LIFE IN THE LAND OF APPELLATE TRANQUILITY

[Posted February 7, 2007]  If you practice in any of the three appellate courts that sit here in Virginia, be grateful. Life is nowhere near as pleasant elsewhere. Here are a few cases in point:

US Court of Appeals for the Ninth Circuit

You may know of the long-standing effort to split the enormous Ninth Circuit, which covers a tremendous geographic area and has the largest federal appellate bench in the nation. Proponents of a split point to those features and argue that having two courts would cut down on travel expenses for both judges and litigants. Opponents fear, among other things, a watering down of the Ninth’’s traditional leftward leaning (given the conservative composition of the US Supreme Court, the Ninth is the most-reversed circuit among the federal circuits). The proponents answer that that’’s not such a bad thing . . .

The judges themselves have gotten into the dispute, though I’’m not aware of any fisticuffs or nasty name-calling by any of the robes (in contrast, non-judicial observers have occasionally become a tad strident).  The two sides of the debate have been forcefully articulated by judges Diarmuid O’Scannlain here (scroll down to page 58), arguing in favor of a split, and Alex Kozinzki here , who maintains that things are just fine as they are, thank you.

Supreme Court of Michigan

In this appellate court, the gloves have come off. Former chief justice (and now justice) Elizabeth Weaver has engaged in considerable repartee with some of her colleagues after she was ousted from the center chair a few years ago. This one does have name-calling, and it’’s very public:– here’’s a report issued by CNN last month on the “dialogue,” to put it politely. Read it and mop your brow in gratitude that we don’’t have anything like that here. One of the ironies here is that political preferences have virtually nothing to do with this; all of the squabbling jurists are Republicans.

New York Supreme Court

[First of all, a caveat: In New York, for reasons only known to New Yorkers, the “Supreme Court” is the trial court. If you’’re interested in appealing something up there, you head for the Supreme Court, Appellate Division, and ultimately to the Court of Appeals, which is that state’’s highest court. The story below relates to New York Supreme Courts, not to appellate courts.]

Three New York Supreme Court justices have sued the state legislature over a pay dispute. Their honors haven’’t received a pay raise in eight years, and according to this story in the New York Times, they’’re now making significantly less than first-year associates at some of the hotshot law firms. Most people would agree that this situation is seriously upside down, and the justices have decided that it’’s time to stop waiting for the legislature to “do the right thing.”

That produces the anomalous situation of a recusal by the suing justices whenever a lawyer-legislator appears in their courts. The Times article cites two different viewpoints by law professors on whether recusal is required (I’ll very quickly and firmly side with the prof who says that recusal is appropriate under these circumstances), and concludes with the suggestion that this matter will continue to be stalemated. The legislature won’’t raise judicial salaries until they get a raise of their own, and New York Governor George Pataki won’’t consent to a legislative pay increase until he gets his way with some (unrelated) proposed legislation.

Here in the Old Dominion

Now, don’’t you feel better? Appellate jurists here are uniformly courtly and dignified, and never call each other nasty names, at least in public. And while the continuing stalemate in Congress over the four (soon to be five) vacancies in the Fourth Circuit is increasingly affecting the judges and litigants in that court, so far none of the judges have thrown chairs through windows or filed suits against their Congressmen.

Appellate controversy here is usually limited to things like dissenting opinions (which are very rare, at least in the Supreme Court of Virginia) and poorly-concealed whispers about whether one of the Supreme Court justices might move across Capitol Square to take a seat in the Fourth. I don’’t know about you, but I call that appellate tranquility, especially considering what’’s going on elsewhere.