Personal injury

This Day in Liberal Judicial Activism – September 4th


1992Recognizing that “only exceptional circumstances amounting to a judicial usurpation of power warrant recourse to an exceptional remedy” for a mandatory order, the Third Circuit found (in Haines v. Leggett) that New Jersey Federal District Judge (and star of the day) H. Lee Sarokin has created such extraordinary circumstances.

When ruling on a pre-trial discovery motion in a personal injury suit against the cigarette manufacturers, Sarokin declared that “the tobacco industry may be the king of concealment and misrepresentation” and accused its members of having “deliberately and secretly decided to spread the buying public”. Those who are at risk only for the purpose of making profits and… think that the sickness and death of consumers is the appropriate cost of their prosperity! (Exclamation mark in the original.) Relying on his own “knowledge of the evidence” presented in a different case, Sarokin ruled that the fraud exception to attorney-client privilege applied and ordered the required documents to be brought. In order to undermine the defendants’ opportunity to appeal his judgment, he quoted extensively from the same documents relating to the lien that had been asserted.

The Third Circuit, in the opinion of LBJ-appointed Ruggero Aldisert, not only invalidates Sarokin’s discovery but also takes the unusual step of removing Sarokin from the case. The Third Circuit criticizes Sarokin for violating “fundamental notions of due process”, for divulging the contents of documents of eminent privilege before exhausting the avenues of appeal (“we should never again encounter a victim of this kind”), and for destroying any semblance of impartiality.

When President Clinton nominated Sarokin to the Third Circuit in 1994, Senator Patrick Leahy displayed his usual denial of reality when he praised Sarokin as “a judge of competence, temperament, and integrity” and an “excellent choice.”

2014The saga of proceedings brought by Graham Henry to challenge his 1986 murder conviction finally seemed to end when the Supreme Court denied his motion for transfer in June 2014. But in an unusual procedural distortion, the Ninth Circuit voted instead to rehear enbanc motion Henry to reconsider the Ninth Circuit panel’s November 2013 order denying his motion for a rehearing to the panel.

In dissent, Justice Richard Tallman, joined by four other justices, issued an opinion with this memorable editorial:

“If someone is remembered for the rules they broke, our court should not forget them. By accepting the habeas corpus case now — after the Supreme Court has refused transfer and the deadline for review by our court has expired — we are violating the federal rules of appellate procedure and our orders.” General.We also ignore the recent Supreme Court authority that reversed us for doing the same thing in the past.No circuit is routinely reversed just for this kind of behavior.We should know better.

In December, the Supreme Court will take the remarkable action of asking the Ninth Circuit — yes, the Court itself — to respond to Arizona’s petition to issue an authorization order that would force the Ninth Circuit to conclude further action in this case. In an apparent effort to avoid having to explain her misconduct, the Ninth Circuit will end its proceedings on December 30.

2015– By a vote of 6 to 3, the Washington Supreme Court delivered its ruling League of Women Voters v. Washington That a state law allowing charter schools violates the state constitution. The ruling comes as nine charter schools, serving about 1,200 students, begin the school year, thus (as one article states) “creating chaos for hundreds of families”.

2018The Ninth Circuit Committee, in the opinion of Judge Marsha Berzon, ruling (V Martin v. Boise City) that “the Eighth Amendment’s prohibition on cruel and unusual punishments prevents the city from prosecuting persons criminally for sleeping outside on public property when those persons have no home or other shelter to go to.”

A few months later, Judge Milan D. Smith Jr. (joined by five of his colleagues) refused his court to grant a rehearing to Bank:

“In one misguided ruling, a panel of three justices on our court misinterpreted not one or two, but three areas of binding Supreme Court precedent, and proprietary formulation that began to wreak havoc on local governments, residents, and businesses throughout our district. Per the panel’s decision, Local governments are prohibited from implementing laws that restrict sleeping and camping in public spaces unless they provide shelter to every homeless individual within their jurisdiction.Moreover, the reasoning put forward by the commission will soon prevent local governments from imposing another set of public health and safety laws, such as Those that prohibit defecation and urination in public places.It is unfortunate that the committee’s opinion ties the hands of government officials trying to address the serious societal concern of homelessness.


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