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

What will happen here in Nevada if the U.S. Supreme Court decides that due process requires a judge to recuse if a party had made a sizable donation to the judge’s campaign? While many Nevada judges do currently voluntarily recuse in such circumstances, they are not obligated to do so.  

Arguments were heard yesterday in a US Supreme Court case that could made such recusal mandatory.  Caperton v. A.T. Massey Coal Co.  involved a West Virginia Supreme Court Justice who declined to recuse himself in the coal company’s appeal of a $50 million fraud judgment. The president of the coal company had donated $3 million to electing the justice, who cast the deciding vote to overturn the verdict.  The facts of the case bear some similarity to the legal case underlying John Grisham's The Appeal.

The Petitioners asked the Supreme Court to adopt a rule holding that due process requires recusal by a judge in a case where a party had made a sizable donation to the judge’s election campaign.  Such a ruling could lead to frequent recusals in Nevada cases at every level, especially if donations by counsel were included.

The difficulty of such a rule would be deciding when it applies. No one seemed to suggest that an automatic recusal was appropriate.  Justice Scalia noted that the various amici in the case, including the Conference of Chief Justices, had offered an assortment of standards to be considered. Petitioners urged that a standard requiring consideration of the “probability of bias” be applied.

Comments during the argument on Caperton the Court suggest Kennedy, Stevens, Souter, Breyer, and Ginsburg could form a majority in favor of a rule that required recusal if there was a probability of bias. 

However, the best line from the argument has to be Scalia’s question to Petitioner’s counsel: "You've been around Washington a long time. How far do you think gratitude goes in the general political world?" 

But Scalia followed up that knowing remark with a statement that must surely be considered disingenuous, assuming that an elected judge would think:

that person contributed money to my election because he expected me to be a fair and impartial judge. And I would be faithful to that contributor only by being a fair and impartial judge. That is showing gratitude. I should do what he expected me to do, and I have no reason to think he expected me to lie and distort cases in order to come out his way. What I expected he wanted me to do was to be a good judge, and I'm being faithful to him and I'm -- I'm showing my gratitude by -- by being a good judge

The increased money being spent on state court judicial election campaigns across the country  has sparked considerable concern about the purchase of justice.  But  Massey Coal has rejected any comparisons of its situation with that laid out in John Grisham’s novel of last year, The Appeal, wherein a judicial candidate was handpicked with the pending appeal of huge tort judgment in mind.  See the USA Today article Supreme Court case with the feel of a bestseller.

Read the transcript of the Caperton oral argument here. Find the briefs here.

Hat Tip to law.com. See its report here.

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Yes, it's true.  I actually agree with Justice Scalia about something.  And as far as I know, the temperature in hell has not dropped below freezing.

Seems while accepting an award from the American Society of Legal Writers, Scalis stated that he does not believe that legal writing exists.  Or at least, not as a separate category of writing.  Instead, he places it with "nonfiction prose."  See the ABA story here.

I agree.  That's what we write, folks.  (I consider mine, creative nonfiction, of coruse).

So there.  I agree with a right wing justice on something.  Can't call me closeminded!

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As an occasional teacher of writing, I am always interested in cases where grammatical irregularities lie at the heart of the dispute. Robert C. Cumbow offers some examples in “News from the Trenches in the War of the Words,” published in the Washington State Bar News.  

Cumbow also points out that U.S. Supreme Court Justices Antonin Scalia and Clarence Thomas do disagree on some things, as Thomas forms a possessive of a singular noun ending in “s” with a lone apostrophe, while Scalia uses the Strunk & White approved addition of another “s” after the apostrophe. See Kansas v. Marsh.  Justice David Souter sides with Scalia on this one.

Thanks to Tabitha Keetch for the heads up on this article!

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In KSR International Co. v. Teleflex Inc,  the Court issued a unanimous ruling, authored by Justice Kennedy, which may make it easier for patents to be denied on the grounds that the innovation is too obvious to warrant patent protection.  

The court rejected the test to determine obviousness developed by the federal circuit, known as the “teaching, suggestion or motivation” test (“TSM”).  Under TSM, a patent is only proved obvious if the prior art, the problem’s nature or the knowledge of a person having ordinary skill in the art reveal some motivation or suggestion to combine prior art teachtings.” During argument, Justice Scalia had called the the Federal Circuit’s test as “gobbledygook,” while Chief Justice John Roberts Jr. referred to it as “worse than meaningless.”   Kennedy’s opinion merely calls TSM narrow and rigid, although its elements  can remain a portion of a more helpful, flexible test that allows a common sense approach to determine whether the innovation was obvious.

The Court’s test focuses on the marketplace, and what design variations might be prompted by market demand. A thoughtful examination of the new test appears at Scotusblog.

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The U.S. Supreme Court took a giant leap into the 21^st century today, issuing an opinion which included a citation to a URL, located on the court’ own website, where a video tape of the car chase in question in the opinion can be viewed in a RealPlayer video file.

The 8-1 decision in Scott v. Harris, authored by Justice Scalia, notes that ordinarily in an appeal of the grant of summary judgment, the Court would accept the Plaintiff’s version of events. However, the existence of the video eliminated he factual dispute, and the court makes he video available to prove it. Justice Breyer, in his concurring opinion, states,                "[b]ecause watching the video footage of the car chase made a difference to my own view of the case, I suggest that the interested reader take advantage of the link in the Court's opinion . . .  and watch it."

Oh - and the opinion also includes this straightforward rule: "A police officer's attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death."

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In yet another victory today for federal regulation, in Zuni Public School District No. 89 v. Dept of Education, the U.S. Supreme Court upheld the Department of Education's method of calculation for determining when states had equalized expenditures for public school spending under state programs, finding the agency's method within Congressional intent.  At issue was approximately $20 million in funding per year the New Mexico schools claimed it was due for its Native American pupils.  

 Scalia bitterly dissented, castigating the decision as "the elevation of judge supposed legislative intent over clear statutory text.""

The Volokh Conspiracy makes note of the Breyer's odd structure in his majority opinion's odd structure and the comments thereon by two members of the majority.

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