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The Hon. Ted Stewart and the Hon. Tena Campbell
Thursday, August 27 2009 @ 01:43 PM EDT

I have gotten emails asking me to explain what the appeals court ruling means. Other than what I already wrote, the simple truth is this: nobody knows, most especially me, at this point. It's so complicated, with the trustee being appointed. I see clearly, I think, what SCO's plan was in their vision of a perfect outcome, including in AutoZone, but now the appointment of the Chapter 11 trustee changes so much. And we don't know yet if there will be any attempts to further appeal or ask for en banc review. So, we will have to wait and see what happens. As soon as I can make out anything from the mist, I'll surely tell you what I see. But I can't write what I don't know.

In the meantime, would you like to meet the two new judges assigned? I don't even know if those assignments are permanent, in that one of the new judges assigned used to work for Sen. Orrin Hatch, and Hatch's son represents SCO, so who knows? Could there be another recusal? It's conceivable. Let's assume that things are set in stone, though, for now, and let me introduce you to the Honorable Ted Stewart and the Honorable Tena Campbell.

The Hon. Tena Campbell is the Chief Judge, and she is assigned to SCO v. IBM. Her bio is here. She was appointed by President Bill Clinton, as was Judge Stewart, the judge assigned now to the SCO v. Novell case. That doesn't mean they were his picks, just that they were appointed during his presidency.

Judge Campbell is an Idaho girl, which likely means she knows how to ride a horse and glean potatoes and enjoy a very big sky. She was educated in Arizona, and worked as Assistant U.S. Attorney and then Deputy County Attorney in the Salt Lake County Attorney's Office before entering private practice. So she is a Utah transplant. I must say, I like the sound of this:

A copy of all proposed orders must be directly e-mailed to Judge Campbell's chambers at the following address: [PJ: email redacted]. Proposed orders e-mailed to chambers must be editable and submitted in either WordPerfect or Microsoft Word format.
At least she knows how to use email, and she's heard of WordPerfect. That's a start! I'm just kidding. Utah is one of the most advanced court systems as far as tech is concerned.

Kidding aside, then, she's not only heard of WordPerfect, she seems to prefer it. If you download her template jury instructions for civil trials or her trial order, they are in WordPerfect format. A lot of lawyers love WordPerfect, actually. I do too. I just love the freedom of GNU/Linux, but WordPerfect is wonderful software, particularly for law offices, because it does footnotes and headers so beautifully and can see who corrected what in all drafts of a document.

Here's the bio of Judge Ted Stewart, now assigned to the SCO v. Novell case remanded back to trial, so he'll be in charge of that. Yes, he used to work for Sen. Orrin Hatch, whose son represents SCO in this litigation, but it was way back in 1980. Utah isn't a hugely populated state, and Sen. Hatch likely has ties to pretty much everyone after all these years. But there is no question it feels a little funny, which is why it wouldn't amaze me if he recused himself or if someone raised that issue. But if you recall, Judge Dale Kimball was suggested by Sen. Hatch and then appointed by President Clinton, and it didn't influence him in SCO's direction or the opposite, or in any direction except what he thought was the right direction. I believe in the end, should there be further appeals, he'd be upheld.

Judge Stewart has proposed orders sent to his case manager, and he prefers WordPerfect also. He doesn't accept PDFs. You can find his instructions at the link. And here's his bio at the court.

Here are instructions on how to handle WordPerfect files if you only have an older version of Word. That lover of interoperability, Microsoft, makes us learn such things. Or, just download OpenOffice.org and you can open pretty much everything, and i4i has no patent claims on OOo either, another advantage.

It's a good thing for Boies Schiller that discovery is over. Look at this instruction from Judge Stewart:

Page limitations for memoranda are set forth in the Local Rules. Exceptions are rarely granted and only upon a showing of good cause.
That would seriously cramp their style. Speaking of style, did you notice that the appeals court didn't let them get away with bringing up something new only in a reply? It's the first time anyone has called them on it, that I recall, and it cost SCO $3 million, more or less:
In its opening brief on appeal, SCO appeared to contest only the district court's finding that the 2003 agreement constituted an "SVRX License." SCO argued that the district court erred by concluding that a licensing agreement entered after the closing of the APA could constitute an SVRX License. Whatever the merits of this argument, SCO neglected to challenge the alternative, independently sufficient basis for the district court's ruling--that its 2003 agreement with Sun represented an impermissible amendment to an SVRX License. An issue or argument insufficiently raised in a party's opening brief is deemed waived. Headrick v. Rockwell Int'l Corp., 24 F.3d 1272, 127778 (10th Cir. 1994). Although SCO addresses this issue in its reply brief, the general rule in this circuit is that a party waives issues and arguments raised there for the first time. See M.D. Mark, Inc. v. Kerr-McGee Corp., 565 F.3d 753 (10th Cir. 2009).
All judges have styles, and while Judge Kimball let them fudge a little, being so laid back, and Judge Gross lets them do whatever, the appeals court noticed and held them to the rules. That part of the ruling was refreshing.

Here's Judge Stewart's official court bio:

Judge Ted Stewart was nominated by President Bill Clinton on July 27, 1999, to the United States District Court of the District of Utah. He was confirmed by the U.S. Senate on October 5, 1999, and sworn in on November 15, 1999.

Prior to becoming a Federal District Court Judge, Mr. Stewart served as Chief of Staff to Governor Michael O. Leavitt (R-Utah) from March 1998, to November 1999. From January 1993, to March 1998, he served as the Executive Director of the Department of Natural Resources for the State of Utah.

Stewart served as a member and chairman of the Utah Public Service Commission for seven years. During his tenure the Commission issued more than 1500 orders, including 34 major rate cases. In addition, Mr. Stewart was in private law practice for six years, served as Chief of Staff to Congressman Jim Hansen (R-Utah) and was Executive Director of the Utah Department of Commerce. He has been a visiting professor at both Utah State University and Weber State University.

Judge Stewart graduated with a B.S. degree from Utah State University and obtained his juris doctorate degree from the University of Utah.

If you are curious, here's Judge Kimball's bio, and as you can see, it's incredibly impressive, with many honors and awards and writings and achievements in a long and much admired career. I collected more information in this article way back in 2003, and you'll see why so many admire him. The way SCOfolk tried to smear him was, to me, one of the lowest points of this nauseatingly low saga, and if you noticed the appellate ruling did not follow their lead. It was respectful of him, although reversing in some respects on a point of law, one that, should anyone bother to appeal, I suspect would affirm Judge Kimball anyway. I admire him myself very much. I only hope he hasn't received the kinds of threats I get. Judges do get that sometimes.

Judges are worthy of our deep respect, I believe, even when we may disagree with their decisions. It is the fundamental underpinning of a civilized society. And the US system is set up with many checks and balances, to factor in and account for the fact that we are all only human. Mistakes can happen, wrong decisions issue sometimes, but there are ways to address that and work within the setup toward the justice that the system is designed to provide.

One last factoid. According to this 2007 article in the Salt Lake Tribune, "the Denver-based 10th Circuit second-guesses federal judges in several states, including Utah. In 2001, according to a Salt Lake Tribune review, Utah's federal judges were reversed 14 times out of 115 cases. Over five years, Utah judges were overturned 18 percent of the time."

The article seems a bit snarky, and the truth is, those stats could reflect on Utah; or, frankly, it could reflect on the 10th Circuit. It did seem to me that they stood on their heads to reverse. So maybe there is a human explanation, much simpler than any legal point. Maybe they just like to reverse Utah. Don't you have relatives like that, where you love each other but can't agree about absolutely anything? You say up and they say down? That can happen with courts too. What would be interesting to study next is how often the 10th Circuit then gets overruled by the Supreme Court. That would give context to these figures.


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