Howard J. Bashman's appellate columns, etc.
An archive of Howard J. Bashman's monthly columns about appellate litigation, with other of his writings thrown in for good measureMonday, April 24, 2006
Where the 9th Circuit Went Wrong
By Howard J. Bashman
Monday, April 24, 2006
Earlier this month, the majority on a divided three–judge panel of the 9th U.S. Circuit Court of Appeals ruled that "a City of Los Angeles ordinance that criminalizes sitting, lying, or sleeping on public streets and sidewalks at all times and in all places within Los Angeles's city limits" cannot be enforced because arresting the homeless of Los Angeles would violate the Eighth Amendment to the U.S. Constitution.
[The remainder of this essay can be accessed online here at law.com.]
Monday, April 17, 2006
Will original understanding go high-definition?
By Howard J. Bashman
Monday, April 17, 2006
This is the true story of nine justices, picked to serve together on a court and have their oral arguments videotaped for broadcast to the public. If the Senate Judiciary Committee has its way, soon the U.S. Supreme Court's justices could be the stars of the newest reality programming to capture the imagination of the MTV generation.
[The remainder of this essay can be accessed online here at law.com.]
Monday, April 10, 2006
By Howard J. Bashman
Monday, April 10, 2006
Unlike at a jury trial, where the jury's decision ordinarily issues just hours or days after the conclusion of the evidence, appellate courts take considerably more time to issue their rulings. And the reasons for this are quite understandable. Appellate briefs must be considered, the record on appeal must be reviewed, and a decision explaining the result of the appeal must be written and approved by the judges on the panel.
Thus, while no one should expect an instantaneous ruling on appeal, frequently appellate lawyers and judges have occasion to consider how long is too long to wait for a decision on appeal. This question, for obvious reasons, defies any easy answer. Appeals that are factually or legally complex frequently take longer to decide. Appeals in which more than one judge on the panel will be writing an opinion understandably take longer to decide than appeals in which a single judge writes on behalf of a unanimous court. And sometimes the quality of the lawyering, whether especially good or especially bad, necessitates more effort from the court in disposing of an appeal.
As a rule of thumb, appeals that are relatively straightforward should take between one to three months to decide after the case has been orally argued and submitted. Moderately difficult cases should take between three to six months to decide after argument and submission. More complex cases should take between six month to a year to decide. Any case that takes more than a year after oral argument and submission to decide should be extraordinarily complex, and only the rarest of cases should fall into this category.
With one notable exception, the federal and state appellate courts in Pennsylvania adhere to these timelines. The 3rd U.S. Circuit Court of Appeals seldom takes over a year from the date of oral argument to decide an appeal, and the vast majority of appeals are decided in a very timely fashion. The Superior Court of Pennsylvania, despite being one of the busiest state appellate courts in the nation in terms of its caseload per judge, also appears to adhere to these timelines, as does the Commonwealth Court of Pennsylvania.
Unfortunately, the Supreme Court of Pennsylvania at some point fell behind in its work, and thus cases in which that court has granted review on the merits regularly take more than one year, and sometimes even more than two years, after oral argument to be decided. How might the Pa. Supreme Court reduce its backlog of argued cases to increase the speed with which it disposes of such cases? The only way that work gets done is if someone does the work, so the court presumably could work harder, faster, and could even start accepting fewer cases in order to remain more current on the cases it does accept.
In addition, the Pa. Supreme Court is one of those appellate courts where the Justices, even when the court is evenly divided 3–3 with a recusal, will write opinions explaining why they would affirm or reverse the result below. Yet when the Pa. Supreme Court is evenly divided on a case, the judgment under review is affirmed by an equally divided court, and those opinions are of no precedential value. One way to save much time in these cases would be for the Justices to refrain from writing any opinions. In the U.S. Supreme Court, by contrast, no opinions are written by the Justices when a case is affirmed by an equally divided court. And the U.S. Supreme Court issues opinions in all argued cases each Term before the Justices depart for their summer recess.
The Pa. Superior Court's ability to timely disposes of the large number of cases that court handles could be imperiled someday soon as certain active judges reach retirement age. If the Superior Court were to find it more difficult to dispose promptly of the cases it is handling, the court would have several timesaving options to consider.
One idea that I continue to support is a proposal that the Superior Court should stop allowing counsel to decide whether appeals will be orally argued. Instead, the Superior Court's judges should decide whether a given appeal deserves oral argument. Over the course of a year, each Superior Court judge spends hours listening to oral argument in cases in which the court's judges on their own would presumably see no need for argument. Those hours could instead be spent working on getting the cases decided.
The Superior Court also frequently issues unnecessarily lengthy non–precedential opinions. While I strongly support the idea that appellate courts should issue rulings that explain why the appeal under review was decided a certain way, in cases decided by non–precedential rulings those decisions will never be seen by anyone other than the parties and their lawyers. Thus, those rulings could dispense with any detailed recitation of the facts and procedural posture and could instead launch right in to explaining why the court has ruled as it did. If the Superior Court focused on keeping its non–precedential opinions short and to–the–point in cases that are to be disposed of in that manner, much additional time could be saved.
Although the phrase "“Justice Delayed is Justice Denied" may not always be true, it is difficult to quarrel with the proposition that appellate courts should try to the best of their ability to render decisions that are not only correct and well–reasoned, but also timely. A court's reputation depends not only on the quality of its jurists and its rulings, but also on the timeliness of its work.
In the Supreme Court of Pennsylvania, appeals that take more than a year after oral argument to be decided may at that point have been pending before the court for over two years, once the time spent in considering the Petition for Allowance of Appeal and briefing the case on the merits is taken into account. If experience is any guide, the worst thing to do when facing a backlog of unfinished work is worrying about how it will ever be completed. And the best thing to do, instead of worrying about it, is just to get it done.
This article is reprinted with permission from the April 10, 2006 issue of The Legal Intelligencer © 2006 NLP IP Company.
By Howard J. Bashman
Monday, April 10, 2006
The U.S. Congress is considering legislation that would route all immigration appeals to the Washington, D.C.–based Federal U.S. Circuit Court of Appeals, instead of to the regional federal appellate courts where the cases are now heard and decided.
[The remainder of this essay can be accessed online here at law.com.]
Monday, April 03, 2006
By Howard J. Bashman
Monday, April 3, 2006
The federal appellate courts are divided over an issue that rarely receives any attention: Whether lawyers who will orally argue an appeal should receive advance notice of which three judges have been assigned to the oral argument panel.
[The remainder of this essay can be accessed online here at law.com.]
