Can application for leave to appeal be determined by the judge whose decision is being appealed? Appeals to the next level court may first require leave to appeal. Say in New Zealand, where a party wants to appeal a decision of the High Court to the Court of Appeal, they may need to apply to the Court of Appeal for leave to appeal. Whether or not leave is required depends on the statute that governs the matter. Moreover, in some circumstances, leave to appeal needs to be applied for to the same level court where the decision to be appealed was made. Section 56(3) of the Senior Courts Act 2016 goes: No appeal, except an appeal under subsection (4), lies from any order or decision of the High Court made on an interlocutory application in respect of any civil proceeding unless leave to appeal to the Court of Appeal is given by the High Court on application made within 20 working days after the date of that order or decision or within any further time that the High Court may allow. (emphasis added) So, say Bob is suing Rob in the High Court. Rob applied for a direction (for example, he wants to join Alice to the case). Bob objected. Judge Judy made an interlocutory order where the direction that Rob sought is granted. Bob is unhappy and wants to appeal to the Court of Appeal. But to do this, Bob first needs to obtain leave from the High Court. If this is declined, then and only then Bob can apply for leave appeal to the Court of Appeal directly (upon the grant of which he can finally file the appeal itself). Now this may create an interesting collision. What if the application for leave to appeal filed in the High Court gets in the hands of the same judge that made the decision that the appeal is against? As per answers to this question, judges will not enjoy if their decisions get overturned. Therefore, they may be personally interested in rejecting the application for leave to appeal, especially if the decision was made publicly available. The High Court has published its Recusal Guidelines here. One possible ground for recusal in this situation goes: 5. Recusal where opinions earlier expressed 5.1 A judge should consider recusing him or herself if the case concerns a matter upon which the judge has made public statements of firm opinion on the issue before the court. 5.2 An expression of opinion in an earlier case or in an earlier stage of a proceeding is not of itself a ground for recusal. So, given that judge Judy's decision has been published, does that hit 5.1 above in a way that 5.2 does not overweight it? Should judge Judy now consider recusing herself from hearing the application for leave to appeal? Can judge Judy not hear the application for leave to appeal for any other reason? This question is not tightly attached to New Zealand — answers re other comparable jurisdictions are welcome.
Yes It's not uncommon. In fact I am aware of at least one case where the trial judge referred it to appeal before he made his decision on the basis that whichever way he decided the law was so unsettled that grounds for appeal would occur. In that case the court of appeal called up the trial judge to sit on the 3 judge appeal a) because he knew the case and b) because you don't get to not make a decision because it's hard sonny-jim.
You didn't bother to state who this appeal is with or even where you are but I'm almost certain I know the answer. Just once. If the appeal is denied, you may be able to appeal to a higher body such as a higher court or an ombudsman. However, any group or court allowing the same appeal ad infinitum until you get what you want would be farcical.
Was/is it permissible for judges in the US to talk ex-parte like that? No. Ex parte interactions of that sort are not allowed. See, for instance, Disciplinary Counsel v. Bachman, 2020-Ohio-732 (Dec. 18, 2020) and Maze v. Judicial Conduct Commission, 2019-SC-0691-RR (Dec. 17, 2020). An example of less recent decision but with a reporter citation number is Comm'n on Judicial Performance v. Bozeman, 302 So.3d 1217 (2020). For situations of imminent risk of irreparable harm, procedural law provides for ex parte motions and ex parte petitions, such as this granted petition for Personal Protection Order. See M[ichigan]CR 3.7003(G). But the scenarios you depict fall short of the necessity for which ex parte provisions are intended. do the above scenes in the movies essentially portray judicial misconduct? Yes. A judge's house is inappropriate for communicating, let alone ex parte, his ruling (I am not knowledgeable of the films but my understanding of your description is that that judge made the ruling on the application). As for The Untouchables, any evidence of jurors' &amp; judges' conflict of interest and likely bias has to be filed in court and comply with procedural law so that all parties have an opportunity to litigate the matter.
The government can’t withdraw The government does not have a right to unilaterally withdraw charges once the case is before the court. All they can do is ask the court to dismiss the case as they have done here. It’s up to the court (judge) to decide whether to grant the motion to dismiss or not. It granted, then the case has gone to completion and the defendant is legally not subject to punishment as they were not convicted of the crime, notwithstanding any previous guilty plea. Now, while it would be unusual for a judge to refuse such a motion it’s not impossible and they might do so if they felt that the interests of justice are better served by completing the trial in the usual way. This is possibly more common in civil litigation where a losing plaintiff might not be permitted to settle if the judge doesn’t feel an innocent defendant is being adequately compensated.
No. A plaintiff may travel to the defendant's jurisdiction to file suit if desired. Nobody usually does this, though, due to travel and logistical considerations. The defendant is the one who decides whether to challenge jurisdiction. Good contacts will include a forum selection clause which would lay out what happens where in the event of a dispute. And this can be anywhere, it is not limited to the locations of the plaintiff and the defendant. N/A.
The order of operations is important I assume that plaintiff filed for a Protective Order. To get this granted, the plaintiff has to allege some kind of wrongdoing and evidence of that. If the defendant responds, then the plaintiff can amend their filing. Then the defendant once more can respond to the allegations. If the plaintiff wants to amend the filing once more, they need to ask the court to be allowed to do so, and that opens the door for the defendant to answer once more. That's all history for the case presented: The court apparently found the evidence lacking and dismissed the application for a PO. Plaintiff can only file for reconsideration or appeal but not bring in new evidence at this point. Dismissed Cases are not automatically evidence A case that did not establish its burden of proof and was dismissed - especially with prejudice - has not established that the evidence in it is good. You have to ask each item to be admitted separately and re-establish that it is good evidence. A bulk filing &quot;I want to bring this case as evidence&quot; is generally denied unless you prevailed in that case. A dismissed case is one you didn't prevail in. Get a Lawyer! It seems like you are in serious need of legal counsel to clear up the situation. Contact a lawyer for at least a free consultation if you even have a case.
In most places I imagine the issue would go before a probate judge who would attempt to determine the validity of each presented will, and if both were valid, then they would attempt to reconcile the disparities to the best of their ability. Broadly speaking, the process would look like this (I'm using UK law as an example): You die An individual is chosen to handle your affairs (executor or administrator [or possibly both depending on jurisdiction]) They choose a will to go off of (these steps could be reversed if the wills named different administrators, in which case each administrator would file for the grant of representation and consequently involve the probate judge earlier) Someone challenges and suggests using the other will (probably because they feel they're not getting what's theirs) A probate judge is involved The probate judge decides Appeals would be made to Court of Appeals and then to the Supreme Court That being said, every jurisdiction is different, and this is more of a template answer for English common law (and derivative courts), than an attempt to describe in detail any specific jurisdiction's procedures.
The Main Answer: The Judge Can't Appeal; But Other People Can Since the Judge now has an attorney, can this Judge appeal to the Supreme Court (or appeal again starting from a different court jurisdiction) to potentially allow him to continue his decision to review if the Michael Flynn case should be dismissed? Not exactly. It is potentially subject to appeal, but not by the judge. But the question contains an understandable and natural false premise that confuses the issue. The attorney appointed by the Court to present the position abandoned by the Justice Department is not a lawyer for the judge (who has absolute immunity from liability). Instead, the attorney is someone appointed to provide additional representation to &quot;the People&quot; on the theory that the Justice Department in unable to fully represent the interests of &quot;the People&quot; due to an alleged conflict of interest. The attorney appointed by the judge to present a position that the Justice Department abandoned, might have standing to do so, but the judge himself or herself, while listed as the Respondent in the case, is only a nominal party and not a true real party in interest. Also en banc review of a panel decision of the U.S. Court of Appeals can be raised sua sponte by any judge in the Circuit, without prompting from any part for further review (which is what happened in this case). The Archaic Federal Writ of Mandamus Practice Explained There is a general rule that says that only final decisions of trial courts can be appealed to an appellate court.&lt;1&gt; Thus, usually, a criminal defendant can only appeal from a criminal case after the criminal defendant has been convicted of a crime and sentenced for that crime. But, this general rule has exceptions. A request for a writ of mandamus is one way to get around this general rule. A writ is a court order directed at a government official by a court having jurisdiction over the official, usually, but not always, in a matter in which the government official is not alleged to have done anything making the government official eligible for punishment personally. For example, a writ of execution, is a court order directing the sheriff or some other government official, to take action to enforce a court order awarding someone a money judgment that the prevailing part seeks to have the sheriff involuntarily seize. A request for writ of mandamus (i.e. for an order directing a government official subordinate to the court to take a non-discretionary action in a court case) is structured in the old fashioned approach used in federal court as a lawsuit against a judge brought in a court with supervising authority over the judge. But, in substance, this is a legal fiction and formality used (in this context, writs of mandamus are used in more than one way) to provide review of trial court decisions prior to the entry of a final decision on the merits in a case (something also called an &quot;interlocutory appeal&quot;). This process was established in the All Writs Act of 1789 (now codified at 28 U.S.C. § 1651) that applied to the federal courts the process in place immediately prior to the adoption of the United States Constitution in 1789 in the courts of the American Colonies. The procedure used in the pre-constitution courts of the American colonies was borrowed from English common law procedural practices then in place. The English practice was in turn originally established during or not long before the reign of King Edward II (reigned 1307 to 1327 CE). Those procedures have then evolved over time. This procedure was formally established in the U.S. in the federal courts by case law interpreting the All Writs Act (the All Writs Act itself is only a sentence or two long). Put another way, the All Writs Act gave the federal courts the authority to order other government officials (including but not limited to judges) to do things to carry out federal court orders, in the same broad circumstances where English common law courts has the power to do so, and using the same procedures. Originally, a writ of mandamus really was a lawsuit against a judge, and there are contexts where a writ of mandamus is sought against a government official other than a judge that continue to be a lawsuit against a government official. But, now that is just a formality and not a real lawsuit in this context, and that has been the case in cases involving writs of mandamus filed against judges for hundreds of years. &lt;1&gt; A direct appeal of right from a final criminal conviction is a relatively new innovation in the federal courts in the U.S.. The right to bring a direct appeal of right of a criminal conviction secured in federal court did not exist until 1890. And, the right to bring a direct appeal of right of a criminal conviction is not constitutionally guaranteed by the U.S. Constitution or the Bill of Rights, it exists solely by virtue of a federal statute. Prior to 1890, most judicial review of federal criminal convictions was conducted via writs of habeas corpus (which has much narrower grounds upon which relief can be granted) or via Presidential pardons. The Modern Approach Used In Many Jurisdictions Contrasted The modern approach designed to avoid the confusion associated with nominally suing the judge, is to create a court rule replacing the old fashioned legal fiction of writ of mandamus practice, in which someone files an interlocutory appeal captioned (in a criminal case) as People v. Defendant, or as Defendant v. People (depending upon who files first) which is handled essentially like an ordinary appeal but with shorter deadlines and the requirement that grounds for considering the appeal at all prior to a final order in the case be established. For example, in Colorado, where I practice, the equivalent procedure to a writ of mandamus with the judge named as Respondent in a federal court, is called a &quot;Colorado Appellate Rule 21 motion&quot;. Further Appellate Options Appeals from interlocutory writ of mandamus rulings made by a panel of a U.S. Court of Appeals are a fairly esoteric corner of federal appellate procedure, and I am not intimately familiar with the ins and outs of it, but there is a process by which someone with standing could seek further appellate review of the U.S. Court of Appeals panel's ruling. The interlocutory appeal in this case was handled by a three judge panel of one of the United States Courts of Appeal. There are two main ways that a ruling of a panel of one of the United States Courts of Appeal may be further appealed. One is to seek en banc review of the decision by all of the judges of the circuit of the U.S. Court of Appeals whose panel heard the case. The other is to appeal either from an en banc decision or directly from the panel decision, to the U.S. Supreme Court. In both circumstances, further appellate review of discretionary, the en banc panel or the U.S. Supreme Court, as the case may be, first decides the preliminary question of whether to consider the further appeal at all, and then, if that is answered in the affirmative, considers the merits of the issue or the issues raised in a further appeal. In a case of national interest involving separation of powers in which the panel issued a divided ruling, it isn't unthinkable that there would be further discretionary review of the ruling if it was sought by someone with standing to do so. The most controversial aspect of the panel ruling in this case, highlighted by the dissenting opinion, is that the Justice Department and criminal defense attorney filed the writ of mandamus before the trial court judge had a chance to consider and rule upon the motions filed in the trial court. Normally, a writ of mandamus is not considered &quot;ripe&quot; to file until a judge actually rules on a motion with a court order which the person seeking the writ alleges was mistaken, rather than before the judge gets to consider whether or not to grant that motion in the first instance as was done in this case. To paraphrase the dissenting opinion, the dissenting judge felt that the appellate court panel jumped the gun in an unprecedented and irregular manner that deprived it of jurisdiction to decide the issue because it was not yet ripe for decision. Other Ways This Could Have Been Litigated As an aside, it is also worth observing that there were multiple procedural options available in this case to prevent his client from being sentenced and to force the case to be dismissed. The writ of mandamus was brought by the Justice Department seeking to enforce its own institutional privileges. But, the more conventional approach in a case with a similar fact pattern in federal court, would be for the criminal defense attorney to file a separate lawsuit against the warden of the jail where his client is being held (who is also a nominal defendant under a different legal fiction, and who also has absolute immunity, but would be defended in the lawsuit by the Justice Department absent an alleged conflict of interest like the one present in this case) seeking a writ of habeas corpus ordering the warden to release his client, possibly before a different judge, and subject to direct appeal once resolved, rather than an interlocutory appeal via a writ of mandamus. But, it isn't often that the Justice Department seeks to withdraw its prosecution against a criminal defendant who has already pleaded guilty in a proceeding in which the factual basis of the plea has already been established on the record in open court and the case is ripe for sentencing to a serious felony sentence. Update As Of August 3, 2020 This case was selected for en banc review by the entire DC Circuit based upon the petition of the dissenting judge in the three judge panel that decided the case. The Order states: ORDER Upon consideration of the petition for rehearing en banc, the responses thereto, and the vote in favor of rehearing en banc by a majority of the judges eligible to participate, it is ORDERED that this case be reheard by the court sitting en banc. It is FURTHER ORDERED that the court’s order filed June 24, 2020, be vacated. It is FURTHER ORDERED that oral argument before the en banc court be heard at 9:30 a.m. on Tuesday, August 11, 2020. The parties should be prepared to address whether there are “no other adequate means to attain the relief” desired. Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380 (2004). A separate order will issue regarding the allocation of oral argument time. Per Curiam