Friday, June 26, 2009

Rehearing Denied

The District of Columbia Court of Appeals entered an order yesterday that denied a motion for rehearing or rehearing en banc in a case where the court had not imposed an interim suspension for a felony conviction. Bar Counsel had filed the motion after a three-judge division of the court had declined to order suspension and instead referred the matter to Bar Counsel for an investigation of the underlying facts and circumstances. Note that the court adds a footnote to its earlier decision that clarifies the procedure in circumstances where the attorney has filed an opposition to the proposed interim suspension order submitted by Bar Counsel. (Mike Frisch)

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[This was posted on the 26th but appears to have got lost.]

In their new footnote 3, the merits division states that:

{{{ In the future, to adhere more closely to the text of the rule, the court envisions that suspension by a single-judge order will follow immediately upon the court’s receipt of notification, and only then will any motion to “set aside” (and corresponding opposition) be submitted to the division for consideration. }}}

There are two glaring problems. Firstly, the newly announced procedure clearly violates Congress’ mandates. D.C. Code 11-705(c) provides that:

{{{ Cases and controversies shall be heard and determined by divisions of the court unless a hearing or a rehearing before the court in banc is ordered. Each division of the court shall consist of three judges. }}}

D.C. Code 11-706 provides that:

{{{ Two judges shall constitute a quorum of a division of the court, and six judges shall constitute a quorum of the court sitting in banc. }}}

There simply is no authority for a single judge to act. The court *must* act though two judges at the very least. Here we have yet another example of the Court of Appeals holding its own rules above the mandate of Congress.

The second problem is that this procedure is clearly designed to prevent the parties from being heard. This is obviously a due process violation.

Finally, Attorney Downey is a named partner at a large city firm. The Court’s actions in this case provide a clear example of favouritism towards those who are well connected in the District of Columbia over those who are not. I filed a supplemental brief in my own case which takes the Court of Appeals to task for their institutionalised bias favouring large city law firms. For those that are interested, that brief can be found here:

The Bar Counsel has consistently refused to provide me with his filings in this case so I have no idea what position he took in his petition for en banc hearing.


Posted by: FixedWing | Jun 29, 2009 12:43:37 PM

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