Author, Photographer, Researcher, Artist, Adventurer and Buccaneer Extraordinaire

“Or at least that’s the plan each morning after coffee.”

DL Tolleson.com

THIS UNNAMED GEOLOGICAL formation is the likely result of wind, rain and time eroading away surface material to expose what at one time would have lava (magma) that had cooled and solidified. Copyright © 2010 by DL Tolleson. All Rights Reserved.
COMING INTO OR out of the Chisos Mountains, this is the northwest view and is several miles south of Panther Junction and the headquarters for Big Bend National Park. Copyright © 2010 by DL Tolleson. All Rights Reserved.
THE CLARET CUP is covered in barbed spines and blooms a reddish, cup-shaped flower from about April to June or July in Big Bend National Park. Copyright © 2010 by DL Tolleson. All Rights Reserved.
THIS VIEW FROM a formation called, “The Window,” looks out from the westside of the Chisos Mountains in Big Bend National Park. Copyright © 2010 by DL Tolleson. All Rights Reserved.
INDIAN HEAD MOUNTAIN and its southern region offers this “leaning” wall of geology at the western boundary of Big Bend National Park. The rocks of the foreground are boulders ranging from man-sized on up. Copyright © 2010 by DL Tolleson. All Rights Reserved.
MASSIVE AND TOWERING, this wall of the geology is at least a couple of hundrend feet high and situated in the Indian Head area of Big Bend National Park. Copyright © 2010 by DL Tolleson. All Rights Reserved.
WIDE-OPEN PANORAMAS and mountainous terrain such as this are routine along roadside in Big Bend National Park. Copyright © 2010 by DL Tolleson. All Rights Reserved.
THE SOUTHWEST SIDE of the Chisos Mountains, also known as the Chisos Mountain Basin and home to the lodge in Big Bend National Park. Copyright © 2011 by DL Tolleson. All Rights Reserved.
A FALLEN TREE is an impassable barrier in an otherwise debris-free dry riverbed in Big Bend National Park. Copyright © 2010 by DL Tolleson. All Rights Reserved.
INDIGENOUS TO TEXAS, New Mexico and Arizona, Javelinas in Big Bend National Park genetically differ from swine. Copyright © 2010 by DL Tolleson. All Rights Reserved.
LOST MINE TRAIL in Big Bend National Park, looking southward over Juniper Canyon, the Chisos Mountain’s Northeast Rim and into Mexico. Copyright © 2010 by DL Tolleson. All Rights Reserved.
A TREE SILHOUETTED against the night sky as seen from Chisos Basin in Big Bend National Park. Copyright © 2010 by DL Tolleson. All Rights Reserved.
THIS VIEW EAST of a volcano is an illusion of the setting sun streaming through the Chisos Basin area behind Casa Grande Peak in Big Bend National Park. Copyright © 2010 by DL Tolleson. All Rights Reserved.
WRIGHT MOUNTAIN in background at Big Bend National Park. Copyright © 2010 by DL Tolleson. All Rights Reserved.
A VIEW WESTWARD after sundown from the Indian Head area of Big Bend National Park. Copyright © 2010 by DL Tolleson. All Rights Reserved.
A CAMERA COMPENSATION for the limited light after sundown provides this view westward from the Indian Head area of Big Bend National Park. Copyright © 2010 by DL Tolleson/Camera One. All Rights Reserved.
SANTA ELENA CANYON after sunset, as seen from the Chimneys in Big Bend National Park. Copyright © 2010 by DL Tolleson/Camera One. All Rights Reserved.

Publication History: The Appeals Process. Copyright © 1994, 2009 by DL Tolleson. All Rights Reserved. Excerpts from this work are permissible if author attribution is included. However, beyond this no part of this material may be reproduced in any form or by any means without written permission from the author.

Tolleson, DL. “The Appeals Process.”
DLTolleson.com, 2009.
http://www.dltolleson.com/commentary/appeals.php.

Tolleson, DL. “The Appeals Process.”
TheLighthousePress.com, 2016.
http://www.thelighthousepress.com/dltolleson.com/commentary/appeals.php.

Description: Commentary » Legal—520 words.

Commentary: Experience in the legal field has brought with it instances of acquaintances seeking advice and unsolicited diatribes on the evils of our legal system.

For the former I typically advise pre-litigation conflict resolution or attorneys with whom I have a passing familiarity. I have, of course, composed correspondence for clients who knew what they wanted to say and preferred an intermediate representative. A well-worded letter often does wonders.

But it is the diatribes that are of curious and amusing value. Even more so when the speaker has no clue. For example, I was once at a seminar where an attendee was passing around his self-published book on “simple” legal matters. (A “self-published” book can be a sign of all ready having taken the wrong road.) At any rate, since he was seated in front of me and hawking his wares, I perused his book. It was a page on which I randomly stopped that evidenced the man was clueless.

“This is wrong,” I told him, in reference to the chapter he had written on “common law marriage.” I then explained that in Texas there were only three elements in determining “common law marriage” and that a specific duration for the relationship was not among them. I also pointed out that in Texas the phrase, “common law marriage” is a common misnomer not used in the statutes. He was a bit bent out of shape over the matter (perhaps because others were listening) and doubtful of my information. After all, I wasn’t an attorney. But obviously he wasn’t either. So I took his contact info and per a promise later sent to him the correct information—which is easily found in Vernon’s statues under Informal Marriages. I never heard back from the clown, but even without a big red nose or huge floppy shoes, his pretense of legal acumen was amusing and reckless. Incomplete knowledge is a dangerous thing.

However, by far the biggest misconception about our legal system that I come across concerns appeals. I couldn’t even begin to put a number on the people who believe that appeals are new trials. They are not. As exemplified in the text below, appeals are not even trials, per se.

But there is one caveat to the information below: In noting that the Constitution is the supreme law of the land, it is important to realize the Constitution is founded in, and based upon, natural law. These days most Constitutional “scholars” and court systems skirt, scoff or utterly ignore this point. It’s the sort of avoidence that’s also wrapped-up in the reasoning that lead many to think they are wise in saying, “Well, it’s a slippery slope if you try to regulate morality.” This is a specious argument because in actuality our entire system of law is based upon the regulation of morality. For example, we enact laws against such things as murder and incest—both being a crime against a person and morally apprehensible—because we regulate morality.

My point is that the Constitution is founded upon principles and natural law that has been under attack for years. Our form of government is nowhere near the same as it was once designed and the role of the Supreme Court as the final arbiter of all legal matters and a tool of judicial fiat was not as it was originally intended.

But until—or if—the winds of change swing dramatically in another direction, the Supreme Court is pretty much the final word after, and often over, the Constitution. So the text below is slightly askew in its representation of this reality, but it is the accepted understanding. Coupling this knowledge with the following text should be more than enough to give you a working grasp of the appeals process.

—DL Tolleson

THE APPEALS PROCESS
DL Tolleson

It is commonly known that the Constitution of the United States is the supreme law governing our nation.

It is the responsibility of the Supreme Court (created by the Constitution) to settle opposing Constitutional interpretations. This is accomplished through an “appeals” process: Dissatisfied with the outcome of a trial, people with opposing opinions often present (appeal) to the Supreme Court the mistakes (errors) they believed occurred in the trial. Whenever characters in television court dramas are objecting during trials, they are preserving in the court record the errors on which they will base an appeal should they later desire to pursue one: That is how it works in reality. Should the Supreme Court hear the appeal, they issue a decision (opinion) that becomes case law (meaning the opinion is law) that supports (affirms), changes (reverses) or sends the case back to court for another trial (remands).

The “lower courts” are in cities, counties and states that are included in a division of our country into 9 districts. Trials are initiated in any of these jurisdictions and occasionally appeal “all the way up to” the Supreme Court, which decides upon the trial court errors (and even “lower appeal court” decisions) as explained above.

Supreme Court decisions (as well as “lower appeal court” decisions) are written in volumes called Reporters, and are the supreme laws of our nation, second only to the Constitution. The decisions are cited in the following manner: Parties to the suit (in italics or underlined), Reporter volume number, Reporter name (abbreviated), the page number where the decision begins (when quoting from a case, the page number on which the quote is found) and the date—e.g., Smith v. Jones 340 U.S. 202, 1989. The abbreviation “U.S.” indicates the United States Reports and “S.Ct.” represents Supreme Court Reporter. Both the United States Reports (U.S.) and the Supreme Court Reporters (S.Ct.) print the same decisions verbatim. Occasionally the same case is printed in more than one Reporter and these are listed by volume name, Reporter and page number (when more than one Reporter is listed it is called a “parallel cite”).

Other Reporters print the appeals occurring in “lower courts beneath” the Supreme Court. Unless contradictory to, or “overturned” (changed or decided incorrect) by a “higher court,” lower appeal court decisions are as much a part of case law as opinions of the Supreme Court. Of course one “lower court” can rule differently than a “lower court” in another district.

Case law is “good” when it is not overturned (ruled unconstitutional or “bad”). Case law validity is verifiable through a process called “shepardizing.” MaGraw-Hill, Inc. issues books called Shepard’s Citations (and now conveniently available on CD and online) that list the Volume number, Reporter name and page of every citing of Supreme Court decisions. This exhaustive tool insures the “good” or “bad” standing of case law (crucial when dealing with administrative bodies like the IRS or courts). Remember, The Constitution is the oldest American law—thus if not overturned, so is any Case law interpreting it.

Without exception, the Constitution and the Supreme Court are the final say in Constitutional matters.