I picked this up from another thread on the subject. There was a link to a website discussing this...
Donofrio’s claims has a few problems, the first of which is that he fails to cite to the relevant rule that would prohibit a third referral before the full court considers the issue. He further confuses this issue by stating “no 3rd renewal is allowed” IF the full court denies it. This is exactly the same thing JudgeDredd said: “by sending it to the full court for review they can get rid of your case.” In other words, once the full court says “no go,” the case dies. You’ll note that Donofrio doesn’t say “no 3rd renewal, even if the full court DOESN’T consider it.” So, Donofrio is either agreeing with JudgeDredd or (more likely) trying to obfuscate the issue.
Secondly, Donofrio seems hung up on this “stern message” business. What happened is the first judge received the case (and denied it) and once the case was re-filed, the second judge sent it to conference, where it was killed off. In all likelihood, the first judge assumed the case would be done after the first denial, but Donofrio refiled. Then the full court denied the case. Donofrio seems to imply there is a way for the full court to deny the case without distributing it for conference, but doesn’t explain how that would take place. In order to do that, you’d need all the justices to weigh in on whether to deny it or grant it — and that’s what they do at the conferences. There’s no “secret squirrel” method of getting the “full court” to deny a case without distributing the case to each justice to consider. Moreover, it’s more likely the judges didn’t give the case enough of a second thought to even consider whether any sort of “stern message” (whatever Donofrio’s talking about) should issue, and that the judges simply felt the case was meritless and should be dismissed. That is, it’s possible Scalia viewed the case as a nuisance case and sent it to conference so that it could be aired as a nuisance case and killed off. Had any of the justices felt strongly enough about the case, any dissenters from the denial could have filed a written opinion along with the denial, which happens from time to time. That didn’t happen here, which is a strong indication none of the judges felt the case was worth spilling any more ink on the case than it took to write “denied.”
A significant issue with this whole file/re-file argument is that Donofrio’s case did not progress through the normal route. He appealed to the Supremes without setting out proper jurisdiction in the case (ref. his application for “emergency stay”). Typically cases get to SCOTUS after winding their way through the state or federal court system. Donofrio just skipped straight to the top without pointing to any Supreme Court practice rule that would let them take such a case. As a result of not identifying the appropriate jurisdictional “box” the case goes in, it’s extremely difficult to analyze how the justices should handle the case procedurally.
The bottom line is this: once the full court denies the case, the case has been effectively “rejected.” The fact the case got sent to conference may well have resulted from Justice Scalia saying, “I heard about this guy — he’s not going away until we send him an unambiguous message.” And that’s what the court did. Since Donofrio just restates JudgeDredd’s argument, Dredd wins the hand.
December 10, 2008 2:00 PM
The FReeper thread was ...
Donofrio v. Comments Discrediting Scalia’s Referral and Full Court’s Distribution to Conference
http://www.freerepublic.com/focus/f-bloggers/2146346/posts
U huh. Scalia sent Donofrio an "unambiguous message" by DISTRIBUTING another case to conference that almost mirrors his, and is better written, when he could have easily hammered it by denying it outright.
As an example. Scalia would have done this if your above quote was accurate:
| No. 07A638 | ||||
| Title: |
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| Docketed: | ||||
| Lower Ct: | Supreme Court of Pennsylvania, Eastern District |
| Case Nos.: | (175 EM 2007) |
| ~~~Date~~~ | ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~ |
| Feb 1 2008 | Application (07A638) for a stay pending appeal, submitted to Justice Souter. |
| Feb 2 2008 | Application (07A638) denied by Justice Souter. |
| Feb 6 2008 | Application (07A638) refiled and submitted to Justice Scalia. |
| Feb 7 2008 | Application (07A638) denied by Justice Scalia. |
You'll notice that it did not get sent to conference. Now, the lawyer(s) on this case got an "unambiguous message" from Scalia!