Will the 5th Circuit Ground an Eastern District of Texas Rocket Docket? May 23, 2008
"The district court's provided rationales could apply to virtually any judicial district and division in the United States; they leave no room for consideration of those actually affected -- directly and indirectly -- by the controversies and events giving rise to a case. Thus, the district court committed a clear abuse of discretion," in the on Oct. 25, 2007. During the Thursday mandamus hearing, Jolly told Siegel he agreed with some of his arguments. (Law.com)
Sale of Myers University nears conclusion May 23, 2008
The Cleveland-Cuyahoga County Port Authority and Huntington Bank, two of the creditors, filed an objection with Gaul over the "blanket approval" to pay Dottore, calling the ruling an "abuse of discretion by the court." They argue in court documents that because Gaul chose to hire Dottore, creditors will be denied. Dottore said Wednesday that he can't submit his other itemized bills yet because they reveal confidential information. (Cleveland.com)
Controversial Star Hill land deal on Holmen board agenda this week May 4, 2008
If the village turns down a 1,200 offer in favor of a 100 offer, a taxpayer could sue: That might be considered an abuse of discretion, Gill said, but that would be the only way to challenge the board s decision. Repeated phone messages and e-mails to Village Admini-strator Catherine Schmit produced no response. (La Crosse Tribune, WI)
Judge denies Indian Lake lawsuit Apr 19, 2008
The petitioners requested a stay, claiming the zoning hearing board of Indian Lake Borough s adoption of the amended ordinance was arbitrary, capricious, a manifest abuse of discretion and an error of law. Richard T. Williams Sr., solicitor for the zoning hearing board, argued there is no validity in the claim. (Somerset Daily American, PA)
Alabama Appeals Court Clears Way for Cancer Doctor's License Revocation Mar 22, 2008
The appeals court said Morrison lost his claim the board acted without due process because of those hearings, but also because state law forbids a judge from overturning a Medical Board ruling unless it was 'a gross abuse of discretion. . (WSJA.com, AL)
'Human Dummy' Crash-Test Data Held Admissible in Accident Case Mar 8, 2008
A unanimous New Jersey Supreme Court ruled Thursday, in , that the trial judge's determination of the scientific reliability was not an abuse of discretion and should not have been reversed by the Appellate Division ... "Based on that meager record made before the trial court, we are persuaded that the court's admissibility determination did not contribute an abuse of discretion," Lavecchia concluded ... "Our position was abuse of discretion was the appropriate standard," says Michael Devins, of... (Law.com)
Judge upholds ban on insurers' discretionary clauses Mar 5, 2008
Removal of the clauses means the ''abuse of discretion'' standard no longer will be used in claim disputes. Instead, claims will be paid when the balance of evidence supports payment, restoring ''broad, fundamental rights to tens of thousands of Montanans,'' Morrison said. (Helena Independent Record, MT)
Owner of apartments adjacent to AG dog park files suit against city Feb 19, 2008
The lawsuit claims the council's approval of the dog park in Elm Street Park constitutes an abuse of discretion that violated the California Environmental Quality Act because the facility will have adverse impacts on the neighborhood and thus requires a full EIR.. But the Arroyo Grande city manager said the city considered the potential impacts of the park through an environmental review and plans to mitigate any impacts that surface after the park is in operation. (Santa Maria Times)
Meramec Valley School District Sues Eureka to Stop TIF Project Feb 14, 2008
In the suit, the district claims that the "TIF is void, invalid, arbitrary, capricious, unreasonable and not supported by substantial and competent evidence, and violates the TIF Act." The suit asserts that the city of Eureka's decision to grant tax increment financing by declaring agricultural land "blighted," violated the TIF law, was an abuse of discretion and was unsupported by the studies performed in connection with the project. "The redevelopment area is not, in fact, a 'blighted' area,"... (Missourian Publishing, MO)
$4.1 Million Fees Award Upheld in Kia Class Action Feb 9, 2008
The panel of Judges Richard B. Klein, John T. Bender and Susan Peikes Gantman said in its decision Friday that there was no palpable abuse of discretion by Bernstein in his award decision and that it should be upheld. The panel echoed Bernstein's reasoning that the plaintiffs attorneys' award was reasonable considering the rates the defense counsel charged. (Law.com)
Suit filed to stop Martin school merger Feb 9, 2008
Failure to provide a sound basic education is a violation of the North Carolina Constitution and is manifest abuse of discretion or disregard of law. Plaintiffs are entitled to. (Washington Daily News, NC)
New mayor revokes license, adds hurdles for waterfront casino Jan 25, 2008
The mayor, who took office this month, called the building license issued Nov. 27 by the city Commerce Department under his predecessor, Mayor John F. Street, "an abuse of discretion.". "This is not just about money. It's about process and procedure, and how we conduct ourselves in the city of Philadelphia," Nutter said at a news conference. (Carlisle Sentinel, PA)
Behind EPA's rejection of state emission rules Jan 25, 2008
"We can allege there is abuse of discretion. Abuse of discretion occurs certainly when (Johnson) just decides on a whim and doesn't have the support of the professional opinion of his own agency.". The documents also included the EPA's lawyers' blunt assessment that Johnson's decision would be overturned if he denied the state's request. (San Francisco Chronicle)
FCC ban on 'exclusive access' agreements heads to court Jan 21, 2008
The NHMC and NAA filed the lawsuit Wednesday against both the U.S. government and the FCC saying the government agency exceeded its statutory authority as well as being "arbitrary and capricious, an abuse of discretion, unsupported by substantial evidence" and also violated the U.S. Constitution's Fifth Amendment. Mary Diamond, a spokeswoman for the FCC, said the agency had no comment on the appeal filing. (San Jose Business Journal)
Former Redskins Linebacker Wins Disability Appeal Before 4th Circuit Jan 16, 2008
"A close medical issue, and a disagreement among physicians, does not make the actions of the board an 'abuse of discretion.'". First reported in. (Law.com)
11th Circuit Wrestles With Sentencing Jan 4, 2008
The majority said that while appeals courts should review a district court's guidelines calculation and whether the sentence imposed was substantively reasonable, it must defer to the trial judge in close cases, undoing the sentence only if it finds the trial judge committed an abuse of discretion. In Kimbrough, the Supreme Court, also by a 7-2 majority, upheld as reasonable a below-guidelines sentence premised on disagreement with the guidelines' disparity between crack and powder cocaine... (Law.com)
Nevada Supreme Court Justice abused her authority official ruling decides Dec 29, 2007
The court calls Saitta's decision to seal the case involving former Clark County Family Court Judge Robert Lueck "a manifest abuse of discretion.". The ruling found only that the action was improper and opened the case to the public. (KRNV.com, NV)
Bennett files injunction against West Richland for banning her from games Dec 28, 2007
Roberts said the board used evidence from Rule's hearing in considering Bennett's case, although considering any evidence outside of the hearing is clearly inappropriate and an abuse of discretion and is arbitrary, unreasonable and capricious. The decision is clearly arbitrary and unreasonable in view of the uncontradicted testimony that appears in the police report that was submitted to the board as evidence, according to court documents. (Olney Daily Mail, IL)
Former police officer convicted of killing his wife outlines reasons for his appeal Dec 21, 2007
In addition, Conahan s decision to not allow jurors to view a computer re-enactment of how Jeffrey Dennis claimed Carli shot and killed herself was an abuse of discretion, Ruzzo argues. The Citizens Voice 2007. (The Citizen's Voice, PA)
Ruling could limit Calif. fruit in Florida Dec 20, 2007
Ruling could limit Calif. fruit in Florida - 12/20/2007 - MiamiHerald. (The Miami Herald)
High court ruling confirms disparity in drug sentencing guidelines Dec 11, 2007
Ginsburg wrote "given all this, it would not be an abuse of discretion for a district court to conclude when sentencing a particular defendant that the crack/powder disparity yields a sentence 'greater than necessary.' ". With the court's ruling yesterday, Congress should eliminate 100-to-1. (Boston Globe)
Judges now can shorten sentence for crack cocaine Dec 11, 2007
Justice Ruth Bader Ginsburg, writing for the majority, said, "A reviewing court could not rationally conclude that it was an abuse of discretion" to cut four years off the guidelines-recommended sentence for Kimbrough. Justices Samuel Alito and Clarence Thomas dissented. (Hanford Sentinal, CA)
Court again rejects murder conviction Nov 30, 2007
"It was an abuse of discretion for the trial court to place a written transcript of the defendant's prior testimony into evidence ... and also an abuse to allow the jurors to possess and utilize this transcript during deliberations," Chief Justice Fred Lewis wrote for the court. Barnes' lawyers were ecstatic at the ruling. (Florida Times-Union)
Judge throws out Knudson recall petition Nov 11, 2007
"Officials may not be recalled for their discretionary acts absent manifest abuse of discretion," Cooper wrote. Knudson, when contacted for comment Friday, said he wanted to hold off on a full reaction until he could read Cooper's order. (Ellensburg Daily Record, WA)
5th Circuit Restricts Trial Courts' Discretion in Venue Motions Nov 3, 2007
"The district court's provided rationales could apply to virtually any judicial district and division in the United States; they leave no room for consideration of those actually affected -- directly and indirectly -- by the controversies and events giving rise to a case. Thus, the district court committed a clear abuse of discretion," Jolly wrote. Michael C. Smith, a partner in The Roth Firm in Marshall who represents the Singleton family on appeal, says he plans to seek an en banc rehearing at... (Law.com)
Judge Gilbert recuses himself but blasts U.S. Attorney Nov 2, 2007
BENTON Citing an abuse of discretion by federal prosecutors a well-known federal judge has recused himself from a methamphetamine case in U.S. District Court, in Benton. Judge J. Phil Gilbert stepped down earlier this week from the case involving Katie Heath, a 24-year-old Eldorado woman who pleaded guilty earlier this year to her role in the drug conspiracy. (Marion Daily Republican, IL)
Craig: Law unconstitutional Oct 27, 2007
The appeals court must find there's been an ''abuse of discretion'' by the trial judge before overturning a ruling - in other words, that some aspect of the ruling was decided improperly. Ron Meshbesher, a longtime Minneapolis defense attorney, said earlier this month that the standard for an abuse of discretion is vague but that such a ruling is fairly rare. (Pocatello Idaho State Journal, ID)
Brecher: Watada's Double Jeopardy Oct 23, 2007
Three military courts had rejected Watada's claim of double jeopardy, finding no abuse of discretion by the military judge in declaring a mistrial. But in an unusual civilian intervention in a military legal process, US District Court Judge Benjamin Settle issued a last-minute stay October 5 in Tacoma, temporarily blocking the trial. (Zmag.org)
Teacher fired in sexual harassment appeals Oct 20, 2007
It further contends that the Grievance Boards decision was arbitrary, capricious and characterized by abuse of discretion and contrary to law. . (Charleston Gazette, WV -- News)
Group might appeal Polson Wal-Mart decision Oct 16, 2007
The Court must exercise restraint and limit its determination to whether the Council's decision, which is presumed valid, was random, arbitrary, capricious or an abuse of discretion. It was clear the decision was none of those, Swandal wrote. (Missoulian, MT)
Brief: Fiske sentence should be reduced Sep 21, 2007
Focusing on select facts, even those disputed by Fiske and Hernandez, and ignoring mitigating ones was a clear abuse of discretion, Fiske s team argued in the brief. They said statements clearly showed there was no plan to kill Hale and also said the court ignored forensic evidence that showed minimal use of force. (Montrose Daily Press, CO)
Woman wins appeal in chair collapse case Sep 20, 2007
"Because we find no reasonable basis for the court's conclusion that Tripplet's future pain and suffering was worth less than that awarded by the jury, we find the court's order ... was an abuse of discretion.". The appeals court ordered the damage award restored to the original amount. (Sioux City Journal, IO)
Group makes expected appeal on Lowes project Sep 20, 2007
Hanford Environmental Awareness Group and Valley Advocates of Fresno have recently appealed last month's planning commission decision to approve the 20-acre project just northwest of the Target center, alleging the abuse of discretion by the city in allowing the destruction of what they claim as the "last remaining" segments of historic Mussel Slough. The appeal comes as no surprise, as the groups already have a lawsuit pending against the city over the project. (Hanford Sentinal, CA)
Ninth Circuit upholds meth appeal Sep 16, 2007
e conclude that the denial of an expert constituted an abuse of discretion, and that the District Court relied on unreliable evidence, the court wrote in its decision. Subsequently, the Ninth Circuit reversed the denial of the expert, vacated Chase's sentence and remanded the case back to U.S. District Court in Missoula. (Missoulian, MT)
Two groups file lawsuit against Helena Forest Aug 23, 2007
The decision by the Helena National Forest to do the so-called Elliston Face project was arbitrary and capricious, an abuse of discretion, and/or otherwise not in compliance with the law, according to the complaint filed by the Alliance for the Wild Rockies and the Native Ecosystems Council. Michael Garrity, executive director for the Alliance for the Wild Rockies, said this isn t the first time they ve challenged the Helena National Forest on this project. (Helena Independent Record)
Judge orders SEPTA to restore transfers Aug 17, 2007
Common Pleas Court judge Gary DeVito ordered SEPTA to reinstate the transfers and called the board's decision to eliminate the transfers "capricious and ... a manifest and flagrant abuse of discretion.". DeVito said SEPTA made its decision without studying the impact, and said the organization could have come up with a plan that would impact all riders equally. (NEPA News, PA)
Landowners appeal commission road privatization Aug 14, 2007
"The Board's Resolution was arbitrary, capricious, an abuse of discretion and otherwise not in accordance with law," according to appeal for a court hearing filed by the limited liability limited partnership's attorneys R.E. Rauchfuss and Tamara Schroeder. Their petition for a 7th District Court judge to review the commission's decision affects their own property use, and the judge's decision could affect long-term development for growing neighborhoods in east Casper, Schroeder said Monday. (Casper Star-Tribune, WY)
U.S. retreats on visas; applicants left out Jul 17, 2007
The lawsuit claims the actions of the government were "arbitrary, capricious, an abuse of discretion" and not in accordance with the law. In addition, the American Immigration Lawyers Association is preparing a class-action suit. (Columbus Telegram, NE)
Post your Comments Attorney general upholds DA's decision in Vista shooting Jul 13, 2007
The district attorney's decision that the situation Ritchie faced was "sufficiently dangerous" to justify shooting Ramirez six more times was "not an abuse of discretion.". Three experts in law enforcement officers' use of force provided their opinions to the attorney general's office, with one saying the shooting was justified, another saying it was not justified, and a third remaining "equivocal," the attorney general's report said. (North County Times)
Judge Sent Man to Jail for Allegedly Staring Judge Down Jul 3, 2007
He said Leu did not violate his bond, that this was an abuse of discretion and violated Leu's civil rights. Leu was released. (WSJA.com, AL)
State Superior Court upholds sentence for child molester Jun 27, 2007
In a review of the case, the Superior Court panel also found no abuse of discretion on Barrasse s part in allowing the other boys to testify at the trial. The Superior Court also tossed Lane s request to reverse Barrasse s ruling that he be classified as a sexually violent predator, which requires him to register as a sex offender for the rest of his life. (The Citizen's Voice, PA)
Stay Sought on FCC’s 90-Day Shot-Clock Order Jun 22, 2007
The same parties filed a lawsuit in April stating that the FCC order is "arbitrary and capricious" and an abuse of discretion, unsupported by law, by the federal regulators. That suit is pending. (Multichannel News)
RTM members question whether Bloom should give them advice on Mahackeno Jun 15, 2007
" said Bloom, who added that if the RTM members did so, they would decrease their chances of their decision being overturned in court. Bloom added that the burden of proof "lies on the party challenging the issue," which would be the petitioners in this case. The town attorney added that it was not for a judge to decide the matter on his personal view, such as whether he thought there were too many Starbucks in town, but solely on the record of the case. Bloom added that a review should focus on... (Westport Minuteman, CT)
3rd Circuit Overturns Lifetime Computer Ban Jun 9, 2007
In a September 1999 opinion, the 3rd Circuit said "since we do not know why the district court imposed these conditions, we cannot properly review Loy's abuse of discretion claim.". The court remanded the case to Bloch with orders that he state his reasons for requiring alcohol testing and treatment, prohibiting unsupervised contact with minors, and forbidding Loy from possessing pornography of any kind. (Law.com)
Calif. attorney general to review De Anza rape case Jun 7, 2007
Brown's office agreed, and will look at the case to "determine whether there was any abuse of discretion on the part of the district attorney," said Brown spokesman David Kravets. If Brown's office finds that charges should have been filed, it can ask Carr to re-evaluate the case or simply file charges itself in state court. (Fresno Bee -- State)
Judge sides with agency in antiscalping suit May 17, 2007
Cowin called Coven's ruling an "abuse of discretion." (Bruce Mohl). Rules curb advisers' use of financial credentials Massachusetts security regulators have adopted rules aimed at protecting older investors from harmful financial advice. (Boston Globe)
Giant developer appeals May 11, 2007
The decision (by EBT) is arbitrary, capricious, against the weight of evidence (and) an abuse of discretion, reads the appeal. Lucas also contends that the township ordinance cited in their decision to disapprove the Craigarm plan is about the location of the buildings and safe access, not the location and adequacy of entrance or exit points or traffic signals. (Milton Standard Journal, PA)
Judge lets townhouse appeals proceed May 9, 2007
Determine that there are legal errors in the plan and its approval or abuse of discretion by the supervisors. Shippensburg News. (Carlisle Sentinel, PA)
Foothills man wins gun range case May 9, 2007
In his nine-page decision, Superior Court Judge Andrew Gould wrote, "the hearing officer's decision was an abuse of discretion contrary to the law and not based on substantial evidence.". District 4 Supervisor Tony Reyes, who from the beginning thought the county was going too far in this case, said he was pleased with the court's decision. (Yuma Daily Sun, AZ)
Appeals court upholds Far Hills' claim Apr 27, 2007
In their ruling Thursday, 9th Court Chief Justice Steve McKeithen and Justices David Gaultney and Hollis Horton said Far Hills has not exhibited an "abuse of discretion" just because it wants to construct the plant outside the district's boundaries. Since 2004, Far Hills has sought to build its treatment facility on Zboyan and Nixon's parcel, located at the entrance to the Capps Addition subdivision. (Conroe Courier, TX)
State rejects protests, upholds contract to manage Medicare Apr 25, 2007
The unsuccessful bidder has to be able to prove fraud, collusion or a shocking abuse of discretion. Jay Arceneaux, attorney for Humana, said his client is reviewing its options. (Charleston Gazette, WV -- News)
The Wildlands Project: Nothing New Apr 5, 2007
Essentially, we must determine whether the Agencies: (1) acted within the scope of their authority, (2) complied with prescribed procedures, and (3) took action that was neither arbitrary and capricious, nor an abuse of discretion. Olenhouse, 42 F.3d at 1574. (Great Falls Prairie Star, MT)
Judiciary: Hot Air Court Apr 3, 2007
Justice John Paul Stevens' majority opinion found the EPA's refusal to regulate CO2 under the Clean Air Act fell into the category of being "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.". The ruling will let Massachusetts, other states, and a group of cities and environmentalist activist groups continue to fight the administration in court to impose more green regulations, especially on motor vehicles. (Investors Business Daily)
NPR First to Dispute Royalty Ruling Mar 21, 2007
"NPR thus reserves all its rights to challenge the decision on appeal -- on the grounds that it was arbitrary and capricious, and abuse of discretion and/or unsupported by sufficient evidence.". According to the March 2 ruling, Web broadcasters must pay each time a listener hears a song, at a rate that began at 0. (MediaWeek.com)
Both losing slots bidders file appeals Mar 3, 2007
While Isle of Capri was not as detailed in its petition, it said the board's decision that PITG Gaming was the "best fit" for Pittsburgh was "erroneous as a matter of law, arbitrary and capricious, an abuse of discretion, and not supported by substantial evidence." ... It also questioned the board's emphasis on Mr. Barden's character and personal and financial commitment to the project, saying it was an abuse of discretion. (Pittsburgh Post-Gazette, PA)
More of this story Feb 21, 2007
In that trial, according to the motion, she ade it quite clear that she rules differently in homicide cases than in other cases, which is clearly prejudicial to the State and an abuse of discretion ... Prosecutors said in the motion that he Judge's refusal to allow the State to make a record in a homicide case is clearly prejudicial to the State and abuse of discretion. (Bartow Polk County Democrat, FL)
* Letter: Removal of statues overdue Feb 16, 2007
A heated debate is raging on about whether the Democratic Progressive Party's (DPP) drive to remove statues of dictator Chiang Kai-shek () from the premises of military installations is an abuse of discretion. Is it really inappropriate to remove such statues. (Taipei Times, Taiwan -- World)
Citizen groups seek more than review of shootings Feb 16, 2007
"We're not second-guessing, because we're reviewing for an abuse of discretion. The district attorney has wide discretion."If the review reveals a reasonable investigative avenue that wasn't pursued or another crime that could have been filed wasn't, that information will be sent to the district attorney's office," Schons said.At a public forum earlier this month, Dumanis drew criticism when she noted that only two of about 148 officer-involved shootings were found unjustified over 10... (North County Times)
Roberts Urged to Back Out Of 22 Cases Feb 16, 2007
"The Judge made it quite clear that she rules differently in homicide cases than in other cases, which is clearly prejudicial to the State and an abuse of discretion," the State Attorney's Office argued. "This type of pervasive behavior by the Judge where she does not rule according to the law because the case is a first degree murder case clearly shows that the State is not receiving fair trials in first degree murder cases.". (The Ledger)
EDITORIAL: Secret justice Feb 11, 2007
That, too, is simply unacceptable as a matter of public policy and reflects a serious abuse of discretion and lack of judgment. "Everything secret degenerates, even the administration of justice," wrote Lord Acton, a 19th century historian. (Las Vegas Review-Journal -- Opinion)
A yellow light for ties between Indonesia and U.S. Feb 10, 2007
As ranking minority member of the subcommittee in 2005, he was outraged by the waiver lifting the restrictions, calling it an abuse of discretion and an affront to Congress and said that it made a mockery of the process and sent a terrible message. His eye is also on the 2004 murder of human rights activist Munir Said Thalib. (Jakarta Post, Indonesia -- Editorial)
Officer to fight against retrial Feb 10, 2007
A court reviewing a judge's decision to declare a mistrial over the defendant's objections will allow the charges to be reinstated unless the decision was an "abuse of discretion'' -- that is, if the judge lacked a good reason for it, said Eugene Fidell, an attorney and president of the National Institute of Military Justice. "It's very hard to prove abuse of discretion,'' Fidell said. "Judges get wide latitude on a variety of important issues, and this is one of them.'' Watada, 28, refused to... (San Francisco Chronicle)
State court: Hugo can be prosecuted for escape Feb 7, 2007
Lupas triumphantly declared victory at a Tuesday morning press conference, repeatedly pointing out the Superior Court s characterization of Olszewski s ruling as abuse of discretion. We felt the judge was wrong all along and now the Superior Court said he was wrong, Lupas said. (Wilkes Barre Citizen's Voice, PA)
Make-A-Wish thief tells court 3-6 years in prison too harsh Jan 30, 2007
Mr. Panowicz accuses Judge Olszewski of abuse of discretion for handing down a sentence that fails to articulate a logical, reasonable and appropriate basis for deviating from the recommended guidelines. Ms. Hardy pleaded guilty to making up names of gravely or terminally ill children in order to embezzle Make-A-Wish funds for her personal use. (Scranton Times, PA)
Judge Refuses To Resign From Murder Case Jan 27, 2007
They said Roberts has not yet responded to their request for a pretrial hearing and "the state believes such inaction is a gross abuse of discretion.". They said in their motion that in many instances, Roberts deliberately disregards the law when her rulings are not subject to review by a higher court. (The Ledger)
