I think that 2008 is going to be an unusual year, as I keep seeing things that are pretty darn rare. Not four-headed monsters or anything. But nonetheless stuff you don't see every day.
Like this amendment, which was published today by Justice Sills. An amendment that consists solely of removing a somewhat snide comment made in the previous opinion.
In footnote 7 of the original opinion, Justice Sills quoted at length from the Attorney General's brief, in paragraphs in which the AG tried to "make sense" (i.e., argue from) a particular precedent (Hunt). Justice Sills was, shall we say, less than persuaded by this analysis, and said -- among other things -- that the AG's interpretation was "a misreading of Hunt," and then explained why. Moreover, after articulating the AG's position, Justice Sills then included the terse line: "Hunt held no such thing." And, as a bonus, Justice Sills then concluded the footnote by saying: "Lawyers should learn that not every statement in a published, non-disapproved or overruled opinion is a 'holding.'"
In a word, Justice Sills was a bit miffed. And didn't mind showing it.
Then the AG moved for rehearing. And, upon the passage of time, perhaps Justice Sills was less upset. Or, perhaps, just wanted to be nicer.
And so, today, changed the opinion to delete that last line: the part that said "Lawyers should learn that not every statement in a published, non-disapproved or overruled opinion is a 'holding.'"
The footnote still ends with "Hunt held no such thing." Which is pretty incisive. But gone is the bonus slam.
Anyway, I haven't seen many amendments that accomplish nothing other than toning down rhetoric. So it's unusual. (I was fine, by the way, with both the initial slam as well as its subsequent deletion. The slam seemed somewhat appropriate, but at the same time, it surely was unnecessary as well. Including it is just a matter of whether you want to be especially nice or mean, and I don't think it unusual that, as time passes, and initial tempers flare, one may tend to become a little more of the former and a little less of the latter.)
I guess the only downside is that we now can't cite a clear case for the proposition that not every statement in a published opinion is a holding! :-)
