by Daniel E. Estrin
Supervising Attorney, Pace Environmental Litigation Clinic, Inc.
Adjunct Professor of Law, Pace Law School
How many of us have worked our tails off on a motion or an appeal and then received a ruling from a tribunal that fails to satisfy us that our arguments were even read, much less thoughtfully considered? It is quite common in New York State practice to have appeals in important cases disposed of with 2- or 3-page orders that summarily touch upon one or two key arguments and then dispose of everything else with boilerplate such as “We have considered petitioners’ other arguments and find them unpersuasive.”
A ruling issued this week by the 8th Circuit Court of Appeals makes these throwaway “opinions” read like War and Peace by comparison. The case is Sierra Club v. U.S. Army Corps of Engineers, pending in the Eastern District of Arkansas (on a transfer from the Western District of Arkansas), in which the district court partially granted a motion for a preliminary injunction in favor of the plaintiffs. In an appeal to the 8th Circuit taken by Southwest Electric Power Company, the Court of Appeals reversed the preliminary injunction with the following order (quoted in full):
The motion filed by Southwestern Electric Power Company for a stay pending appeal of the preliminary injunction order entered by the district court on October 27, 2010, is granted.
Any experienced litigator can easily imagine the frustration the parties and their counsel (especially the losing ones) must have felt upon receiving this order, but what many of us may not think much about is the effect such rulings have on a trial court judge who has worked very hard to reach the correct result in a case. Rarely do we get such insight, but Judge William R. Wilson, Jr., let his frustration be known, albeit with an appropriate level of judicial temperament. It’s well worth the minute it will take you to read Judge Wilson’s Order.
Judge Wilson concluded his Order with “I RECUSE” (emphasis in original). I shall conclude with “BRAVO!”