News & Developments

 

2008

Appellate Buzz: Week of May 12

The Supreme Court of the United States has issued its opinion in Gonzalez v. United States. That case raised the issue of whether consent by a party’s attorney for a magistrate to conduct voir dire was sufficient or whether consent of the party was necessary. The Court held that the express consent of the party’s counsel was sufficient. Justice Kennedy wrote the Court’s decision, and Justice Thomas dissented based on the proposition that a magistrate judge is not authorized to preside over voir dire.

The Texas Supreme Court has held that the U.S. Consumer Product Safety Act pre-empts a tort claim brought against a cigarette lighter manufacturer.

The United States Supreme Court has issued its decision in Crawford v. Marion County Election Board. The Court upheld a state law requiring citizens coming to the polls to vote to present a government-issued photo identification in order to vote.

The Ninth Circuit has upheld a district court’s ruling, dismissing a criminal action with prejudice where the prosecutor failed to turn over Brady material to the defendant.

President Bush has nominated Glen E. Conrad, a district court judge from Virginia, for a spot on the Fourth Circuit.

Sandra Lynch has become the first female chief judge for the First Circuit.

Appellate Buzz: Week of April 14

The New York Supreme Court, Appellate Division, First Department has held that a bent transit card, allowing free access to the New York transit system, constitutes a “forged instrument.”

The United States Supreme Court has rendered its decision in United States v. Clintowood Elkhorn Mining Co. It held that if a company did not bring an administrative claim with the IRS within three years, it could not obtain a refund by proceeding under the Tucker Act or any other statute.

The Third Circuit has held that a school district's policy of not allowing faculty to participate in student-initiated prayer is not unconstitutional.

Appellate Buzz: Week of March 31

The United States Supreme Court has heard oral argument in the case of Indiana v. Edwards. That case raises the issue of whether a state can adopt a higher standard of measuring competency to represent oneself at trial than for measuring competency to stand trial.

The New York Appellate Division, Second Department has vacated a decision refusing to recognize same-sex marriages solemnized in other jurisdictions. The decision had already been rendered moot by a change in policy of the defendant.

The Eighth Circuit has held hold that Arkansas law does not permit the police to arrest someone merely for refusing to identify himself.

The Second Circuit reversed an order granting class action certification of an action brought by cigarette smokers allegedly deceived into believing that “light” cigarettes were healthier than “full-flavored” cigarettes.

Appellate Buzz: Week of March 24

The Eleventh Circuit reversed the denial by the District Court to impose Rule 11 sanctions against libel plaintiffs after their case was dismissed. The Court held that the plaintiffs knew or should have known that the statements were opinions, which are not actionable.

The United States Supreme Court has heard oral argument in the case of Riley v. Kennedy. That case raises the issue of whether decisions of a state’s highest court that affect the manner of filling vacancies on a government body requires preclearance by the Justice Department before the decisions can be enforced.

The United States Supreme Court has heard oral argument in the case of United States v. Clintwood Elkhorn Mining Co. That case raises the issue of whether a taxpayer, who would have been entitled to file a tax refund action in federal court to seek a refund of taxes (and interest thereon), but who failed to satisfy a statutory prerequisite to such an action and is therefore barred from bringing such an action, may obtain a refund, and interest thereon, through an action directly under the Constitution, pursuant to the Tucker Act.

The United States Supreme Court has heard oral argument in the case of Burgess v. United States. That case raises the issue of whether, in order for the sentence enhancement under federal law for an offender who has a “prior conviction for a federal drug offense” to apply, the federal drug offense must be punishable by more than one year and characterized as a felony under controlling law.

The Supreme Court has rendered a decision in Washington State Grange v. Washington State Republican Party. The 7-2 Court held upheld Washington’s blanket primary system, which provides that the top two vote getters go to the general election regardless of the party-designation of the candidates.

The Superior Court, Appellate Division of New Jersey has held that a tavern may be liable for negligence if it makes no effort to keep a visibly drunken patron safe, even though his drinking may have been done elsewhere.

The Third Circuit has held that attorneys in a civil rights action were entitled to attorneys’ fees even though a final judgment was never obtained. The plaintiff had obtained a preliminary injunction, enjoining enforcement of a statute, which was later repealed in favor of a new statute. The Court held that that was sufficient to warrant an award of fees.

Appellate Buzz: Week of March 17

The Tenth Circuit has reinstated a claim by a party against his expert witness, whose testimony at deposition was alleged to have caused the defendant to obtain summary judgment. The District Court had dismissed the case on the ground that the plaintiff had not shown that the expert’s testimony at deposition was the proximate cause of the case. The case was remanded to the District Court so that other issues, which might result in dismissal of the case, can be decided.

A Caliornia Appellate Court held that parents do not have a constitutional right to home school their children.

President Bush has nominated G. Steven Agee of the Virginia Supreme Court to sit on the Fourth Circuit.

Appellate Buzz: Week of February 25

The Pennsylvania Supreme Court has held that consent is not a valid defense in a civil suit in which the defendant is accused of raping an minor.

Oral argument in Allison Engine Co. v. United States ex rel. Sanders was held before the United States Supreme Court, and the transcript is available on the Supreme Court website. The case raises the issue of whether a party bringing a claim under sections 3729(a)(2) or (a)(3) of the False Claims Act must prove that a false claim was submitted to the federal government or establish that the claim was paid using federal funds.

Oral argument in Warner-Lambert Co. v. Kent was held before the United States Supreme Court, and the transcript is available on the Supreme Court website. The case raises the issue of whether federal law preempts a state law which requires the finder of fact to determine whether the defendant has committed a fraud on the FDA, which impacted on the FDA’s approval of a product where the FDA has found no such fraud.

The Supreme Court has issued a decision in Federal Express Corp. v. Holowecki. The Court held that an “Intake Questionnaire” and a detailed affidavit supporting a charge of age discrimination filed with the EEOC was sufficient to constitute a “charge” within the meaning of 29 U.S.C. 626(d). The filing of a charge is required before a party can bring an action under the Age Discrimination in Employment Act.

Appellate Buzz: Week of February 18

The Eighth Circuit has held that by entering into a plea that required at least a 27-year prison sentence on one count of child exploitation, the defendant waived any Eighth Amendment challenge to what that the federal district judge described as “the most unjust sentence that I have ever imposed”.

Ninth Circuit Senior Circuit Judge Joseph T. Sneed, III has died at the age of 87. He had served on the Court for 35 years.

The Second Circuit has held that the REAL ID Act does not violate the Suspension Clause of the Constitution. The petitioners had asserted that seeking review under the Act, with its 30-day limitations period, was not an adequate substitute for a writ of habeas corpus.

The New York State Court of Appeals has held that a member of a limited liability company may bring a derivative action on behalf of an LLC.

Appellate Buzz: Week of February 11

The Eighth Circuit has held that the district court, if it desires, reconsider a sentence it imposed on two men for crack cocaine-related crimes in light of crack cocaine – powder cocaine sentencing disparities.

The Second Circuit has held that a legally blind patron, who went to a restaurant without enlarged-print menus, had stated a cause of action for discrimination under the Americans with Disabilities Act and New York law.

The Supreme Court of Nebraska has held that death by electrocution is unconstitutional under the Nebraska Constitution.

Appellate Buzz: Week of February 4

The New York Appellate Division, Fourth Department, in Martinez v. County of Monroe, has held that New York must recognize gay marriages solemnized elsewhere.

Survivor winner Richard Hatch’s conviction for tax evasion was sustained by the First Circuit.

The Ninth Circuit has held that the Arizona License Plate Commission violated the First Amendment rights of an anti-abortion organization by arbitrarily denying its application for a special Arizona organization license plate that would portray its message “Choose Life.”

The Sixth Circuit has affirmed the order to deport Nazi war criminal John Demjanjuk.

The New Jersey Appellate Division has held that a passenger in a car operated by a drunk driver is exempt from liability in the event of an accident.

Appellate Buzz: Week of January 21

The New York Appellate Division, First Department criticized the plaintiffs’ law firm in a sex discrimination suit for “walking a fine ethical line” by consulting with two parties whose interests could have clearly become divergent. The law firm was not disqualified from the case only because the plaintiffs had obtained no unfair advantage.

The White House has withdrawn the nomination of E. Duncan Getchell for the Fourth Circuit.

The Washington Supreme Court has held that the crime of attempted first degree felony murder does not exist.

Former Illinois Governor George Ryan is petitioning the Supreme Court for certiorari, seeking reversal of his conviction in his corruption trial. The issue sought to be reviewed is whether a district court can change the composition of a jury after the views of the challenged juror is known to the parties.

Appellate Buzz: Week of January 14

An Indiana trial court suppressed all evidence of a drunken driver arrest because the arresting officers had not been properly re-sworn as police officers after to consolidation of the Indianapolis Police Department and the Marion County Sheriff’s Department. The Indiana Appellate Court reversed, holding that the officers did not need to be re-sworn.

The California Court of Appeal has struck down a San Francisco statute prohibiting the ownership of handguns.

The Appellate Division, First Department of the Supreme Court of the State of New York has held that a spectator at a Little League practice, who was injured when she strayed into the path of a child swinging a bat was found to have assumed the risk of the injury.

The United Kingdom is establishing a Supreme Court. The new Supreme Court, which will be on the site of Middlesex Guildhall crown court in Parliament Square, will replace the Appellate Committee of the House of Lords to mark a clearer degree of separation of the highest court from the legislature.

Appellate Buzz: Week of January 7

The United States Supreme Court has heard oral argument in Dada v. Mukasey, and the transcript is available on the Supreme Court website. The question presented in that question is whether the filing of a motion to reopen removal proceedings automatically tolls the period within which an alien must depart the United States under an order granting voluntary departure

The United States Supreme Court has heard oral argument in Baze v. Rees, and the transcript is available on the Supreme Court website. The case deals with the constitutionality of Kentucky’s lethal injunction procedure for imposing the death penalty.

The DC Circuit has held that an employer has to negotiate with a union that is dominated by illegal aliens.

2007

Appellate Buzz: Week of December 31

The Ninth Circuit has addressed the question of how the Copyright Act applies to karaoke devices that enable the individuals to sing along to recordings of musical compositions.

Appellate Buzz: Week of December 17

The Ninth Circuit has granted habeas corpus relief to a convicted murderer who had been forced to accept an appointed counsel when she wanted to retain counsel. The Court found the procedure in which the counsel was assigned violated the criminal defendant’s constitutional rights.

Appellate Buzz: Week of December 10

District Court Judge John Daniel Tinder of Indianapolis has been confirmed by the Senate for a seat on the Seventh Circuit Court of Appeals.

The Ninth Circuit has upheld an injunction, preventing three medical marijuana clubs from distributing and manufacturing marijuana.

A divided Third Circuit has held that there is no private cause of action under 39 U.S.C. 3009, the Postal Reorganization Act, allowing an individual to sue a party who ships unordered merchandise.

Appellate Buzz: Week of December 3

The Illinois Supreme Court is going to take up the issue of whether the parents of a man infected with HIV can be liable to his fiancé for keeping his status secret.

Appellate Buzz: Week of November 26

A divided panel of the Sixth Circuit affirmed a jury's award of over $5 million against Sony Music Entertainment, Inc., on a breach of contract claim arising from the distribution of four Meat Loaf albums.

The United States Supreme Court has heard oral argument in Rowe v. New Hampshire Motor Transport Association, and the transcript is available on the Supreme Court website. The case raises the question of whether the Federal Aviation Administration Authorization Act preempts the states from regulating carriers that deliver tobacco to children

Appellate Buzz: Week of November 19

The California Supreme Court has proposed an amendment to the California Constitution dealing with Death Penalty appeals.

The United States Supreme Court has heard oral argument in Department of Revenue of Kentucky v. Davis, and the transcript is available on the Supreme Court website.  The case raises the issue of whether a state violates the dormant commerce clause by treating the interest on its state’s bonds differently for tax purposes than it does the interest on bonds of other states.

The United States Supreme Court has heard oral argument in CSX Transportation, Inc. v. Georgia State Board of Equalization, and the transcript is available on the Supreme Court website. The case raises the question of whether, under the federal statute prohibiting state tax discrimination against railroads, the district court must accept the valuation method adopted by the state.

The United States Supreme Court has heard oral argument in United States v. Williams, and the transcript is available on the Supreme Court website. The case raises the issue of whether a statute, which violates the distribution of material that appears to be child pornography is overly broad and impermissibly vague and thus facially unconstitutional.

The United States Supreme Court has heard oral argument in Hall Street Associates, L.L.C. v. Mattel, Inc., and the transcript is available on the Supreme Court website. The case raises the issue of the power of the Court to enforce an arbitration agreement that provided for more expansive judicial review than otherwise provided for in the Federal Arbitration Act.

The United States Supreme Court has heard oral argument in Federal Express Corp. v. Holowecki, and the transcript is available on the Supreme Court website. The case raises the issue of whether an “intake questionnaire” submitted to the EEOC may suffice for the charge of discrimination pursuant to the Age Discrimination in Employment Act even in the absence of evidence that the EEOC treated the form as a charge or the employee submitting the questionnaire reasonably believed it constituted a charge.

The United States Supreme Court has heard oral argument in John R. Sand & Gravel Co. v. United States, and the transcript is available on the Supreme Court website.  The case raises issues about the statute of limitations under the Tucker Act.

Appellate Buzz: Week of November 5

The Eleventh Circuit has entertained the question of whether an “automobile bus” is a “bus” for purposes of an entitlement to certain income tax credits. It is.

A dog abuser’s conviction for aggravated animal cruelty was reversed by an appellate court in Ottawa, Canada; however, because he was also convicted of animal torture, which carries a longer sentence, the time he spends in prison will not decrease.

A North Carolina appellate court was forced to evacuate of its building because of two bomb scares. Police ultimately found the building to be safe.

E-Flash for April 2007

Supreme Court Boldly Steps into Global Warming Debate

By Thomas J. Donlon, Robinson & Cole, LLP, Stamford, CT

When the beginning of a Supreme Court majority’s decision quotes the petition for certiorari, to announce “global warming the most pressing environmental challenge of our time,” it is an indication of something big. In Massachusetts v. EPA, U.S., slip op. April 2, 2007, the Supreme Court clearly embraced one side of the climate change argument, providing a strong endorsement of both greenhouse gases as the problem and greater United States government regulation as part of the solution. In the process, the 5-4 majority may have significantly affected the law of standing and definitely elicited a sharp rebuke from the minority on both procedural and substantive grounds.

E-Flash for March 2007

Supreme Court Clarifies When Jurisdiction Must Be Established Prior To Dismissal on a Non-Merits Threshold Ground

Gregory A. Castanias & Victoria Dorfman, Jones Day, Washington, DC

On March 5, 2007, in Sinochem International Co. Ltd. v. Malaysia International Shipping Corp., 127 S. Ct. 1184 (2007), the Supreme Court held that a district court was not required to first establish its own jurisdiction before dismissing a suit on forum non conveniens grounds. This decision is noteworthy for several reasons.

NOTE: The authors successfully served as counsel to Sinochem International Co., Ltd. in the United States Supreme Court in this case.

E-Flash for January 2007

Federal Rule of Appellate Practice 32.1 Permits Citation of Unpublished Federal Decisions

By Lawrence D. Rosenberg, Jones Day, Washington, D.C.

In a development important for all appellate practitioners (and generally for all lawyers), effective on January 1, 2007, Federal Rule of Appellate Practice 32.1(a) uniformly provides that “[a] court may not prohibit or restrict the citation of federal judicial opinions, orders judgments or other written dispositions that have been (i) designated as ‘unpublished,’ ‘not for publication,’ ‘non-precedential,’ ‘not precedent,’ or the like; and (ii) issued on or after January 1, 2007.”