So, yes, I have been horribly derelict with the blog of late. Among other things, I have been wandering about the globe, including a trip to Chicago for an American Academy of Appellate Lawyers conference. I shall blog on that anon; among other things, Judge Posner gave a rather hairaising presentation upon which I shall report. (Well, hairaising to me because of the contents of his speech; he doesn't have a lot of hair to raise, and he was making rather (to me) alarming statements, not vice versa.)
For this entry, first a big congrats to Justice Hjelm and BIll Stokes, nominated by the Governor for (1) Justice Levy's position (Justice Levy is now gone from the SJC and sitting at the federal district court), and (2) a Superior Court post, respectively. Bill is a great fellow, and will bring lots of criminal prosecutorial experience to the post. While I haven't had a lot of interface with Justice Hjelm, he is known to be a very gracious judge to argue in front of, and is also a well respected member of the bench. There's no doubt he will maintain the Court's standards.
Now I kept saying in past blogs that I would report on the oral argument in the Goose Rocks case. (More about agency deference; looming arguments; and youtube, Goose Rocks, muskets and takings law, Goose Rocks Response, Goose Rocks redux – hold the phone! ) Interestingly, no decision has issued yet, and now they are down to six Justices and probably will be until the end of the summer, which I believe is the earliest we can expect Justice Hjelm to be confirmed.
Again, full disclosure: I'm married to a K'Port official.
In theory, because the last argument was to decide whether to reconsider the Court's ruling, nothing may ever be forthcoming from the SJC with respect to that ruling. Realistically, however, I think the parties could be waiting for something to issue before any remand proceedings go forward.
I can report as an eyewitness that the tourists have now come back to the 'Port, but I have no idea whether this up-in-the air, half-settled status has affected tourism down there on the beach. I also haven't looked at the nuts and bolts enough to figure out whether it's clear what the temporary status quo is for that beach use – can a tourist drop a towel and sit on the parcels of the folks who settled but not the others? As a legal matter, is it the non-settling plaintiffs' position that no, a tourist can't drop a towel now and sit on their parcels (I think this is so), but as a practical matter they aren't going to make a deal out of it as long as the tourists don't get obstreporous (I think that's why they are saying there's no case or controversy to rule on the public trust doctrine)? Or as a legal matter, does it remain a question to decide on remand whether a tourist can drop a towel?
In any event, I went back to my notes on the argument and I don't think I have any brilliant insights on what the Court is thinking (not that I'm good at ever predicting on this front.) The discussion and the questions from the bench were on both topics raised in the petitions for reconsideraiton, prescriptive easement and the public trust doctrine. I can't predict whether there will be any substantive change forthcoming on the merits of these arguments, or the Court is only thinking about tweaking its decision to clarify a point. Questions on both levels were bandied about.