HOW EVERY APPELLANT’S DREAM OPINION BEGINS
[Posted April 11, 2016] “The district court’s ruling errs in so many respects that it is hard to know where to begin.”
Admit it: you’ve wished for an opinion like this. You’ve hoped and dreamed for it as you prepared your appellant’s brief, explaining to the appellate panel how utterly clueless the learned trial judge was. Your brief was so compelling, it practically wrote itself; the only difficult task for you was in deciding which of your issues to place first in line, letting the other twelve fall in after that one.
I’ll offer two subtle hints here. First, if you have a dozen or more appellate issues, you’re wasting your time filing your brief. The appellate court is likely to view this as a form of desperation – the shotgun approach, where you toss out every possible issue, hoping that at least one of them will get you a reversal, and if none of them are strong enough alone, the sheer weight of them will overwhelm your adversary. It doesn’t work that way; you need to appeal only your strongest issues.
Second, no matter what you think of the learned trial judge, resist the urge to dis him at the appellate level. Attack the ruling, not the person who made it. One helpful way to do this is always to refer to “the trial court” instead of “Judge Dingelhoofer” in your brief.
In this decision, a federal judge in Puerto Rico had ruled that there was no right to same-sex marriage in the Commonwealth of Puerto Rico. Shortly thereafter, SCOTUS handed down Obergefell v. Hodges, and, well, you know how that came out. The First Circuit issued a decision concluding that Puerto Rico’s ban was unconstitutional, accompanied by a mandate.
On remand from the First, both parties (one of them probably reluctantly) asked the district court to enter judgment accordingly. But no; the judge issued an order holding that the right to same-sex marriage still wasn’t established in Puerto Rico.
There are two problems with this. First, Obergefell applies throughout America, and Puerto Rico is part of America. I know, because when The Boss and I went there a few years ago, we didn’t need passports and we got to use greenbacks to pay for our purchases. Second, the First Circuit’s original opinion had expressly held that the island’s ban was unconstitutional. The district court just decided to overrule it.
The end is swift (the guts of the per curiam opinion are only 3½ pages); the case is remanded and the court of appeals takes the unusual step of directing that it be reassigned to another randomly assigned judge for further proceedings. The appellate court isn’t taking any more chances with this district judge.