En Bancs on the Upswing under Chief Judge Kozinski

Alex KozinskiImage from Wikipedia

In yesterday’s Daily Journal, Staff Reporter John Roemer has a front-page article about an apparent surge in en banc rehearings granted by the Ninth Circuit since Alex Kozinski became Chief Judge. (Full disclosure: yours truly is quoted in the article.)

Are the two phenomena related? Not according to Judge Kozinski, whom the article quotes:

“I’ve always been more en banc friendly than many of my colleagues,” he wrote in the e-mail. “But I frankly doubt that my being chief judge will have any effect on the process. I’ve had my share of successes as well as failures when calling for en banc review.

“There are not – and should not be – extra points for being chief judge. It is not a bully pulpit, nor is it a platform for proliferation of my substantive views .”

Roemer provides interesting background on Judge Kozinski’s history of fervent advocacy for en banc review, including a colorful description of his frequent dissents from orders denying rehearing en banc as “prose hand grenades lobbed to blast the court away from the status quo.” I think Judge Kozinski would approve.

It seems possible, at least, that the judges may be more willing to take on en banc rehearings since last July, when it reverted to 11-member en banc panels after a brief experiment with 15-member panels. That would make a greater number of en bancs more manageable. But I don’t have any information on whether en bancs went down during the roughly 18 months they required 15-member panels, so I have no idea if the size of the panel is affecting the judges’ thinking.

For anyone considering petitioning for rehearing en banc, the article contains some sobering numbers: 1,097 petitions for rehearing en banc were filed in 2007, and through November, only 18 had been granted. That’s less than 2%.

By the way, Judge Kozinski is the subject of the cover article in April’s California Lawyer.

Almost En Banc

There’s a very unusual course of events leading up to the innocuous order dismissing the appeal in Foulon v. Klayman & Toskes, case no. 05-35383 (9th Cir. Mar. 24, 2008). For details on this strange tale of the unrequested en banc hearing that almost was (yes, you read that right), check out California Appellate Report, where Professor Martin calls what happened “sufficiently rare that it took me quite a while to figure out even what happened.” Then see why Appellate Law & Practice refers to at least one step in the procedure as “judicial activism.”

California Supremes on the Right to Rehearing on Unbriefed Issues

When is a party entitled to a rehearing from the Court of Appeal?  One such case — where the decision is based on an issue the parties did not have an opportunity to brief — is codified at Government Code section 68081:

Before the Supreme Court, a court of appeal, or the appellate division of a superior court renders a decision in a proceeding other than a summary denial of a petition for an extraordinary writ, based upon an issue which was not proposed or briefed by any party to the proceeding, the court shall afford the parties an opportunity to present their views on the matter through supplemental briefing.  If the court fails to afford that opportunity, a rehearing shall be ordered upon timely petition of any
party.

Seems rather straightforward, right?  Perhaps that’s why the Supreme Court confesses in today’s unanimous opinion in People v. Alice, case no. S144501 (July 5, 2007), that “we never have examined [Government Code section 68081’s] meaning in depth.”  It then proceeds to do just that, providing some valuable lessons . . .

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