If you only read the comments and ignore the post, Volokh can get you through what happened in Mann vs. Steyn a week ago. Briefly put, the Court of Appeals pointed out that the appeal against the original complaint was moot because there was an amended complaint, sent the whole thing back to the District Court, and told the District Court to allow a marginally allowed friend of the court brief from the ACLU to be considered. For orientation, the original Judge, hearing the case was Judge Combs-Green, who retired transferring the case to Judge Weisberg. There are a couple of good summaries, including this from Justin VC
The new trial court stated: "The only scenario likely to cause further delay of concern to Plaintiff is the possibility that the Court of Appeals will not rule on the jurisdictional issue or on the merits, but will dismiss the appeal as moot, concluding that the trial court should not have denied the motions to dismiss the first complaint after the Plaintiff had filed his amended complaint."
But that was not the basis of the Court's mootness ruling. It did not find that the appeal was moot because the trial court ruled on the motion to dismiss after the filing of the amended complaint. Rather, it found the appeal moot because the appealed complaint was not the operative complaint anymore, regardless of the timing of the trial court's decision. The distinction may elide the new trial court, but the appellate court's decision does not specify anything that should eradicate law of the case. Perhaps law of the case should not apply due to the judge's initial error anyway, but that wasn't the basis of the COA's decision.
Which goes back to not filing frivolous appeals. Knowing that they were not entitled to an interlocutory appeal, they filed one anyway. This was not good legal strategy. If the first decision was fortuitously not law of the case - because of the judge's decision to rule on the initial motion to dismiss - then that argument should have been made and decided at the trial level; exactly like it now should. At best, your argument that these lawyers are geniuses is that they set up a frivolous appeal to get a mootness ruling that could be used to confuse the trial court in order to issue a ruling they are probably entitled to anyway. That's simply a waste of resources.
And note that Judge Weisberg telegraphs that he understands Judge Combs-Green's ruling to be procedurally deficient. So defendants' attorneys didn't need to waste the Court of Appeals' time to explain that to Judge Weisberg. He's likely to do what he would have done absent the frivolous appeal in the first instance.
PS - If I was a judge, and someone filed an appeal with me that lacked jurisdiction due to mootness, and counsel admitted they knew it was moot when they filed it, I would sanction counsel for abuse of process.However, the thing about the VC comments which could potentially have repercussions was the appearance of one of the defendants, Rand Simberg, dissing Judge Combs-Green. While she has taken retired status, it is never a good idea to mouth off about a colleague of the sitting judge.Jukeboxgrad put it pretty well
Number comments in this thread posted by Rand Simberg: 61.Among them for sure
Number comments in this thread posted by Rand Simberg that Rand Simberg's attorneys wish he hadn't posted: 61.
This has been a case run on luck so far. We've had bad luck by having the previous judge, but her incompetence has also been ultimately to our favor, and against Mann's.
That is why we are breaking out champagne.
UPDATE: Eli has never been one to resist