makes a limited appearance and wins the case can be sued again by the sam e plaintiff in a different court. In states that have no provision for a limited appearance, a defendant can avoid being subject to the personal jurisdiction of the court by refusing to appear, thereby causing a default and a consequent FORFEITURE of the property. Or the defendant can submit to the court’s personal jurisdiction, defend the case on its merits, and face the possibility of full liability. The defen- dant must decide which course of action is best, after comparing the value of the seized property with the damages being sought by the plaintiff and considering the likelihood of winning the case at trial. The Federal Rules of Civil Procedure do not provide for limited appearances in federal court but instead defer to state law on that issue. A slightly greater number of courts permit limited appearances than do not. The law of the jurisdiction in which the action is brought must be consulted to determine whether limited appearances are permitted. Withdrawal If an appearance has been entered through FRAUD or mistake or after the plaintiff’s com- plaint has been materially amended, the discre- tion of the court may permit the appearance to be withdrawn. A proper withdrawal is treated as if no appearance at all had been entered in the case. A defendant who has withdrawn a general appearance may ask the court for leave to file a special appearance to challenge the court’s jurisdiction. If someone makes an unauthorized appear- ance on behalf of the defendant, it may be stricken or set aside by a motion of any party with an interest in the proceeding. Delay or Failure to Appear A defendant who fails to appear in court pursuant to a service of process might have a default judgment entered against her or him and be held in contempt of court. A failure to appear does not, however, result in a WAIVER of objections to the court’s jurisdiction. If a defendant fails to make an appearance in the time allotted by statute or court rules, he or she may lose certain righ ts. But if the circumstances warrant it, a court may extend the time of appearance. FURTHER READINGS McKinney, William Mark, and Burdett Alberto Rich. 1914. Ruling Case Law. Northport, NY: Edward Thompson. Weinreb, Lloyd L. 2006. Criminal Process: Cases, Comments, Questions. 7th ed. Eagan, MN: Foundation. Yeazell, Stephen C. 1998. Federal Rules of Civil Procedures: With Selected Statutes and Cases. Frederick, MD: Aspen. CROSS REFERENCE Civil Procedure. APPELLANT A person who, dissatisfied with the judgment rendered in a lawsuit decided in a lower court or the findings from a proceeding before an adminis- trative agency, asks a superior court to review the decision. An appellant, sometimes called the peti- tioner, must demonstrate sufficient grounds for appeal, which are usually specified by statute, in order to challenge the judgment or findings. Whether a party was a PLAINTIFF or DEFENDANT in the lower court has no bearing on his or her status as an appellant. APPELLATE Relating to appeals, which are reviews by superior courts of decisions made by inferior courts or administrative agencies. APPELLATE ADVOCACY Appellate advocacy is the legal repr esentation by an attorney before any state or federal court of intermediate or final appeal. The U.S. COURTS OF APPEALS were created by the Evarts Act of 1891 (28 U.S.C.A. § 43) and are divided into 13 judicial circuits (see the accompanying table). The central location of each court is determined by statute (28 U.S.C.A. §41[1995]). In addition, a court may sit any place within its circuit and is required by statute to sit in certain locations other than its central location (28 U.S.C.A. § 44 [1995]). Appeals are heard and decided by panels of three judges that are selected randomly, by the CIRCUIT COURT EN BANC (in its entirety), or by a division established to perform the court’sen BANC function in larger circuits. The circuit courts’ ORIGINAL JURISDICTION included all matters not exclusively reserved for the district trial courts. The circuit courts also had appellate jurisdiction to review distri ct GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 328 APPELLANT trial court decisions in civil cases in which the AMOUNT IN CONTROVERSY exceeded $50 and in admiralty cases in which the amount in controversy exceeded $300. They have jurisdic- tion to review final decisions of the federal district trial courts, both civil and criminal. Their jurisdiction extends only to matters authorized by Congress. An appellate court has no discretion in deciding whether to consider the merits of an appeal over which it has no jurisdiction. The most common basis for appellate jurisdiction is an appeal from a final district court judgment ( 324 U .S. 229, 2 8 U.S.C.A. §1291[1995]). When a judgment is entered that “ends the LITIGATION on the merits and leaves nothing f or the court to do but e xecute the j udgment,” a case is completed ( Catl in v. United States, 65 S. Ct. 631 [1945]). Congress has progressively limited the Supreme Court’s power to directly review trial court decisions without a hearing in the courts of appeals . Because Supreme Court review is usually discretionary in the overwhelming majority of cases, a court of appeals is the highest federal tribunal where a litigant or DEFENDANT can receive a hearing on the merits. The Appeals Process An unsuccessful party in a lawsuit or adminis- trative proceeding may file a timely appeal to an appropriate SUPERIOR court empowered to review a FINAL DECISION, on the ground that it was based upon an erroneous application of law. The person who initiates the appeal, called the appellant, must file a notice of appeal, along with other necessary documents, to commence appellate review. The person against whom the appeal is brought, the appellee, then files a brief in response to the appellant’s allegations. Usually, review in the federal and state courts goes through two stages: an appeal from a trial court to an intermediate appellate court and then to the highest appellate court in the jurisdiction. An appeal may be granted as a matter of right or as a matter of CERTIORARI (at the discretion of a superior appellate court). For example, a party may appeal from a federal district trial court to a U.S. court of appeals as a matter of right, but may appeal to the U.S. Supreme Court only by a grant of certiorari. An appellate court may hear an appeal only if the decision presented meets the statutory require- ments for review. The right to appeal is limited to the parties to the proceedings who are aggrieved by the decision because it has a direct and adverse effect upon them or their property. Also, an actual CASE OR CONTROVERSY must exist at the time of review. Issues that have become MOOT while the appeal is pending and cases that have been settled are not reviewable. For a case to be appealable, a final judgment or order must have been reached by a trial court. A judgment is considered final for purposes of appeal when the action is ended in the court where it was brought and nothing more is to be decided. An appeal must be made within the time prescribed by statute or by the rules governing the appellate court. The time for filing an appeal begins to run once a final decision has been made by the trial court. The appellant must file a notice of appeal with the clerk of the appellate court in order to begin the appeal and send a copy to the appellee. If the appeal process is not begun within the time set by statute, any right to appeal is lost. If EXTENUATING CIRCUMSTANCES exist, an extension of time for filing the appeal may be granted. The appellate court can review only the trial court record and the briefs filed by the appellant and appellee. If permitted by the appellate court, AMICUS CURIAE briefs may also become part of the record on appeal. (Amicus curiae means “friend of the court.” A person who is not a party to the action may petition the court for permission to file such a brief.) The briefs must contain the facts of the case, the grounds for review, and arguments relating to the issues raised. The appellant’s brief must specifically dis- cuss the alleged errors that entitle the appellant to a reversal of the trial court’s decision and discuss why each ruling was wrong, citing authority such as a case or statute that applies to the particular point at issue. The appellee may file a brief containing arguments against reversal and explaining why the trial court’s ruling was correct. Only conclusions of law, not findings of fact, made by a lower court are reviewable. Appellate courts can decide only issues actually before them on appeal. The appellate court must decide whether the errors alleged to have been made by the trial court are harmless or prejudicial. If an error substantially injures the rights of the appellant, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION APPELLATE ADVOCACY 329 it is called a prejudicial error, or reversible error, and warrants the reversal of the final judgment or order. If the appeals court determines that the error is technical or minimally affects the rights of the parties or the outcome of the lawsuit, it is considered a HARMLESS ERROR and insufficient to require a reversal or modification of the decision of the trial court. The appellate court may hear oral argu- ments from each side. These arguments, which usually last 10 to 15 minutes for each side, are intended to help the court understand the issues and to persuade the court to rule in favor of the arguing party. During the arguments, the appellate judge or judges may interrupt with questions on particular issues or points of law. After reviewing the appeal, the appellate court may affirm the decision of the lower court, modify it, reverse it, or remand the case for a new trial in the lower court. When a decision is affirmed, the appellate court accepts the decision of the lower court and rejects the appellant’s contention that the decision was erroneous. When the appellate court modifies the lower court’s decision, it accepts part of the trial court’s decision and determines that the appellant was partly correct in saying that the decision was erroneous. The trial court’s decision is then modified accordingly. In reversing a decision, the appellate court indicates that it agrees with the appellant that the lower court’s decision was erroneous. The party who lost the case at the trial court level then becomes the winning party in appellate court. Occasion- ally, a decision will be reversed, but the lawsuit is still unresolved. In such cases, the appellate court orders that the case be remanded (returned) to the lower court for the determi- nation of issues that remain unresolved. Federal Criminal Appellate Advocacy The SIXTH AMENDMENT to the U.S. Constitution guarantees acriminal defendant the right to a jury trial and the right to an attorney. The FOURTEENTH AMENDMENT says states must provide criminal defendants with these same guarantees. The U.S. Supreme Court has repeatedly held that a person found guilty in a criminal proceeding has no constitutional right to appeal. A federal criminal defendant’s right to appeal, therefore, is based on an act of Congress. Prior to 1776 and the founding of the United States, many colonial legislatures allowed, by special act, new trials of criminal defendants. But generally, criminal appeals did not exist when the U.S. Constitution was drafted, and the JUDICIARY ACT OF 1789 (ch. 20, 1 Stat. 73) did not provide for appellate review of criminal cases. Thus, history does not support a constitutional right to criminal appeal. The issue was left to Congress. Between 1855 and 1860 Congress refused to provide for federal criminal appellate jurisdic- tion, although several bills were introduced. Finally in 1879, Congress authorized the federal circuit courts to issue writs of error in criminal cases on a discretionary basis. In 1889 Congress gave defendants sentenced to death the right of direct appeal to the U.S. Supreme Court. In 1891 it extended the Supreme Court’s jurisdic- tion for review to al l “cases of conviction of a capital or otherwise infamous crime ” (26 Stat. 827, quoted in 775 S. Ct. 1332 [1957]). Because of the burden on the Supreme Court of hearing a large number of criminal appeals, in 1897 Congress transferred jurisdiction over noncapi- tal appeals to the circuit courts of appeals. In 1911 Congress abolished the right of direct appeal to the Supreme Court in capital cases, and the circuit courts became the appellate courts for all criminal cases. In 1894, in McKane v. Durston (153 U.S. 684, 14 S. Ct. 913, 38 L. Ed. 867), a unanimous Supreme Court determined that no matter how serious the offense, a criminal defendant had no constitutional right to appea l her or his conviction. The Criminal Justice Act (18 U.S.C.A. § 3006A [1995]) is an outgrowth of the Sixth Amendment RIGHT TO COUNSEL. The act requires courts to develop and implement plans to furnish representation for defendants charged with felonies or misdemeanors, other than petty offenses, who are financially unable to obtain an attorney. Although the act is directed primarily to proceedings at the trial court level, it provides that any person for whom counsel is appointed shall be represented at every stage of the criminal proceedings, from the defendant’s initial appearance through the appeal process. State Criminal Appellate Advocacy All U.S. states provide defendants some form of appeal from a criminal conviction. Appeals were well-established elements of state crimin al proceedings throughout the nineteenth century. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 330 APPELLATE ADVOCACY They probably developed earlier in state court systems because state governments had primary responsibility for enforcing criminal laws from the founding of the nation through the 1800s, since very few federal statutory offenses existed during this period. Because states decided that criminal appeals were necessary to protect the innocent, the Supreme Court determined that appellate procedures must comply with the federal constitutional guarantees of due process and EQUAL PROTECTION (Griffin v. Illinois, 351 U.S. 12, 76 S. Ct. 585, 100 L. Ed. 891 [1956]). In Douglas v. California (372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2d 811 [1963]), the Supreme Court held that a state violates a defendant’s constitutional protections when it forces an indigent, who has a statutory right to appeal, to attempt the appeal without the assistance of an attorney. The Supreme Court reasoned that without an attorney, an appeal constituted nothing more than a “meaningless ritual.” Therefore, a state must provide counsel to a defendant who wants to exercise the right to appeal but cannot afford to hire a lawyer. In 2009 the Supreme Court faced a novel question regarding the reaches of appointed appellate counsel in Harbison v. Bell (No. 07- 8521, 556 U.S. ___ [2009]). The question before the Court was whether Harbison, a death-row inmate who had exhausted all his state court and federal habeas appeals, could request a federally appointed (and funded) attorney (who had represented him in filing the federal WRIT of HABEAS CORPUS) to represent him (if no other attorney was available) to prepare a last-ditch petition for state CLEMENCY proceedings. The Court, by a 7–2 decision, said yes. Tennessee law no longer authorized the appointment of state public defenders for clemency proceedings. Therefore, Harbison’s federally appointed habeas attorney had requested the district court to expand the scope of her representation to include the state clemency proceedings, relying on 18 USC §3599 (which provides for the appointment of federal counsel) for authority. Section §3599 (a) 2 expressly refers to the federal habeas statute sections §2254 and §2255, providing for the appointment of counsel in “both state and federal post-conviction proceedings.” Section §3599 (e) in relevant part, states that counsel is available to any defendant sentenced to death in “proceedings for executive or other clemency as may be available to the defendant.” Despite the language, there had been a split in the federal circuit courts as to whether Section §3599 provided for federally funded attorney only in executive clemency proceedings from the presi- dent or also clemency from state governors or pardon boards. The Supreme Court found that both were covered under Section §3599. Ineffective Appellate Representation In 1985 the Supreme Court held that a defendant has the right to the effective assis- tance of appellate counsel. The Court concluded that a defendant whose counsel does not provide effective representation is “in no better position than one who has no counsel at all ” (Evitts v. Lucey, 469 U.S. 387, 105 S. Ct. 830, 83 L. Ed. 2d 821 [1985]). However, in Ro ss v. Moffitt (417 U.S. 600, 94 S. Ct. 2437, 41 L. Ed. 2d 341 [1974]), the Supre me Court held that a criminal defendant does not have a constitu- tional right to appointed counsel on a discre- tionary review. In Roe v. Flores-Ortega (528 U.S. 470, 120 S. Ct. 1029, 145 L. Ed. 2d 985 [2000]), the Court considered whether a defense lawyer must always consult with a de fendant regarding an appeal of the conviction. In this case, the defendant (Flores-Ortega) alleged ineffective counsel because his attorney did not file an appeal within the 60-day time period dictated by the jud ge in his original case. The Court rejected a bright-line rule (a strict rule with no ability to use discretion) that would have mandated such a consultation, ruling that each case must be analyzed using a set of standards. The Court in Roe held that a defendant claiming ineffective assistance of counsel must show that the attorney’s representation “fell below an objective standard of reasonableness” and that the attorney’s deficient performance prejudiced the defendant. The Court used a test set out in Strickland v. Washington (466 U.S. 668, 104 S. Ct. 205, 80 L. Ed. 2d 674 [1984])to determine if Flores-Ortega’s attorney was con- stitutionally ineffective for failing to file a notice of appeal. It directed that an inquir y should begin by asking whether the attorney in fact consulted with the defendant about the appeal. Such a consultation meant advising the defen- dant on the pros and cons of taking an appeal and making a reasonable effort to discover the defendant’s wishes. However, the defendant GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION APPELLATE ADVOCACY 331 would still have to show that there was a reasonable probability that, but for his attor- ney’s conduct, he would have filed a timely appeal. In Glover v. United States (531 U.S. 198, 121 S. Ct. 696, 148 L. Ed. 2d 604 [2001]), the Supreme Court ruled that defendants are entitled to a hearing to prove that they received ineffective counsel on an appeal. In this case, the defendant argued that his appellate attorney failed to appeal his sentence, which he claimed had been miscalculated under federal SENTENC- ING guidelines. This failure would mean serving between six and 21 months longer in prison. An appeals court held that theincrease inhis sentence was not serious enough to merit a review of his ineffective counsel claim. The Supreme Court disagreed, ruling that any amount of jail time justified a hearing into the issue. The Supreme Court considered another claim of ineffective appellate counsel in Mickens v. Taylor (535 U.S. 162, 122 S. Ct. 1237, 152 L. Ed. 2d 291 [2002]), but this one involved trial counsel. However, the rule announced in Mickens could be made applicable to claims of ineffective appellate counsel. The defendant had been convicted of MURDER and sentenced to death. During the course of his death penalty appeals, his appellate attorney discovered that the defen- dant’s trial attorney had represented the murder victim shortly before his murder. This was not disclosed to the defendant during his trial. The defendant argued that this tainted his trial, as there was no way the defense attorney could have been objective. The Supreme Court disagreed, in a decision that signaled a departure from its death penalty jurisprudence. Because of the finality of a death sentence, the Court previously required less hard evidence of prejudice from in effective counsel. In Mickens, the Court stated that the general rule for ineffective counsel should also be applied to capital murder cases. Under this standard the defendant must show that “but for” the lawyer’s conduct, the result of the trial would have been different. The Court will presume an adverse effect “where assistance of counsel has been denied entirely or during a critical stage of the proce eding.” In Mickens, however, the Court found that the trial attorney had done an acceptable job in representing the defendant, so no adverse effect could be presumed. Because the defendant could not show that the outcome of his trial would have been any different but for the actions of his attorney, his appeal was rejected (see also Schriro v. Landrigan aka Hill No. 05-1575, 550 U.S.___ [2007]). FURTHER READINGS Arkin, Marc M. 1992. “Rethinking the Constitutional Right to a Criminal Appeal.” University of California at Los Angeles Law Review 39. ———. 1990. “Speedy Criminal Appeal: A Right without a Remedy.” Minnesota Law Review 74. Beazley, Mary Beth. 2002. A Practical Guide to Appellate Advocacy. New York: Aspen. Berry, Carole C. 2009. Effective Appellate Advocacy: Brief Writing and Oral Argument. 4th ed. St. Paul, Minn.: West Group. Frederick, David C. 2002. Supreme Court and Appellate Advocacy. St. Paul, Minn.: West Group. Junkin, Federick D.1988. “The Right to Counsel in ‘Frivolous’ Criminal Appeals: A Reevaluation of the Guarantees of Anders v. California.” Texas Law Review 67. Klonoff, Robert H. and Gregory Castanias. 2008. Federal Appellate Practice and Procedure in a Nutshell. St. Paul, Minn.: Thomson/West. Knibb, David G. 1990. Federal Court of Appeals Manual. 2d ed. St. Paul, Minn.: West. National Conference of Bar Examiners (NCBE), 2009. “2008 Statistics.” The Bar Examiner, May 2009. Text available online at http://www.ncbex.org/fileadmin/mediafiles/ downloads/Bar_Admissions/2008_Stats.pdf; website home page: http://www.ncbex.org/bar-admissions/ stats/ (accessed August 5, 2009) Rubin, Alvin B. 1989. Advocacy in the Court of Appeal. American Law Institute-American Bar Association. No. C380. CROSS REFERENCES Criminal Law; Federal Courts; Habeas Corpus; Supreme Court of the United States. APPELLATE COURT An appellate court has jurisdiction to review decisions of a trial-level or other lower court. An unsuccessful part y in a lawsuit must file an appeal with an appellate court in order to have the decision reviewed. In the United States, appellate courts exist at both the federal and the state levels, and generally they consist of a panel of two or more judges. On the federal level, decisions of the U.S. district courts, where civil and criminal matters are tried, can be appealed to the U.S. court of appeals for the circuit covering the district court. Eleven numbered federal judicial circuits have been established. Each circuit comprises a number of states that are usually, though not always, in close geographic proximity. For example, the Eighth Circuit includes Arkansas, Iowa, Minnesota, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 332 APPELLATE COURT Missouri, Nebraska, and North and South Dakota, and the Sixth Circuit is made up of Kentucky, Michigan, Ohio, and Tennessee. Washington, D.C., has two U.S. COURTS OF APPEALS : the District of Columbia CIRCUIT COURT of Appeals, which hears appeals arising out of decisions of the Federal District Court for the District of Columbia, and the U.S. Court of Appeals for the Federal Circuit, which has exclusive and nationwide jurisdiction in appeals from U.S. district court decisions in patent, copyright, trade mark, and other specialized areas. A decision of a U.S. court of appeals may be appealed to yet ano ther appellate court, the Supreme Court of the United States. An appeal to the Supreme Court is made by filing a petition for CERTIORARI (a document requesting a review of court records). The Supreme Court has broad discretion in determining whether to review decisions. The Court receives thousands of petitions per year, but can only review about one hundred cases in that span of time. It most often denies certiorari and hears only cases that raise important and unsettled constitutional questions or in which the federal appellate courts have reached conflicting decisions on the same issue. On the state level, a decision of a state trial court—usually a district or other local court— can be appealed to a state appellate court for review. In most states, a case must first be appealed to an intermediate appellate court. If it receives an unfavorable ruling at the intermedi- ate level, the case can then be appealed to the highest appellate court in the state, usually the state supreme court. Like the Supreme Court of the United States, a state’s highest court usually has the discretion to decide whether to review a decision reached by the intermediate court. Some cases decided by the highest court in a state also can be appealed to the U.S. Supreme The interior chambers of the U.S. Supreme Court, the last forum for appeals of lower court decisions. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION APPELLATE COURT 333 Court, though again the U.S. Supreme Court will hear only appeals of major significance. In both state and federal matters, in general, an appeal can be brought only after a FINAL DECISION , or final judgment, in the ACTION has been entered. A judgment is final for the purposes of an appeal when nothing more is to be decided in the action, and it concludes all rights that were subject to LITIGATION. This rule is based in part on the desire for judicial economy: It is more efficient for all matters to be heard in one appeal than for a case to be conducted “piecemeal” (in several appeals) before it is finally resolved. However, both state and federal courts will in some instances hear an INTERLOCUTORY appeal, which is an appeal of a matter that does not decide the entire case but must be addressed before the case can be decided on its merits. In other instances, whether an interlocutory appeal will be granted depends on the issue at hand. If the issue concerns whether the lawsuit shou ld go forward at the trial level, it is more likely to be heard, since it may avoid an unnecessary trial. For example, an interlocutory appeal may be permitted from an order granting or denying an injunction, even though the main issues in the case have yet to be tried. The proceedings in the federal and state appellate courts are quite different from those that take place in a trial court. At the trial level, WITNESSES are called to TESTIFY and a jury is often present to hear evidence and reach a VERDICT.At the appellate level, the trial court record and briefs prepared by both parties are revi ewed, and oral arguments may be heard; witnesses are not called and no jury is convened. The trial court record usually contains the pleadings that first initiated the case, a complete transcript of the court proceedings, materials admitted into evidence, and documents indicating the final judgment. An appellate court differs from a trial court in another important respect: Only the trial court determines the factual issues in a case. In its review, the appellate court does not try factual issues. Instead, it determines only whether there is sufficient evidence to support the findings of the trial court and whether the trial court correctly applied the law. Both the appellant (the party appealing the lower-court ruling) and the appellee (the party against whom the appeal has been brought) file written briefs with the appellate court. The briefs—which recite the facts of the case, the arguments being raised on appeal, and the applicable law—help the court decide whether the trial court erred in its decision. The appellate court may also hear oral arguments in the case. During oral argument, each party has 10 to 15 minutes to persuade the appellate court to rule in its favor. If numerous issues have been raised, a party may choose to use most of this time to cover the issues that are most crucial to the decision to be made. The court is free to interrupt an oral argument with questions concerning the facts of the case or the particular areas of law involved. The appellate court, at its discretion, may determine that oral argument is not necessary and may decide the case based only on the trial court record and the written briefs. In making its decision, the appellate court may affirm the trial court, mea ning that it accepts the decision of the lower court, or may reverse it, thus agreeing with the appellant’s contention that the trial court’s decis ion was erroneous. It may also modify the decision; in this instance, the court may accept part of the trial court’s decision while ruling that other issues were erroneously decided. The appellate court usually issues its deci- sion in the form of a written opinion stating its reasons for the decision. The opinion will discuss the relevant facts and apply the law to those facts. Appellate court opinions are usually published, thus forming a body of law, known as precedent, that attorneys and judges can consult for guidance in resolving similar legal questions. FURTHER READINGS Cohen, Jonathan Matthew. 2002. Inside Appellate Courts: The Impact of Court Organization on Judicial Decision Making in the United States Courts of Appeals. Ann Arbor: Univ. of Michigan Press. Klein, David E. 2002. Making Law in the United States Courts of Appeals. New York: Cambridge Univ. Press. Klonoff, Robert H. 2008. Federal Appellate Practice and Procedure in a Nutshell. 1st ed. Thomson West. Smithburn, J. Eric. 2009. Appellate Review of Trial Court Decisions. Durham, N.C.: Carolina Academic Press. Sunstein, Cass R., David Schadke, Lisa M. Ellman, and Andres Sawicki. 2006. Are Judges Political? Washington, D.C.: Brookings Institution Press. Wisotsky, Steven. 2009. Professional Judgment on Appeal: Bringing and Opposing Appeals. Durham, N.C.: Carolina Academic Press. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 334 APPELLATE COURT CROSS REFERENCES Appeal; Appellate Advocacy; Courts; Federal Courts. APPELLEE A party who has won a judgment in a lawsuit or favorable findings in an administrative proceed- ing, which judgment or findings the losing party, the appellant, seeks to have a higher court reverse or set aside. The designation as appellee is not related to a person’s status as PLAINTIFF or DEFENDANT in the lower court. Another name for appellee is respondent. CROSS REFERENCE Appeal. v APPLETON, JOHN JOHN APPLETON was a prominent nineteenth- century Maine lawyer and judge. He served as a justice and chief justice of the Maine Supreme Judicial Court from 1852 to 1883. During his long tenure he came to be recognized for his opposition to state laws that granted loans or tax exemptions to businesses. His belief in free market capitalism translated into minim al government regulation of business and no government breaks for business. In addition Appleton concerned hims elf with rethinking COMMON LAW rules of evidence. Appleton was born on July 12, 1804, in New Ipswich, New Hampshire. He graduated from Bowdoin College—where his uncle, Jesse Appleton, was president—in 1822 and then apprenticed himself to a New Hampshire lawyer to gain the knowledge needed to become a member of the bar. Appleton was admitted to the bar in 1826 and moved to Sebec, Maine, to start a private practice. Maine had been admitted to the Union in 1820 and was a growing, prosperous state. Appleton moved again to Bangor in 1838 and continued his PRIVATE LAW practice. A great reader of philoso- phy and law, Appleton was attracted to the utilitarian philosophy of JEREMY BENTHAM.An interest in the law from a purely intellectual viewpoint led him to pursue a judgeship. In 1841 he was appointed the reporter of decisions for the Maine Supreme Judicial Court, the state’s highest court. In this capacity Appleton edited the opinions of the justices, which gave him valuable insights into the workings of an appellate court. His diligence and intellectual esteem led to his appointment as a justice of the court in 1852. Eleven years later he was elevated to chief justice, a position he held for the next 31 years. Apart from his judicial opinions, Appleton published in 1860 a treatise entitled The Rules of Evidence, Stated and Discussed. Appleton’s opinions from the early 1870s on the proper relationship between government and business have come to be regarded as groundbreaking expressions of laissez-faire constitutionalism. After the Civil War state governments had rushed to give railroads and other businesses tax exemptions, loans, and property easements. When the town of Jay sought legislative authority to loan $10,000 to private entrepreneurs to move their mill and factory to the town, the legislature sought an ADVISORY OPINION from Maine’s supreme court. In a bluntly worded opinion, Appleton declared that the legislature had no authority to help private businesses through gifts or loans. When John Appleton 1804–1891 ❖ ❖ ◆ ◆ ◆◆◆ 1804 Born, New Ipswich, N.H. ◆ ▼▼ ▼▼ 18501850 18751875 19001900 18001800 18251825 ◆ ◆ ◆ ◆ ◆ ◆ ◆ ◆ ◆ 1822 Graduated from Bowdoin College 1826 Admitted to bar and moved to Maine 1841 Appointed reporter of decisions, Maine Supreme Judicial Court 1852 Appointed associate justice, Maine Supreme Judicial Court 1863 Appointed chief justice, Maine Supreme Judicial Court 1883 Retired from Supreme Judicial Court 1891 Died, Bangor, Maine 1860 Rules of Evidence treatise Published 1820 Missouri Compromise enacted, limiting slavery 1854 Kansas-Nebraska Act passed 1861–65 U.S. Civil War 1857 Supreme Court issues Dred Scott decision; Missouri Compromise unconstitutional 1877 Reconstruction ends 1865 Thirteenth Amendment abolished slavery 1883 U.S. Supreme Court strikes down Civil Rights Act of 1875 1882 Congress enacts Chinese Exclusion Act GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION APPLETON, JOHN 335 the legislature ignored this opinion and autho- rized the funding, Appleton issued an opinion ruling the act unconstitutional. Appleton’s analysis foreshadowed the SUBSTANTIVE DUE PROCESS doctrine that the U.S. Supreme Court employed to strike down government regula- tions of business. Appleton finally retired in 1883. He died on February 7, 1891, in Bangor, Maine. FURTHER READINGS Gold, David M. 1990. The Shaping of Nineteenth-Century Law: John Appleton and Responsible Individualism. Westport, Conn.: Greenwood. ———. 2000. “The Tradition of Substantive Judicial Review: A Case Study of Continuity in Constitutional Jurisprudence.” Maine Law Review, 52. Karsten, Peter. 1997. “Supervising the ‘Spoiled Children of Legislation’: Judicial Judgments Involving Quasi-Public Corporations in the Nineteenth-Century United States.” American Journal of Legal History, 41. Witt, John Fabian. 1999. “Making the Fifth: The Constitu- tionalization of American Self-Incrimination Doctrine.” Texas Law Review, 77. APPOINT To designate, select, or assign authority to a position or an office. Although sometimes used interchangeably, elect and appoint do not have the same meaning. Election refers to the selection of a public officer by the qualified voters of the community, and appointment refers to the selection of a public officer by one authorized by law to do so. APPOINTMENT, POWER OF A power that is conferred upon a donee to dispose of the donor’s proper ty by nominating and selecting one or more third-parties to receive it. The property may consist of tangible items such as cars, boats, and household items, or it may consist of an intangible interest in property, such as the right to receive dividend income from stocks. A POWER OF APPOINTMENT may be transferred only in writing, such as by deed, trust, or will. Donees who receive an oral promise to be given a power of appointment, however, may bring an action for PROMISSORY ESTOPPEL if they have relied to their detriment on that promise. In no case will a court find that a power of appointment had been created unless the donor’s intent to create the power is demonstrated; the person who would hol d the power is indicated; the circumstances under which the power could be exercised are identified; and the property that is subject to the power is specified. No particular semantic formula is necessary for the creation of a power of appointment. Any written expression, however informal, will suffice so long as it clearly indicates an intention to create such a power. Thus, a power of appointment may be created by implication. For example, a devise or bequest of property to a person as he or she may designate to receive it or subsequently transfer it gives that person a power of appointment. A TESTAMENTARY gift to a donee for life, to be at his or her disposal, or with a right to dispose of it at the donor’s death, concers a power of appointment. For example, if a donor gives the donee an automobile to use as the donee sees fit during the donee’s lifetime, the donor has given the donee a power of appointment over the automobile. Similarly, if a donor gives the donee authority to dispose of the automobile upon the donor’s death, the donor has given the donee a power of appoint- ment over the automobile. There are three classes of powers of appoint- ment. General powers of appointment give donees the power to dispose of the property in any way they see fit. Limited powers of appoint- ment, also known as special powe rs of appoin t- ment, give donees the power to transfer the property to a specified class of persons identified in the instrument creating the power. Testamen- tary powers of appointment are powers of appointment that typically are created by wills. APPORTIONMENT Apportionment is the process by which legislative seats are distributed among units entitled to representation; determina tion of the number of representatives that a state, county, or other subdivision may send to a legislative body. The U.S. Constitution provides for a census every ten years, on the basis of which Congress apportions representatives according to population; each state, however, must have at least one representative. Districting is the establishment of the precise geographical boundaries of each such unit or constituency. Apportionment by state statute that denies the rule of one-person, one-vote violates the equal protection of laws. Apportionment is also the allocation of a charge or cost such as real estate taxes between two parties, often in the same ratio as the respective times that the partie s are in possession or ownership of GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 336 APPOINT property during the fiscal period for which the charge is made or assessed. JAMES MADISON and his fellow founders of the United States of America had many objectives as they framed the U.S. Constitution. One was equal representation in a governme nt run by members of Congress on behalf of citizens of the United States. To ensure that equal representation occurred, the founders proposed that the U.S. population be counted at regular intervals with a census. They later agreed in the Great Compromise of 1787 that congressional representation should be assigned—in other words, apportioned—to various regions of the country based on a total population standard. Both Article 1, Section 2, Clause 3, and Amendment 14, Section 2, of the Constitution provide that representatives shall be appor- tioned among the states according to their respective numbers and that a population count will be taken by census every ten years. Apportionment requires that each state’s total population be divided by the population of “the ideal district” to determine the appropriate number of representatives. The population of an ideal district, for purposes of federal apportionment, is defined as the total popula- tion of the state (as determined by census) divided by one hundred (for the House of Representatives), or by 50 (for the Senate). In the centuries that followed the adoption of the U.S. Constitution, apportionment for the federal Cong ress has been based on total population—with the exception that a slave, until the Civil War, was considered property and thus counted only as three-fifths of a white person. Efforts to limit federal congressional apportionment to only people who are citizens U.S. House of Representatives Membership in 2009 1–3 4–9 10–19 20 or more Number of representatives per state 2 Hawaii 1 A la ska SOURCE: U.S. House of Representatives Web site, “Congressional Apportionment,” available online at http://clerk.house.gov/art_history/ house_histor y /con g A pp /b y state.html (accessed Au g ust 6, 2009). 1 Montana 9 Washington 5 Oregon 53 California 3 Nevada 2 Idaho 1 Wyoming 3 Utah 7 Colorado 3 New Mexico 8 Arizona 1 North Dakota 8 Minnesota 1 South Dakota 3 Nebraska 4 Kansas 5 Oklahoma 32 Texas 8 Wisconsin 5 Iowa 9 Missouri 4 Arkansas 7 Louisiana 19 Illinois 15 Michigan 9 Indiana 18 Ohio 19 Pennsylvania 29 New York 3 W.Va. 11 Virginia 13 N.Carolina 6 Kentucky 9 Tennessee 4 Miss. 7 Alabama 13 Georgia 6 S.Carolina 25 Fla. 2 Maine 1 Vt. 2 N.H. 10 Mass. 2 R.I. 5 Conn. 13 N.J. 1 Del. 8 Md. 1 D.C. ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION APPORTIONMENT 337 . When John Appleton 18 04 18 91 ❖ ❖ ◆ ◆ ◆◆◆ 18 04 Born, New Ipswich, N.H. ◆ ▼▼ ▼▼ 18 5 018 50 18 7 518 75 19 0 019 00 18 0 018 00 18 2 518 25 ◆ ◆ ◆ ◆ ◆ ◆ ◆ ◆ ◆ 18 22 Graduated from Bowdoin College 18 26 Admitted to. York 3 W.Va. 11 Virginia 13 N.Carolina 6 Kentucky 9 Tennessee 4 Miss. 7 Alabama 13 Georgia 6 S.Carolina 25 Fla. 2 Maine 1 Vt. 2 N.H. 10 Mass. 2 R.I. 5 Conn. 13 N.J. 1 Del. 8 Md. 1 D.C. ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, . guarantees of due process and EQUAL PROTECTION (Griffin v. Illinois, 3 51 U.S. 12 , 76 S. Ct. 585, 10 0 L. Ed. 8 91 [19 56]). In Douglas v. California (372 U.S. 353, 83 S. Ct. 814 , 9 L. Ed. 2d 811 [19 63]),