Sixth Circuit Withdraws Opinion Striking Down Traffic Law on Vagueness Grounds:
I blogged yesterday and the day before on United States v. Davis, the Sixth Circuit case handed down on December 19th that had invalidated a Michigan traffic law on the ground that it was unconstitutionally vague. Today the Sixth Circuit withdrew the opinion: The brief order withdrawing the opinion is here. This means that the old opinion is "off the books," and that at some point the Sixth Circuit will issue a new opinion in the case.
What an embarrassment for the Sixth Circuit.
12.31.2008 3:55pm
Realist Liberal:
Does anyone know what the Sixth Circuit rules are for this? Does this mean the opinion is now just an unpublished opinion? Are they going to write a new one? I'm glad the order was so clear on details (tongue planted firmly in cheek).

Of course, the great likelihood is that Prof. K caused this (and I'm saying that is a good thing to be clear).
12.31.2008 3:55pm

I added an extra sentence on that: This means that the old opinion is "off the books," and that at some point the Sixth Circuit will issue a new opinion in the case.
12.31.2008 4:00pm
What a coinkydink. I had recently joked that I had a pair of tampons hanging by their strings, from my rearview mirror, in lieu of fuzzy dice.

No harm, no foul. Since my description was a joke, their reversal doesn't effect me. :)
12.31.2008 4:01pm
Perhaps they thought their opinion was too vague.
12.31.2008 4:10pm
Any word from the MI AG on whether he wants to go to bat for the law?
12.31.2008 4:16pm
I predict that the panel will reissue the opinion without a discussion of the constitutionality of the law, given that it was not raised by the parties and was not necessary to the ultimate ruling.
12.31.2008 4:20pm
Jerry Lundegaard:

Of course, the great likelihood is that Prof. K caused this (and I'm saying that is a good thing to be clear).

I was thinking the same thing. If so, nice job Prof. K, although I doubt you'll get a shout-out in their next opinion.
12.31.2008 4:25pm
Now the statute is valid again? Thanks a lot.
12.31.2008 4:30pm
Soronel Haetir (mail):
Whatever these judges are taking, I want some of it. Of course, they might have changed their minds about the particular defendant not profitting from their opinion and then we'll be right back here.
12.31.2008 4:34pm
Uh, they can do that? When does a court become functus officio?
12.31.2008 4:41pm
So will there be an opportunity for presentation of evidence AND arguments in favor of constitutionality? ;-)
12.31.2008 4:47pm
Anderson (mail):
Shorter 6th Cir.:

Psych! Madeja look!
12.31.2008 4:54pm
Doug Berman (mail) (www):
I guess this proves your point, Orin, that blogging is not really legal scholarship. To my knowledge, legal scholarship has never had such a potent and immediate impact on the law. (Indeed, I tend to fear that legal academics often view the essense of legal scholarship to be long (and dated) deep thoughts with little chance of actually impacting the law.)
12.31.2008 5:21pm
Hoo boy, now they're going to have to come up with an entirely new rationalization for why they were right.
12.31.2008 5:47pm
fortyninerdweet (mail):
Doncha know there are some clerks somewhere sweating bullets about now?
12.31.2008 6:03pm
Great, thanks Orin. I just went out yesterday and bought some fuzzy dice, now I have to go return them.
12.31.2008 6:13pm
Dilan Esper (mail) (www):
They did the right thing. While it isn't a Due Process violation (as some suggested in the other thread) to decide a case on an issue not raised in the briefs, it is the much better practice and is required by a federal statute that the Court rehear the matter.

Of course, I suspect they will issue the same opinion after the rehearing, but that's the way the ball usually bounces.
12.31.2008 6:18pm
DiverDan (mail):
The Panel must have been stricken with a brief case of sanity. We can only hope it doesn't last.
12.31.2008 6:32pm

Of course, I suspect they will issue the same opinion after the rehearing, but that's the way the ball usually bounces.

Since the conclusions is pretty clearly required by the Morales line of cases, that has always seemed like the end-game to me. How to get there procedurally, OTOH, is another story.
12.31.2008 8:04pm
DaveFredrich (mail):
I'd note that the 6th Circuit's decision did not actually invalidate the Michigan law. Only the Michigan Supreme Court or the US Supreme Court can invalidate a Michigan law. While the 6th Circuit may have found it unconstitutional, that has no real impact on anyone other than litigants in the 6th Circuit and Michigan Federal Courts.
1.1.2009 9:01am
Wouldn't it be a tad presumptuous for the Sixth Circuit panel to ask Michigan to brief an issue that was clearly waived by the defendant and was unnecessary to the Court's decision? Aren't there better uses of a State's resources? The best course of action would be to affirm the conviction in a short, non-precedential opinion based upon the footnote Orin noted in his first post.
1.1.2009 11:43am
luci, so that another litigant can bring the issue up again? Hardly seems more efficient to me.
1.1.2009 3:39pm

Article III does not give judges the power to render advisory opinions, even if it would be more efficient for judges to pre-clear laws or reach beyond the case or controversy at hand and decide issues not presented. Simply because the Sixth Circuit decided to disregard (1) established limits on the judicial power and (2) the normal rules of case processing does not mean that (now that the panel's chicanery has been exposed), it must compound those errors by dragging Michigan into it. If the judges were litigants, their would be a basis for sanctions for needlessly multiplying the proceedings.
1.1.2009 5:44pm
I would agree, except for the god-awful mess that the SCOTUS has made with "good faith" exceptions. Reaching the good-faith exception requires a ruling that the law (or warrant, if applicable) was, in fact, defective. Otherwise, it becomes a limitless exception that prevents the vindication of constitutional rights.

The whole point of the GFE is that the police get a pass only the first time when the law isn't clear. It's bastardized usage to prevent the law from ever being clarified is perverse, at best.
1.1.2009 6:30pm

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