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05-11-1999, 10:19 AM
I've noticed that most of the famous legal cases that changed our laws were civil cases. Why is that? For example: Roe v. Wade, Brown vs. Board of Education. What were these cases actually about? To take the first example: I assume "Roe" wanted to have an abortion, but it was illegal. So why did she sue "Wade"? Who was "Wade" anyway? Were there monitary damages involved? Since the case eventually reached the supreme court, I guess "Roe" must have originally lost the case. In criminal trials, only the defendant can appeal. Under what circumstances can the plaintiff appeal in a civil case? Under what circumstances does an overturned verdict result in a precedent that changes the law? Do criminal trials ever result in law-changing precedents as well? Who was Brown and where was the Board of Education? Who invented liquid soap and why?

Sorry for all the questions. Anyone have the straight dope?


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"For what a man had rather were true, he more readily believes" - Francis Bacon

05-11-1999, 12:14 PM
"Roe" was a fictitious name. "Mary Roe" is the female version of "John Doe". If I remember rightly, "Wade" was some state's Attorney General. "Board of Education" is short for "Board of Education of Topeka, Kansas".

And, yes, precedents are created by criminal trials, such as the famous Miranda case. But most precedents are in civil law, because civil law generally involves much more complicated stuff (there are a lot of iffy ways to break a contract, whereas most crimes are clearly either committed or not committed), and because criminal cases in the USA that involve issues of law (rather than issues of fact) usually end either in a law being overturned, after which the precedent is moot, at least in that jurisdiction, because the law in question is gone, or in a law not being overturned, in which case 99% of trials won't even raise the issue, so the precedent isn't invoked. That means that, in practice, most criminal-law precedents that actually get brought up involve iffy issues of police procedure.

If a real lawyer wishes to correct me, go ahead, but I think I got most of that right.

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John W. Kennedy
"Compact is becoming contract; man only earns and pays."
-- Charles Williams

05-11-1999, 12:14 PM
Under what circumstances can the plaintiff appeal in a civil case? [/quote}

In any circumstances. Usually, though it's when the verdict goest against you.

[quote]Under what circumstances does an overturned verdict result in a precedent that changes the law?

When the Supreme Court overturns the verdict. Lower courts can stop the laws from being enforced on appeal, but it is still law until the Supreme Court (or State Supreme Court) rules.

Do criminal trials ever result in law-changing precedents as well?

No reason they couldn't. The defendant can appeal to the Supreme Court, which could rule the law unconstitutional.

Who was Brown and where was the Board of Education?

Don't know Brown, but it was the Board of Education of Little Rock, Arkansas.

05-11-1999, 12:41 PM
1. Jane Roe was a 21-year-old pregnant single mother named Norma McCorvey ("Roe" was, of course, a pseudonym -- they had already used "Doe" in the case)

2. She sued Wade to have the abortion laws affecting her declared unconstitutional. Her suit was amended later to a class-action.

3. Henry Wade was the District Attorney for Dallas County in Texas.

4. No monetary damages were involved.

5. The lower court (actually a 3-judge panel) basically ruled in favor of Roe, declaring, among other things, that the Texas abortion statutes void because they were vague and overbroadly infringed on Roe's Ninth and Fourteenth Amendment rights. The State (through Wade) appealed. There were also issues of declarative relief vs. injunctive relief, so Roe appealed as well.

6. The plaintiff in a civil case can appeal any ruling with which he or she is displeased.

7. Any ruling which addresses the merits of a case (or even the procedure of a case) can provide a precedent. This includes rulings which overturned verdicts. How important a ruling is as a precedent is somewhat dependent on how specifically the court addresses an issue (courts generally prefer to decide very narrowly and not decide issues they don't have to if there is another way of disposing of a case) and, of course, whether the Supreme Court has ruled on that specific matter.

8. Criminal case rulings do result in law-changing precedents as well. Criminal law, especially in the 60s and 70s, resulted in numerous famous cases which fundamentally changed things, including Gideon (remember "Gideon's Trumpet"?), Robles, Miranda (the source of, among other things, those warnings), and dozens of death penalty cases (including Furman and Gregg).

9. Oliver Brown was a black resident of Topeka Kansas. He had tried to enroll his daughter Linda in a white school and was turned down, so he went to the NAACP. They filed suit to attempt to get an injunction forbidding Topeka from continuing to segregate public schools.

10. Board of Education was the Board of Education for Topeka, Kansas -- which was technically the body continuing to enforce segregation in public shools.

05-11-1999, 02:21 PM
STARK -- I found you kind of confusing in your use of "ability" versus "right." Both criminal and civil litigants who receive a negative outcome of their case have the right to appeal, assuming they can afford to do so, and assuming there are grounds to sustain the appeal. (You can't just appeal a case because you don't like the decision -- well, you CAN, but the appeal will be thrown out -- you must have grounds to appeal; that is, you must be able to show reason for the decision to be overturned, such as error at the trial court level, or ineffective assistance of counsel, or whatever.) But what is meant by "ability" to appeal? While you may be correct in the real world that if you can't afford a lawyer you (probably) can't successfully pursue an appeal, under the law you MAY appeal without a lawyer and represent yourself. Therefore an appellant's practical inability to pay a lawyer doesn't mean he or she is foreclosed from appeal. Many (too many) civil and criminal appellants appeal pro se. They are generally inarticulate and unsure of the law, but they are fully within their rights to do so, and the courts generally give them a lot of latitude because they (the courts) recognize that they (the appellants) are more or less winging it.

Therefore, since a lawyer isn't technically necessary to pursue an appeal, you don't have a FEDERAL constitutional right to have one for appeal. Many states have statutes that provide that counsel will be provided for criminal defendants on appeal, but such statutes vary state by state -- my state, for example, doesn't have one. Some state constitutions also provide this right -- again, my state does not. And many individual public defender offices allow (or even insist) that their attorneys pursue the case through appeal, if grounds for appeal exist -- this falls within the requirement that lawyers provide effective assistance, and failure to appeal may constitute ineffective assistance of counsel. But there's no constitutional mandate. The constitutional right to counsel at trial is to prevent defendants from being "railroaded" into prison (Gideon v. Wainright); once you're convicted however, you may be on your own.

05-12-1999, 01:02 AM
RealityChuck is correct in his answer that either side -- plaintiff or defendant -- may seek an appeal in a civil case.

But the “right” to appeal a civil ruling is “guaranteed” only providing you have the money to do so. In other words, unlike a criminal judgment, there is no real right to appeal a civil ruling -- only the ability to do so should you have the resources. You could receive a heinously unfair judgment and be unable to appeal because you lack the funds to do so.

On a legal thread, perhaps someone can answer this question:
The 6th Amendment to the Constitution enumerates the rights of a criminal defendant. These include the right to a speedy trial by a jury of peers and the assistance of defense counsel. The 6th makes no mention of a right to appeal a ruling.

Where does the defendant's guaranteed right to appeal a criminal ruling come from? It does not seem to be Constitutional in origin.


~ Complacency is far more dangerous than outrage ~

05-12-1999, 10:51 AM
It is sometimes forgotten that the Constitution is not like, say, a computer architectural specification. It was written by lawyers who took for granted the existence of English law. (Any English law that was in force on July 1, 1776, not directly relating to the question of independence, and not specifically abrogated by the Constitution or by subsequent legislation, still applies in the United States, and English precedents still apply, as well. Even a contemporary English legal decision could, in theory, have some non-binding weight in a modern US trial. The same is true of laws and precedents of the colonies, up to the adoption of the Constitution. This system of law was extended to 36 other states, but Louisiana still works on French law, albeit considerably diluted over the years by time and the Constitution.)

You have a right to an appeal because that's what higher courts are for. The Framers didn't bother to mention it, because everybody knew it, and there was no change being made.

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John W. Kennedy
"Compact is becoming contract; man only earns and pays."
-- Charles Williams

05-12-1999, 02:50 PM
John, do you have some citation to English precedents applying in the US? I'm willing to believe that English law and case law is persuasive in many areas of the law, but I have difficulty believing that it is any more than persuasive - particularly in states with legal systems influenced by civil law systems.

05-12-1999, 04:27 PM
Re: English precedent as US law.

This is basically correct. 49 states use the common law, while one, Louisiana, uses basically the civil law (the Napoleonic Code, with some modifications).

The common law is/are the precedents arising from appellate-court decisions. It is applied when there is no statute on the issue, and of course a statute trumps the common law. These precedents include English cases up to independence, or some other similar date, and of course state court cases.

The common law exists because there are thousands of issues that arise in everyday human dealings that need to be resolved even though the legislature or Congress hasn't made a law on the point. So when these disputes are resolved by the courts, the rules in these cases are applied to similar cases in the future, or future cases are "distinguished" from the earlier case -- the court finds that the present case is different enough from the precedential case that the precedent doesn't apply. Since most of these disputes are between private parties, and thus are civil suits rather than criminal actions, that's why so much precedent comes from civil cases.

To give an example of a state (in this instance, Illinois) law adopting the common law, including English cases, see 5 Il. Comp. Stat. § 50/1:

That the common law of England, so far as the same is applicable and of a general nature, and all statutes or acts of the British parliament made in aid of, and to supply the defects of the common law, prior to the fourth year of James the First, excepting the
second section of the sixth chapter of 43d Elizabeth, the eighth chapter of 13th Elizabeth, and ninth chapter of 37th Henry Eighth, and which are of a general nature and not local to that kingdom, shall be the rule of decision, and shall be considered as of full force until repealed by legislative authority.

Markxxx
08-30-1999, 03:52 AM
A large portion of the ambiguity of the law lies in the fact the regional court will say "A," another regional court will say "B" when both are appealed to the US Supreame Court the court won't review either case thus you have to seperate points equally legal.

Poto
08-30-1999, 07:05 AM
Bermuda said " including Gideon (remember "Gideon's Trumpet"?)"
no, I don't know the story, tell us.

DSYoungEsq
08-30-1999, 11:10 AM
I've noticed that most of the famous legal cases that changed our laws were civil cases. Why is that?
Not necessarily true. More correct would be that, unless you get involved in criminal law (either as a participant in crime or as a system cog), you don't tend to have criminal case law brought to your attention. Most people only know about Miranda through Adam-12, and how many civilians would be expected to bone up on the case law regarding asset forfeiture, illegal search and seizure, proper interpretation of RICO statutes, etc?

Anyone know if there are more civil as opposed to criminal decisions issuing from the US Sup Court these days? For example: Roe v. Wade, Brown vs. Board of Education. What were these cases actually about? To take the first example: I assume "Roe" wanted to have an abortion, but it was illegal. So why did she sue "Wade"? Who was "Wade" anyway? Were there monitary damages involved? Since the case eventually reached the supreme court, I guess "Roe" must have originally lost the case.
It is rarely a good idea to assume anything about a case from the title of the decision on appeal. As pointed out in previous posts, no monetary damages were involved in Roe, and the reason has to do with why Wade was a party to the case. The best way to understand the procedural and factual history of a case is to read the decision from the Supreme Court. In criminal trials, only the defendant can appeal.
This is an incorrect statement. Both sides in a criminal case can appeal. But the utility of an appeal by the 'state' may be small, depending on what 'error' the prosecution claims occurred. Double jeopardy rules may prevent re-trial if the state wins the appeal.Under what circumstances can the plaintiff appeal in a civil case?The plaintiff can appeal anything the plaintiff doesn't like about what the fact-finder and/or law applier did during the trial. The defendant in a civil case has the same right. Sometimes, the appeal can occur while the trial is still going, on most occaisions, the appeal must await the conclusion of the trial. Every appelate court has specific rules about how and when to appeal; you have to look them up to know for certain. Under what circumstances does an overturned verdict result in a precedent that changes the law?
Precedent 'changes law' two ways: a) by ruling that a statute or regulation are unconstitutional (thus unenforceable), and b) by overturning prior precedent on which the law has relied. In general, American law relies on the idea of stare decisis, which basically means that what the court has once decided it won't re-examine. This provides stability to American law. When the US Supreme Court issues a decision regarding federal constitutional law, we live with it for a long time, ususally. Sometimes, though, the passage of time makes clear that the original decision should be re-examined. Thus, in Brown v. Board of Education the court re-examined the meaning of the fourteenth amendment's equal protection clause, a subject they had previously addressed in Plessy v. Ferguson in the late 1800's. The court used Brown to overturn the decision in Plessy[u/], changing the law regarding segregation of services by racial makeup. Do criminal trials ever result in law-changing precedents as well? Most definitely. Example prime for most of us is [u]Mapp v. Ohio which (if memory has not deserted me totally) applied the exclusionary rule (making unconstitutionally obtained evidence unable to be used by the prosecution) to the states. This has affected criminal law tremendously. Who was Brown and where was the Board of Education? Who invented liquid soap and why?
http://www.findlaw.com/casecode/supreme.html
and
http://supct.law.cornell.edu/supct/
provide excellent access to the decisions of the nation's highest court.

Other points to remember:

1) The US Supreme Court has several different jurisdictions, all set out in Art III of the US Constitution - including disputes over the Constitution, meaning that it can even deal with a state law case if the US Constitution is involved.

2) MANY many more decisions are issued by the Supreme Courts of the various states, and many of them have far more impact on your day-to-day life, but they often are not noticed because they get limited exposure in the media. Li v. Yellow Cab totally changed the way civil tort litigation in California is handled, simply by making damages available to the extent a defendant was comparatively negligent.

Hope this helps...

SoxFan59
08-31-1999, 01:51 AM
This is basically correct. 49 states use the common law, while one, Louisiana, uses basically the civil law (the Napoleonic Code, with some modifications).>>>

And of course, Indiana. There, the law makes no sense.

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SoxFan59
"Its fiction, but all the facts are true!"

Northern Piper
09-01-1999, 01:54 AM
the 6th Amendment to the Constitution enumerates the rights of a criminal defendant. These include the right to a speedy trial by a jury of peers and the assistance of defense counsel. The 6th makes no mention of a right to appeal a ruling.

The 6th Amendment doesn't refer to appeals because it reflects the English law at the time of the American revolution. Under English law, there wasn't a general right of appeal in criminal cases, at least not what we today mean by an appeal. England didn't establish a regular criminal court of appeal until around 1900 (date approximate).

Superior courts had limited powers to review the decision of a lower court, by writs such as certiorari and writ of error, but these were not nearly such broad remedies as a modern right of appeal. As well, an accused could move for the trial court to set aside its own verdict, on the basis of an error or injustice. In the English court system, an accused could also ask the trial judge to "state a case" or "reserve a point of law," for discussion by a group of the superior court judges. This also served in a fashion similar to an appeal in some cases.

As to appeals in criminal cases - I thought that the state couldn't appeal a jury verdict of acquittal in the U.S., because of the 7th Amendment. For example, the D.A. couldn't appeal the OJ acquittal. Have I got that right?

DSYoungEsq
09-01-1999, 09:28 AM
As to appeals in criminal cases - I thought that the state couldn't appeal a jury verdict of acquittal in the U.S., because of the 7th Amendment. For example, the D.A. couldn't appeal the OJ acquittal. Have I got that right?
No.

Read the 7th Amendment. It entitles you to a jury trial in a civil case where the matter in controversy is at least $20 and the suit is grounded in common law.

No civil jury's finding of fact can be re-examined in such cases except as allowed by common law. Common law included appeals, so an appelate court can 're-examine' the facts, but it can't be done by a collateral attack enabled by a statute.

Polycarp
09-01-1999, 04:50 PM
Just to throw a monkey wench into the works, the term "appeal" means two different things in law:

1. Your legal right to take a decision to a higher court because the judge was being prejudiced, a blithering idiot, or other appropriate ground. These are clearly spelled out in law, and are very few in number. With vanishingly rare exceptions, you have no right to appeal to the Supreme Court.

2. Your ability to take a case that went against you to a higher court. Included in this are:

a. Appeal as defined in #1
b. Certiorari, which is a petition you file with the higher court "praying" (in the legal sense) that they hear your case and detailing your grounds for asking this, and the writ the court may (but need not) grant in response to your petition, ordering the lower court, you, and your opponent to send material up and prepare for an appellate hearing. Most Supreme Court cases and a large number of state and Federal appeals are through this route. The point is that it's up to the court to decide whether to hear your 'appeal.'
c. Certification, which is effectively a (chicken) lower court judge figuring that the law in the case has gotten over his head or too controversial for him, and sending the issue at hand to the higher court for a ruling. Example: the lawsuit hinges on whether what Doe called Roe is prohibited hate speech or legally protected free expression of opinion. Precedent does not directly address this situation, and similar cases are mixed. Judge X sends it to his superior court to sort it out and tell him which way to rule on that issue, which in turn will help him rule on the lawsuit.

AK84
03-05-2012, 10:36 AM
Just to throw a monkey wench into the works, the term "appeal" means two different things in law:

1. Your legal right to take a decision to a higher court because the judge was being prejudiced, a blithering idiot, or other appropriate ground. These are clearly spelled out in law, and are very few in number. With vanishingly rare exceptions, you have no right to appeal to the Supreme Court.

2. Your ability to take a case that went against you to a higher court. Included in this are:

a. Appeal as defined in #1
b. Certiorari, which is a petition you file with the higher court "praying" (in the legal sense) that they hear your case and detailing your grounds for asking this, and the writ the court may (but need not) grant in response to your petition, ordering the lower court, you, and your opponent to send material up and prepare for an appellate hearing. Most Supreme Court cases and a large number of state and Federal appeals are through this route. The point is that it's up to the court to decide whether to hear your 'appeal.'
c. Certification, which is effectively a (chicken) lower court judge figuring that the law in the case has gotten over his head or too controversial for him, and sending the issue at hand to the higher court for a ruling. Example: the lawsuit hinges on whether what Doe called Roe is prohibited hate speech or legally protected free expression of opinion. Precedent does not directly address this situation, and similar cases are mixed. Judge X sends it to his superior court to sort it out and tell him which way to rule on that issue, which in turn will help him rule on the lawsuit.

To confuse the issue even further, at common law in Certiorari the Kings Bench was strictly correcting errors of jurisdiction; meaning whether or not a lower courts action was within powers, although through case law it was established that a patently wrong decision was also excess of powers.

md2000
03-05-2012, 10:54 AM
Just to throw a monkey wench into the works, the term "appeal" means two different things in law:

1. Your legal right to take a decision to a higher court because the judge was being prejudiced, a blithering idiot, or other appropriate ground. These are clearly spelled out in law, and are very few in number. With vanishingly rare exceptions, you have no right to appeal to the Supreme Court.

2. Your ability to take a case that went against you to a higher court. Included in this are:

a. Appeal as defined in #1
b. Certiorari, which is a petition you file with the higher court "praying" (in the legal sense) that they hear your case and detailing your grounds for asking this, and the writ the court may (but need not) grant in response to your petition, ordering the lower court, you, and your opponent to send material up and prepare for an appellate hearing. Most Supreme Court cases and a large number of state and Federal appeals are through this route. The point is that it's up to the court to decide whether to hear your 'appeal.'
c. Certification, which is effectively a (chicken) lower court judge figuring that the law in the case has gotten over his head or too controversial for him, and sending the issue at hand to the higher court for a ruling. Example: the lawsuit hinges on whether what Doe called Roe is prohibited hate speech or legally protected free expression of opinion. Precedent does not directly address this situation, and similar cases are mixed. Judge X sends it to his superior court to sort it out and tell him which way to rule on that issue, which in turn will help him rule on the lawsuit.

As I understand it, IANAL (IAN even close to being AL):

Generally people are under the impression that an appeal is "I don't like the way the judge ruled on my case. I want a second opinion." This is not the case.

In fact, the appeal court does not re-hear the case - they listen to arguments from both sides as to whether a mistake was made in the handling of the case. The law was wrongly applied, the law was not constitutional, the judge did not manage the trial correctly, etc.

The appeal court will not, for example, second-guess a judge or jury on whether the story of Witness A should have been believed over Witness B. What they seem to be good at, though, is finding technical reasons to overturn a decision when they feel a miscarriage of justice has happened.

First, the side seeking appeal has to explain in writing why the error exists, and if they are persuasive enough the appeal court will hear the sides argue it out. (Except, see "Ceritification" above).

If the appeal court thinks the problem is such that the case should be heard again, with their changes or clarifications, they will order a new trial. The appeal court does not re-hear the whole case themselves, they only clarify issues arising from the trial.

If the appeal court thinks that the clarification they issue settles the case ("This law is unconstitutional") then the the case is settled because there is no way to rehear the case under the new decision.

Generally it seems the higher courts avoid making snap judgements. hey hear cases of extreme importance ("Who is the president?"). They often hear cases about pressing social issues or the cosntitutionality of laws when they see a large number of similar cases being appealed or if two of the circuits below them issue conflicting judgements.

Quite often you will hear that a case is decided on very narrow grounds, so that there is even more wiggle room if further issues arise.

Earl Snake-Hips Tucker
03-05-2012, 11:14 AM
Hmmm. . . Didn't know that Dr. Kemp was a poster.

Anyway, when it turns out that some (or even one) of the "facts" from an earlier decision were in fact incorrect, what then?

AK84
03-05-2012, 11:23 AM
Anyway, when it turns out that some (or even one) of the "facts" from an earlier decision were in fact incorrect, what then?

Don't mistake lack of inclination to interfere with a factual finding with lack of jurisdiction to do so. If the finding is so perverse or based upon no evidence or a major misreading of the same, then the Appellate Court will overturn it. However, they will not overturn it merely because they disagree with it.


Of course their is a further complication, it depends on the standard of review. In some rare, but not unknown cases, the standard of review may be de novo meaning its reconsidered afresh, while on the opposite end of the spectrum the review may be arbitary or capricious, meaning that they will not overturn it unless the decision is one no reasonable tribunal could have reached.


And I just realised I misread the date on the earlier posts, its from 1999, not 2009 as I thought.:eek::eek:

Apologies:smack:

Loach
03-05-2012, 11:26 AM
Thats weird. To me the first 9 posts just say guest with no name. As if he never existed.

AK84
03-05-2012, 11:27 AM
Thats weird. To me the first 9 posts just say guest with no name. As if he never existed.

Look at the post directly above yours.:o

lawbuff
03-05-2012, 12:41 PM
On a legal thread, perhaps someone can answer this question:
The 6th Amendment to the Constitution enumerates the rights of a criminal defendant. These include the right to a speedy trial by a jury of peers and the assistance of defense counsel. The 6th makes no mention of a right to appeal a ruling.

Where does the defendant's guaranteed right to appeal a criminal ruling come from? It does not seem to be Constitutional in origin.



I know the thread is old, but for reference, the federal constitution does not mandate a right to appeal. I have this case in my notes to illustrate it.

IF a state permits appeals, the appeal must conform to Due Process.


http://supreme.justia.com/cases/federal/us/469/387/case.html

lawbuff
03-05-2012, 12:47 PM
Sometimes, though, the passage of time makes clear that the original decision should be re-examined. Thus, in Brown v. Board of Education the court re-examined the meaning of the fourteenth amendment's equal protection clause, a subject they had previously addressed in Plessy v. Ferguson in the late 1800's. The court used Brown to overturn the decision in [u]Plessy[u/], changing the law regarding segregation of services by racial makeup


Historically and more well known this is true, but Brown did not actually overturn Plessy, but an earlier education case of another name.

lawbuff
03-05-2012, 12:56 PM
With vanishingly rare exceptions, you have no right to appeal to the Supreme Court.



I disagree, you have a right to appeal, however, the grant of Certiorari is NOT a right, but discretionary.

lawbuff
03-05-2012, 01:04 PM
As to appeals in criminal cases - I thought that the state couldn't appeal a jury verdict of acquittal in the U.S., because of the 7th Amendment. For example, the D.A. couldn't appeal the OJ acquittal. Have I got that right?

Regardless of any inferior court application of the 7th, the US SC has never applied the 7the to the states, even in civil cases, but in criminal trials, the 7th is meaningless.

There is no appeal from a not guilty verdict. What could possibly happen, is, say some jurors were bribed, resulting in an aquittal. If discovered the state could move (Motion) to vacate the decision, or such, that is not an appeal though.

Acsenray
03-05-2012, 01:22 PM
I disagree, you have a right to appeal, however, the grant of Certiorari is NOT a right, but discretionary.

When you say you have a "right to appeal," the understanding of that term in jurisprudence is that the court you are appealing to must address your appeal. Otherwise, all you're really saying is that you have a right to file a piece of paper, which is rather trivial. So, it trivializes the concept of "right" to call this a right.

lawbuff
03-05-2012, 02:23 PM
When you say you have a "right to appeal," the understanding of that term in jurisprudence is that the court you are appealing to must address your appeal. Otherwise, all you're really saying is that you have a right to file a piece of paper, which is rather trivial. So, it trivializes the concept of "right" to call this a right.


The term RIGHT means just that, you can not be denied, as you say, filing a piece of paper, as long as the rules of Appellate procedure are bound by.

On a state level, at least here, in Ohio, the Appeals court must hear it, but the state SC can decline review, period. This seems true in other states also as reading various US SC decisions, Certiorari was granted from a state appeals court as the SC there declined review.

A few states though have NO intermediate appeals courts, the court of last resort is the state SC.

Acsenray
03-05-2012, 02:47 PM
The term RIGHT means just that, you can not be denied, as you say, filing a piece of paper, as long as the rules of Appellate procedure are bound by.

That's not what "right to appeal" means. It means you have a right to have your appeal considered by the court and disposed of substantively.

In the federal system you have a "right to appeal" to a federal appeals court. You do not have a "right of appeal" to the Supreme Court. Yes, anyone can file a petition for a writ of certiorari. But so long as the court has the authority to refuse to issue such a writ, you do not have a "right to appeal."

lawbuff
03-05-2012, 02:56 PM
That's not what "right to appeal" means. It means you have a right to have your appeal considered by the court and disposed of substantively.

In the federal system you have a "right to appeal" to a federal appeals court. You do not have a "right of appeal" to the Supreme Court. Yes, anyone can file a petition for a writ of certiorari. But so long as the court has the authority to refuse to issue such a writ, you do not have a "right to appeal."


This is like the difference between a Right of Action and a Cause of Action.


Again, filing an appeal, whether you use the words "Right to" or "Right of", can not be denied, we agree on that.

Acsenray
03-05-2012, 02:57 PM
Again, filing an appeal, whether you use the words "Right to" or "Right of", can not be denied, we agree on that.

Actually, the words matter. The word "right" when used with "appeal" is a term of art in law.

Loach
03-05-2012, 03:03 PM
Look at the post directly above yours.:o

I realized its from 99. Old threads usually have some banned members and names from the past. This is the first time I have seen posts with no name at all.

Northern Piper
03-05-2012, 03:14 PM
It was a flitch in the software when SDMB went from ubb to vboard - some of the really old threads lost their poster names.

lawbuff
03-05-2012, 03:15 PM
Actually, the words matter. The word "right" when used with "appeal" is a term of art in law.

I meant the words OF or TO, not the word Right itself.

I have this case in my notes, quoting from Durham v. United States, 401 US 481;

* It is suggested that Crooker is different because it involved a right of appeal, while here we deal with a petition for a writ of certiorari. It is, of course, true that appeals are a matter of right while decisions on certiorari petitions are wholly discretionary. Congress, however, has given a right to petition for certiorari and petitioner exercised that right.

AK84
03-05-2012, 09:59 PM
I meant the words OF or TO, not the word Right itself.

I have this case in my notes, quoting from Durham v. United States, 401 US 481;

* It is suggested that Crooker is different because it involved a right of appeal, while here we deal with a petition for a writ of certiorari. It is, of course, true that appeals are a matter of right while decisions on certiorari petitions are wholly discretionary. Congress, however, has given a right to petition for certiorari and petitioner exercised that right.

Are you a law student? You certainly sound like one.


And no, the case (http://supreme.justia.com/cases/federal/us/401/481/case.html) you mention does not deal with what you claim it did. In it the Petitioner had died during the pendency of his Petition and the question was did it abate the proceedings in the Courts below. The answer was, as the conviction had not achieved finality, yes it did as all judicial remedies had not been exhausted.

What you are doing is mixing up the availability of a Judicial remedy with a right to appeal (and no this is not being pedantic or splitting hairs). An appeal by necessity implies that the Appellate Forum must consider and matter on merits. A Judicial Remedy on the other hand just means you can take a matter to a higher forum. The higher forum can (and usually does) tell you to get lost without even granting you any hearing. I don't think you will ever hear any practitioner taking the stand that where review is discretionary, its a right of appeal.

Polycarp
03-05-2012, 11:10 PM
I disagree, you have a right to appeal, however, the grant of Certiorari is NOT a right, but discretionary.

You know, in view of the fact that the line you quote is from a 12-year-old post of mine, in which I clearly distinguish between: (a) the legalese and the loose public usages of "appeal", and (b) appeal sensu stricto and certiorari, I get the distinct feeling you are critiquing my post simply to practice oneupsmanship.

If I have a right to/of appeal, I am able to constrain a higher court to review the decision, or some aspect of the decision, of a lower one. This contrasts with the petition for a writ of certiorari, in which the constraining is totally on the part of the higher court and I am a humble petitioner whose petition may be rejected for any or no reason. There's an unsuble distinction at justice there.

AK84
03-06-2012, 12:07 AM
And in any case there are clear and distinct legal consequences to the refusal of leave or certiorari and the dismissal of appael. Where a petition is dismissed, the lower courts decision attains finality and the dismissal does not create precedent. If an appeal is dismissed the final judgement is that of the higher court and it does create precedent. If what lawbuff is saying is correct, then every refusal of leave or certiorari is a precedent creator.

md2000
03-06-2012, 08:10 AM
So... you have a "right to appeal" as in you have a right to file a paper saying why you should be either re-tried or let off (or on the government side, re-tried)?

I assume this does not mean the appeal court MUST have a hearing on it? I read about a lot of appeals that are simply denied in writing on declined to be heard.

Who reads the paper and who says yea or nay to the appeal? At least one of the appeal court judges, or is this left to their assistants to weed out the obvious "not worth hearing" in their slush pile? Or does this vary from state to state?

AK84
03-06-2012, 10:51 AM
So... you have a "right to appeal" as in you have a right to file a paper saying why you should be either re-tried or let off (or on the government side, re-tried)?

I assume this does not mean the appeal court MUST have a hearing on it? I read about a lot of appeals that are simply denied in writing on declined to be heard.

Who reads the paper and who says yea or nay to the appeal? At least one of the appeal court judges, or is this left to their assistants to weed out the obvious "not worth hearing" in their slush pile? Or does this vary from state to state?

To repeat. There are two major types of appeals. Appeals which are as of right where the Appellate Court must at least consider the validity of your grounds as to why the Court below erred and discretionary appeals, where the Appellate Court chooses whether or not to hear your case. As stated above, there are distinct legal remedies with different results.

With respect to appeals as of right, the Court must generally grant the parties a hearing, although certain types of appeals (usually simple matters) might be disposable just on the briefs. Now please recall that appeals are not usually rehearings, the Appellate Court will not look at it afresh, rather they will review whether the Trial Court erred and usually the Appellant in their Appellate brief has to specify exactly why the lower court erred and why the decision should be set aside. Several Appellate Courts have procedures whereby they screen out the hopeless and frivilous cases these vary according the jurisdiction.

On the case of discretionary review, the procedures again vary. In the SCOTUS the matters are disposed off on papers, (4/9 judges need to agree to hear a case). Other countries give the parties a short oral hearing to convince the Court to take up the case. It should also be emphasized that merely arguing that the decision of the Courts below was wrong will not get you very far, you need to show the Court in discretionary review that the case raises an issue of law of general public importance and many if not most petition will invariably fail that test. If there are a plethora of judgements of lower appellate courts or the High Court that on a certain issue, then the Court is not likely to touch it. OTH if it relates to a new statute or the judgements of the lower Courts are at variance, then the might take it. The procedure for how a Court decides to take on a case also varies world over.

lawbuff
03-06-2012, 12:29 PM
Are you a law student?

No, I am not.


And no, the case (http://supreme.justia.com/cases/federal/us/401/481/case.html) you mention does not deal with what you claim it did


I know we were not discussing abatement, I simply cited the case to provide the internal citation. If you think it does not apply, fine.

lawbuff
03-06-2012, 12:31 PM
You know, in view of the fact that the line you quote is from a 12-year-old post of mine, in which I clearly distinguish between: (a) the legalese and the loose public usages of "appeal", and (b) appeal sensu stricto and certiorari, I get the distinct feeling you are critiquing my post simply to practice oneupsmanship.


I am attempting to upstage no one.

lawbuff
03-06-2012, 12:34 PM
If what lawbuff is saying is correct, then every refusal of leave or certiorari is a precedent creator.

NO, not at all. As you know the SC has stated repeatedly that a denial of Certorari is NOT a decision on the merits, period.

lawbuff
03-06-2012, 12:52 PM
Oh, just to add, Polycarp, I did not revive the thread. I was hesitatant to even post to it at first. I have read your posts, you are not ignorant of the law, so it was not meant to show up anyone.

Northern Piper
03-06-2012, 12:53 PM
So... you have a "right to appeal" as in you have a right to file a paper saying why you should be either re-tried or let off (or on the government side, re-tried)?

I assume this does not mean the appeal court MUST have a hearing on it? I read about a lot of appeals that are simply denied in writing on declined to be heard.

Who reads the paper and who says yea or nay to the appeal? At least one of the appeal court judges, or is this left to their assistants to weed out the obvious "not worth hearing" in their slush pile? Or does this vary from state to state?

md2000, from the Canadian perspective, there is a distinction between an appeal as of right and an appeal by leave.

In cases of appeals as of right, the party wishing to appeal just files a document, typically called a "Notice of Appeal", with the court that has jurisdiction to hear the appeal. The parties then file their briefs and other materials and the court eventually holds a hearing on the merits of the appeal.

In appeals by leave, the party wishing to appeal files an application for leave to appeal with the appellate court, with a brief arguing for leave to be granted. The other party then files a reply brief, opposing the grant of leave. Depending on the law and practice of that court, there may be a hearing on the leave application, or the decision to grant or deny leave may be made solely on the papers filed with the court. For instance, leave applications to the Supreme Court are decided by panels of three judges of that court; they can on occasion direct an oral hearing on the leave issue, but normally they decide it on the papers. In my experience in the Court of Appeal, leave applications are decided by a single judge of the Court sitting in chambers, after hearing from both parties.

If the court grants leave, then the parties file their arguments and there is a hearing. In the appellate procedures I'm familiar with, the remedial powers of the appellate court are the same, regardless whether the appeal is one of right or by leave, although in some cases of appeals by right, the scope of the issues that the court can consider may be more restricted.

As a general rule, in Canada there is almost always one level of appeal as of right, and subsequent appeals may be only by leave. So if the trial is in Provincial Court, there is normally a right of appeal to the Queen's Bench, but leave is often required to appeal further to the Court of Appeal, and will be required to go to the Supreme Court. Similarly, if the trial is in the Queen's Bench, there is normally a right to appeal to the Court of Appeal, but appeals to the Supreme Court normally are only by leave.

There are exceptions to these general principles, but that's the gist of it. One exception is that if the Court of Appeal has original jurisdiction in some matter, leave is still normally required to go to the Supreme Court. Another exception is that a law may sometimes say that there is no appeal from the Queen's Bench; that means no appeal to the Court of Appeal, but there is still an appeal to the SCC, but only by leave.

Really Not All That Bright
03-06-2012, 01:34 PM
...in Brown v. Board of Education the court re-examined the meaning of the fourteenth amendment's equal protection clause, a subject they had previously addressed in Plessy v. Ferguson in the late 1800's. The court used Brown to overturn the decision in [u]Plessy[u/], changing the law regarding segregation of services by racial makeup.
Historically and more well known this is true, but Brown did not actually overturn Plessy, but an earlier education case of another name.
Actually, Brown did (explicitly) overturn Plessy, but only in the context of public education:
Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority. Any language in Plessy v. Ferguson contrary to this finding is rejected. We conclude that in the field of public education the doctrine of "separate but equal" has no place.
Plessy itself did not actually deal with segregation in education, but in public railcars, but it was the basis for all subsequently enacted segregation contexts.

lawbuff
03-06-2012, 02:22 PM
Actually, Brown did (explicitly) overturn Plessy, but only in the context of public education:

Plessy itself did not actually deal with segregation in education, but in public railcars, but it was the basis for all subsequently enacted segregation contexts.


I understand that, I have read Plessy, but just for the record my source is this, and this is from the govt. Scroll down to # 89. I know legal scholars will go with Plessy, but I simply point out a different source.

http://www.gpoaccess.gov/constitution/html/scourt.html

Really Not All That Bright
03-06-2012, 08:58 PM
I understand that, I have read Plessy, but just for the record my source is this, and this is from the govt. Scroll down to # 89. I know legal scholars will go with Plessy, but I simply point out a different source.

http://www.gpoaccess.gov/constitution/html/scourt.html
I don't see how. Cumming (http://supreme.justia.com/cases/federal/us/175/528/case.html) deals with a situation in which a district maintained a high school for white children and no high school for black children at all, rather than one in which separate schools were maintained for white and black children.
The plaintiffs in error complain that the board of education used the funds in its hands to assist in maintaining a high school for white children without providing a similar school for colored children. The substantial relief asked is an injunction that would either impair the efficiency of the high school provided for white children or compel the board to close it.
Westlaw KeyCite doesn't list any negative treatment of Cummings at all, other than a Kansas state court decision. Shepard's indicates that it was questioned in two federal district court decisions (weirdly, both in the 1970s) but does not show any negative treatment in the Supreme Court.

It appears to have been overruled by Brown to the extent that the decision rested on SCOTUS' ruling that public education was a state matter which was none of its business, but that was hardly the point of Brown, and had been dispelled before Brown anyway.
We may add that while all admit that the benefits and burdens of public taxation must be shared by citizens without discrimination against any class on account of their race, the education of the people in schools maintained by state taxation is a matter belonging to the respective states, and any interference on the part of federal authority with the management of such schools cannot be justified except in the case of a clear and unmistakable disregard of rights secured by the supreme law of the land.
For what it's worth, this just about the dumbest damn Supreme Court opinion I've ever read.