EACLucifer wrote: ↑Tue Nov 24, 2020 9:31 am
More lolsuit news; they are appealing, but they are only appealing one tiny part of it. They are appealing the judge denying their motion to amend. Thing is, you don't get to appeal piecemeal. You don't get to keep coming back with "and another thing". Even if they win this, it doesn't address the standing issue that kills their case stone dead, and if they don't appeal that now, they don't get to, as I understand it.
It's trying to get someone to put a new coat of paint on the topsides of a vessel that is holed below the waterline and sinking fast. American lawtwitter is talking about it as a case-killing mistake.
I was trying to understand this Pennsylvania appeal last night. I think it is:-
When you appeal, you say: "The judge was wrong about a matter of law X" and then ask for a remedy: "So please over-rule him on X and give us a retrial / overturn the verdict".
The Trump Campaign (plus two individual voters) sued seven counties in Pennsylvania plus Secretary of the Pennsylvania Commonwealth (Kentucky, Massachusetts, Pennsylvania and Virginia are commonwealths not states). They sued in Federal court.
They ran into two major problems.
(1) Judge Brann refused to allow them to amend their complaint. They had filed the law suit, then amended it by dropping loads of claims, then wanted to amend it yet again at the last minute claiming that they accidentally forgot stuff. The judge basically told them "You formally submitted this, too late now".
(2) A problem with "standing". Due to states rights and the federation structure, US Federal courts have great powers but are highly restricted in what they can touch. US Federal courts have a three-part test to determine whether a party has standing to sue:
1. The plaintiff, i.e the Trump campaign, must have suffered an "injury in fact". This means an injury which is "(a) concrete and particularized and (b) actual or imminent".
2. There must be a causal connection between the injury and the conduct brought before the court
3. It must be likely, rather than speculative, that a favorable decision by the court will redress the injury
Judge Brann dismissed the case without bothering to hear oral evidence. Why? Because of problem (2). He said the Trump campaign (and the two individual voters) had no standing to sue. The judge wrote:
The United States Constitution limits the power of the federal judiciary... without [standing] a federal court lacks jurisdiction to rule on the merits of an action... The plaintiff bears the burden of establishing standing... The Trump Campaign’s theory also fails because neither competitive nor associational standing applies, and it does not assert another cognizable theory of standing.
The judge also described why the Trump Campaign can't moan about problem (1), basically doing a hypothetical of "even if they satisfied standing, they still wouldn't be able to amend their suit". So they got a "denial of the motion for leave to amend" failure on top of the standing failure.
To appeal Judge Brann's dismissal of the law suit, therefore, Giuliani & Co need to go to the appeal court and say "Judge Brann was wrong about a matter of law - we do have standing so he shouldn't have dismissed our case - so please over-rule him on standing and overturn his verdict to dismiss and make him hear the case. Oh, and by the way, we want to amend our suit so tell him he's got to change his mind on that as well."
So before Trump filed their appeal documents US lawyers thought it would be a real challenge for Giuliani to come up with something inventive to solve standing and were curious to hear what it would be. When Giuliani filed last night they turned eagerly to the section on standing... and found... er... nothing.
Not just a feeble argument. Zero argument.
As EACL says, they have failed to appeal against Judge Brann's dismissal of the case for standing. They moan on about problem (1), spending a few pages on how mean and nasty the judge was to not let them amend. They couldn't think up anything to solve their problem (2).
This means Judge Brann's ruling that they didn't have standing remains in force and cannot now be changed. There is no further mechanism to get an appeal on standing before any court.
Hence the appeal court (and SCOTUS) automatically deny - because even if Giuliani & Co win their argument, it would just go back to the original district court and immediately get dismissed again for failure to establish standing. In technical terms, SCOTUS would "deny certiorari" - which means they don't think it's worthy of getting a writ of certiorari (the term for agreeing to hear the case) simply because there's no point.
In EACL's hypothetical, Trump's case was holed below the waterline by the torpedo of standing and suffered damage above decks from the bomb of amendment denial, and in the appeal they are only asking for the above decks damage to be repaired by the appeal court/SCOTUS. The reply will be "what's the point of us mending your above decks damage when the torpedo sunk you?"