An Ode to First Monday

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I would be remiss if I let today get by without noting that it’s the First Monday in October — which appellate geeks all know is the start of the term for the United States Supreme Court. Turns out one New Jersey resident is well aware of the significance of the day. Graham Blackman-Harris has been to nearly every First Monday for the past 20 years.

What Blackman-Harris told the Washington Post is true:

“Every American should see the Supreme Court in action,” he said. “Anyone going to the court will see we have a magnificent array of talent on that court.”

Every citizen should get thee to the Court at least once in a lifetime. It’s really awe inspiring to see argument in action.

The Court had an interesting first day including this curious order [pdf]:

10-11054 MURPHY, CHARLES M. V. KOLLAR-KOTELLY, JUDGE, USDC DC
Because the Court lacks a quorum, 28 U.S.C. §1, and since the qualified Justices are of the opinion that the case cannot be heard and determined at the next Term of the Court, the judgment is affirmed under 28 U.S.C. §2109, which provides that under these circumstances “the court shall enter its order affirming the judgment of the court from which the case was brought for review with the same effect as upon affirmance by an equally divided court.” The Chief Justice, Justice Scalia, Justice Kennedy, Justice Thomas, Justice Ginsburg, Justice Breyer, and Justice Alito took no part in the consideration or decision of this petition.

It turns out that this is what happens when you sue Supreme Court justices personally — they recuse themselves and the litigant is guaranteed an affirmance. The Volokh Conspiracy commenters have a line on the backstory. Lyle Denniston has a good summary of today’s argument over at SCOTUSBLOG.

Finally, for a rundown on the cases the Court will be considering this Term, the New York Times’ article hits the highlights. However, I like Wired’s take even more, because it points out the intellectual property cases on deck, including:
Golan v. Holder, October 5, 2011, which will decide if Congress can recapture, on behalf of copyright owners, works that are in the public domain.
Mayo Collaborative Services v. Prometheus Laboratories, Inc., December 7, 2011, which concerns the patentability of observations.
ASCAP v. United States, (date TBD) which will decide whether a download is a public performance under the Copyright Act.

Grab the popcorn, folks. It’s shaping up to be an interesting term.

“Final” Judgment While Appeal Pending is Void

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On a petition for certiorari filed by a non-party challenging a post-judgment discovery order, the Second District Court of Appeal has provided us with some great language on what constitutes a void judgment. In Gibson v. Progress Bank of Florida, No. 2D10-4137 (Fla. 2d DCA Feb. 23, 2011)[.pdf], the court decided what should be a fairly obvious point — that a final judgment entered while an interlocutory appeal is pending is outside the jurisdiction of the trial court and therefore void. This proposition comes directly out of Florida Rule of Appellate Procedure 9.130(f), which states:

In the absence of a stay, during the pendency of a review of a non-final order, the lower tribunal may proceed with all matters, including trial or final hearing; provided that the lower tribunal may not render a final order disposing of the cause pending such review.

(emphasis by Court).

A final summary judgment, all parties agreed, “constitutes a final order disposing of the cause.” The Court held, therefore, that the judgment was null and void, explaining:

A void judgment is “[a] judgment that has no legal force or effect, the invalidity of which may be asserted by any party whose rights are affected at any time and any place, whether directly or collaterally…. It is incapable of being confirmed, ratified, or enforced in any manner or to any degree.”

Applying Florida Rule of Civil Procedure 1.560, the court concluded that there can be no discovery in aid of execution of a void judgment. Moreover, applying the general discovery rules applicable to pending actions, the court held that discovery from the Petitioners under those rules was irrelevant prior to judgment. Quashing the discovery order, the court concluded “because the final judgment is void, the Petitioners would suffer irreparable harm if forced to disclose their personal financial information.”

Final Agency Action

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Got your Road to Independence scholarship terminated? The First DCA says that’s not a final agency action subject to review. In Wade v Florida Department of Children and Families, ___ So.3d ___, No. 1D10-2502 (FEb. 7, 2011), the Court sua sponte determined that it had no jurisdiction over the appeal.

Interestingly, the Agency thought it was a final appealable order, and told the appellant so. The appellant first received a letter terminating her scholarship, and the letter stated that she had the right to request a “fair hearing.” The appellant participated in an evidentiary hearing before a hearing officer, who affirmed the denial of the scholarship. The affirmance was denominated a “final order” and included “notice of right to appeal” language directing the apellant to file a notice of appeal with the DCA if she wished to challenge the “final order.”

After seeking additional briefing in the jurisdictional issue from the parties, the Court concluded that the “final order” was not, in fact, a final order, due to the restrictions of the statute that created the scholarship program. Relying on section 409.1451(5)(e)2., Fla. Stat., the Court explained that the scholarship program is required to provide for “an appeal to the Secretary of Children and Family Services,” and the implimenting regulations do not transform the hearing process employed here into the required appeal to the Secretary.