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In the Court of Appeals for the
Tenth Circuit
Case No. 06-1418
Harrington v. Wilson,
et al.
As you form your own conclusion about the outcome of this case as it was applied to the facts in the
underlying proceeding, consider the following pronouncement by
Tenth Circuit in Hackbart v. Cincinnati Bengals, Inc., 601 F.2d 516:
It is a well-settled principle of federal jurisdiction that where a federal court does not have a discretion
to accept or reject jurisdiction, if it does not have jurisdiction, it will not take it; but it is ruled,
on the other hand, that if it has jurisdiction it must take it. This principle has been expressed many times
with perhaps one of the best expressions being found in an early opinion, that of Mr. Chief Justice Marshall
in Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404, 5 L. Ed. 257 (1821):
It is most true, that this court will not take jurisdiction if it should not: but it is equally
true, that it must take jurisdiction, if it should. The judiciary cannot, as the legislature may,
avoid a measure, because it approaches the confines of the constitution. We cannot pass it by,
because it is doubtful. With [**11] whatever doubts, with whatever difficulties, a case may be
attended, we must decide it, if it be brought before us. We have no more right to decline the
exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other
would be treason to the constitution. Questions may occur, which we would gladly avoid; but we
cannot avoid them. All we can do is, to exercise our best judgment, and conscientiously to perform
our duty. In doing this, on the present occasion, we find this tribunal invested with appellate
jurisdiction in all cases arising under the constitution and laws of the United States. We find no
exception to this grant, and we cannot insert one.
Much more recently the Supreme Court in the case of Willcox v. Consolidated Gas Co., 212 U.S. 19, 40,
29 S. Ct. 192, 195, 53 L. Ed. 382 (1909), speaking through Mr. Justice Peckham, stated that where a federal
court is appealed to in the case over which it has by law jurisdiction, it is its duty to take such
jurisdiction.
They assume to criticize that court (United States District Court for the Southern District of New
York) for taking jurisdiction of this case, as precipitate, as if it were a question of discretion
or comity, whether or not that court should have heard the case. On the contrary, there was no
discretion or comity about it. When a Federal court is properly appealed to in a case over which it
has by law jurisdiction, it is its duty to take such jurisdiction (Cohens v. Virginia, 19
U.S. (6 Wheat.) 264, 404, 5 L. Ed. 257), and, in taking it, that court cannot be truthfully spoken
of as precipitate in its conduct. That the case may be one of local interest only is entirely
immaterial, so long as the parties are citizens of different States or a question is involved which
by law brings the case within the jurisdiction of a Federal court. The right of a party plaintiff to
choose a Federal court where there is a choice cannot be properly denied.
Mr. Justice Peckham expressed the view that the rule is based on the right of a party plaintiff to choose a
federal court where there is a choice . . . The right of citizens to get relief in federal courts is
similar to the same right in state court, bearing in mind that the federal courts in diversity cases are
applying state law.
Therefore, if Mr. McConnell and his colleagues on the panel did exactly what was proscribed in Hackbart v.
Cincinnati Bengals, there is no good reason for the aggrieved party in this case --or for any U.S. citizen-- to
respect, embrace, edify, or repose any trust in the independence of the judiciary. Indeed, when the courts
selectively abandon fidelity to the Rule of Law, the rule of the club may appear restored as a valid alternative.
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Date filed |
Description |
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09/21/2007 |
Order (regarding bill of costs) |
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08/10/2007 |
Appellant's
Response to Fyfe's Objection [to Bill of Costs] |
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08/09/2007 |
Defendant-Appellee Ryan's Joinder in Objection
to Appellant's Bill of Costs |
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08/09/2007 |
Mandate |
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08/09/2007 |
Defendant-Appellee Wilson's Joinder in Objecting
to Appellant's Bill of Costs |
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08/06/2007 |
Defendant-Appellee Fyfe's
Objection to Appellant's
Bill of Costs |
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07/31/2007 |
Appellant's Proposed
Bill of Costs |
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07/18/2007 |
Order and Judgment |
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07/18/2007 |
Terminated on the Merits after Submission without
reading briefs and without Oral Hearing; The
Judgment of the district court is affirmed insofar
as it dismisses the action. We REMAND to the
district court to modify the dismissal to be
without prejudice; Written, Signed and, of
course, unpublished. Briscoe; McKay; McConnell,
authoring judge. |
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07/18/2007 |
Order filed by Judges Briscoe, McKay, McConnell
reopening appeal. The panel WITHDRAWS its prior
order and judgment issued 6/7/07 |
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07/18/2007 |
Order by Judges Briscoe, McKay, McConnell. Petition
for panel rehearing is GRANTED; the request for en
banc rehearing is DENIED. |
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06/21/2007 |
Order (by clerk) denying as moot Motion
for Enlargement of Time |
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06/21/2007 |
Petition for Rehearing
en banc |
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06/20/2007 |
Appellant's
Motion for Extension of
Time |
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06/11/2007 |
Appellant's
Motion for
Clarification of June 7th, 2007 Order and
Judgment |
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06/07/2007 |
Order and Judgment |
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06/07/2007 |
Appeal terminated on the Merits after submission
without reading briefs and without oral hearing;
affirmed; written, signed and, of course,
unpublished. Briscoe; McKay; McConnell, authoring
judge. |
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06/07/2007 |
Order filed by Judges Briscoe, McKay, McConnell (denying
Appellant motion to remand case) |
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06/07/2007 |
Case submitted to panel on the briefs pursuant to Rule 34. |
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06/04/2007 |
Appellant's
Citation of
Supplemental Authority |
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03/19/2007 |
Appellant's
Reply Brief &
Attachment |
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01/28/2007 |
Appellee's
Joint Answer Brief |
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01/22/2007 |
Order
Denying Smith's Motion to file as amicus, by circuit
judges Kelley and McConnell |
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01/19/2007 |
Appellant's
Cross Reply
(re: Smith's Motion to file as amicus) |
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01/19/2007 |
Smith's
Reply in
Support of Motion for Leave to File as Amicus Curiae |
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01/17/2007 |
Fyfe's
Joinder in
Appellee's Response to Ken Smith's Motion for Leave
to File as Amicus |
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01/17/2007 |
Appellee's
Joint Response
to Ken Smith's Motion for Leave to File as Amicus |
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01/17/2007 |
Order
granting Extension of Time, by circuit judges Kelley
and McConnell |
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01/16/2007 |
Response to
Motion for Extension of Time, by Appellant
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01/12/2007 |
Joint
Motion for Extension of
Time to File Consolidated Answer Brief,
by appellees |
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01/03/2007 |
Cumulative Errata, by Appellant Sean Harrington |
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01/02/2007 |
Motion for leave to
file as Amicus Curiae, by Kenneth Smith
(proposed brief attached thereto) |
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12/25/2006 |
Appellant's Errata
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12/25/2006 |
Opening
Brief & Attachments by Appellant Sean Harrington |
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11/03/2006 |
Entry of Appearance,
by Amy Colony on behalf of the State defendants |
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10/31/2006 |
Warning from
Court to State defendants regarding failure to enter
appearance |
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10/24/2006 |
Order
granting motion for extension of time by Appellant
Sean Harrington |
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10/20/2006 |
Motion for
enlargement of time, by Appellant Sean Harrington
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10/17/2006 |
Index of
record on appeal, by trial court appeals clerk |
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10/16/2006 |
Order
denying motion for oversized brief (Kelly and
McConnell, Circuit Judges) |
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10/16/2006 |
Order
referring Motion for Limited Remand to panel |
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10/16/2006 |
Briefing Schedule,
by Deputy Clerk |
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10/13/2006 |
Alias Designation of
Record, by Appellant Sean Harrington |
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10/10/2006 |
Entry of Appearance,
by Brett Huff on behalf of Madeline Wilson |
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10/5/2006 |
Entry of Appearance,
by Randolph Dement on behalf of Christy Ryan |
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10/5/2006 |
Combined Motion
for Limited Remand and Oversized Brief, by Appellant
Sean Harrington |
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10/5/2006 |
Designation of Record,
by Appellant Sean Harrington |
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10/4/2006 |
Transcript Order Form,
by Appellant Sean Harrington |
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10/4/2006 |
Docketing Statement,
by Appellant Sean Harrington |
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10/4/2006 |
Entry of Appearance,
by Appellant Sean Harrington |
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10/3/2006 |
Docketing Fee
Receipt |
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10/2/2006 |
Entry of Appearance,
by David Yun on behalf of Bill J. Fyfe and Columbine
Counseling Center |
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9/28/2006 |
Docketing
Letter and Instructions, by Deputy Clerk |
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9/27/2006 |
Appeal Instructions,
by Trial Court Appeals Clerk Bobbi Reed |
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9/27/2006 |
Docketing Sheet
for Appeal |
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9/26/2006 |
Notice of Appeal,
by Appellant Sean Harrington |
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