Currently viewing the tag: "Appeal"

(Eugene Volokh)

The old answer seemed to be “yes,” but in recent years the states have split on the subject. State v. Carlin, decided by the Alaska Supreme Court last Friday, switches Alaska from the “yes” column to the “no” column, partly because of growing concerns about victims’ rights:

While abatement [i.e., erasure of the conviction –EV] is contrary to the victims’ rights under the Alaska Constitution, relying on the presumption of guilt after conviction to leave the conviction intact is contrary to the defendant’s right to appeal. Therefore, we choose the middle path, electing to follow those courts that allow the appeal to continue upon substitution. These courts have provided that either the State or the defendant’s estate may request substitution, allowing another party to be substituted for the defendant. Specifically, we agree with the high courts of Washington and Maryland that the defendant’s estate may substitute in for the deceased appellant.




The Volokh Conspiracy

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Puts out urgent action alert begging members to fight for ‘broadcast…
B&C - Breaking News

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Justice also seeks extension on deadline for appealing NYPD Blue…
B&C - Breaking News

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(Eugene Volokh)

The case is In re Marriage of Mendlowitz. The alleged slanders were an e-mail and a letter to the estranged wife’s business associates that seemed likely to interfere with her business relationships. They might indeed have led to a successful defamation lawsuit, and a lawsuit for interference with business relations. But a trial court judge went so far as to issue a domestic restraining order against such comments:

[Y]ou are disturbing the peace of the petitioner…. You have, by your own testimony, admitted to the defaming comments that you have made in these emails. And so therefore, the court is going to grant a restraining order for the next five years. You are not to contact [the wife], [her] employers, [her] potential employers in regard to [her] … You are not to contact any third parties in regard to [the wife], her reputation, her past acts.

This meant that any prohibited speech about his wife would be a crime. And because the order included boilerplate language ordering the estranged husband not to “harass, attack, strike, threaten, assault (sexually or otherwise), hit, follow, stalk, molest, destroy personal property, disturb the peace, keep under surveillance, or block movements,” the federal ban on gun possession by people who are the targets of restraining orders kicked in. (See PDF pp. 61–65 of my Implementing the Right to Keep and Bear Arms in Self-Defense article.)

Fortunately, the California Court of Appeal reversed the trial court’s decision, concluding that this sort of alleged defamation isn’t sufficient to justify issuing such an order. Unfortunately, for the nearly two years between the trial court decision and the appellate decision, defendant had been entirely deprived of his Second Amendment rights, and been subjected to a prior restraint in violation of his First Amendment rights.




The Volokh Conspiracy

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A three judge panel of the 2nd Circuit Court of Appeals has overturned a lower court ruling and granted standing to a coalition of human rights groups suing the government over the 2008 FISA amendments.

You can read the full ruling here.

The ACLU filed suit against various provisions of the 2008 FISA Amendments Act, which amended the Foreign Intelligence Surveillance Act and legalized many of the surveillance actions President Bush had already undertaken in violation of the original law, on behalf of groups like Amnesty International and Human Rights Watch.

Specifically, the bill allows the National Security Agency to engage in wholesale data mining of electronic messages both within the United States and between the U.S. and other countries without a warrant and with very little judicial oversight. The plaintiffs argue that this unconstitutionally interferes with their need to communicate confidentially with individuals overseas.

The problem in such cases has always been establishing standing to sue because the courts have generally required that the plaintiffs show that their communications have actually been intercepted. But since the entire program is classified, it’s impossible to prove such a thing. And in this case, the district court dismissed the case on the grounds that the plaintiffs could not prove standing.

But the appeals court rejected that position and granted the plaintiffs sanding to sue, saying:

On appeal, the plaintiffs argue that they have standing because the FAA’s new procedures cause them to fear that their communications will be monitored, and thus force them to undertake costly and burdensome measures to protect the confidentiality of international communications necessary to carrying out their jobs. Because standing may be based on a reasonable fear of future injury and costs incurred to avoid that injury, and the plaintiffs have established that they have a reasonable fear of injury and have incurred costs to avoid it, we agree that they have standing.

The ACLU called this ruling “a huge victory for privacy and the rule of law.” And if upheld, it could prove to be a real turning point in the legal battle over the limits of the 4th amendment. For only the second time in the dozens of court cases that have been filed in federal court challenging the NSA’s post-9/11 wiretapping program, the plaintiffs have been granted standing to sue (the other is the Al-Haramain case in California, where the government accidentally turned over a document showing that the plaintiffs had been wiretapped; that case is still working its way through the 9th Circuit courts).

The government is sure to appeal this ruling. In a previous case filed in the U.S. Circuit Court for the Eastern District of Michigan, ACLU v NSA, the district judge granted standing to a similar group of plaintiffs but the 6th Circuit Court of Appeals overturned that ruling and the Supreme Court denied cert in an appeal. The conflict between the two circuits may force the Supreme Court to hear the appeal of this case and make a final determination on the standing question.

If this ruling remains in force, it means the plaintiffs get to go back to the district court for a full trial on the central question of whether the NSA’s data mining program is constitutional. The government would almost certainly then ask for a dismissal again on the grounds of the State Secrets Privilege and that likely restarts the entire appeals process again before the case can ever be judged on its merits.

But for now, ACLU Deputy Legal Director Jameel Jaffer is optimistic.

“The government’s surveillance practices should not be immune from judicial review, and this decision ensures that they won’t be,” Jaffer said in a press release. “The law we’ve challenged permits the government to conduct dragnet surveillance of Americans’ international communications, and it has none of the safeguards that the Constitution requires. Now that the appeals court has recognized that our clients have the right to challenge the law, we look forward to pressing that challenge in the trial court.”

Michigan Messenger

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A three judge panel of the 2nd Circuit Court of Appeals has overturned a lower court ruling and granted standing to a coalition of human rights groups suing the government over the 2008 FISA amendments.

You can read the full ruling here.

The ACLU filed suit against various provisions of the 2008 FISA Amendments Act, which amended the Foreign Intelligence Surveillance Act and legalized many of the surveillance actions President Bush had already undertaken in violation of the original law, on behalf of groups like Amnesty International and Human Rights Watch.

Specifically, the bill allows the National Security Agency to engage in wholesale data mining of electronic messages both within the United States and between the U.S. and other countries without a warrant and with very little judicial oversight. The plaintiffs argue that this unconstitutionally interferes with their need to communicate confidentially with individuals overseas.

The problem in such cases has always been establishing standing to sue because the courts have generally required that the plaintiffs show that their communications have actually been intercepted. But since the entire program is classified, it’s impossible to prove such a thing. And in this case, the district court dismissed the case on the grounds that the plaintiffs could not prove standing.

But the appeals court rejected that position and granted the plaintiffs sanding to sue, saying:

On appeal, the plaintiffs argue that they have standing because the FAA’s new procedures cause them to fear that their communications will be monitored, and thus force them to undertake costly and burdensome measures to protect the confidentiality of international communications necessary to carrying out their jobs. Because standing may be based on a reasonable fear of future injury and costs incurred to avoid that injury, and the plaintiffs have established that they have a reasonable fear of injury and have incurred costs to avoid it, we agree that they have standing.

The ACLU called this ruling “a huge victory for privacy and the rule of law.” And if upheld, it could prove to be a real turning point in the legal battle over the limits of the 4th amendment. For only the second time in the dozens of court cases that have been filed in federal court challenging the NSA’s post-9/11 wiretapping program, the plaintiffs have been granted standing to sue (the other is the Al-Haramain case in California, where the government accidentally turned over a document showing that the plaintiffs had been wiretapped; that case is still working its way through the 9th Circuit courts).

The government is sure to appeal this ruling. In a previous case filed in the U.S. Circuit Court for the Eastern District of Michigan, ACLU v NSA, the district judge granted standing to a similar group of plaintiffs but the 6th Circuit Court of Appeals overturned that ruling and the Supreme Court denied cert in an appeal. The conflict between the two circuits may force the Supreme Court to hear the appeal of this case and make a final determination on the standing question.

If this ruling remains in force, it means the plaintiffs get to go back to the district court for a full trial on the central question of whether the NSA’s data mining program is constitutional. The government would almost certainly then ask for a dismissal again on the grounds of the State Secrets Privilege and that likely restarts the entire appeals process again before the case can ever be judged on its merits.

But for now, ACLU Deputy Legal Director Jameel Jaffer is optimistic.

“The government’s surveillance practices should not be immune from judicial review, and this decision ensures that they won’t be,” Jaffer said in a press release. “The law we’ve challenged permits the government to conduct dragnet surveillance of Americans’ international communications, and it has none of the safeguards that the Constitution requires. Now that the appeals court has recognized that our clients have the right to challenge the law, we look forward to pressing that challenge in the trial court.”

Michigan Messenger

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A three judge panel of the 2nd Circuit Court of Appeals has overturned a lower court ruling and granted standing to a coalition of human rights groups suing the government over the 2008 FISA amendments.

You can read the full ruling here.

The ACLU filed suit against various provisions of the 2008 FISA Amendments Act, which amended the Foreign Intelligence Surveillance Act and legalized many of the surveillance actions President Bush had already undertaken in violation of the original law, on behalf of groups like Amnesty International and Human Rights Watch.

Specifically, the bill allows the National Security Agency to engage in wholesale data mining of electronic messages both within the United States and between the U.S. and other countries without a warrant and with very little judicial oversight. The plaintiffs argue that this unconstitutionally interferes with their need to communicate confidentially with individuals overseas.

The problem in such cases has always been establishing standing to sue because the courts have generally required that the plaintiffs show that their communications have actually been intercepted. But since the entire program is classified, it’s impossible to prove such a thing. And in this case, the district court dismissed the case on the grounds that the plaintiffs could not prove standing.

But the appeals court rejected that position and granted the plaintiffs sanding to sue, saying:

On appeal, the plaintiffs argue that they have standing because the FAA’s new procedures cause them to fear that their communications will be monitored, and thus force them to undertake costly and burdensome measures to protect the confidentiality of international communications necessary to carrying out their jobs. Because standing may be based on a reasonable fear of future injury and costs incurred to avoid that injury, and the plaintiffs have established that they have a reasonable fear of injury and have incurred costs to avoid it, we agree that they have standing.

The ACLU called this ruling “a huge victory for privacy and the rule of law.” And if upheld, it could prove to be a real turning point in the legal battle over the limits of the 4th amendment. For only the second time in the dozens of court cases that have been filed in federal court challenging the NSA’s post-9/11 wiretapping program, the plaintiffs have been granted standing to sue (the other is the Al-Haramain case in California, where the government accidentally turned over a document showing that the plaintiffs had been wiretapped; that case is still working its way through the 9th Circuit courts).

The government is sure to appeal this ruling. In a previous case filed in the U.S. Circuit Court for the Eastern District of Michigan, ACLU v NSA, the district judge granted standing to a similar group of plaintiffs but the 6th Circuit Court of Appeals overturned that ruling and the Supreme Court denied cert in an appeal. The conflict between the two circuits may force the Supreme Court to hear the appeal of this case and make a final determination on the standing question.

If this ruling remains in force, it means the plaintiffs get to go back to the district court for a full trial on the central question of whether the NSA’s data mining program is constitutional. The government would almost certainly then ask for a dismissal again on the grounds of the State Secrets Privilege and that likely restarts the entire appeals process again before the case can ever be judged on its merits.

But for now, ACLU Deputy Legal Director Jameel Jaffer is optimistic.

“The government’s surveillance practices should not be immune from judicial review, and this decision ensures that they won’t be,” Jaffer said in a press release. “The law we’ve challenged permits the government to conduct dragnet surveillance of Americans’ international communications, and it has none of the safeguards that the Constitution requires. Now that the appeals court has recognized that our clients have the right to challenge the law, we look forward to pressing that challenge in the trial court.”

Michigan Messenger

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As ThinkProgress first reported yesterday, hours after the bomb attack at a Jerusalem bus stop, the American Israel Public Affairs Committee sent out a fundraising appeal prominently featuring news of the tragedy. Late yesterday, AIPAC sent a follow-up message, apologizing for “includ[ing] information about the horrific bombing” in the appeal:

Dear Friends of Israel:

Today, you received an email from us about the dangers facing Israel right now and ways in which you can help ensure American support for Israel at a difficult and dangerous time. We included information about the horrific bombing in Jerusalem. In hindsight, it was wrong of us to mention this terrible tragedy the same day it occurred in the context of this email. We are deeply sorry.

We express our sympathies to all those impacted by today’s events and extend our heartfelt apologies to you.

Sincerely,

Jonathan E. Missner
Director of National Affairs and Development

We recognize and appreciate AIPAC’s acknowledgment of the offense caused by their message.

ThinkProgress

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Independents take independent steps to defend Idaho open primaries

New York, NY—Independents have taken an appeal from the decision of U.S. District Judge B. Lynn Winmill ruling Idaho’s open primary system unconstitutional.

In August of 2008, a group of 11 independent Idaho voters and two organizations representing independents—the American Independent Movement of Idaho founded by Mitch Campbell of Twin Falls and the New York-based CUIP (d/b/a IndependentVoting.org)—a national association of independents—were granted the right to participate in the case as intervenors-defendants. As such, the independents have standing to appeal.

“A third of Idaho voters have lost their right to vote in the state’s primaries as a result of this decision,” said Harry Kresky, general counsel for CUIP and co-counsel for the intervenors. “As a result of our intervention in the litigation, independents are able to take the necessary legal steps to protect their interests, regardless of what the State of Idaho decides to do in the courts or in the legislature in response to the decision.”

The notice of appeal was filed by attorney Gary Allen of Boise, who stated: “I look forward to representing independent voters’ interests on the appeal. It is important for independents to have a voice in this matter. In Idaho, the Republican primary is often the only election that counts, and independents who wish to affiliate with the Republican Party for purposes of that primary should be able to do so. Partisan interests should not take precedence when it comes to participation in the democratic process.”


The Moderate Voice

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(Jonathan H. Adler)

Wisconsin Attorney General J.B. Van Hollen appealed the decision by a county judge enjoining publication of legislation that would curtail collective bargaining rights for public employees.  The AG’s petition, filed with a state appellate court, seeks leave to appeal and a stay of the county judge’s temporary restraining order.  The Journal-Sentinel reports:

In its appeal Monday, the state made several arguments. First, the state argued that the court has no jurisdiction over GOP legislative leaders being sued or over La Follette because they all currently enjoy legal immunity.Second, the state argued that the court can’t block a bill that hasn’t yet been published into law because that amounts to interfering with the Legislature in its area of responsibility of passing laws.

Last, the state argued that the courts can’t block or strike down a law passed by the Legislature purely on the basis of lawmakers failing to follow the rules of the lawmaking process such as legislative rules or the open meetings law. State Supreme Court decisions have found that the courts can only strike down or block laws when the Legislature has failed to follow constitutional requirements, the state said in its appeal.




The Volokh Conspiracy

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The standoff in Wisconsin continues…

Wisconsin Attorney General J.B. Van Hollen wasted no time Friday in announcing the Department of Justice will appeal a judge’s granting of a restraining order that prohibits the publication of the law enacting the Budget Repair Bill.

“The Legislature and the Governor, not a single Dane County Circuit Court Judge, are responsible for the enactment of laws,” said Van Hollen. “Decisions of the Supreme Court have made it clear that judges may not enjoin the Secretary of State from publishing an Act.”

Earlier Friday, Dane County Judge Maryann Sumi granted a temporary restraining order blocking publication of 2011 Wis. Act 10, the Budget Repair Bill, which contains changes to the collective bargaining process for public employees in Wisconsin.

The judge made her announcement Friday morning, saying she did not see sufficient evidence indicating the legislative conference committee could not have given a 24-hour notice for its meeting last week.

Implementation of the Act cannot begin until it is officially published by the Secretary of State. Sumi’s order puts that process on hold, a move Van Hollen argues exceeds her authority.

“Decisions of the Supreme Court are equally clear that Acts may not be enjoined where the claim is that a rule of legislative procedure, even one as important as the Open Meetings law, has been violated,” said Van Hollen. “No matter whether individual citizens agree with the substance of the bill or the manner in which it was enacted, I would hope all see the value in ensuring this matter be given the opportunity to work its way expeditiously through the judicial process.”

Various Democrats and labor union leaders petitioned the court for the order, arguing that 24 hours notice was not given prior to the Conference Committee meeting on the bill.

Republicans, who hold the majority in both the State Assembly and State Senate, counter that the official Rules of the Senate and Assembly waive that notice requirement during Special Sessions of the legislature, like the one in which the budget repair bill was considered.

Senate Rule 93, which provides that for special session bills, “no notice of hearing before a committee shall be required other than posting on the legislative bulletin board,” was actually authored in 1983 by Democratic State Senator Fred Risser (D-Madison), with current Senator Tim Cullen (D-Janesville) the first co-author. The rule’s Assembly counterpart was also implemented in 1983, and supporters included Madison Representative Midge Miller, mother of current Senate Minority Leader Mark Miller (D-Monona).

Act 10 includes several changes in public employee compensation and bargaining powers. Under the new law, most school, state and local employees would have to make a contribution to their pensions, 5.8% of pay for  most state employees, and approximately 12.6% of the total cost of their health care premiums. Also, many issues would no longer be subjects of collective bargaining and employee wages could not be raised by more than inflation each year, unless a referendum was passed.

READ MORE>>


Big Government

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Sir Alex Ferguson isn’t the type of person you want to pick a fight with. After criticizing referee Martin Atkinson’s performance during Chelsea’s victory against Manchester United on March 1, Ferguson got into hot water with The FA today after he…



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EPL Talk

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Washington (CNN) - The Supreme Court has rejected an appeal from a so-called “birther” advocate to examine whether President Barack Obama was actually born in the United States.

By questioning whether Obama was born in the country, birthers continue to question whether he meets the constitutional standard of eligibility for the presidency. Several birther petitions have been rejected by the courts.


CNN Political Ticker

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Washington (CNN) - The Supreme Court has rejected an appeal from a so-called “birther” advocate to examine whether President Barack Obama was actually born in the United States.

By questioning whether Obama was born in the country, birthers continue to question whether he meets the constitutional standard of eligibility for the presidency. Several birther petitions have been rejected by the courts.


CNN Political Ticker

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Mitch Daniels may be getting heat from a well-organized socially conservative grassroots, but Republicans nationally are on his side, the new WSJ/NBC poll finds:

Nearly two thirds of Republican primary voters said they would be “more likely” to vote for a GOP primary candidate who says the party should focus more on the economy and the deficit and less on social issues such as gay marriage and abortion. Only 8% said they would be less likely to vote for such a candidate. The rest said they were unsure.

A caveat: I’m not sure it would poll this well in Iowa.





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