Appeals Tag

Home > Posts tagged "Appeals"

Posted 27 Aug 2014 in Case Notes
[Editor's Note: My colleague, Gary Schons, contributed this post. We hope to have more posts from Gary in the future. --Matt Schettenhelm] One thing common to all appellate lawyers--- they love to appeal.Gavel But, as all appellate lawyers know, the right to appeal is fixed by statute. (Trede v. Superior Court (1943) 21 Cal.2d 630.) Thus, our ability to practice our craft is dependent on the leave granted by the legislature. In this case, the issue before a California appellate court was whether a specific provision of the anti-SLAPP statute granting the right to an immediate appeal of an order granting or denying a special motion is effectively nullified by a separate provision of the statute making it wholly inapplicable to enforcement actions brought by state, county or city prosecutors. As the appellate court noted in the preamble to its decision, this issue was “thoroughly briefed,” and perhaps ominously, oral argument was “vigorous indeed.” I’ll bet it was.

Posted 30 May 2014 in Case Notes
On Tuesday the Supreme Court issued two unanimous opinions granting law enforcement officers qualified immunity.highway stop  These ruling were unsurprising; the lower court errors in both cases were obvious. In Plumhoff v. Rickard the Sixth Circuit did not so much as discuss the qualified immunity standard when denying qualified immunity.  In Wood v. Moss the Ninth Circuit viewed the qualified immunity question at a high level of generality causing dissenting Judge O’Scannlain to (accurately) warn:  “Our court's track record in deciding qualified immunity cases is far from exemplary, and with this decision, I am concerned that our storied losing streak will continue.” But at least Plumhoff v. Rickard contained a surprise.

Posted 15 May 2014 in Tips and Tactics
The Bankruptcy Appellate Panel of the Ninth Circuit has adopted some materials designed to assist attorneys and litigants involved in a bankruptcy appeal before the BAP.law books Although many of the excellent materials address the peculiarities of bankruptcy appeals, Appendix I has advice for all attorneys in any court. Do’s and Don’ts for an Effective Appeal DO: 1. Know what relief you want (and why). 2. Know your audience. BAP judges generally possess a level of expertise in bankruptcy matters superior to that of most district court judges and their law clerks. 3. Understand the role of the appellate court. While its dominant role is to assess whether the trial court reached the correct result,

Posted 08 May 2014 in Commentary
When is a judgment a judgment for purposes of res judicata or the doctrine of full faith and credit when the judgment is obtained in one court and sought to be enforced in a different court?  Dictionary Many possible answers come to mind: when the judgment is entered, when the time for appeal has elapsed, during the pendency of an appeal for which no supersedeas bond was provided, when any appeal of the judgment is finished, when the judgment is final in the court that entered it, when the judgment is final in the court in which enforcement is sought. There may be a State and a circumstance in which every one of these possible answers is the right answer.

Posted 30 Apr 2014 in Tips and Tactics
Decisions across the U.S. identify, as one example of “bad appellate advocacy,” presenting too many issues on appeal.judicial bench The Seventh Circuit applied those words to a brief that presented “12 issues for review—many with sub-parts, for a total of 21 principal contentions. Posing so many issues ensures that each is superficially argued.” Reed-Union Corp. v. Turtle Wax, Inc., 77 F.3d 909, 911 (7th Cir. 1996). The court in Carpinet v. Mitchell, 853 A.2d 366, 371 n.2 (Pa. Super. 2004), found much to criticize, finding itself “compelled to comment on the state of this appeal.” The court found itself

Posted 27 Jan 2014 in Case Notes
Closed signMay a city require adult bookstores but not other establishments to close between midnight and 10am every night and all day Sunday? In Annex Books v. City of Indianapolis, No. 13-1500 (Jan. 24, 2014), the Seventh Circuit said no. It struck down the City of Indianapolis's requirement, which a district court had previously upheld. Although the City claimed that the restriction would lead to fewer armed robberies at or near the bookstores, the court held that "cities must protect readers from robbers rather than reduce risks by closing bookstores." In the court's view, "[t]hat the City's regulation takes the form of closure is the nub of the problem." First, the court found that the evidence supporting the City's justification is "weak as a statistical matter": the data "do not show that robberies are more likely at adult bookstores than at other late-night retail outlets." Second, the court noted that although

Posted 21 Jan 2014 in Monday Morning Review

Here are last week's published decisions involving local governments. Second Circuit Evergreen Assocaition, Inc. v. City of New York, No. 11-2735 (Jan. 17, 2014) (affirming in part and reversing in part preliminary injunction barring enforcement of City law requiring disclosures by pregnancy service centers in First-Amendment challenge). Sixth Circuit DeLeon v. Kalamazoo County Road Commission, No. 12-2377 (Jan. 14, 2014) (reversing grant of summary judgment for County Road Commission in employment-discrimination case) (January 13, 2014, through January 17, 2014) Credit: Image courtesy of Flickr by Tracy Collins (creative common...

Posted 05 Jan 2014 in Monday Morning Review

Happy New Year to all of our readers. Last week was a slow one for the courts. The only significant action for local governments came from the Ninth Circuit: The court granted rehearing en banc in Valenzuela v. Maricopa County, No. 11-16847 (Jan. 2, 2014). The case involves the constitutionality of Arizona's Proposition 100, which provides that Arizona state courts may not set bail "[f]or serious felony offenses as prescribed by the legislature if the person charged has entered or remained in the United States illegally and...

Posted 29 Dec 2013 in Monday Morning Review

Here are published decisions involving local governments from the federal appellate courts from December 23, 2013, through December 27, 2013: Seventh Circuit Swetlik v. Crawford, No. 12-2675 (Dec. 23, 2013) (affirming grant of summary judgment against police detective who sued City and officers alleging that they violated his First-Amendment rights by voting to file a termination charge against him). DeKalb County v. Federal Housing Finance Authority, No. 1301558 (Dec. 23, 2013) (holding that Fannie Mae is exempt by statute from real-estate transfer taxes levied...

Posted 09 Dec 2013 in Monday Morning Review

Here are published decisions involving local governments from the federal appellate courts from November 25, 2013 through December 6, 2013: Second Circuit American Petroleum and Transport v. City of New York, No. 12-4505 (Dec. 6, 2013) (finding that vessel owner may not be awarded damages for economic loss due to negligence in the absence of physical damage to property). Fourth Circuit Sandslands C&D LLC v. County of Horry, No. 13-1134 (Dec. 3, 2013) (affirming that County waste-disposal ordinance does not violate Dormant Commerce or...