APPELLATE ADVOCACY Appellate advocacy is the legal representation by an attorney before any state or federal court of intermediate or final appeal.. Congress has progressively limited th
Trang 1makes a limited appearance and wins the case can be sued again by the same plaintiff in a different court
In states that have no provision for a limited appearance, a defendant can avoid being subject
to the personal jurisdiction of the court by refusing to appear, thereby causing a default and
a consequentFORFEITUREof the property Or the defendant can submit to the court’s personal jurisdiction, defend the case on its merits, and face the possibility of full liability The defen-dant must decide which course of action is best, after comparing the value of the seized property with the damages being sought by the plaintiff and considering the likelihood of winning the case at trial
The Federal Rules of Civil Procedure do not provide for limited appearances in federal court but instead defer to state law on that issue A slightly greater number of courts permit limited appearances than do not The law of the jurisdiction in which the action is brought must
be consulted to determine whether limited appearances are permitted
Withdrawal
If an appearance has been entered through
FRAUD or mistake or after the plaintiff’s com-plaint has been materially amended, the discre-tion of the court may permit the appearance to
be withdrawn A proper withdrawal is treated as
if no appearance at all had been entered in the case A defendant who has withdrawn a general appearance may ask the court for leave to file a special appearance to challenge the court’s jurisdiction
If someone makes an unauthorized appear-ance on behalf of the defendant, it may be stricken or set aside by a motion of any party with an interest in the proceeding
Delay or Failure to Appear
A defendant who fails to appear in court pursuant to a service of process might have a default judgment entered against her or him and be held in contempt of court A failure to appear does not, however, result in aWAIVERof objections to the court’s jurisdiction
If a defendant fails to make an appearance
in the time allotted by statute or court rules,
he or she may lose certain rights But if the circumstances warrant it, a court may extend the time of appearance
FURTHER READINGS McKinney, William Mark, and Burdett Alberto Rich 1914 Ruling Case Law Northport, NY: Edward Thompson Weinreb, Lloyd L 2006 Criminal Process: Cases, Comments, Questions 7th ed Eagan, MN: Foundation.
Yeazell, Stephen C 1998 Federal Rules of Civil Procedures: With Selected Statutes and Cases Frederick, MD: Aspen CROSS REFERENCE
Civil Procedure.
APPELLANT
A person who, dissatisfied with the judgment rendered in a lawsuit decided in a lower court or the findings from a proceeding before an adminis-trative agency, asks a superior court to review the decision
An appellant, sometimes called the peti-tioner, must demonstrate sufficient grounds for appeal, which are usually specified by statute, in order to challenge the judgment or findings Whether a party was aPLAINTIFForDEFENDANTin the lower court has no bearing on his or her status as an appellant
APPELLATE Relating to appeals, which are reviews by superior courts of decisions made by inferior courts or administrative agencies
APPELLATE ADVOCACY Appellate advocacy is the legal representation by
an attorney before any state or federal court of intermediate or final appeal
The U.S.COURTS OF APPEALS were created by the Evarts Act of 1891 (28 U.S.C.A § 43) and are divided into 13 judicial circuits (see the accompanying table) The central location of each court is determined by statute (28 U.S.C.A
§ 41 [1995]) In addition, a court may sit any place within its circuit and is required by statute
to sit in certain locations other than its central location (28 U.S.C.A § 44[1995]) Appeals are heard and decided by panels of three judges that are selected randomly, by the CIRCUIT COURT EN BANC(in its entirety), or by a division established
to perform the court’s en BANC function in larger circuits
The circuit courts’ ORIGINAL JURISDICTION
included all matters not exclusively reserved for the district trial courts The circuit courts also had appellate jurisdiction to review district
Trang 2trial court decisions in civil cases in which the
AMOUNT IN CONTROVERSY exceeded $50 and in
admiralty cases in which the amount in
controversy exceeded $300 They have
jurisdic-tion to review final decisions of the federal
district trial courts, both civil and criminal
Their jurisdiction extends only to matters
authorized by Congress An appellate court
has no discretion in deciding whether to
consider the merits of an appeal over which it
has no jurisdiction The most common basis for
appellate jurisdiction is an appeal from a final
district court judgment (324 U.S 229, 28 U.S.C.A
§ 1291 [1995]) When a judgment is entered
that “ends the LITIGATION on the merits and
leaves nothing for the court to do but execute
the judgment,” a case is completed (Catlin v
United States, 65 S Ct 631 [1945])
Congress has progressively limited the
Supreme Court’s power to directly review trial
court decisions without a hearing in the courts
of appeals Because Supreme Court review is
usually discretionary in the overwhelming
majority of cases, a court of appeals is the
highest federal tribunal where a litigant or
DEFENDANTcan receive a hearing on the merits
The Appeals Process
An unsuccessful party in a lawsuit or
adminis-trative proceeding may file a timely appeal to
an appropriate SUPERIOR court empowered to
review a FINAL DECISION, on the ground that it
was based upon an erroneous application of
law The person who initiates the appeal, called
the appellant, must file a notice of appeal, along
with other necessary documents, to commence
appellate review The person against whom the
appeal is brought, the appellee, then files a brief
in response to the appellant’s allegations
Usually, review in the federal and state
courts goes through two stages: an appeal from
a trial court to an intermediate appellate court
and then to the highest appellate court in the
jurisdiction An appeal may be granted as a
matter of right or as a matter ofCERTIORARI (at
the discretion of a superior appellate court) For
example, a party may appeal from a federal
district trial court to a U.S court of appeals as a
matter of right, but may appeal to the U.S
Supreme Court only by a grant of certiorari An
appellate court may hear an appeal only if the
decision presented meets the statutory
require-ments for review
The right to appeal is limited to the parties
to the proceedings who are aggrieved by the decision because it has a direct and adverse effect upon them or their property Also, an actual CASE OR CONTROVERSY must exist at the time of review Issues that have become MOOT
while the appeal is pending and cases that have been settled are not reviewable
For a case to be appealable, a final judgment
or order must have been reached by a trial court A judgment is considered final for purposes of appeal when the action is ended
in the court where it was brought and nothing more is to be decided
An appeal must be made within the time prescribed by statute or by the rules governing the appellate court The time for filing an appeal begins to run once a final decision has been made by the trial court The appellant must file
a notice of appeal with the clerk of the appellate court in order to begin the appeal and send a copy to the appellee If the appeal process is not begun within the time set by statute, any right to appeal is lost If EXTENUATING CIRCUMSTANCES
exist, an extension of time for filing the appeal may be granted
The appellate court can review only the trial court record and the briefs filed by the appellant and appellee If permitted by the appellate court,AMICUS CURIAEbriefs may also become part
of the record on appeal (Amicus curiae means
“friend of the court.” A person who is not a party to the action may petition the court for permission to file such a brief.) The briefs must contain the facts of the case, the grounds for review, and arguments relating to the issues raised
The appellant’s brief must specifically dis-cuss the alleged errors that entitle the appellant
to a reversal of the trial court’s decision and discuss why each ruling was wrong, citing authority such as a case or statute that applies
to the particular point at issue The appellee may file a brief containing arguments against reversal and explaining why the trial court’s ruling was correct Only conclusions of law, not findings of fact, made by a lower court are reviewable Appellate courts can decide only issues actually before them on appeal
The appellate court must decide whether the errors alleged to have been made by the trial court are harmless or prejudicial If an error substantially injures the rights of the appellant,
APPELLATE ADVOCACY 329
Trang 3it is called a prejudicial error, or reversible error, and warrants the reversal of the final judgment
or order If the appeals court determines that the error is technical or minimally affects the rights of the parties or the outcome of the lawsuit, it is considered a HARMLESS ERROR and insufficient to require a reversal or modification
of the decision of the trial court
The appellate court may hear oral argu-ments from each side These arguargu-ments, which usually last 10 to 15 minutes for each side, are intended to help the court understand the issues and to persuade the court to rule in favor of the arguing party During the arguments, the appellate judge or judges may interrupt with questions on particular issues or points of law
After reviewing the appeal, the appellate court may affirm the decision of the lower court, modify it, reverse it, or remand the case for a new trial in the lower court When a decision is affirmed, the appellate court accepts the decision of the lower court and rejects the appellant’s contention that the decision was erroneous When the appellate court modifies the lower court’s decision, it accepts part of the trial court’s decision and determines that the appellant was partly correct in saying that the decision was erroneous The trial court’s decision is then modified accordingly In reversing a decision, the appellate court indicates that it agrees with the appellant that the lower court’s decision was erroneous The party who lost the case at the trial court level then becomes the winning party in appellate court Occasion-ally, a decision will be reversed, but the lawsuit
is still unresolved In such cases, the appellate court orders that the case be remanded (returned) to the lower court for the determi-nation of issues that remain unresolved
Federal Criminal Appellate Advocacy
The SIXTH AMENDMENT to the U.S Constitution guarantees a criminal defendant the right to a jury trial and the right to an attorney TheFOURTEENTH AMENDMENT says states must provide criminal defendants with these same guarantees The U.S
Supreme Court has repeatedly held that a person found guilty in a criminal proceeding has no constitutional right to appeal A federal criminal defendant’s right to appeal, therefore, is based on
an act of Congress
Prior to 1776 and the founding of the United States, many colonial legislatures
allowed, by special act, new trials of criminal defendants But generally, criminal appeals did not exist when the U.S Constitution was drafted, and the JUDICIARY ACT OF 1789 (ch 20,
1 Stat 73) did not provide for appellate review
of criminal cases Thus, history does not support a constitutional right to criminal appeal The issue was left to Congress
Between 1855 and 1860 Congress refused to provide for federal criminal appellate jurisdic-tion, although several bills were introduced Finally in 1879, Congress authorized the federal circuit courts to issue writs of error in criminal cases on a discretionary basis In 1889 Congress gave defendants sentenced to death the right of direct appeal to the U.S Supreme Court In
1891 it extended the Supreme Court’s jurisdic-tion for review to all “cases of conviction of a capital or otherwise infamous crime” (26 Stat
827, quoted in 775 S Ct 1332[1957]) Because
of the burden on the Supreme Court of hearing
a large number of criminal appeals, in 1897 Congress transferred jurisdiction over noncapi-tal appeals to the circuit courts of appeals In
1911 Congress abolished the right of direct appeal to the Supreme Court in capital cases, and the circuit courts became the appellate courts for all criminal cases
In 1894, in McKane v Durston (153 U.S 684,
14 S Ct 913, 38 L Ed 867), a unanimous Supreme Court determined that no matter how serious the offense, a criminal defendant had no constitutional right to appeal her or his conviction
The Criminal Justice Act (18 U.S.C.A § 3006A [1995]) is an outgrowth of the Sixth AmendmentRIGHT TO COUNSEL The act requires courts to develop and implement plans to furnish representation for defendants charged with felonies or misdemeanors, other than petty offenses, who are financially unable to obtain an attorney Although the act is directed primarily
to proceedings at the trial court level, it provides that any person for whom counsel is appointed shall be represented at every stage of the criminal proceedings, from the defendant’s initial appearance through the appeal process
State Criminal Appellate Advocacy
All U.S states provide defendants some form of appeal from a criminal conviction Appeals were well-established elements of state criminal proceedings throughout the nineteenth century
Trang 4They probably developed earlier in state court
systems because state governments had primary
responsibility for enforcing criminal laws from
the founding of the nation through the 1800s,
since very few federal statutory offenses existed
during this period
Because states decided that criminal appeals
were necessary to protect the innocent, the
Supreme Court determined that appellate
procedures must comply with the federal
constitutional guarantees of due process and
EQUAL PROTECTION(Griffin v Illinois, 351 U.S 12,
76 S Ct 585, 100 L Ed 891[1956]) In Douglas
v California (372 U.S 353, 83 S Ct 814, 9 L
Ed 2d 811[1963]), the Supreme Court held that
a state violates a defendant’s constitutional
protections when it forces an indigent, who
has a statutory right to appeal, to attempt the
appeal without the assistance of an attorney
The Supreme Court reasoned that without an
attorney, an appeal constituted nothing more
than a“meaningless ritual.” Therefore, a state
must provide counsel to a defendant who wants
to exercise the right to appeal but cannot afford
to hire a lawyer
In 2009 the Supreme Court faced a novel
question regarding the reaches of appointed
appellate counsel in Harbison v Bell (No
07-8521, 556 U.S _[2009]) The question before
the Court was whether Harbison, a death-row
inmate who had exhausted all his state court
and federal habeas appeals, could request a
federally appointed (and funded) attorney (who
had represented him in filing the federalWRITof
HABEAS CORPUS) to represent him (if no other
attorney was available) to prepare a last-ditch
petition for state CLEMENCY proceedings The
Court, by a 7–2 decision, said yes
Tennessee law no longer authorized the
appointment of state public defenders for
clemency proceedings Therefore, Harbison’s
federally appointed habeas attorney had
requested the district court to expand the scope
of her representation to include the state
clemency proceedings, relying on 18 USC
§3599 (which provides for the appointment of
federal counsel) for authority Section §3599 (a)
2 expressly refers to the federal habeas statute
sections §2254 and §2255, providing for the
appointment of counsel in “both state and
federal post-conviction proceedings.” Section
§3599 (e) in relevant part, states that counsel is
available to any defendant sentenced to death in
“proceedings for executive or other clemency as may be available to the defendant.” Despite the language, there had been a split in the federal circuit courts as to whether Section §3599 provided for federally funded attorney only in executive clemency proceedings from the presi-dent or also clemency from state governors or pardon boards The Supreme Court found that both were covered under Section §3599
Ineffective Appellate Representation
In 1985 the Supreme Court held that a defendant has the right to the effective assis-tance of appellate counsel The Court concluded that a defendant whose counsel does not provide effective representation is“in no better position than one who has no counsel at all”
(Evitts v Lucey, 469 U.S 387, 105 S Ct 830, 83
L Ed 2d 821 [1985]) However, in Ross v
Moffitt (417 U.S 600, 94 S Ct 2437, 41 L Ed
2d 341[1974]), the Supreme Court held that a criminal defendant does not have a constitu-tional right to appointed counsel on a discre-tionary review
In Roe v Flores-Ortega (528 U.S 470, 120
S Ct 1029, 145 L Ed 2d 985[2000]), the Court considered whether a defense lawyer must always consult with a defendant regarding an appeal of the conviction In this case, the defendant (Flores-Ortega) alleged ineffective counsel because his attorney did not file an appeal within the 60-day time period dictated
by the judge in his original case The Court rejected a bright-line rule (a strict rule with no ability to use discretion) that would have mandated such a consultation, ruling that each case must be analyzed using a set of standards
The Court in Roe held that a defendant claiming ineffective assistance of counsel must show that the attorney’s representation “fell below an objective standard of reasonableness”
and that the attorney’s deficient performance prejudiced the defendant The Court used a test set out in Strickland v Washington (466 U.S
668, 104 S Ct 205, 80 L Ed 2d 674[1984]) to determine if Flores-Ortega’s attorney was con-stitutionally ineffective for failing to file a notice
of appeal It directed that an inquiry should begin by asking whether the attorney in fact consulted with the defendant about the appeal
Such a consultation meant advising the defen-dant on the pros and cons of taking an appeal and making a reasonable effort to discover the defendant’s wishes However, the defendant
APPELLATE ADVOCACY 331
Trang 5would still have to show that there was a reasonable probability that, but for his attor-ney’s conduct, he would have filed a timely appeal
In Glover v United States (531 U.S 198, 121
S Ct 696, 148 L Ed 2d 604 [2001]), the Supreme Court ruled that defendants are entitled to a hearing to prove that they received ineffective counsel on an appeal In this case, the defendant argued that his appellate attorney failed to appeal his sentence, which he claimed had been miscalculated under federal SENTENC-INGguidelines This failure would mean serving between six and 21 months longer in prison An appeals court held that the increase in his sentence was not serious enough to merit a review of his ineffective counsel claim The Supreme Court disagreed, ruling that any amount of jail time justified a hearing into the issue
The Supreme Court considered another claim of ineffective appellate counsel in Mickens
v Taylor (535 U.S 162, 122 S Ct 1237, 152 L
Ed 2d 291 [2002]), but this one involved trial counsel However, the rule announced in Mickens could be made applicable to claims of ineffective appellate counsel The defendant had been convicted ofMURDERand sentenced to death
During the course of his death penalty appeals, his appellate attorney discovered that the defen-dant’s trial attorney had represented the murder victim shortly before his murder This was not disclosed to the defendant during his trial The defendant argued that this tainted his trial, as there was no way the defense attorney could have been objective
The Supreme Court disagreed, in a decision that signaled a departure from its death penalty jurisprudence Because of the finality of a death sentence, the Court previously required less hard evidence of prejudice from ineffective counsel In Mickens, the Court stated that the general rule for ineffective counsel should also
be applied to capital murder cases Under this standard the defendant must show that “but for” the lawyer’s conduct, the result of the trial would have been different The Court will presume an adverse effect “where assistance of counsel has been denied entirely or during a critical stage of the proceeding.” In Mickens, however, the Court found that the trial attorney had done an acceptable job in representing the defendant, so no adverse effect could be presumed Because the defendant could not
show that the outcome of his trial would have been any different but for the actions of his attorney, his appeal was rejected (see also Schriro v Landrigan aka Hill No 05-1575, 550 U.S. _[2007])
FURTHER READINGS Arkin, Marc M 1992 “Rethinking the Constitutional Right
to a Criminal Appeal ” University of California at Los Angeles Law Review 39.
——— 1990 “Speedy Criminal Appeal: A Right without a Remedy ” Minnesota Law Review 74.
Beazley, Mary Beth 2002 A Practical Guide to Appellate Advocacy New York: Aspen.
Berry, Carole C 2009 Effective Appellate Advocacy: Brief Writing and Oral Argument 4th ed St Paul, Minn.: West Group.
Frederick, David C 2002 Supreme Court and Appellate Advocacy St Paul, Minn.: West Group.
Junkin, Federick D 1988 “The Right to Counsel in ‘Frivolous’ Criminal Appeals: A Reevaluation of the Guarantees of Anders v California.” Texas Law Review 67.
Klonoff, Robert H and Gregory Castanias 2008 Federal Appellate Practice and Procedure in a Nutshell St Paul, Minn.: Thomson/West.
Knibb, David G 1990 Federal Court of Appeals Manual 2d
ed St Paul, Minn.: West.
National Conference of Bar Examiners (NCBE), 2009 “2008 Statistics ” The Bar Examiner, May 2009 Text available online at http://www.ncbex.org/fileadmin/mediafiles/ downloads/Bar_Admissions/2008_Stats.pdf; website home page: http://www.ncbex.org/bar-admissions/ stats/ (accessed August 5, 2009)
Rubin, Alvin B 1989 Advocacy in the Court of Appeal American Law Institute-American Bar Association.
No C380.
CROSS REFERENCES Criminal Law; Federal Courts; Habeas Corpus; Supreme Court of the United States.
APPELLATE COURT
An appellate court has jurisdiction to review decisions of a trial-level or other lower court
An unsuccessful party in a lawsuit must file
an appeal with an appellate court in order to have the decision reviewed In the United States, appellate courts exist at both the federal and the state levels, and generally they consist of a panel
of two or more judges On the federal level, decisions of the U.S district courts, where civil and criminal matters are tried, can be appealed
to the U.S court of appeals for the circuit covering the district court Eleven numbered federal judicial circuits have been established Each circuit comprises a number of states that are usually, though not always, in close geographic proximity For example, the Eighth Circuit includes Arkansas, Iowa, Minnesota,
Trang 6Missouri, Nebraska, and North and South
Dakota, and the Sixth Circuit is made up of
Kentucky, Michigan, Ohio, and Tennessee
Washington, D.C., has two U.S COURTS OF
APPEALS: the District of ColumbiaCIRCUIT COURT
of Appeals, which hears appeals arising out of
decisions of the Federal District Court for the
District of Columbia, and the U.S Court of
Appeals for the Federal Circuit, which has
exclusive and nationwide jurisdiction in appeals
from U.S district court decisions in patent,
copyright, trademark, and other specialized
areas
A decision of a U.S court of appeals may be
appealed to yet another appellate court, the
Supreme Court of the United States An appeal
to the Supreme Court is made by filing a
petition forCERTIORARI (a document requesting a
review of court records) The Supreme Court
has broad discretion in determining whether to
review decisions The Court receives thousands
of petitions per year, but can only review about one hundred cases in that span of time It most often denies certiorari and hears only cases that raise important and unsettled constitutional questions or in which the federal appellate courts have reached conflicting decisions on the same issue
On the state level, a decision of a state trial court—usually a district or other local court—
can be appealed to a state appellate court for review In most states, a case must first be appealed to an intermediate appellate court If it receives an unfavorable ruling at the intermedi-ate level, the case can then be appealed to the highest appellate court in the state, usually the state supreme court Like the Supreme Court of the United States, a state’s highest court usually has the discretion to decide whether to review a decision reached by the intermediate court
Some cases decided by the highest court in a state also can be appealed to the U.S Supreme
The interior chambers
of the U.S Supreme Court, the last forum for appeals of lower court decisions.
AP IMAGES APPELLATE COURT 333
Trang 7Court, though again the U.S Supreme Court will hear only appeals of major significance
In both state and federal matters, in general,
an appeal can be brought only after a FINAL DECISION, or final judgment, in the ACTION has been entered A judgment is final for the purposes of an appeal when nothing more is
to be decided in the action, and it concludes all rights that were subject toLITIGATION This rule
is based in part on the desire for judicial economy: It is more efficient for all matters to
be heard in one appeal than for a case to be conducted “piecemeal” (in several appeals) before it is finally resolved However, both state and federal courts will in some instances hear an
INTERLOCUTORY appeal, which is an appeal of a matter that does not decide the entire case but must be addressed before the case can be decided on its merits In other instances, whether an interlocutory appeal will be granted depends on the issue at hand If the issue concerns whether the lawsuit should go forward
at the trial level, it is more likely to be heard, since it may avoid an unnecessary trial For example, an interlocutory appeal may be permitted from an order granting or denying
an injunction, even though the main issues in the case have yet to be tried
The proceedings in the federal and state appellate courts are quite different from those that take place in a trial court At the trial level,
WITNESSESare called toTESTIFYand a jury is often present to hear evidence and reach aVERDICT At the appellate level, the trial court record and briefs prepared by both parties are reviewed, and oral arguments may be heard; witnesses are not called and no jury is convened The trial court record usually contains the pleadings that first initiated the case, a complete transcript of the court proceedings, materials admitted into evidence, and documents indicating the final judgment
An appellate court differs from a trial court
in another important respect: Only the trial court determines the factual issues in a case In its review, the appellate court does not try factual issues Instead, it determines only whether there is sufficient evidence to support the findings of the trial court and whether the trial court correctly applied the law
Both the appellant (the party appealing the lower-court ruling) and the appellee (the party against whom the appeal has been brought) file
written briefs with the appellate court The briefs—which recite the facts of the case, the arguments being raised on appeal, and the applicable law—help the court decide whether the trial court erred in its decision
The appellate court may also hear oral arguments in the case During oral argument, each party has 10 to 15 minutes to persuade the appellate court to rule in its favor If numerous issues have been raised, a party may choose to use most of this time to cover the issues that are most crucial to the decision to be made The court is free to interrupt an oral argument with questions concerning the facts of the case or the particular areas of law involved The appellate court, at its discretion, may determine that oral argument is not necessary and may decide the case based only on the trial court record and the written briefs
In making its decision, the appellate court may affirm the trial court, meaning that it accepts the decision of the lower court, or may reverse it, thus agreeing with the appellant’s contention that the trial court’s decision was erroneous It may also modify the decision; in this instance, the court may accept part of the trial court’s decision while ruling that other issues were erroneously decided
The appellate court usually issues its deci-sion in the form of a written opinion stating its reasons for the decision The opinion will discuss the relevant facts and apply the law to those facts Appellate court opinions are usually published, thus forming a body of law, known
as precedent, that attorneys and judges can consult for guidance in resolving similar legal questions
FURTHER READINGS Cohen, Jonathan Matthew 2002 Inside Appellate Courts: The Impact of Court Organization on Judicial Decision Making in the United States Courts of Appeals Ann Arbor: Univ of Michigan Press.
Klein, David E 2002 Making Law in the United States Courts
of Appeals New York: Cambridge Univ Press Klonoff, Robert H 2008 Federal Appellate Practice and Procedure in a Nutshell 1st ed Thomson West Smithburn, J Eric 2009 Appellate Review of Trial Court Decisions Durham, N.C.: Carolina Academic Press Sunstein, Cass R., David Schadke, Lisa M Ellman, and Andres Sawicki 2006 Are Judges Political? Washington, D.C.: Brookings Institution Press.
Wisotsky, Steven 2009 Professional Judgment on Appeal: Bringing and Opposing Appeals Durham, N.C.: Carolina Academic Press.
Trang 8CROSS REFERENCES
Appeal; Appellate Advocacy; Courts; Federal Courts.
APPELLEE
A party who has won a judgment in a lawsuit or
favorable findings in an administrative
proceed-ing, which judgment or findings the losing party,
the appellant, seeks to have a higher court reverse
or set aside
The designation as appellee is not related to
a person’s status asPLAINTIFForDEFENDANTin the
lower court
Another name for appellee is respondent
CROSS REFERENCE
Appeal.
vAPPLETON, JOHN
JOHN APPLETON was a prominent
nineteenth-century Maine lawyer and judge He served as a
justice and chief justice of the Maine Supreme
Judicial Court from 1852 to 1883 During his
long tenure he came to be recognized for his
opposition to state laws that granted loans or
tax exemptions to businesses His belief in free
market capitalism translated into minimal
government regulation of business and no
government breaks for business In addition
Appleton concerned himself with rethinking
COMMON LAWrules of evidence
Appleton was born on July 12, 1804, in New
Ipswich, New Hampshire He graduated from
Bowdoin College—where his uncle, Jesse
Appleton, was president—in 1822 and then
apprenticed himself to a New Hampshire lawyer
to gain the knowledge needed to become a
member of the bar Appleton was admitted to
the bar in 1826 and moved to Sebec, Maine, to start a private practice Maine had been admitted to the Union in 1820 and was a growing, prosperous state Appleton moved again to Bangor in 1838 and continued his
PRIVATE LAW practice A great reader of philoso-phy and law, Appleton was attracted to the utilitarian philosophy of JEREMY BENTHAM An interest in the law from a purely intellectual viewpoint led him to pursue a judgeship
In 1841 he was appointed the reporter of decisions for the Maine Supreme Judicial Court, the state’s highest court In this capacity Appleton edited the opinions of the justices, which gave him valuable insights into the workings of an appellate court His diligence and intellectual esteem led to his appointment
as a justice of the court in 1852 Eleven years later he was elevated to chief justice, a position
he held for the next 31 years Apart from his judicial opinions, Appleton published in 1860 a treatise entitled The Rules of Evidence, Stated and Discussed
Appleton’s opinions from the early 1870s on the proper relationship between government and business have come to be regarded as groundbreaking expressions of laissez-faire constitutionalism After the Civil War state governments had rushed to give railroads and other businesses tax exemptions, loans, and property easements When the town of Jay sought legislative authority to loan $10,000 to private entrepreneurs to move their mill and factory to the town, the legislature sought an
ADVISORY OPINION from Maine’s supreme court
In a bluntly worded opinion, Appleton declared that the legislature had no authority to help private businesses through gifts or loans When
John Appleton 1804–1891
❖
1804 Born,
New Ipswich, N.H.
◆
◆
1822 Graduated from Bowdoin College
1826 Admitted to bar and moved to Maine
1841 Appointed reporter of decisions, Maine Supreme Judicial Court 1852 Appointed
associate justice, Maine Supreme Judicial Court
1863 Appointed chief justice, Maine Supreme Judicial Court
1883 Retired from Supreme Judicial Court
1891 Died, Bangor, Maine
1860 Rules of Evidence
treatise Published
1820 Missouri Compromise enacted, limiting slavery
1854 Kansas-Nebraska Act passed
1861–65 U.S Civil War
1857 Supreme Court issues Dred Scott decision; Missouri Compromise unconstitutional
1877 Reconstruction ends
1865 Thirteenth Amendment abolished slavery
1883 U.S Supreme Court strikes down Civil Rights Act of 1875
1882 Congress enacts Chinese Exclusion Act APPLETON, JOHN 335
Trang 9the legislature ignored this opinion and autho-rized the funding, Appleton issued an opinion ruling the act unconstitutional Appleton’s analysis foreshadowed the SUBSTANTIVE DUE PROCESS doctrine that the U.S Supreme Court employed to strike down government regula-tions of business
Appleton finally retired in 1883 He died on February 7, 1891, in Bangor, Maine
FURTHER READINGS Gold, David M 1990 The Shaping of Nineteenth-Century Law: John Appleton and Responsible Individualism.
Westport, Conn.: Greenwood.
——— 2000 “The Tradition of Substantive Judicial Review: A Case Study of Continuity in Constitutional Jurisprudence ” Maine Law Review, 52.
Karsten, Peter 1997 “Supervising the ‘Spoiled Children of Legislation ’: Judicial Judgments Involving Quasi-Public Corporations in the Nineteenth-Century United States ” American Journal of Legal History, 41.
Witt, John Fabian 1999 “Making the Fifth: The Constitu-tionalization of American Self-Incrimination Doctrine ” Texas Law Review, 77.
APPOINT
To designate, select, or assign authority to a position or an office
Although sometimes used interchangeably, elect and appoint do not have the same meaning
Election refers to the selection of a public officer
by the qualified voters of the community, and appointment refers to the selection of a public officer by one authorized by law to do so
APPOINTMENT, POWER OF
A power that is conferred upon a donee to dispose
of the donor’s property by nominating and selecting one or more third-parties to receive it
The property may consist of tangible items such as cars, boats, and household items, or it may consist
of an intangible interest in property, such as the right to receive dividend income from stocks
A POWER OF APPOINTMENTmay be transferred only in writing, such as by deed, trust, or will
Donees who receive an oral promise to be given
a power of appointment, however, may bring an action forPROMISSORY ESTOPPELif they have relied
to their detriment on that promise In no case will a court find that a power of appointment had been created unless the donor’s intent to create the power is demonstrated; the person who would hold the power is indicated; the circumstances under which the power could be
exercised are identified; and the property that is subject to the power is specified
No particular semantic formula is necessary for the creation of a power of appointment Any written expression, however informal, will suffice so long as it clearly indicates an intention
to create such a power Thus, a power of appointment may be created by implication For example, a devise or bequest of property to
a person as he or she may designate to receive it
or subsequently transfer it gives that person a power of appointment ATESTAMENTARYgift to a donee for life, to be at his or her disposal, or with a right to dispose of it at the donor’s death, concers a power of appointment For example,
if a donor gives the donee an automobile to use
as the donee sees fit during the donee’s lifetime, the donor has given the donee a power of appointment over the automobile Similarly, if a donor gives the donee authority to dispose of the automobile upon the donor’s death, the donor has given the donee a power of appoint-ment over the automobile
There are three classes of powers of appoint-ment General powers of appointment give donees the power to dispose of the property in any way they see fit Limited powers of ment, also known as special powers of appoint-ment, give donees the power to transfer the property to a specified class of persons identified
in the instrument creating the power Testamen-tary powers of appointment are powers of appointment that typically are created by wills
APPORTIONMENT Apportionment is the process by which legislative seats are distributed among units entitled to representation; determination of the number of representatives that a state, county, or other subdivision may send to a legislative body The U.S Constitution provides for a census every ten years, on the basis of which Congress apportions representatives according to population; each state, however, must have at least one representative Districting is the establishment of the precise geographical boundaries of each such unit or constituency Apportionment by state statute that denies the rule of one-person, one-vote violates the equal protection of laws
Apportionment is also the allocation of a charge or cost such as real estate taxes between two parties, often in the same ratio as the respective times that the parties are in possession or ownership of
Trang 10property during the fiscal period for which the
charge is made or assessed
JAMES MADISONand his fellow founders of the
United States of America had many objectives as
they framed the U.S Constitution One was
equal representation in a government run by
members of Congress on behalf of citizens of
the United States To ensure that equal
representation occurred, the founders proposed
that the U.S population be counted at regular
intervals with a census They later agreed in the
Great Compromise of 1787 that congressional
representation should be assigned—in other
words, apportioned—to various regions of the
country based on a total population standard
Both Article 1, Section 2, Clause 3, and
Amendment 14, Section 2, of the Constitution
provide that representatives shall be
appor-tioned among the states according to their
respective numbers and that a population count will be taken by census every ten years
Apportionment requires that each state’s total population be divided by the population of“the ideal district” to determine the appropriate number of representatives The population of
an ideal district, for purposes of federal apportionment, is defined as the total popula-tion of the state (as determined by census) divided by one hundred (for the House of Representatives), or by 50 (for the Senate)
In the centuries that followed the adoption
of the U.S Constitution, apportionment for the federal Congress has been based on total population—with the exception that a slave, until the Civil War, was considered property and thus counted only as three-fifths of a white person Efforts to limit federal congressional apportionment to only people who are citizens
U.S House of Representatives Membership in 2009
1–3 4–9 10–19
20 or more
Number of representatives per state
2 Hawaii
1
Alaska
SOURCE: U.S House of Representatives Web site, “Congressional Apportionment,” available online at http://clerk.house.gov/art_history/
house_history/congApp/bystate.html (accessed August 6, 2009).
1 Montana
9
Washington
5
Oregon
53
California
3 Nevada
2 Idaho
1 Wyoming
3
Colorado
3 New Mexico
8 Arizona
1 North Dakota 8
Minnesota 1
South Dakota
3 Nebraska
4 Kansas
5 Oklahoma
32 Texas
8 Wisconsin
5 Iowa
9 Missouri
4 Arkansas
7 Louisiana
19 Illinois
15 Michigan
9 Indiana
18 Ohio
19 Pennsylvania
29 New York
3 W.Va. 11 Virginia 13 N.Carolina
6 Kentucky 9 Tennessee
4 Miss.
7 Alabama
13 Georgia
6 S.Carolina
25 Fla.
2 Maine 1
Vt 2 N.H 10 Mass.
2 R.I.
5 Conn.
13 N.J.
1 Del.
8 Md.
1 D.C.
ILLUSTRATION BY GGS CREATIVE RESOURCES REPRODUCED BY PERMISSION OF GALE,
A PART OF CENGAGE LEARNING.
APPORTIONMENT 337