Thursday, June 10, 2021

Luck (and Carnes) v. Marcus

 Woah, this opinion a doozy.  Thanks to my commenters for pointing it out to me.  Apparently it's been the talk of the (appellate) town and I initially missed it.

I don't even know how to describe it... you must read this opinion -- about a mansion in Palm Beach -- for yourself.  It's 136 pages of back and forth between two of the most conservative judges in the country (Luck in the majority, joined by Carnes, against Marcus in dissent).  And it gets really personal.  Here's the first salvo to give you a flavor:

The “irony today” is not, as the dissenting opinion says, that we have done as the Supreme Court has instructed and conducted an independent examination of the whole record relating to Burns’s constitutional claims. Dissenting Op. at 73. The “irony today” is that it is the dissenting opinion that goes beyond the “whole record” in this case, the record developed by the parties and put before the district court. The dissenting opinion consults extra-record sources and draws from them the “facts” that it determines support its conclusion. Throughout the dissenting opinion, it laments the “incomplete record” and the “limited record” that’s before us. Id. at 74, 123 n.5. So, the dissenting opinion escapes the confines of the record to look for evidence that the parties never put forward and the district court never considered.  

I'm no civil lawyer, so I can't tell you who is right.  And I'm no architect or student of these types of homes, so I don't know who has the better of the argument here (maybe renaissance man Rumpole can help) even though both opinions have pictures and tons of historical references.

I'm just here for the food fight! Just to give you a sense, the majority opinion references the dissent 98 times.*  I wonder how Judge Marcus felt when he read Judge Luck's opinion saying that he (Marcus) didn't understand "the way appellate review works."  

The opinion is also noteworthy because just a few months ago, Judge Luck joined an opinion by Judge Newsom criticizing Judge Rosenbaum for being too personal.  As I explained here, I thought that criticism was way off and that Judge Rosenbaum was anything but personal in her dissent.  

So something must be going on to get Judge Luck so upset in this pretty mundane civil dispute.  Anyone know the backstory?

*I simply did a find "dissent" and got 98 hits, so that number may be slightly off.  But you get the idea.


Anonymous said...

Your welcome.

Anonymous said...

I am no whiz on the intricacies of federal appellate writing or the pecking order of who is entitled to proper deference from their colleagues based on seniority but for someone like Luck, a still rookie judge, to lay into Marcus who is old enough to be his father, strikes me as disrespectful. Kind of reminds me of Scalia throwing down he gauntlet in front of O'Connor and Kennedy.

Anonymous said...

I thought Luck's reputation was as a nice guy. Not so much it seems.

Rumpole said...

It’s approaching 11pm. I’ll read it and be asleep in ten minutes. I’ll have an answer by 2022.