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Victims of Affirmance Without Opinion The very nature of affirmance without opinion makes it very difficult to do any systematic search of an appellate court's actions to find abuses. No details are written about the cases, and the fact that the vast majority of those are unpublished. This lack of transparency/openness is the most pernicious aspects of the practice. To do any systematic study would require a visit to the archives of an appellate court to review not the decision which give no information, but the appellate briefs themselves. Not only would this be a Herculean effort for those attempting it, it would consume more clerical support at the Court than would likely be tolerated. So, the only way victims of nonopinions can be found is haphazardly, through personal networking or review of the rare report that makes it into the media. Here are stories known so far: Deborah K. Dawson The state of Texas incorrectly listed Deborah Dawson as a child abuser. She tried to get the state to correct the database, but was unsuccessful. She wanted to start a day-care facility, but could not because of the erroneous record. In 1995, a suit was filed on her behalf in the United States Southern District of Texas court (Deborah K. Dawson, et. al. v. Harris County Children's Protective Services, et. al.). Judge Melinda Harmon dismissed the Dawsons' case, holding that Deborah's interest in a child-care facility was "speculative." On appeal to the Fifth Circuit, the Dawson's case was considered significant enough to be one of the few cases to receive oral arguments. But, in contradiction to that show of significance, to the shock of the Dawsons' attorney, Paul Crist, the Court told the world that the Dawsons lost with one word - "AFFIRMED." Source: "Counsel Claims Significant 5th Circuit Cases Get Short Shrift", Nathan Koppel, Texas Lawyer, April 27, 1998. Beehive Telephone This small Wendover, Utah-based rural phone company was ordered to cut its rates by 66% by the Federal Communications Commission (FCC). The FCC claimed that Beehive made a procedural error that disqualified it from appellate review. Beehive claimed that it did not make the error, and knew that in an earlier case, the appellate court had said that such an error did not disqualify an appeal. Unfortunately, that case had been unpublished, and was deemed not citable by the appellate court rules. In the appeal of the appealability of the case, Beehive was rejected with a one word ruling. The attorney for Beehive, Russell Lukas, said about the appellate court, "They can't justify what they're going to do, so they don't publish it." Source: "Justice in the Dark", Brigid McMenamin, Forbes, October 30, 2000. Alcan Aluminum A Pennsylvania federal court held that Alcan Aluminum should pay a $500,000 penalty for spilling an emulsion into the Susquehanna River. On appeal, the Third Circuit remanded the case back to the district court with instructions that if Alcan Aluminum could prove no harm, it would be off the hook. Alcan did so, but the district judge applied a new and impossibly high standard, and fined them again. On the trip back to the Third Circuit Court of Appeals, instead of consistently applying their previous ruling and overturning the novel standard of the lower court, the Court ruled against Alcan with one word - "AFFIRMED."
Vicki Lopez-Lukis This former Lee County, Florida commissioner was indicted on two counts for the same alleged act of allowing her boyfriend (and lobbyist) to mail her a check to reimburse her for personal phone calls. The jury acquitted her of bribery, but found her guilty of using the mails to deprive constituents of "honest services." Figuring that one cannot be not guilty of one count for an act, and guilty for another way of punishing the act, she appealed to the 11th Circuit Court of Appeals. She was given no explanation of why such an outcome was justified, however. The court gave her a one word rebuff - "AFFIRMED." Source: "Justice in the Dark", Brigid McMenamin, Forbes, October 30, 2000. James McFarland Because he victimized others, some may find it hard to think of McFarland of a victim. But if equal treatment and rule of law is the standard, McFarland indeed is a victim. He was convicted of a string of robberies of convenience stores in Texas. Instead of being tried in Texas state court, however, the U.S. Attorney brought the charges in federal court on the theory that since interstate commerce in the convenience stores allowed federal involvement where states have always acted, before. The punishment in federal court is higher than in state court. McFarland appealed, and in a 2 to 1 split decision the Fifth Circuit of Appeals upheld the conviction. But since this case established new precedent, the case was heard again en banc. In a procedure designed to set precedent and tell the country the reasoning behind the decision, however, the group of Judges who agreed with the expansion of federal power refused to write an opinion. They just issued the decision with one word - AFFIRMED. For more on this case and the adamant disagreement with the lack of a written opinion, click here. Source: United States of America v. Mcfarland, 00-10569 (5th Cir., 2002) Victim of Affirmance Without Opinion AND Inherent Powers Sanctions Katherine Youngblood Youngblood and her law firm retained counsel, who filed suit in Texas state court against Mary Miller and Prudential for fraud, breach of contract, and lack of payment of money owed. The case was removed to the United States Southern District of Texas court on the theory that Mary Miller, the lead Prudential attorney in Texas who was alleged to have defrauded Youngblood, could not be held liable under Texas law for her acts. Federal Judge Kenneth Hoyt shut the trial down after two and a half days of testimony, sent the jury home, and ruled that Youngblood took nothing. Prudential asked Judge Hoyt to fine Youngblood for attorneys fees and expenses for bringing the lawsuit, claiming that his inherent powers allowed him to ignore the American rule that represented plaintiffs cannot be punished for bringing suit. Judge Hoyt signed a order prepared by Prudential's attorneys and filled in the blanks for the penalty - $132,287.00. The Fifth Circuit Court of Appeals ignored clear precedent that the case never should have been in federal court at all, and about the strict limits on inherent powers sanctions. The Court simply affirmed Judge Hoyt's actions, giving no facts or reasons that justified its decision. Note that Judge Hoyt's rulings for inherent power sanctions and refusal to remand the case back to state court were not justified by a written opinion, either. Source: http://youngbloodvprudential.com Jeff Smith and Mark Adams Jeff Smith quit his sales job at Corporate Sports Marketing Group (CSM) in Florida after the company made signature of a non-compete agreement a condition of future employment. Smith claims that CSM then refused to pay $20,000.00 owed him in commissions. Smith retained attorney Mark A. Adams and filed suit in the Pinellas County, Florida state court against CSM for breach of contract. After many procedural moves and statements by CSM management about how well connected their attorneys (the Battaglia firm) were, the case ended with both the represented party, Smith, and Adams, the attorney, being sanctioned $20,000.00 each by Judge Crockett Farnell. Smith ended up settling by paying $15,000.00. Adams appealed his sanction, using a writ of prohibition. A Second District Court of Appeals panel quickly issued a stay of proceedings in Judge Farnell's court and ordered Judge Farnell to show cause for his actions. But the clerk did not take action to communicate the show cause order to Judge Farnell. A separate Second District panel then denied the writ of prohibition without writing an opinion, but did not lift the stay issued by the original panel. Judge Farnell then issued an order for the arrest of Adams. Adams filed a motion with the Second District to enforce the never-released stay on Judge Farnell's action. The motion then disappeared from the clerk's system. When Adams pushed to have it found again, it was construed to be a second request for a writ of prohibition and entered into the system again with a date that was after the original filing date, but before the disappearance was reported to the clerk. The Second District then ordered the stay removed. Realizing that this meant that the arrest order occurred during the duration of the stay and therefore was void, the Battaglia firm asked for a rehearing. Without giving Adams a chance to respond, the Second District reversed itself and declared that the stay had been lifted when they originally denied the writ of prohibition. Adams' counsel persuaded Judge Farnell to videotape Adams trial on March 26, 2004. At the trial, which was attended by about 20 witnesses, Judge Farnell agreed that a conflict of interest existed in the fact that the Battaglia firm was both serving as a witness and prosecution in the trial. Judge Farnell asked the Florida State Attorney to prosecute the contempt citation, and the trial was deferred. Florida has an abysmal law that allows appeals courts to avoid review of their decisions if they refuse to explain their ruling. Florida calls this practice per curiam affirmance. On December 20, 2004, after months of emotional strain, lost income, and attorney's fees for the Adams family , one day before the contempt trial for Adams, Judge Farnell recused himself from hearing the contempt charges. At this writing in early January, 2005, Adams is waiting to hear when the trial will be rescheduled. Source: Email from Mark Adams and Court Records Victims of Inherent Powers Sanctions Joseph Matta In his role as supervisor at the SEC, Matta was named in a sex discrimination suit. The charges were later dropped. In the course of the suit, S. Beville May, the attorney for the SEC employee working for Matta, made some untrue statements to the Houston Chronicle about what the sex discrimination suit included. She incorrectly stated, and the Chronicle reported that the Matta had, and that the suit alleged that he had "overlooked rapes by other men in the six-person [Houston] office." Matta, then, as a represented party, filed a libel suit against May. It landed in Judge Kenneth Hoyt's courtroom, where he found a summary judgment against Matta. May then requested attorney fees and expenses sanctions against Matta for bringing the suit. In response, Judge Hoyt then ordered Matta to pay $290,262.00! Fortunately for Matta and justice, the Fifth Circuit reversed Judge Hoyt. But Matta had to go through the stress of living under such an excessive fine and the burden of paying the attorney fees to defend against it. Source: Matta v. May, 118 F.3d 410 (5th Cir. 1997). Stories Needed If you know of victims of summary affirmance or inherent powers sanctions, please send your story to tomglass@juryduty.org.
Last saved on: 01/09/2005 |
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