[EL] Do interlocutory evidentiary disputes from 3-judge district courts get appealed to appellate courts rather than the Supreme Court?

[Josh Douglas]

Michael Solimine and I discuss this question tangentially in a footnote to
our new article in the Georgetown Law Journal, Precedent, Three-Judge
District Courts, and the Law of Democracy
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3099771>. See note 200:

Illustrating the odd nature of the three-judge district court, there are
exceptions to what the court must decide. Once the three-judge district
court has ruled on the merits of the claim, there may be collateral issues
remaining, such as an award of attorneys’ fees. Because the language of the
convening statute arguably does not cover those topics, courts have
typically held that the court’s disposition of those issues is appealable
in the first instance to the circuit court, not the Supreme Court. See,
e.g., League of Women Voters of Mich. v. Johnson, 902 F.3d 572 (6th Cir.
2018) (appeal from three-judge district court of denial of motion to
intervene under Federal Rule of Civil Procedure 24); Brat v.
Personhuballah, 883 F.3d 475 (4th Cir. 2018) (appeal of award of attorneys’
fees by three-judge district court); see also 17 CHARLES ALAN WRIGHT ET
AL., FEDERAL PRACTICE AND PROCEDURE § 4040, at 114– 15 (2007).

However, our ultimate conclusion in the article -- that three-judge
district courts are not bound by circuit precedent -- would suggest that a
three-judge district court's preliminary rulings should not be appealable
to the circuit court.

Michael Morley wrote up his own analysis
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3373405> of the Three
Judge Court Act, forthcoming in the Georgetown Law Journal, which in part
is a response to our piece. He concludes that three-judge  district courts
are bound by circuit precedent, but I do not believe he tackles this
question of the appealability of procedural rulings before the case is
final. (Michael M., please correct me if I'm wrong on that front.)

Thanks,

Josh

Joshua A. Douglas
Thomas P. Lewis Professor of Law
University of Kentucky College of Law
620 S. Limestone
Lexington, KY 40506
859-257-4935
joshuadouglas at uky.edu
Twitter: *@JoshuaADouglas <https://twitter.com/JoshuaADouglas>*

*   Find me at www.JoshuaADouglas.com <http://www.joshuaadouglas.com/>. *

On Sat, May 18, 2019 at 12:30 PM Ruth Greenwood <ruthgreenwood2 at gmail.com>
wrote:

> Plaintiffs don't think the Seventh Circuit has jurisdiction to hear the
> mandamus petition. See our brief attached.
>
> Cheers
> Ruth
>
> On Sat, May 18, 2019 at 11:03 AM Rick Hasen <rhasen at law.uci.edu> wrote:
>
>> It appears from this story that that’s what just happened in the
>> Wisconsin gerrymandering case:
>>
>>
>>
>>
>> https://www.jsonline.com/story/news/politics/2019/05/18/speaker-robin-vos-gets-reprieve-wisconsins-gerrymandering-case/3718475002/
>>
>>
>>
>> I’m wondering about the authority for such appeals to go to the appellate
>> courts rather than the Supreme Court.
>>
>>
>>
>> Thanks.
>>
>>
>>
>> --
>>
>> Rick Hasen
>>
>> Chancellor's Professor of Law and Political Science
>>
>> UC Irvine School of Law
>>
>> 401 E. Peltason Dr., Suite 1000
>>
>> Irvine, CA 92697-8000
>>
>> 949.824.3072 - office
>>
>> rhasen at law.uci.edu
>>
>> http://www.law.uci.edu/faculty/full-time/hasen/
>>
>> http://electionlawblog.org
>>
>> [image: signature_1416578142]
>>
>>
>>
>>
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>
>
>
> --
> Ruth Greenwood
> email: ruthgreenwood2 at gmail.com
> cell: 202-560-0590
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