruling on whether spouse-swapping clubs are legally tolerable."
"State probe of Ohio court candidate temporarily barred":The Cleveland Plain Dealer today contains an article that begins, "A federal judge Monday temporarily barred a state investigation of an Ohio Supreme Court candidate. That decision could affect future judicial campaigns."
"Justices uphold judgment against Rudolph":The Birmingham News today contains an article that begins, "The Alabama Supreme Court has upheld a Jefferson County judge's ruling that accused abortion clinic bomber Eric Robert Rudolph must pay $115 million to a nurse maimed in the 1998 blast."
"Why the California Supreme Court Repudiated San Francisco's Issuance of Same-Sex Marriage Licenses":FindLaw columnist Vikram David Amar has this essay today.
"Court won't rehear attempt to block assisted-suicide law; Ashcroft is expected to ask the Supreme Court to take case":This article appears today in The Statesman Journal of Salem, Oregon.
"When inmates create art, should they profit? The case of a Texas painter on death row treads the fuzzy terrain between 'murderabilia' and prisoners' rights."This article will appear in Tuesday's issue of The Christian Science Monitor.
"Ruling will allow limited rape shield evidence in Bryant case":The Vail Daily News provides an update that begins, "The Colorado Supreme Court let stand Judge Terry Ruckriegle's ruling on the rape shield law allowing limited evidence in regard to the alleged victim's sexual history in the Kobe Bryant case."
"Dahlia Lithwick smears several Bush nominees in Sunday's NY Times": So writes the author of The Committee for Justice's blog, in a post you can access here, about Dahlia's op-ed published yesterday.
"Court Refuses to Revisit Assisted Suicide":The Associated Press reports here that "A federal appeals court is refusing to reconsider its decision to uphold Oregon's assisted-suicide law, rejecting a request from the Bush administration to set aside the only law of its kind in the nation." It appears that the order denying rehearing en banc did not even draw any published dissents. By contrast, as I first reported here, the three-judge panel's ruling was accompanied by a dissent, albeit by a Senior Ninth Circuit Judge who, due to senior status, doesn't have the ability to vote in favor of rehearing en banc.
"Law Schools That Protest Too Much: Universities are kicking military recruiters off campus; What a bad way to fight 'don't ask, don't tell.'"Slate has just posted online this jurisprudence essay by Phillip Carter, author of the "Intel Dump" blog. As Phil notes in his essay, he was one of the authors of this amicus brief that I filed in February 2004 in the U.S. Court of Appeals for the Third Circuit.
"No smoking gun likely in bias suit; Both sides to rely on stats in suit against Wal-Mart": Yesterday, Alex Daniels of The Arkansas Democrat-Gazette had this article in that newspaper.
Is it unlawful to require that passengers on commercial airline flights show identification before being allowed to travel? The case of Gilmore v. Ashcroft, which is now pending on appeal before the U.S. Court of Appeals for the Ninth Circuit, presents that issue. You can view the brief for appellant, filed today, at this link. And you can learn more about the case via this link.
U.S. Court of Appeals for the Federal Circuit reverses $37 million Fifth Amendment takings award and orders entry of judgment in favor of the United States:Today's decision involves a big boat that was to be used in commercial fishing for mackerel and herring in the Exclusive Economic Zone of the United States in the Atlantic Ocean.
"Bryant Prosecutors Can't Bar Testimony": The AP reports here that "In another setback to the prosecution in the Kobe Bryant sexual assault case, the Colorado Supreme Court refused Monday to hear an appeal of a key ruling that allows the NBA star's attorneys to tell jurors about the accuser's sex life."
"Fla. Voucher Law Ruled Unconstitutional":The Associated Press reports here that "A Florida law that allows students at failing public schools to attend private schools at taxpayers' expense is unconstitutional, a state appeals court ruled Monday. The decision by the 1st District Court of Appeal upholds a ruling by a trial judge saying the state constitution forbids the use of tax money to send youngsters to religious schools." You can access today's ruling of a divided three-judge panel of Florida's First District Court of Appeal at this link.
Access online the Ninth Circuit's order allowing Wal-Mart to take an interlocutory appeal from a California federal district court's decision certifying the largest sex discrimination class action in U.S. history: You can view a copy of the order at this link. I first noted this development Friday evening in a post you can access here, and I thereafter collected additional news coverage at this link.
"Lawyer to visit Guantanamo trio; An American lawyer has been given permission to visit some of the men with UK links held in Guantanamo Bay":BBC News provides this report.
"Ginsburg joining Touro celebration; Ruth Bader Ginsburg will give the keynote address at Touro Synagogue's annual commemoration of a historic letter from President George Washington":This article appears today in The Providence Journal.
"Two brothers, two weddings, one family; As devoted as the parents were to the children, the bond between the boys was tighter still":This lengthy article, the first of four parts, appears today in The Boston Globe.
"Some schools to start testing for drugs; Plans draw support, but concerns are raised about rights' violations":The Houston Chronicle contains this article today.
"U.S. Focus: Graying Judiciary, Pivotal Election; High court: a switch in nine? Presidential-race victor could change direction of sharply divided court."This article will appear in Monday's issue of The Richmond Times-Dispatch.
"11 groups file briefs in school case; Most are urging the Kansas Supreme Court to uphold a lower court decision on state funding":This article appears today in The Wichita Eagle.
"Terror inmates seek looser limits; Al-Qaeda convicts say rules at Supermax are too harsh":The Denver Post contains this article today.
"Group forms to unseat judge in gay divorce; A state lawmaker's son says District Judge Jeffrey Neary's ruling was unconstitutional":This article appeared yesterday in The Des Moines Register.
"Activist, Schmactivist": Guest columnist Dahlia Lithwick has this op-ed today in The New York Times. The op-ed begins, "There is probably nothing I can do or say to convince you that the words 'activist judge' have no more meaning than the words 'hectic smurlbats.'"
"Blog Interrupted: When Jessica Cutler put her dirty secrets on the Web, she lost her job, signed a book deal, posed for Playboy -- and raised a ton of questions about where America is headed."This lengthy article (access it all here on a single page) will appear in tomorrow's issue of The Washington Post Magazine.
"Bosses who lure other workers can be sued; State court says wrongdoers are liable for damages": Bob Egelko has this article today in The San Francisco Chronicle.
"Group turns in ballot initiative petition; Commandment backers must wait for validation of 18,507 signatures":This article appears today in The Idaho Statesman.
"Judge blocks anti-gay marriage amendment on Louisiana ballot":The Associated Press reports here that "A judge blocked a Sept. 18 vote on a constitutional ban on same-sex marriages on Friday, but suspended his order so the state can appeal directly to the Louisiana Supreme Court."
The Ninth Circuit's decision to allow interlocutory review of the class certification ruling does not guarantee reversal, but it does mean that reversal at this juncture remains a possibility. In recent coverage of this matter, The Arkansas Democrat-Gazette reported that "Unbridled court to rule on size of Wal-Mart suit."
"Judge Dismisses Medical Residents' Suit":The Associated Press reports here that "A federal court judge Friday dismissed an antitrust lawsuit against a national program that matches medical residents with jobs in teaching hospitals around the country." The ruling of the U.S. District Court for the District of Columbia can be accessed here.
"We're hit!" So proclaims the Web site of The Fort Myers News-Press. You can access more information at this link and a live video feed (Windows Media Player) of the local doppler radar narrated by local weather forecasters.
"Mom who smoked dodges jail time; She's released on bail after appealing a 10-day sentence for lighting up near her kids":This article appears today in The Richmond Times-Dispatch.
"Judge sues to enjoin court from restraining campaign speech":The Daily Reporter of central Ohio today offers an article that begins, "Judge William O'Neill of the 11th District Court of Appeals, a candidate for the Supreme Court of Ohio, has filed a lawsuit against the court's disciplinary counsel, seeking to stop a pending investigation into comments the candidate has made during his campaign."
"Can't Anyone Here Play This Game?"CBS News analyst Andrew Cohen has today this essay for that network's Denver affiliate about recent developments in the Kobe Bryant case.
"Kobe Bryant's Lawyers Say No to Delay in Trial":Reuters provides this report.
Splintered three-judge panel of the U.S. Court of Appeals for the Seventh Circuit decides long-pending appeal involving alleged denial of constitutional right of access to the courts: The decision consists of four separate opinions -- one designated "Per Curiam" and one from each of the judges on the panel. The second paragraph of the Per Curiam opinion states:
It is the unanimous opinion of the court that [the defendant] is not protected by absolute quasi-judicial immunity. Nevertheless, it is the opinion of the majority of the panel that [the plaintiff] has not stated a claim for a constitutional violation of right to access to the courts; the individual judges, however, differ with respect to how they arrive at that determination. A third member of the panel is of the opinion that [the plaintiff's] complaint states a constitutional violation and that [the defendant] is not entitled to qualified immunity on that claim.
"After Review, 4 Detainees Won't Be Freed": The AP provides this report on the status of War-on-Terror detainee hearings at Guantanamo. Today the U.S. Department of Defense had Secretary of the Navy Gordon England provide a news briefing on the Guantanamo hearings, and you can listen to the news briefing by clicking here (Real Player required).
"Broken Vows: On the day New Jersey Governor McGreevey resigns over a gay affair, the California Supreme Court annuls 4,000 gay marriages; Guess which story gets more coverage?" E.J. Graff today has this essay at The New Republic Online.
"U.S.: 'No legal rights' for detainees; Prisoners' lawyers, Justice Dept. differ on high court ruling."This article appears today in USA Today.
Last call: On Monday, August 16, 2004, I am due to transmit in writing my list of questions to the September 2004 "20 questions for the appellate judge" interviewee. Thanks much to those readers who have already offered questions for next month's interviewee, Chief Justice Shirley S. Abrahamson of the Supreme Court of Wisconsin. For those readers who still wish to send along to me via email questions or topics for questions, the last minute has officially arrived.
"Sandwich Boards of Shame for Convicted Execs": Benjamin Bycel has this op-ed today in The Los Angeles Times. Given that the author's last name is Bycel, you might think he too would know that Hester's last name isn't "Prin."
"Thoughts on the Law Addressing Bad Federal Judges: Self-Policing Isn't Working, But Is There a Good Alternative?"FindLaw columnist John W. Dean has this essay today.
"'Kiss Me, Guido': The E! True Hollywood Story of Judge Guido Calabresi": The blog "Underneath Their Robes" offers this incredibly lengthy post.
Thursday, August 12, 2004
U.S. Attorney for the U.S. Virgin Islands to leave public service after 28 years as a state and federal prosecutor:This article appears today in The Virgin Islands Daily News.
"A Michigan Supreme Court Decision Supports Private Landowners' Rights: Its Reasoning and Possible Nationwide Ramifications."FindLaw columnist Marci Hamilton has this essay today.
The magazine's cover story consists of three separate essays -- two of the essays discuss from quite different points of view why one who cares about the composition of the Court should favor Bush or Kerry in November; the third essay argues that the composition of the Court won't differ meaningfully in any event. The authors of these essays are Law Professors Stephen B. Presser, David Strauss, and Mark Tushnet. Accompanying those three quite interesting but rather serious essays is an item titled "Supreme Stats"; it draws on the law review article "Who Would Win a Tournament of Judges?" and includes an illustration that depicts nine potential Supreme Court nominees as a co-ed baseball team.
Sometime soon, the Legal Affairs Web site will be updated with material from this latest issue of the magazine that just became available in print to subscribers.
"Supermajority Rules And The Judicial Confirmation Process": Now available online via SSRN is this quite interesting law review article written by Law Professors John O. McGinnis and Michael B. Rappaport. The article's abstract begins, "In this paper we assess the effect of possible supermajority rules on the now contentious Senate confirmation process for judges." Thanks to the "Legal Theory Blog" for the pointer.
The federal government files its opening U.S. Supreme Court brief on the merits in the medical marijuana case known as Ashcroft v. Raich: You can access the brief at this link, via "SCOTUSblog," and the joint appendix (no pun intended) is available here.
En banc U.S. Court of Appeals for the Fifth Circuit rules 10-6 that guardian ad litem fees can be taxed against the federal government in Federal Tort Claims Act cases: You can access the ruling at this link. Circuit Judge Jerry E. Smith wrote a passionate dissent, in which four other judges joined in full and another judge joined in part. Judge Smith's dissent begins:
In an act of Orwellian doublethink, the majority concludes that although "Rule 17(c) does not specifically state" that guardian ad litem fees may be taxed as costs, it nevertheless provides "express statutory authorization" for that result. Compare Maj. Op. at 18 with id. at 13, 18. Emboldened by that cogent insight, the majority then embarks on a broad survey of legal fictions, highlighted by an impliedly explicit waiver of sovereign immunity and the discovery that a statute has binding force despite its repeal in 1948.
As if sitting in Congress, the majority is ultimately able to agree on nothing more than a result: Guardian ad litem fees may be taxed as costs against the government despite sovereign immunity and despite Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437 (1987). The doctrinal basis for that result is so illusory, however, that the majority feels compelled to insulate itself in layer upon layer of "alternative" holdings. As a result, the true basis for today's decision remains a mystery--even to the majority that wrought it.
You can access Judge Smith's dissent directly at this link.
"State privacy law challenged by U.S.; Costs, uniformity cited in argument": Today in The San Francisco Chronicle, Bob Egelko has an article that begins, "The Bush administration asked a federal appeals court Wednesday to overturn California's financial privacy law, which allows customers to prevent banks and other financial institutions from sharing their personal information with affiliated companies."
"Remote Pitcairn Islanders Ordered to Give Up Guns":Reuters reports here that "Descendants of English mutineers living on remote Pitcairn Island in the South Pacific have been ordered to surrender their guns amid fears that a trial for alleged child sex offences could lead to violence. Tiny Pitcairn has a population of 45 people, who have about 20 guns between them. The deadline for them to surrender their weapons is Sept. 7." And The New Zealand Herald's Web site reports that "Pitcairn Islanders seek trial delay to go to Privy Council."
A federal prisoner at the low-security correctional institution in Allenwood, Pennsylvania brought this action pursuant to 28 U.S.C. sec. 1331, challenging a Congressional ban on the use of federal funds to distribute certain sexually explicit material to prisoners, along with its implementing regulation. The District Court rejected plaintiff's argument that the ban violates the First Amendment and dismissed his complaint, finding the prohibition to be reasonably related to the legitimate penological goal of prisoner rehabilitation. Because we find that the District Court erred in resolving the constitutional issue without an adequate factual basis, we will reverse and remand for further proceedings consistent with this opinion.
In so ruling, the Third Circuit creates a circuit split, because another federal appellate court previously upheld the legality of this ban on the record that the Third Circuit today found inadequate.
Who says?The Washington Post today contains an article headlined "Lethal Injection by Virginia Not Cruel, U.S. Supreme Court Says." What the U.S. Supreme Court actually said yesterday, in an order that you can access here, was: "The application to vacate the stay of execution of sentence of death entered by the United States Court of Appeals for the Fourth Circuit on December 17, 2003, presented to the Chief Justice and by him referred to the Court, is granted." Whether The Post's headline makes appropriate use of the word "says" is open to debate, but I think the headline would have been more accurate had it said something else.
In a ruling that you can access here, the court rejected the claim of a Native American prison inmate that the California Department of Corrections' hair length policy infringes on the free exercise of his Native American religious beliefs in violation of federal law.
And in a separate ruling, which you can access here, the court considered whether federal law requires the U.S. Postal Service to make it easier for homeless people to receive mail that is intended for them.
"Until the Supreme Court rules otherwise, the courts of this Circuit will continue fully to apply the Guidelines": A three-judge panel of the U.S. Court of Appeals for the Second Circuit -- in a per curiam opinion issued today that was circulated before filing to all active judges serving on that court -- has so ordered with respect to the U.S. Sentencing Guidelines in the aftermath of the U.S. Supreme Court's ruling in Blakely v. Washington.
BREAKING NEWS -- Supreme Court of California declares same-sex marriages performed in San Francisco "null and void" from their inception: You can access today's ruling, which issued slightly earlier than expected, at this link (114-page PDF document). The vote on declaring previously performed marriages void was 5-2; the court was unanimous in holding that the Mayor of San Francisco lacks the power going forward to allow same-sex couples to marry in violation of existing California law. As a small consolation, same-sex couples whose marriages are dissolved as a result of today's ruling are entitled to a refund, upon request, of all marriage-related fees that they have paid.
When an elementary school places flyers from community organizations advertising religious activities into students' school mailboxes, the school does not violate the Establishment Clause, unanimous three-judge Sixth Circuit panel holds: You can access today's ruling of the U.S. Court of Appeals for the Sixth Circuit at this link. In so ruling, the appellate court overturned a federal district court's injunction that had prohibited the elementary school from distributing flyers that advertised religious activities.
"Trustee defies court, chairman with prayer":The Times and Democrat of Orangeburg, South Carolina today contains an article that begins, "Defying both a federal court ruling and his board chairman's instructions, the Rev. E.T. Jones offered a public prayer in Jesus' name at Tuesday's meeting of the Orangeburg Consolidated School District 5 Board of Trustees."
"Court rules today on S.F. gay marriage; City's authority, not constitutionality, is issue to be decided": Josh Richman has this article today in The Oakland Tribune.
"Teenager to die for murdering two neighbors; Jury not swayed by mom's plea for mercy in killing of Baytown couple":This article appears today in The Houston Chronicle.
"Military abortion debate: Critics say it's time to lift ban on procedure at military hospitals as scores of soldiers become pregnant while serving overseas."Newsday contains this article today.
"Cianci loses bid to void his conviction; By a 2-1 vote, the federal appeals court judges rule that there was enough evidence to find the ex-mayor of Providence guilty":This article appears today in The Providence Journal.
"Death Benefits Granted in Autoerotic Asphyxiation Case; Majority had ruled that death was not covered by policy":This article is available online tonight via law.com.
"DA appeals evidence ruling":The Vail Daily News offers a news update that begins, "Prosecutors in the Kobe Bryant rape case say the alleged victim’s sexual activity 72 hours before her rape exam is irrelevant and are asking the Colorado Supreme Court to overturn the judge’s rape shield ruling to include that evidence in the trial."
"Catholic attorney draws on faith during nomination process": The Catholic News Service provides this report that's all about newly-confirmed U.S. District Judge J. Leon Holmes.
"Jury gives death to elderly couple's young killer":The Houston Chronicle provides this news update, which reports on a Texas jury's decision this morning to sentence a murderer who killed at the age of 17 to the death penalty. Only in the unlikely event that both Justices Sandra Day O'Connor and Anthony M. Kennedy adhere to their previously expressed views that imposing the death penalty on offenders who kill at the age of 17 is constitutional will the sentence have even a chance of being carried out someday.
Yaser Esam Hamdi to be freed?The Associated Press reports here that "A U.S. citizen captured on the Afghanistan battlefield might soon be allowed to walk free after three years in custody, bringing an end to one of the Bush administration's longest and hardest-fought legal battles to arise from the war on terrorism."
Credit union argues that there's no better time to quit smoking than in conjunction with a Chapter 13 bankruptcy proceeding: On appeal, the credit union argued that instead of spending lots of money on cigarettes, which can prove quite harmful to one's health, the debtor should take the money and devote it to repaying her debts. The U.S. Court of Appeals for the First Circuit, in an opinion issued today, holds that the credit union engaged in some self-destructive conduct of its own, by failing to raise this precise argument while the case was pending below.
Additional Kobe Bryant case documents: Via FindLaw, you can access at this link the civil complaint filed yesterday by the Colorado woman who alleges that Kobe Bryant raped her.
And via the Web site of The Vail Daily News, you can access what appear to be the entire redacted transcripts of the June 21, 2004 and the June 22, 2004 in camera hearings in the criminal case. It was the press's desire to publish these accidentally released transcripts that recently led to litigation that resulted in an "Opinion in Chambers" from U.S. Supreme Court Justice Stephen G. Breyer.
"Supreme Court Lifts Stay of Va. Execution":The Associated Press reports here that "The U.S. Supreme Court voted 5-4 Wednesday to allow Virginia to execute a man who claimed putting him to death by injection would be unconstitutionally cruel."
Attempt to solve the dilemma of how during winter to bring fresher, tastier tomatoes to Americans who live in the northern part of the Nation gives rise to case of first impression on the scope of the Foreign Trade Antitrust Improvements Act: Today a divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued this ruling. Senior Third Circuit Judge Ruggero J. Aldisert, sitting by designation, issued a dissenting opinion that begins:
This is a case of first impression. The panel is unanimous in agreeing that this appeal requires us to interpret critical language in the Foreign Trade Antitrust Improvements Act (FTAIA or "Act" ), 15 U.S.C. sec. 6a (1994). We must express a judicial interpretation to a single word, "direct," in the FTAIA's provision of "direct, substantial, and reasonably foreseeable effect" on United States trade or commerce when foreign activity is involved. The flash point of controversy, however, is whether the word "direct" in the FTAIA is a new dimension added to traditional antitrust law that involves trade or commerce with foreign nations, as the majority concludes, as did the district court, or, as urged by the government in this appeal, is merely a codification of antitrust law in place prior to the enactment of FTAIA. I agree with the government's interpretation, and accordingly, respectfully dissent. I would reverse the judgment of the district court.
Because the federal government finds itself on the losing end of this case, it will be interesting to see whether it seeks U.S. Supreme Court review. Generally speaking, cases of first impression are not likely candidates for cert. to be granted, but the chances of obtaining review greatly increase when it's the federal government that is seeking review.
Urine trouble: A unanimous three-judge panel of the U.S. Court of Appeals for the Federal Circuit today affirmed a decision of the United States Patent and Trademark Office Board of Patent Appeals and Interferences that upheld the rejection of a patent application for "two specific proteins isolated from human urine that, among other things, selectively inhibit the cytotoxic effect of tumor necrosis factor." To read today's decision -- which turns on whether these urine components have been adequately described (because, obviously, when a description of urine is at issue, the more detail, the better) -- simply click here.
"Medical pot advocate celebrates; Epis reunites with partner, daughter at capital rally marking release from prison":This article appears today in The Sacramento Bee.
U.S. Court of Appeals for the Federal Circuit affirms dismissal of lawsuit seeking compensation for U.S. military's destruction of pharmaceutical plant in The Sudan in retaliation for al-Qaeda's bombings of U.S. Embassies in Africa: You can access today's ruling -- which concludes, "For the foregoing reasons, the decision of the Court of Federal Claims to dismiss the complaint because it raises a nonjusticiable political question is affirmed" -- at this link.
"Why should judges not disclose conflicts of interest?" That's the subject of the "Today's Debate" feature today in USA Today. The newspaper's own editorial begins, "Top federal prosecutors, members of Congress and even the president must make their personal finances public every year. But anyone looking for the same information on a federal judge is in for a long wait and big surprise." Arguing the opposing side is District Judge Mary M. Lisi of the U.S. District Court for the District of Rhode Island. She chairs the Committee on Financial Disclosure of the Judicial Conference of the United States, and her op-ed is entitled "Consider security concerns."
David Sellers, a spokesman for the Administrative Office of the United States Courts, was quoted in September of 1999 as stating that the federal law mandating disqualification for financial conflict of interest "is very unforgiving." That remark came after a public interest group known as Community Rights Counsel issued a report concluding that eight federal appellate judges had taken part during 1997 in eighteen cases involving litigants in which the judges, their spouses or trusts they managed held stock. Among the judges were some of the federal judiciary's shining stars, including Third Circuit Chief Judge Edward R. Becker, Ninth Circuit Judge Alex Kozinski, First Circuit Judge Bruce M. Selya, and D.C. Circuit Judge Laurence H. Silberman.
The report spawned a front-page article in the September 13, 1999 issue of The Washington Post. It followed The Kansas City Star's publication in April of 1998 of a series of articles reporting that various federal judges in Kansas and Missouri had presided over cases involving parties in which the judges held a financial interest, in violation of the federal law requiring recusal.
The studies reported in The Washington Post and The Kansas City Star were performed using the financial disclosure forms that all federal judges must file annually pursuant to the Ethics in Government Act of 1978. See Duplantier v. United States, 606 F.2d 654 (5th Cir. 1979) (upholding constitutionality of the Act's disclosure requirements as applicable to federal judges), cert. denied, 449 U.S. 1076 (1981). According to The Kansas City Star, only seventeen law firms sought to review the financial disclosure reports of federal judges in 1997, perhaps because the judges whose reports are requested receive notice of the requester's name, address, occupation and employer.
In September of 1999, the Web site APBnews.com requested copies of the 1998 financial disclosure reports for all 1,600 federal judges in order to post the reports on the Internet. Three months later, the judge chairing the Financial Disclosure Committee of the Judicial Conference of the United States denied the request, fearing that online disclosure could result in physical harm to the judges and their families. This led APBnews.com to sue the Judicial Conference on the theory that refusing to release the reports to an online news organization, after releasing them to other organizations, violated the First Amendment.
On February 15, 2000, Chief Justice Rehnquist issued a memorandum to the Judicial Conference urging release of the reports. On March 14, 2000, the Judicial Conference voted sixteen to eight to release the reports to APBnews.com, but federal judges would first be given an opportunity to redact any information that could pose a safety threat to themselves or their families.
In July of 2000, APBnews.com filed for bankruptcy. Two months later the company was sold to a new owner. It is unclear whether APBnews.com will complete the online posting of all federal judges' financial disclosure reports. The only disclosure forms now available from APBnews.com are the forms of all nine U.S. Supreme Court Justices and the forms of fifteen federal circuit and district judges whose last names begin with "A." The lone Third Circuit Judge whose financial report appears online there is Senior Circuit Judge Ruggero J. Aldisert.
Someday the financial disclosure reports of all federal judges likely will appear online (perhaps at the Web site of The Washington Post, which itself has recently requested all such reports). Maybe then the recusal oversights reflected in the studies of the Community Rights Counsel and The Kansas City Star will be a thing of the past, because litigants will be almost as well situated as federal judges to determine whether recusal due to a financial conflict of interest is required.
"Lab offers free DNA test of twins in rape case": Yesterday's issue of The Grand Rapids Press contained this article, which reported that "Grand Rapids police and prosecutors had given up on the possibility that today's science could pinpoint which twin is guilty, saying it was too uncertain and could cost more than $100,000."
"Mize, who heard Newdow custody case, to lead judges":The Sacramento Bee today contains an article that begins, "Sacramento Superior Court Judge James Mize begins a one-year term on Oct. 10 as president of the California Judges Association."
"ICLU sues city over Confederate flag ban":The Star Press of Muncie, Indiana today contains an article that begins, "The Indiana Civil Liberties Union is challenging the legality of Mayor Dan Canan's ban on Confederate battle flags and other flags at the city's campgrounds at Prairie Creek Reservoir."
"Power grab: By passing a ban on judicial review of state laws concerning recognition of gay marriages, the U.S. House showed disregard for the separation of powers."This editorial appears today in The Houston Chronicle.
"Alcohol ads allowed in college newspapers":The Pittsburgh Post-Gazette today contains an article which reports that "The state's ban on placing paid alcohol advertising in college newspapers appears dead. The state attorney general's office said yesterday it will not challenge a ruling from the 3rd U.S. Circuit Court of Appeals that said the law, intended to curb underage drinking, was unconstitutional." You can learn more about the interesting procedural history behind the Third Circuit's recent ruling in a post you can access here.
"State justices to rule on Newsom, licenses":The Contra Costa Times today contains an article that begins, "The California Supreme Court will rule Thursday on whether San Francisco Mayor Gavin Newsom had the right to issue marriage licenses to thousands of same-sex couples earlier this year."
"Bible display must go, judge decrees; Harris County is given 10 days to remove monument outside courthouse":The Houston Chronicle contains this article today.
Important announcement from the Supreme Court of California: On Thursday, August 12, 2004, at 10 a.m. pacific time, that court will release its ruling in the same-sex marriage cases, which present the issue "Did respondent officials of the City and County of San Francisco exceed the scope of their authority in refusing to enforce the statutory provisions limiting marriage only to a couple comprised of a man and a woman in the absence of a judicial determination that the statutory limitation is unconstitutional?" You can access that court's announcement of its forthcoming opinions at this link (Microsoft Word document).
"I Do? Oh No You Don't: On marriage 'defense,' the right is now speaking loudly, not holding its peace."This article appears in the brand new issue of The Village Voice.
U.S. Court of Appeals for the Eleventh Circuit denies motion seeking leave to file post-oral argument, pre-decision brief raising sentencing challenge based on Blakely v. Washington: As today's order demonstrates, the Eleventh Circuit is strictly enforcing the waiver rules that normally apply in appellate litigation. Some other circuits, in contrast, appear to be taking a more lenient approach.
"Plame Leak Case Could End in Supreme Court Standoff": The Web site of Editor & Publisher magazine offers this report.
"Will the American Bar Association Bar Judges as Scout Leaders?" The Web log of Christianity Today magazine offers this post.
"Circumcision completed, despite mom's opposition":The Examiner of Independence, Missouri contains this article today.
When good court Web sites go bad: Am I the only person who finds that the D.C. Circuit's redesign of its Web site has made it more difficult to access information? Putting aside the new color scheme -- which I assume someone must have liked -- at the old white-background site (see an example here) a list of newly-issued published opinions appeared on the site's home page. Now, to access opinions, a click-through to another page is required. And a whole bunch of other information was also just one click away at the old home page, whereas now it's not readily apparent where one would find it.
"Cianci conviction upheld":The Providence Journal offers this news update on a ruling (part one here; part two here) that a partially divided three-judge panel of the U.S. Court of Appeals for the First Circuit issued today. The update begins, "A federal Appeals Court today upheld the racketeering conspiracy conviction of former Providence Mayor Vincent A. Cianci." You can learn much more about the criminal charges, trial, and convictions via this link.
Unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit affirms denial of class certification in RICO suit alleging that gaming machine manufacturers and the casino and cruise ship operators that use the machines engaged in a scheme to defraud gamblers: You can access today's ruling at this link. David Boies serves as lead counsel for the plaintiffs.
A matter of Prynne-ciple: A reader based in Washington, DC emails:
In his dissent in the fascinating shaming case that you linked to, Judge Hawkins accuses the district judge of trying to make the defendant "a modern day Hester Prin." He means, of course Hester Prynne.
The misspelling that my correspondent notes, found here, appears to have as its origin the 1993 ruling of California's Fifth District Court of Appeal in People v. Hackler, 13 Cal. App. 4th 1049, 1058, 16 Cal. Rptr. 2d 681, 686. In Hackler, the misspelling appears in a quote attributed to the trial judge, and thus the source of the misspelling is most likely a court stenographer. And the misspelling did not escape the notice of the California Court of Appeal justice who wrote the Hackler opinion, as evidenced by the "[sic]" that immediately follows the misspelling. Footnote nine of yesterday's Ninth Circuit majority opinion quotes that precise passage from Hackler and prudently retains the "[sic]." For whatever reason, yesterday's dissent, citing to Hackler, retains the misspelling but omits both quotation marks and the "[sic]." All of which just goes to show that when writing the name of a famous character from literature, it certainly pays to be homophonebic.
"U.S. Loses Ruling in Challenge by S&L; Appeals court upholds 'wounded bank' damages of $381 million to the former GlenFed":This article appears today in The Los Angeles Times.
"When a Man Dies, Can Children Subsequently Conceived with His Sperm Collect Survivors' Benefits? A Federal Appellate Court Says Yes."FindLaw columnist Joanna Grossman has this essay today.
"Doyle touts Supreme Court diversity; His comments indicate he's likely to appoint one of two African-Americans":This article appears today in The Milwaukee Journal Sentinel.
"Despite mother's protest, father has boy circumcised":The Kansas City Star today contains an article that begins, "The father of an almost 3-year-old boy had his son circumcised last week, registering moot at least a portion of a petition before the Missouri Supreme Court."
"Trials and Tribulations for Iraqi Judges; They investigate cases but do not preside over them; They're probing, impassioned -- and under threat; They say they won't be deterred":This article appears today in The Los Angeles Times.
"Megan's laws gain new attention; Recent cases spur arrests of released sex offenders who neglect registration":USA Today today contains this article.
"Nudists Fight Law on Youth Camps; Restriction on Children Insults Parents, Some Say":This article will appear in Tuesday's issue of The Washington Post.
Autoerotic asphyxiation: One year and two days ago, a divided three-judge panel of the U.S. Court of Appeals for the Second Circuit held that death due to autoerotic asphyxiation constituted an "intentionally self-inflicted injury" that precluded recovery under a life insurance policy. You can access what was then the majority opinion at this link. My coverage of that ruling from that same date can be accessed here.
Today, the exact same three-judge panel, in the exact same case, withdrew the earlier decision and ruled by a 2-1 margin that autoerotic asphyxiation does not constitute an "intentionally self-inflicted injury" that precludes recovery under the life insurance policy in question. The judge who changed his mind about the proper outcome of the case is Circuit Judge Barrington D. Parker, Jr.
You can access at this link the majority opinion issued today. The author of last year's majority opinion, Senior Circuit Judge Ellsworth Van Graafeiland, dissents in an opinion you can access here. In his dissent, Judge Van Graafeiland writes: "until someone, whose opinion I respect, honestly informs me that as a general proposition, he or she would not hesitate to undergo a session of autoerotic asphyxiation through strangulation, I will not change my mind."
"Appeals Court runoff postponed":The Atlanta Journal-Constitution today contains an article that begins, "On the eve of Tuesday's runoff elections, the Georgia Supreme Court canceled the scheduled vote for an open seat on the Georgia Court of Appeals." And The Associated Press reports here that "The Georgia Supreme Court on Monday canceled Tuesday's scheduled runoff election for a seat on the state Court of Appeals, acting in a lawsuit filed by a losing candidate whose first name was wrong on some ballots."
"Ten Things Not To Say At A Supreme Court Oral Argument": Milbarge of the "Begging The Question" blog offers these thoughts.
"Unbridled court to rule on size of Wal-Mart suit":This article appeared in yesterday's issue of The Arkansas Democrat-Gazette. I'm quoted in the article's final paragraphs.
The human body sustains another defeat in the apparently continuing battle between the human head and the rotor blades of a helicopter:This ruling that a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit issued today contains the relevant details.
When it comes to death and taxes, resistance is futile: A unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit today issued an opinion that begins:
Appellants Irwin Schiff, Lawrence Cohen, and Cynthia Nuen contest the constitutionality of a preliminary injunction entered by the District of Nevada enjoining them from promoting their "zero-income" tax theories. Specifically they argue (1) that the injunction is overbroad as it relates to a book they sell, The Federal Mafia, (2) that the requirement that they give the government their customer list violates both their own and their customers' First Amendment and Fourteenth Amendment associational rights, and (3) that the order that they place a copy of the injunction on their websites constitutes illegal compelled speech in violation of the First Amendment. We have jurisdiction pursuant to 28 U.S.C. sec. 1292(a). Because we agree that the government has shown a likelihood of success on the merits and that the provisions of the injunction do not violate the appellants' rights, we affirm.
Circuit Judge Michael Daly Hawkins dissented, in an opinion which asserts that "There is precious little federal authority on sentences that include shaming components, perhaps indicative of a recognition that whatever legal justification may be marshaled in support of sentences involving public humiliation, they simply have no place in the majesty of an Article III courtroom."
Given the composition of the panel and the Ninth Circuit as a whole, rehearing en banc in this matter would seem to be a definite possibility.
Access online the Eighth Circuit's order granting rehearing en banc in the case in which a divided three-judge panel had declared the U.S. Sentencing Guidelines unconstitutional in the aftermath of Blakely v. Washington: I first reported here late Friday that the U.S. Court of Appeals for the Eighth Circuit had moments earlier granted rehearing en banc on the court's own motion in United States v. Mooney, thereby vacating the three-judge panel's ruling. Today you can access online at this link the order granting rehearing en banc.
"RatePhillyJudges.com": Today's edition of The Legal Intelligencer contains an article (subscription only) reporting on a Web site that allows visitors to offer anonymous ratings and comments pertaining to state court trial judges who serve in Philadelphia. The Web site's disclaimer is worth a look, too.
"New home for federal courts set to open downtown":This article appears today in The Seattle Post-Intelligencer. You can learn much more about Seattle's brand new federal courthouse -- which has been designed to resist earthquakes and bomb blasts -- here, here, and here.
"Let judges do their job":The Philadelphia Inquirer today contains an op-ed by Law Professor Erik Luna that begins, "A week ago, the U.S. Supreme Court agreed to hear a pair of cases that may well determine the future of the national government's punishment scheme - also known as the federal sentencing guidelines."
"ABA set to revise the rules for juries; Jurors to play more active role in trials":This article appears in this week's issue of The National Law Journal.
"Moore always free to worship God":This editorial appears today in The Montgomery Advertiser. And The Daily Herald of McDonough, Georgia today contains an article headlined "Group rallies on Square" that begins, "In a show of solidarity for Henry County commissioners' decision to post a Ten Commandments display in the county courthouse, a southern heritage group held a rally on the town square in McDonough Saturday."
"More high-profile cases bumped to federal court": From Montana, The AP reports here that "Police are increasingly bumping high-profile cases from state to federal courts to guarantee more time behind bars for criminals under stricter federal sentencing guidelines." And The Bozeman Daily Chronicle yesterday contained an article headlined "A crime's a crime? Sometimes."
