Appealing in Nevada : Nevada Appellate Lawyer & Attorney : Tami D. Cowden : Nevada Supreme Court, Ninth Circuit Court of Appeals

It's official!

Judge Sonia Sotomayor, currently a judge on the 2d Circuit Court of Appeals, and President Obama's first pick for a seat on the Supreme Court, confirmed by the Senate. The vote was 68-31.   All Democrats present, and both Independents Senators voted in her favor.  Only nine Republicans crossed the aisle.  Ensign was not among them. Ted Kennedy, suffering from brain cancer, was the only senator absent for the vote.

Republicans struggled hard to find reasons to vote no.  Obviously, it is not easy to say that someone who is already a federal appellate judge lacks the approrpiate qualifications to be one.  Not that simple facts kept them from trying. . .

Judge Sotomaoyr is the third woman, and the first person of Hispanic heritage, to be appointed to the Court.  She will be sworn in on Saturday as the Court's 111th justice. 

Congratulations, soon-to-be Justice Sotomayor!

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Most states with death penalties are concerned about how the U.S. Supreme Court will rule regarding the use of the lethal injection cocktail.  But Nebraska had no worries there. It has only one method of execution: the electric chair.

But now it has none.  

In State v. Mata, the Nebraska Supreme Court found that the use of the electric chair was cruel and unusual punishment, prohibited by the Nebraska constitution.  

The Nebraska AG, Jon Bruning, vows to appeal to the U.S. Supreme Court.  One would say this would be fruitless, given the decision was based on state law, and a state’s own high court has the last word on what constitutes state law.  But then there’s always that pesky  precedent of Bush v. Gore…. 

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A plaintiff in Texas has moved to recuse four  (out of nine) justices of the Texas Supreme Court, based upon a statistical analysis of Court opinions involving tort cases concluding there is a defense bias on the court.   Click here to download the motion, posted online by  Appellate Law & Practice

The motion certainly offers a creative approach, but I doubt whether a statistical analysis could, or even, should warrant recusals.  The description of the article certainly makes some persuasive points. Particularly compelling are the number of cases where plaintiffs’ verdicts were overturned, with the Supreme Court reversing both the appellate and district court findings that there was sufficient probative evidence to sustain the verdict. 

However, the “qualitative” analysis isn’t qualitative enough for me. I have questions. For example, I wonder if the reasons evidence did not suffice had to do with something other than “Was this really enough evidence?” Was evidence deemed inadmissible on evidentiary grounds, or did a particular claim have some heightened standard that had to be met – something other than mere disagreement about when enough is enough.  In other words, I think I’d have to review the same opinions myself before I could be convinced of bias.

Which leads me back to whether statistical analysis should play a part in recusals. Imagine the flurry of motions that would result at the U.S. Supreme Court.

The article describing the statistical analysis, "Judicial Tort Reform in Texas," 26 Rev. Lit. 1 (2007), by University of Texas law professor David Anderson, is not available online.  However, click here for a summary of thee article posted by the Austin firm of Perlmutter & Schuelke. 

Hat tip to Appellate Law & Practice

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"Smilin' Bob" must be really grinning today.

A victory for cyber privacy was won today in the Sixth Circuit’s ruling in Warshak v. U.S.       The Court upholds a district court’s preliminary injunction prohibiting the seizure of email communications without a warrant, or a subpoena issued with notice to the sender. The Court held “e-mail users maintain a reasonable expectation of privacy in the content e-mails that are stored  with, or sent or received through,  a commercial ISP.”

The case arose in the context of a federal investigation of an herbal supplement company, . Berkley Premium Nutraceuticals. The company is perhaps best known for its advertisements featuring “Smilin’ Bob,” whose happy face, the ads suggest, is evoked by the “natural male enhancement” offered by the company’s supplements.   

Federal investigators had searched emails obtained from Warshak’s ISP without a warrant, and without notice to Warshak, president of the company.  While the government failed to follow the procedure set forth in the statute strictly, the method used to obtain the emails pursuant to the Stored Communications Act, 18 U.S.C. § 2703 (SCA), which allows for seizure of emails without a warrant or notice to the user, if a court determines the emails may be relevant to an ongoing criminal investigation. The parties agreed that this standard fell short of probably cause.

The Court compared email communications to both sealed hard copy communications sent through the mail, and telephone calls, both of which carry an expectation of privacy.  The Court rejected the notion that because ISPs have the capability to access the contents of emails, there is no expectation of privacy.

The Sixth Circuit cited the Ninth Circuit’s recent opinion in U.S. v. Heckencamp, which upheld a reasonably expectation of privacy despite Heckencamp’s use of the university network, because the university had no blanketing monitoring system.

Of course, both Warshak and Heckencamp leave open the situation where there is a policy of monitoring of content. So check your user policies of your provider before assuming your email is private. Big brother may be watching – and may have company.

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A page turner of an opinion

I’ve long been a proponent of using fiction writing techniques in legal writing. But even I am bowled over by the gripping opinion created by Judge Farmer of the Fourth District Court of Appeals of the State of Florida in Funny Cide Ventures, LLC v. Miami Herald Publishing Co.   Alas, the rest of the court did not appreciate Farmer’s style, and so the first opinion is same old, same old. But read on. You’ll get to the good stuff.

Thanks to Abstract Appeal for the heads up on this opinion.

Engaging once again in shameless self-promotion, I’ll remind readers that I’ll be teaching some of those fiction writing techniques in the three part CLE for CCBA, Practical Writing for Lawyers on June 2, July 6 and August 3. Click here for more info. However, I can’t promise advice on making your legal writing sound like a Broadway musical.

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At Law.com, Howard Bashman takes issue with advice offered by the Seventh Circuit’s Judge Easterbrook in RLJCS, Inc. v. Professional Benefit Trust Multiple Employer Welfare Benefit Plan & Trust,  The judge had admonished the parties for their attention to a district court decision, noting “decisions of district courts have no authoritative effect.” 

The judge appears to urge litigants to merely incorporate any helpful observations from the district court opinion, rather than debate the merits of the opinion itself. Bashman notes the judge himself has cited several treatises, authority arguably would be even less “authoritative” than district court opinions.

My own suspicion is Bashman and Easterbrook actually agree that citation to a district court opinion, or even a treatise, is wholly appropriate when more authoritative precedent does not exist. I think we can all agree with that.

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Hearty congratulations to Howard K. Bashman and How Appealing on the 5th anniversay of the debut of the first appellate law blog!

How Appealing has inspired many localized appellate blogs, and after five year, remains a fresh resource of news on a variety of legal topics.

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The Seventh Circuit court of Appeals has launched its own wiki, the Wiki of the United States Court of Appeals for the Seventh Circuit.   It is still in its infant stage, obviously, but does contain a Practitioner's Handbook.

And to think I questioned the advisability of a court citing a wiki. . .

Hat Tip to How Appealing.

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Texas Appellate Law Blog recently questioned whether the 5^th Circuit should have cited to Wikipedia for the definition of the word “accrue” (although the term defined in the wiki is actually “accrual”). With Exxon Mobil Corp. v. Commissioner, the 5^th Circuit joins a number of other federal circuits who have similarly cited to the collaborative encyclopedia as an authority.

The Volokh Conspiracy first reported a federal court citation to Wikipedia way back in 2004, noting the potential risk to citing to an authority that is “so easily compromised.” Fast forward a few years, and in January 2007, the New York Times reported that more than one hundred judicial opinions, including 13 from circuit courts of appeal, contained references to the wiki resource. The Times article discusses the advantages and disadvantages of such usage, with the various legal authorities cited therein generally coming down in favor of citation if limited to tangential, background matters.

I began writing this post with the idea that protests against citing wikis were but another example of Luddite-like obstinacy against progress. Why shouldn’t collective intelligence be considered reliable, especially when used for matters such as popular definitions? As James Surowiecki told us in The Wisdom of Crowds,  “Ask the Audience” was the most reliable lifeline in Who Wants to be A Millionaire?

But then I stumbled upon Wikipedia’s own article on the topic, Wikipedia as a court source. In contrast to the New York Time’s count of more than one hundred references (confirmed by a quick review of the results of a Westlaw search), Wikipedia reports itself appearing in fewer than forty citations – and more than a few of those were not even court opinions, but instead, references in briefs and foreign legal documents.   The most recent example, Exxon Mobil Corp. does not appear. 

Therein lies a substantial risk of citing collaborative resources.  None of the collectively intelligent have yet taken sufficient interest in this topic to insure the litany is complete.

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A few weeks ago, in U.S. v. Thompson, 06-3676 the 7th Circuit took the unusual action of ordering the immediate release of a prisoner at the conclusion of oral argument of the appeal of her conviction.  Since the conviction of Thompson, an aide to Wisconsin Governor Jim Doyle,  a Democrat, had been fodder in a nasty election battle, speculation arose that the Court considered the prosecution to have been politically motivated .

The court's written opinion issued Friday makes no mention of a political motivation for the prosecution, but instead blames congress for creating vague political corruption statutes.  See Decision of the Day for details of the facts underlying the case.

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Supreme Court Justices Breyer and Alito testified before a House Judiciary Committee subcommittee, urging an increase in salaries for federal judges.    Noting the large number of judges who have left the bench for more lucrative employment, Justice Breyer expressed concern that the federal bench was being reduced to a stepping stone to a better paying job.  members of the subcommittee  pointed out that federal judges earn the same salary as members of congress.  

BLT discusses the testimony, including the reference to Judge Judy's $28 million salary, an aspiration disclaimed by the justices. 

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