Legal Precedents

[lawbuff]

@Polycarp

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]

@AK84

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]

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]

@md2000

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]

@DSYoungEsq

…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.

@lawbuff

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]

@Really_Not_All_That_Bright

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]

@lawbuff

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 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.

@Justice Harlan

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.