How Appealing

Wednesday, May 24, 2006

On this evening's broadcast of NPR's "All Things Considered": The broadcast contained audio segments entitled "Malvo Faces Muhammad on Witness Stand" and "California High Court Reinstates School Exit Exam" (RealPlayer required).
Posted at 11:33 PM by Howard Bashman

"The Return of Martha Stewart, the Civil Case": This article will appear Thursday in The New York Times.
Posted at 11:28 PM by Howard Bashman

Reader mail on the subject of dead judges voting: Lots of interesting reader mail arrived on this topic after my post earlier today asked readers to send along their views.

Marty Lederman, writing to a ConLawProfs email list, explained the issue in the following manner:

The decision raises a host of interesting and important questions.
1. For a start, can a dead judge's vote count? (See Howard Bashman's query here.) If this were the Supreme Court, the answer would be "no," I think, because the Court's traditional practice has been that a Justice's vote is not counted unless the Justice is on the Court both at the time of oral argument (when "the case is submitted") and when the judgment is issued. That's why, for example, there are a handful of cases being re-argued this Term in which Justice O'Connor (presumably) was the fifth vote in the majority.
What I don't know is whether this is simply a matter of Supreme Court practice, or whether it is compelled by Article III or by statute. In today's Petruska decision, it seems fairly plain that the opinion was complete and merely going through the administrative process in the clerk's office when Judge Becker died last week -- and that therefore it's virtually inconceivable that he (the author of the opinion) would have changed his mind between Friday and today. But not impossible.
Does anyone have any thoughts on whether there is an Article III or a statutory obstacle to what the CTA3 did today? Possible minor wrinkles in that question: Does it matter that the court itself could grant en banc review -- or deny such review -- before the mandate is issued? Indeed, what if Judge Becker had died after the opinion was released but before the mandate issued? Would that change the answer to the question? If the issuance of the opinion is barred by the Constitution or by statute, could Judge Smith "cure" the problem by formally shifting his vote to "reverse," out of respect for Judge Becker and the panel on which they both sat -- even while continuing to publish his "dissent"?

In response to Marty's email, Law Professor Brian K. Landsberg drew the email list's attention to the en banc Fourth Circuit's ruling in Mayor and City Council of Baltimore v. Mathews, 571 F.2d 1273 (4th Cir. 1978). Earlier, in August of 1977, a seven-judge en banc Fourth Circuit had issued a decision in the case by a divided 4-3 vote. That earlier decision is reported at 562 F.2d 914 (4th Cir. 1977). A footnote to the decision explains that "Judge Craven died before the filing of the opinions which follow. Before his death, however, he concurred in the judgment and approved the language of Parts I and II of the majority opinion." Indeed, Fourth Circuit Judge James B. Craven, Jr. died in May 1977, more than three months before the en banc court's initial decision issued. He provided the crucial fourth vote in support of the majority.

In 1978, the en banc Fourth Circuit, considering the losing parties' petition for rehearing, wrote in a per curiam opinion:

Upon consideration of the appellees' petitions for rehearing and the response filed by the appellants, we conclude that Judge Craven's vote cannot be counted in the disposition of these appeals. Judge Craven died after approving Parts I and II of the opinion that Judge Winter wrote expressing the views of a majority of the court. His death occurred, however, before the dissenting and concurring opinions were written and before the court's decision was announced. Therefore, Judge Craven's approval of Judge Winter's draft cannot be tallied for the purpose of deciding the appeals. Cf. United States v. American-Foreign Steamship Corp., 363 U.S. 685 (1960).
Accordingly, we withdraw the opinions that were previously filed, affirm by an equally divided court the district court's orders granting preliminary injunctions, and remand the case to the district court for trial.
Regrettably, these cases have been delayed by our initial misapprehension of the effect of Judge Craven's death on their outcome. Consequently, we request the district court to try them and enter a final order as expeditiously as possible.

571 F.2d at 1276. The en banc Fourth Circuit's second ruling in this case provides strong support for my contention that a deceased judge cannot cast the deciding vote in support of a judgment entered on the docket after he or she has died.

Other readers disagreed with my position. A federal appellate law clerk whom I recently had the pleasure of meeting emailed:

I enjoyed your musings about the dilemma posed when a judge on a panel dies before the judgment is entered. But I think your "central reason" for advocating a rule that a judge must be alive when the clerk's office officially issues the opinion for his or her vote to count proves too much.
You contend that "judges in the majority, up until the date on which the judgment is filed, retain the right to change their minds." But really, judges retain that right even after the point you identify. When a losing party requests the panel to reconsider its decision, the judges have the option of withdrawing their previous opinion and issuing a new one---one that may or may not involve the same result and votes. And of course, the entire circuit might vote to vacate the decision and rehear it en banc. A judge on the original panel is free to change his or her vote at that time too. And suppose the Supreme Court takes the case, and remands it---the members of the panel have yet another opportunity to change their minds. I'm sure you can see that my point is that your reasoning would have to extend to these situations too, and I don't think that would lead to a desirable result.
I think the better rule is that things need to stand as they are at the time the judge passes. We can't know what a judge might have done had he or she lived longer, but we do know what he or she did do before dying. And, with the current rule in place, judges know the risks of the system, and can choose to delay voting if they retain some doubt about their vote.
On the other hand, I thought I'd share this messier hypothetical: what if the writing judge circulates an opinion, a judge concurs, then dies, and the third judge then circulates a dissent? That dissent might have persuaded the deceased judge to change his or her vote. I think that's a better example to support your position.

And reader Stephen Aslett has emailed:

I have to respectfully disagree with you when you write that a judge's death makes it "impossible to know with the necessary absolute certainty that the judgment in fact reflects the views of a majority on the panel as of the date of the judgment's issuance." In fact, just the opposite is true--we can be absolutely sure that the judgment reflects the opinion of a majority of the judges on the date of issuance because (a) the living judges did not change their minds before issuance and (b) the dispositive dead judge could not possibly have changed his mind before issuance because, well, he's dead. What I think you mean to say is that we can't know for sure whether the dead judge would have changed his mind had he lived. But I don't see why not having an answer to that question makes for an unacceptable result; it may not be fair that the dead judge did not have the extra time the others had to change his mind, but, after all, death is frequently unfair and inconvenient.
I also do not see why a voluntary resignation or suicide should change this result. The only difference in those situations is that the judge took it upon himself to get rid of the extra time he could have had to change his mind. Why should judges who want to reduce the time they have to reconsider a case be forbidden from doing so? Their only obligation as judges is to decide the case fairly and impartially--not to hold themselves out (or hold themselves alive) to possibly change their minds at the last minute.
Adopting a rule discounting the dispositive votes of judges who die (voluntarily or involuntarily) or who resign before a decision's issuance seems to me only to waste scarce judicial resources. The alternative rule-—always counting the dispositive votes of dead judges--would both (a) increase judicial efficiency and (b) force judges to be all the more deliberate in casting their initial vote. All of us live each day assuming the risk that death could prevent us from changing important decisions we've already made in our lives (especially if one dies in a car accident on the way to change one's will), and yet we and those whom our decisions affect are bound by them; I can't think of why judges should be any different.

Although the readers who have disagreed with my position on this issue have not caused me to change my mind, I do appreciate the thoughtfulness of their comments.
Posted at 11:15 PM by Howard Bashman

Available online from law.com: Tony Mauro has an article headlined "High Court Clerks: Still White, Still Male."

And in other news, "'Scarlet Letter' Mail Thief Gets Less Creative Sentence Second Time Around."
Posted at 10:38 PM by Howard Bashman

"Yes, Virginia, there is a closed primary": This post at "The Jaded JD" blog discusses a case that was argued yesterday before the same three-judge Fourth Circuit panel that I appeared in front of yesterday. Because my case was first on the calendar, allowing me to catch an early flight home, I did not stay to see the oral argument reported on in that blog post.
Posted at 10:33 PM by Howard Bashman

The Associated Press is reporting: Gina Holland has an article headlined "Judge Panel Considering Ban on Free Trips." This is a remedy that I have previously supported.

In other news, "Cheney May Be Called in CIA Leak Case."

And an article reports that "Affiliates Win in Dispute With EchoStar." My earlier coverage is here.
Posted at 10:25 PM by Howard Bashman

"Judge Drops Milberg Case, Citing Conflict": At CalLaw.com's "Legal Pad" blog, Justin Scheck has a post that begins, "The sizeable club of lawyers who want nothing to do with last week’s indictment of Milberg Weiss gained a new member Wednesday: L.A. federal Judge Dean Pregerson."
Posted at 08:45 PM by Howard Bashman

"Calif. Supreme Court Reinstates Exit Exam": David Kravets of The Associated Press provides a report that begins, "The California Supreme Court on Wednesday reinstated the state's high school exit exam as a graduation requirement, but it was not immediately clear whether the decision means tens of thousands of high school seniors who failed the test won't graduate this year."
Posted at 04:42 PM by Howard Bashman

"Hecht rapped for publicly backing Miers; Texas justice to appeal ruling, says his comments were protected by First Amendment": This article appears today in The Houston Chronicle.

The Austin American-Statesman reports today that "Texas Supreme Court justice admonished; Hecht overstepped with support of Harriet Miers last year, panel finds."

The Dallas Morning News reports that "Panel rebukes justice; Texas Supreme Court member says promoting Miers within his rights."

Texas Lawyer reports that "Texas Commission on Judicial Conduct Admonishes Justice Hecht."

You can access the text of the admonition at this link.
Posted at 04:00 PM by Howard Bashman

"Becker Revives Sex Discrimination Suit Filed by Minister Against School": Shannon P. Duffy of The Legal Intelligencer provides this news update (free access).
Posted at 03:45 PM by Howard Bashman

Judge Duncan authors Fourth Circuit's ruling in Duncan v. Duncan (In re Duncan): The U.S. Court of Appeals for the Fourth Circuit issued this decision today. Relatedly, I had the pleasure of meeting Circuit Judge Allyson K. Duncan yesterday in Richmond, Virginia.
Posted at 03:40 PM by Howard Bashman

En banc U.S. Court of Appeals for the First Circuit decides Narragansett Indian Tribe v. State of Rhode Island: By a vote of 4-2, the en banc court today has ruled that officers of the State, acting pursuant to an otherwise valid search warrant, can enter upon tribal lands and seize contraband (in this case, unstamped, untaxed cigarettes) owned by the Tribe and held by it for sale to the general public. You can access the decision at this link.
Posted at 03:05 PM by Howard Bashman

Further thoughts on the subject of "Dead Judges Voting": Following-up on my post from earlier today and my law.com essay on this subject from February 2006, assume that on Monday, June 4, 2007, the U.S. Supreme Court is scheduled to issue a 5-4 ruling holding that the federal government may, consistent with the U.S. Constitution, prohibit the medical procedure sometimes known as "partial-birth" abortion. This decision thereby results in the overruling of one of the Court's earlier cases reaching the opposite result by a similar 5-4 margin.

Assume further that on Sunday, June 3, 2007, one of the Justices in the five-Justice majority dies. May the Court on Monday, June 4th issue its 5-4 ruling, even though only eight Justices remain alive on the date of the decision's issuance, and of those eight the Court is evenly divided 4-4 on the outcome of the case? Would it make any difference if, instead of dying, one of the Justices in the five-Justice majority resigned from judicial service on Sunday, June 3d, so that the remaining eight Justices on the Court were divided 4-4 on the outcome of the case as of the date on which the decision was due to issue? If you would view it as permissible for the decision to issue if a Justice in the majority had died but not if the same Justice had resigned, is the distinction you draw based on the voluntary nature of a resignation? Would it matter if the Justice's death had occurred as the result of a voluntary act, such as suicide?

The central reason why I believe it is necessary for the majority on a divided appellate court's panel to remain among the living as of the date judgment is issued in the case is that the judges in the majority, up until the date on which the judgment is filed, retain the right to change their minds. While such a last-minute change of mind may occur infrequently, if ever, it remains a possibility. And thus, if an appellate court's judgment is filed on a date after the death of a judge whose vote in favor of the majority was dispositive of the outcome, it is impossible to know with the necessary absolute certainty that the judgment in fact reflects the views of a majority on the panel as of the date of the judgment's issuance.

It is for this reason, among others, that I wrote in my law.com column titled "Dead Judges Voting: When Does Life Tenure End?" that "[f]ederal appellate courts either should adopt a uniform practice that prevents dead judges from casting the dispositive vote in support of a court's judgment, or Congress should enact legislation providing that it is only the votes of federal judges who are alive when an appellate court's judgment is entered that are to be counted."

If you agree or disagree with my thoughts on this subject, please send me an email expressing your views. Also let me know if I may include your name if I select your email to be published here at "How Appealing."
Posted at 03:00 PM by Howard Bashman

"This case provides fresh meaning to James M. Cain's 'The Postman Always Rings Twice.' Anton Vacek was first struck by a Post Office truck, and then had his damage claim stamped out because the Post Office lost it in the mail." So begins a concurring opinion that Ninth Circuit Judge Sidney R. Thomas issued today.
Posted at 02:05 PM by Howard Bashman

A divided three-judge panel of the U.S. Court of Appeals for the Third Circuit examines the so-called "ministerial exception" to Title VII: The majority opinion issued today was written by Senior Circuit Judge Edward R. Becker, who died last Friday.

Circuit Judge D. Brooks Smith dissented in an opinion that concludes:

A church's choice regarding who will perform its spiritual functions is, by its very nature, a religious decision. By rejecting this basic premise, the majority effectively declines to adopt a ministerial exception, placing this Court at odds with every other federal court of appeals to consider the issue. Because, in my view, the majority's holding permits governmental interference with a religious institution's constitutionally-protected choices in violation of the First Amendment, I respectfully dissent.

This is the second time in recent months that the Third Circuit has issued an opinion in which a deceased judge has cast the deciding vote in support of that court's judgment. Unlike on the earlier occasion, today's opinion does not state that it was received for filing in the clerk's office before the authoring judge had passed away. My commentary on that earlier ruling -- titled "Dead Judges Voting: When Does Life Tenure End?" -- can be accessed here.
Posted at 12:54 PM by Howard Bashman

Hungary won't be thirsty: The Associated Press reports that "Court Allows Budweiser Sales in Hungary."

Bloomberg News reports that "Anheuser-Busch wins round in 'Bud' battle."

And Anheuser-Busch has issued a press release entitled "Three of a Kind: Court Deals Anheuser-Busch Three Wins in Hungary; Decisions Cancel Budejovicky Budvar's Appellation of Origin for Bud."
Posted at 12:20 PM by Howard Bashman

"At Muhammad Trial, Malvo Describes Sniper Life": This audio segment (RealPlayer required) appeared on today's broadcast of NPR's "Morning Edition."
Posted at 11:40 AM by Howard Bashman

"If [defendant's] missing his train invalidated the seizure of his luggage, drug couriers have discovered an infallible means of defeating law enforcement--buy your ticket at the last minute." Circuit Judge Richard A. Posner issued this interesting opinion today on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit.
Posted at 11:35 AM by Howard Bashman

"When Speech Is Outlawed, Only Outlaws Speak: Should reporters who use classified information be treated like spies?" Jacob Sullum has this essay online today at Reason.
Posted at 11:24 AM by Howard Bashman

"Salon vs. Judge Boyle": Ed Whelan had this post yesterday at National Review Online's "Bench Memos" blog.
Posted at 11:22 AM by Howard Bashman

"Federal court upholds city ban on aerial ads": This article appears today in The Honolulu Advertiser. Additional coverage can be accessed via this earlier post.
Posted at 10:48 AM by Howard Bashman

The San Francisco Chronicle is reporting: Today's newspaper contains an article headlined "Vote goes against Wal-Mart; Council OKs using eminent domain to block retailer."

And in yesterday's newspaper, Bob Egelko had an article headlined "Champion of cyberspace faces its biggest case yet; Listening in? Electronic Frontier Foundation accuses AT&T of violating users' digital privacy."
Posted at 10:45 AM by Howard Bashman

"Judge Thyself -- and Soon": Andrew Cohen has this essay online today at washingtonpost.com. My recent commentary on this same subject appeared at law.com under the headline "Exaggerations Plague Debate Over Need for Judicial Inspector General."
Posted at 10:40 AM by Howard Bashman

"U.S. court upholds city ban on sky ads; An anti-abortion group intends to appeal the decision": This article appears today in The Honolulu Star-Bulletin. My earlier coverage appears here and here.
Posted at 09:05 AM by Howard Bashman

"State secrets privilege slams door on civil suits": The Chicago Tribune today contains an article that begins, "A suit filed this week in Chicago by author Studs Terkel and others accusing AT&T of invading its customers' privacy by sharing phone records with the National Security Agency could provide the next test of whether the Bush administration employs a once-rare tactic that essentially gives the government a blank check to kill civil suits."
Posted at 07:24 AM by Howard Bashman

"Malvo Describes Two-Step Plan; Phase Two Involved Blowing Up Schools, Children's Hospitals": The Washington Post today contains this front page article.

And The Baltimore Sun today contains articles headlined "City targeted, Malvo says; Police, youths were to be attacked in Baltimore" and "On stand, Malvo calmly recounts mayhem plot."
Posted at 07:20 AM by Howard Bashman

"Lay's Second Trial Ends; Verdict Now Up to Judge": This article appears today in The New York Times.

The Washington Post reports today that "Prosecution Wraps Up Lay Case; Enron Founder's Bank-Fraud Trial to Be Decided by Judge."

The Los Angeles Times contains an article headlined "Lay: Violations Lacked Intent; In his bank-fraud trial, Enron's founder says he wasn't familiar with a law; The jury is still out in the larger case."

The Houston Chronicle contains articles headlined "Lay 'calmly' waiting to learn fate; Fraud verdict in judge's hands; jury still out in criminal case" and "Jurors, judge in Enron trial set boundaries; Panel plans to take a break for the holiday weekend; foreman's identity kept under wraps."

And USA Today contains an article headlined "Defense: Lay didn't know about rule; Prosecution: He thought he could get away with it."
Posted at 07:15 AM by Howard Bashman

"Gonzales Defends Phone-Data Collection": The Washington Post today contains an article that begins, "Attorney General Alberto R. Gonzales said yesterday that the government can obtain domestic telephone records without court approval under a 1979 Supreme Court ruling that authorized the collection of business records."
Posted at 07:12 AM by Howard Bashman

"A Sudden Taste for the Law": This editorial appears today in The New York Times.
Posted at 07:10 AM by Howard Bashman

"S.D. plans to battle cross ruling": The San Diego Union Tribune today contains an article that begins, "The San Diego City Council truly was at a crossroads yesterday. And it chose to continue down a path that has already brought 17 years of litigation and heated public debate. The council voted 5-3 to appeal a federal judge's order to remove the Mount Soledad cross and continue a protracted fight that could cost the city $5,000 a day in fines."
Posted at 07:05 AM by Howard Bashman

"Running Against Gays: As an election approaches, can a vote to ban same-sex marriage be far behind?" This editorial appears today in The Washington Post.
Posted at 06:55 AM by Howard Bashman