Appellate Law & Practice

Florida Hijinx Continue – with appellate courts and Quo Warranto Petitions

This time, an appellate judge is facing discipline for writing a concurring opinion because he criticized a “fellow” judge in a concurring opinion, stating that the judge should have recused himself.

I think most people agree that this is absurd. But, perhaps it will teach Floridians a lesson that 1) having independent judges is better than having a judiciary which cannot be criticized and 2) legal ethical rules should not be used as a way to punish people for their legitimate participation in democracy. When the hell did legal ethics become an area of punitive and substantive law that is lobbed like a spear between lawyers whenever they get into a catfight? 

The extensive documents are available here and here and here, and since they involve a Quo Warranto Petition, they are of note from a purely practical perspective

A Public Defender has the scoop, including news reports that indicate that the Judicial Qualifications Commission doesn’t seem to care about judges that sexually harass women that work for the court system.

 

More on Ben Kuehne (lawyer indicted for opinion letter)

Legal Ethics Forum reports that:

Regarding Ben Kuehne…  we've heard the extraordinary rumor -- we repeat "rumor" -- reported by the WSJ Law Blog is that DOJ has replaced the prosecutor and is considering dropping the charges.

See our earlier coverage here.

CA1: Fahrenheit 9/11 didn’t defame injured vet

Damon v. Moore, No. 07-1365.  I thought this case would be interesting because the Weinsteins and Michael Moore were being sued.  (Of course Michale Moore is represented by a big firm.)  The plaintiff claims that Fahrenheit 9/11 “portrayed Damon as supporting the documentary’s anti-war and anti-Commander-in-Chief message by using and placing in the documentary, without his consent, a sixteen-second segment of an interview he previously conducted with NBC.”  The plaintiff consented to be interviewed by NBC, but not, it seems by Michael Moore.  The plaintiff claims that “the documentary was an attack upon the integrity of the Commander-in-Chief and the war effort, and it denounced the United States’ military action in Iraq by, among other things, ‘attacking the credibility of the Commander in Chief of the United States Armed Forces about the justification for the war, its cost and consequences . . . .’” He does not way to be a part of that.

Keep reading.

CA1: En banc rehearing denied in Cerqueira – so the First really does like racial profiling

Over the dissent of Torruella, the First denies a petition for rehearing and rehearing en banc in Cerqueira v. American Airlines (our coverage here), which held that the airlines can’t be sued for kicking someone with a Stanford education off a plane (resulting in his detention) airline didn’t act with some sort of racial animus.  This pretty much clears the way for people to harass all dark-skinned foreigners by telling flight attendants that person sitting next to them is acting like Borat.

The plaintiff in the underlying case commented about his ordeal here.

If someone from AA would like to explain their position, and they are free to leaver a comment as well.  However, it must be written by a lawyer and any comments written by someone in public relations (or without a law degree) will be deleted. 

ExxonMobile's Orders of Attachment

A number of people have commented that the main stream media hasn’t provided details about ExxonMobile’s successful attempt to obtain an “Order of Attachment” against PDVSA  a/k/a the Venezuelan oil company that has something to do with Venezuelan politics. For some reason the people releasing press releases about this neglected to provide the source documents. I am sure that was an oversight.

Anyway, in the US, the case was filed in the Southern District of New York and referred to Judge Deborah A. Batts.  Some firm called Steptoe & Johnson represents Mobil Cerro Negro, Ltd. The docket number is 07-11590. PDVSA is represented by Curtis, Mallet-Prevost, Colt and Mosle.  There are a lot of filings available on ECF. They have even been translated into English.  I picked up a few of them for you, the reader.  (Note: Since I noticed that both firms have been looking at this page, if you have any documents to post (i.e. things filed in court) I will post or link to them.  If you leave a comment, I will prominently post it.)

• Initial Complaint
• Order of Attachment
• Plaintiff's Memorandum in Support of Motion
  
• Order Vacating Confirmation of Attachment (contains date of hearing)
  
• Memorandum in Opposition to Confirmation of Attachment (very interesting)
  

CA1: the First says that 28 U.S.C. § 2254(d) is constitutional, because it isn’t a rule of decision

Evans v. Thompson,  No. 07-1014.  The First Circuit takes a position on AEDPA: That it is constitutional in terms of the ways it limits a District Court’s ability to interpret the constitution.  I can’t say I am surprised.

I am a little bemused at the logic it relies on: because “lower” Federal Court (i.e. not the Supreme Court) are created as per Congress then Congress can restrict the jurisdiction of said courts.  There might be ways to save AEDPA, but this isn’t one of them.  Restricting the grounds upon which habeas can be granted is a rule of decision, not a restriction upon the power of courts.  If, for example, Congress divided up Massachusetts into two federal judicial districts, then, one could argue that the Eastern District of Massachusetts wouldn’t have jurisdiction over a convict in the western part of the state.  Okay, the First screwed this up.  But, despite this pathetic analysis, the First does admit some things: that the gap between “erroneous” and “unreasonable” is “narrow.”  It seems to enumerate the areas that fall into this gap.

CA1: More on Hatch (Survivor)

Over here, we covered the fact that the First Circuit affirmed the tax evasion convictions of that guy on survivor.  Whatever.  I hated the show.  I hated the fact that people talked about it. It hurt America.  People that talked about it at the office hurt America. 

Anyway, here is some more coverage of what the First did:

• Reality TV World
• New York Times
• BBC
• Boston Herald
• SL&P
• E Online
• UPI
• Providence Journal
• AP
• TaxProfBlog
• Roth and Company
• Howard Bashman
• California Criminal Lawyer Blog
• A Taxing Matter

CA1: Breaking news. First Affirms “Survivor” conviction

US v. Hatch, No. 06-1902.  Okay, this is the appeal of that guy that won “Survivor” and didn’t pay taxes on his winnings.  He was convicted of three counts of filing false tax returns, in violation of 26 U.S.C. §§ 7201 and 7206(1).  He signed a contract which said that he would pay all taxes on his winning in this stupid show.  He later made some other money by appearing on some pilots of even stupider TV shows. 

Anyway, stepping back from the stupidity of popular culture, let’s take a look at the live issues.

He wanted to argue that the procedures of the show were cheating and feeding the contestants.  The producers, he claims, in exchange for his silence on the issue, promised to pay his taxes and therefore under Cheek v. United States, 498 U.S. 192 (1991) he wasn’t willfully failing to pay his taxes.  But, nobody actually testified to such a promise, and it doesn’t seem like he was actually prevented from offering such testimony, though the actual rulings that the District Court made in the heat of the trial seemed to come fast and furious during direct, so maybe someone misunderstand what doors were open to what testimony.

The First also says that the “expert” testimony of IRS agents was error.  But the First says that they were really “fact” witnesses.  The First says that objections were either waived or not plain error. 

The District Court has precluded certain testimony from the defendant’s accountant, but these seem to be on relevance grounds. 

On the other side, he argued that the District Court improperly imposed limits on his cross.  The First bashes counsel by saying that some of the proposed questions were “incoherent.”  The First also says that his cross-examination just wasn’t restricted. 

And, for all the sentencing buffs out there: a perjury enhancement was proper, even though he was acquitted of a perjury count.  The First says the issue (like the amount of loss) isn’t developed.

CA1: anti-gay parents that don’t like gay people lose establishment clause challenge

Parker v. Town of Lexington, No. 07-1528.  I was going to call this breaking news, but it isn’t.  A bunch of parents are angry that “[T]hey must be given prior notice by the school and the opportunity to exempt their young children from exposure to books they find religiously repugnant.”  And by “religiously repugnant” they mean “contains neutral or friendly references” to gay people.  Or, in the words of the court, “Both families assert that they are devout Judeo-Christians and that a core belief of their religion is that homosexual behavior and gay marriage are immoral and violate God's law.”  (I think not being a lawyer violates god’s law, but you don’t see me suing people for that.)

You can read on.   Of course, these are the same people that want to make all the kids say "Under God" in school.

CA1: First reverses conviction in “honest services” legislature case

US v. Urciuoli, Nos. 07-1297, 07-1327.  This case vacates the convictions of conspiracy to commit "honest services" mail fraud and various counts of such mail fraud; 18 U.S.C. §§ 371, 1341, 1346 (2000) in a legislator-bribery scheme.  What makes this interesting is the Rhode Island has a part-time legislature.  The legislators have day jobs.

This is a very big case for anyone working an "honest services" case.  There are a lot of them out there.

So, when they start wearing two hats, you need to read on to find out more.