California Supremes keep Ninth Circuit Prop 8 appeal alive

The California Supreme Court’s much-anticipated opinion in Perry v. Brown was filed this morning. The court unanimously found that the Prop 8 proponents, who have a pending Ninth Circuit appeal from the federal district court decision finding the law unconstitutional, have standing to defend the law in court when the state attorney general refuses to do so. Answering certification of that question from the Ninth Circuit, the California Supreme Court concludes its long (61-page) decision with an unequivocal “yes”:

In response to the question submitted by the Ninth Circuit, we conclude, for the reasons discussed above, that when the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so, under article II, section 8 of the California Constitution and the relevant provisions of the Elections Code, the official proponents of a voter-approved initiative measure are authorized to assert the state‘s interest in the initiative‘s validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative.

As a result of the decision, Prop 8 proponents will be able to proceed with their appeal in the Ninth Circuit, where the proponents’ appeal has been hanging by a thread since the Ninth Circuit certified its question to the California Supreme Court last January, acknowledging that the appeal would have to be dismissed if the Prop 8 proponents lacked standing to defend the law.

Related post at Ninth Circuit Blog of Appeals.

Lights! Camera! Call your first witness! Ninth Circuit opens up district courts to cameras.

Clapper Board

The Judicial Council of the Ninth Circuit issued a press release yesterday (PDF) announcing a pilot program allowing use of cameras in district court courtrooms. The release included this comment from Chief Judge Alex Kozinski:

“We hope that being able to see and hear what transpires in the courtroom will lead to a better public understanding of our judicial processes and enhanced confidence in the rule of law. The experiment is designed to help us find the right balance between the public’s right to access to the courts and the parties’ right to a fair and dignified proceeding,” Judge Kozinski said.

I’ve heard heavy criticism of the use of cameras in court.  Many criticized the gavel-to-gavel coverage on the O.J. Simpson case because they believed it caused the attorneys (and even the judge) to grandstand, and some felt that it contributed to Judge Ito “losing control” of his courtroom. Assuming the validity of those criticisms, I don’t think one need worry that those problems will be replicated in the federal district courts. Federal judges are hardly known for allowing attorneys to get away with misconduct.

And the question everyone is asking in the wake of this announcement: will the Proposition 8 trial be televised? Here’s the only clue given by the press release:

Cases to be considered for the pilot program will be selected by the chief judge of the district court in consultation with the chief circuit judge. The participating district courts will be asked to evaluate their experiences and report to the Council.

I wonder what “consultation” means in this instance. At one extreme the chief circuit judge would have veto power. At the other, the chief circuit judge would merely advise and leave the final decision to the chief district judge. If I can find more detail about this, I’ll post it.

Judge Bybee Pokes Fun (Update: He’s Not Alone)

When the Ninth Circuit Court of Appeals judges convened for their conference last year, they did so amid a lot of buzz about whether the circuit should be split up. If there is a similar cloud surrounding this year’s conference, I haven’t caught on to it.

But a lack of press buzz is no barrier to discussing the circuit’s checkered reputation. WSJ.com Law Blog summarizes Judge Bybee’s funny presentation about how the Ninth is viewed through the eyes of various institutions.

Update (8/1/08): Judge Bybee isn’t the only judicial joker this week.  Tenth Circuit Judge Michael McConnell earned some laughs this week by noting that the Constitution refers to his court as an “inferior” one.  His remark came during a recent panel discussion that included SCOTUS Justice Alito, which will be the subject of a separate post later today.  Thanks to Ben Shatz.

The Ninth Asks the California Supremes for Help

Kimberly Kralowec reports at The Appellate Practitioner:

Within the past seven days, the Ninth Circuit has issued two orders asking the California Supreme Court to rule on controlling legal questions pursuant to California Rule of Court 8.548[.]

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Such orders are relatively rare, so it is rather unusual to see two issued within five days of each other. There is no overlap on the panels.

Unusual, indeed.

Professor Martin says the request in one of the cases is particularly polite and respectful.  I’m sure the Ninth is hoping for a better response than they got last October!

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.

Ninth Heads for Vegas

A 3-judge panel of the Ninth Circuit, including Chief Judge Kozinski, will hear three cases at the William S. Boyd School of Law on the campus of University of Nevada, Las Vegas on February 27. Details here.

As everyone knows, a published opinion resulting from any of those cases will become precedent in nine western states and two Pacific Island jurisdictions. Which means that for the panel to uphold the “What happens in Vegas, stays in Vegas” motto, they’ll have to resist certifying the opinions for publication.

Ninth Circuit Fires Up Electronic Case Management Efforts

The Ninth Circuit announced last Friday that it “will begin implementation of the appellate version of a new case management system, CM/ECF (case management/electronic case files) on March 3, 2008.” See this link for details about timing, training, and sign-up for e-mail notification of docket activity.

Thanks to Criminal Appeal for the link.

Ninth Circuit Oral History Project

This post at the Legal History Blog links to an article in National Law Journal about work on oral histories of the Ninth Circuit, specifically the work of Stanford law professor Michele Dauber with Judge Stephen Reinhardt.

As one might expect, the always-present “controversy” over the Ninth Circuit is discussed in the article. Professor Dauber notes one result of that controversy, in what I think is an interesting way to think about it: “People in Maine know about the 9th Circuit. That’s weird,” Dauber said. “No one in California knows anything about the 1st Circuit.”

Ninth Circuit Judicial Complaint Disposition Orders Published Online

Via NLJ’s L.A. Legal Pad comes news that, according to this press release from the Ninth Circuit, “disposition of judicial misconduct and disability complaints against federal judges sitting in the Ninth Circuit will be publicly available via the Internet” starting this month.  Three orders are already up.

The main page includes links to the governing rules,  a page listing the orders, and a downloadable complaint form.

We’re #1!

Today’s decision in Dukes v. Walmart, Inc., case no. 04-16688 (9th Cir. Dec 11, 2007), in which a panel of the Ninth, on rehearing, again affirms the class certification in this gender discrimination case, prompts this from Howard Bashman at How Appealing:

In the Ninth Circuit, to a degree not seen in any other federal appellate courts, published opinions often resemble works in progress. A three-judge panel will issue an opinion, the losing party will petition for rehearing and/or rehearing en banc, and then months later the panel will withdraw its original opinion and substitute in its place a new and presumably improved decision.

Bashman watches courts all over the country, and he seems to think the Ninth has more “do-overs” than any other circuit.  Maybe they ought to call them tenative opinions?

UPDATE (12/12/07):  For commentary on the merits of Dukes, see Decision of the Day.

Defense of the Ninth Circuit

The Ninth Circuit Court of Appeals gets plenty of criticism.  Not like you need me to point it out to you, but I have done so, along with pointing out some defenses.  See here, here and here.

NLJ’s L.A. Legal Pad links to an article in The National Law Journal (unfortunately, behind a subscription wall) with this introduction: “[C]atcallers should recognize that 27-judge court does not get to pick its cases and faces a great mix and concentration of cases compared to other circuits, finds a story in The National Law Journal.”

Might be worth checking out.

More on Kozinski Taking the Helm of the Ninth Circuit

Lawjobs.com profiles Judge Alex Kozinski as he prepares to take over as chief judge of the United States Court of Appeals for the Ninth Circuit. The reporter is from the National Law Journal, so this may be the article I linked in Monday’s post that was behind the NLJ’s subscription wall.

Thanks to Appealing in Nevada for the link.

Kozinski Doesn’t Want Hard Work Wasted — Dissents from Order Dismissing Petition for Rehearing

In Suntharalinkam v. Keisler, case no. 04-70258 (9th Cir. Oct. 18, 2007), the Ninth dismisses a petition for rehearing en banc in an immigration case on the motion of the petitioner, whose counsel requested dismissal after being questioned at oral argument regarding the petitioner’s relocation to Canada and seeking of asylum there. Judge Kozinski will have none of it. In a dissent joined by three other judges, he argues against the ability of the petitioner to waste all the hard work of the court:

My colleagues dismiss the petition for review based on a nine-line motion, filed almost a month after this case was argued and submitted, which says nothing more than that petitioner has suddenly lost interest in the case. Granting the motion in such circumstances casts aside the time and effort of the 15-judge en banc panel, as well as the time and effort of the full court in considering whether to take the case en banc in the first place. It also threatens the integrity of our processes by inviting manipulation by parties unhappy with the questions at oral argument and fearful of the result they believe the court is going to reach. Worse still, by allowing counsel to dismiss the petition without requiring confirmation from the client that he wishes to abandon the petition for review, we put petitioner’s rights in jeopardy and leave the door open to future litigation as to whether counsel’s representations can bind the client.

I’ve always detected a sense among lawyers — sometimes explicitly stated, at least in private — that judges are always grateful for anything that clears up their dockets a little bit. Thus, we tend to assume a judicial bias in favor of any resolution short of final disposition on the merits — whether by voluntary dismissal of a case or appeal, settlement of a case, or even a stipulated reversal of a judgment on appeal. Not to be sycophantic here (besides, I have no reason to believe any judge has seen this blog), but I think this is somewhat cynical and does not give credit to the hard work of the judiciary.

UPDATE (10/19/07): Decision of the Day comments on the case with more detail and a focus on concerns that attorneys were gaming the system, as does California Appellate ReportAppellate Law & Practice has somewhat less respect for Judge Kozinski’s concerns.

California Supreme Court to the Ninth: Can’t You Read?

Back in August, I covered the case of Fantasyland Video v. County of San Diego, case no. 05-56026 (9th Cir. Aug. 7, 2007), in which the Ninth asked the California Supreme Court to answer a certified question asking for the standard of review to apply to the constitutionality (under the California Constitution) of hours-of-operation restrictions on “adult entertainment establishments.”

The Ninth appeared to be telling the California Supreme Court that its jurisprudence on the issue is, shall we say, less than crystal clear. I wrote:

Another thing I like about this request from the Ninth Circuit is that it doesn’t claim there are no California cases on point. It says the most relevant case on the issue is impossible to figure out:

We certify the above question to the Supreme Court of California for an authoritative construction of the most directly relevant opinion on the issue, People v. Glaze, 27 Cal. 3d 841 (1980).

In other words, “Please tell us what the heck you were trying to say in that mess (and in the seemingly inconsistent cases that followed).” But they asked it nicely.

Then the Supremes took their shot in an order denying the Ninth’s request for an answer to the certified question, doing so in language suggesting that the Supremes are shocked — shocked — that the Ninth can’t figure it out from the existing cases:

[The request from the Ninth Circuit] is denied. California law is clear that content-neutral time, place, and manner regulations affecting protected speech are subject to an intermediate standard of scrutiny. Currently, California law does not suggest that restrictions upon the hours that adult businesses may operate require review under any test other than the intermediate scrutiny standard applicable to other content-neutral regulations.

I’m sure nobody was really “taking shots” here. That’s reading between the lines on my part, and cynical to boot.

Anyway, when the Ninth takes up the case again, it applies the “intermediate scrutiny” standard and upholds the hours-of-operation restrictions. The adult bookstore failed to “cast direct doubt” on the negative secondary effects of the adult business that the county used to justify the restrictions, including . . . increased noise and traffic? That’s the same objection people raised around here when they wanted to build a Lowe’s home improvement store!

Decision of the Day Defends the Ninth

The Ninth Circuit, as everyone knows, gets criticized a lot.  But Does the Ninth Get a Bad Rap?  That’s the title of a post by Robert Loblaw at Decision of the Day, which posits that reversals of some Ninth Circuit decisions aren’t always just about the Ninth Circuit.  He notes that commentators like to jump on the big reversals as evidence that the Ninth is out of whack, but:

there are plenty of cases where the Supreme Court uses an appeal from the Ninth as an opportunity to reverse decisions from other circuits, albeit with much less fanfare.

He describes one recent instance in his post.

Published Order Granting Extension of Time for Government to File Brief in Death Penalty Case

Professor Martin at California Appellate Report serves up some comments, with his usual good humor, on a Ninth Circuit order granting the government more time to file a brief in a death penalty appeal.  Yes, even an order in a death penalty case can be humorously analyzed, and without violating good taste.

Ninth Circuit Website Kudos

Howard Bashman’s latest column at Law.com is about the need for more free internet access to federal court case information.  Acknowledging that access to published and unpublished decisions is very good, he laments the general lack of access to information about cases pending rehearing en banc

The Ninth Circuit is one of two he praises. Specifically, he lauds the Ninth for providing free access at its website to a list of cases pending rehearing en banc, the issues as to which rehearing has been granted, the rehearing petitions and oppositions.  Indeed, he calls it “a wonderful example of what the other federal appellate courts should be doing.” 

Now I feel a little guilty.  I agree the Ninth Circuit provides some great resources on its web site (my favorite being its guide to standards of review), but I’ve never liked the organization of the site.  Thanks to Mr. Bashman, I’m now counting my blessings.

The Reasonableness of Airport Screening: Consent, 9/11, and Terrorism

Here’s an interesting Fourth Amendment case from the Ninth Circuit today.  In United States v. Aukai, case no. 04-10226 (August 10, 2007), an en banc panel of the Ninth holds that the administrative search at airport screening, including enhanced secondary screening, is reasonable with or without consent once the person attempts to access the secure area of the airport, even if he says he no longer wishes to board a plane.

Aukai, after passing through the metal detector and having his personal effects screened without event as part of his entry to the secure area of the airport, was subjected to secondary screening because he had no ID.  This screening eventually turned up a glass pipe for smoking methamphetamine. He was arrested, and the search incident to arrest turned up several bags of meth.

The wrinkle: during the secondary screening, Aukai told the Transportation Security Administration officers that he no longer wished to board a plane, but the search continued.

The court finds the search is a constitutional administrative search even tough it continued past the time Aukai said he no longer wished to board the plane.  The court finds that passengers subject themselves to search as soon as they try to access the secure area of the airport.

The majority opinion invokes 9/11 and the terrorism threat to argue that if passengers could force cessation of the search, terrorists could probe for security weaknesses by revoking their consent just before discovery or have multiple opportunities to get through security.

Three judges write a concurring opinion saying that the majority should not have relied specifically on the terrorist threat.  They argue that the terrorism discussion is irrelevant and will only provide ammunition for future defendants to challenge the continuing validity of the “solid” holding once the terror threat subsides.

At California Appellate Report, Professor Martin explains why he thinks the case “is worth reading wholly apart from the merits. ”

Decision of the Day’s coverage is written from the perspective of someone who also blogged the original panel decision and the decision to hear the case en banc.  Rather interesting to read the posts in sequence.  The last includes an interesting observation about the authorship of the panel and en banc opinions.

Ninth Circuit Blog  writes, “and so the Constitution keeps on turning.”

Ninth Circuit: No Appeal from Order Denying Issuance of Notice of FLSA Collective Action

The collateral order exception to the final judgment rule allows a circuit court to exercise its jurisdiction, even in the absence of an appealable final judgment, if the order appealed from meets certain prerequisites.  Providing a good lesson in the Ninth Circuit’s application of the exception is today’s opinion in McElmurry v. U.S. Bank Nat’l Assoc., case no. 05-36407 (August 8, 2007), in which the plaintiffs, seeking unpaid overtime pay, appealed from an order denying their motion to issue notice of a collective action under the FLSA.

The Ninth Circuit explains the prerequisites for application of the exception (citations omitted):

Jurisdiction exists in only a “small class” of cases that are deemed “too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.”  To qualify as a collateral order suitable for appellate review, an order must: 1) “conclusively determine the disputed question”; 2) “resolve an important issue completely separate from the merits of the action”; and 3) “be effectively unreviewable on appeal from a final judgment.”

The court finds that the order denying the motion to issue a notice of collective action would not be “unreviewable on appeal.”  This standard is met only where “the legal and practical value of [the right at stake will] be destroyed if [ ] not vindicated before trial.”  (Citations omitted.)  The court rejects plaintiffs’ claims that some employees may lose their chance to litigate:

Appellants argue that the statute of limitations will continue to run, and that some employees may lose their opportunity to participate in a collective action if they wait until after an appeal from final judgment. Although employees who may be similarly situated but have not opted in to the action are not bound by its conclusion, and may pursue their actions individually, [citation], we understand Appellants’ concern. However, these arguments have been made in the context of class action suits as well, and it is well established that there is no collateral order jurisdiction over a district court decision to certify or not to certify a class action under Rule 23.  [Citations.]  Although, as we have pointed out, there are differences between a collective action brought pursuant to § 216(b) and a class action brought under Rule 23, those differences are not relevant to whether we may exercise collateral order jurisdiction.

Another interesting point about the case is that the plaintiffs filed an appeal and a writ petition — a practical tactic when the appealability of the order is in doubt.  Here, however, it doesn’t pay off.  The same factors that defeat appellate jurisdiction also defeat the writ petition.

Adult Bookstore Case Results in Certified Question to State Supreme Court

Under rule 8.548(a), California Rules of Court, a Federal Court of Appeals, the U.S. Supreme Court, or the court of last resort of another state may ask the California Supreme Court to answer a question of California law where “(1) The decision could determine the outcome of a matter pending in the requesting court; and (2) There is no controlling precedent.”  Most lawyers are already familiar with this procedure, at least in principle.

What gives a special appellate twist to Fantasyland Video v. County of San Diego, case no. 05-56026  (August 7, 2007) is that the Ninth Circuit asks the California Supreme Court to specify the standard of review to apply in the case.  Plaintiff, operator of an adult “arcade, bookstore, novelty shop, and video store,” challenged a county ordinance that required adult businesses to close between 2 a.m. and 6 a.m.  The question certified by the Ninth Circuit is very specific:

Under the California Constitution’s liberty of speech clause, should we review the constitutionality of an ordinance that sets closing times for adult entertainment establishments under strict scrutiny, intermediate scrutiny, or some other standard?

Another thing I like about this request from the Ninth Circuit is that it doesn’t claim there are no California cases on point.  It says the most relevant case on the issue is impossible to figure out:

We certify the above question to the Supreme Court of California for an authoritative construction of the most directly relevant opinion on the issue, People v. Glaze, 27 Cal. 3d 841 (1980).

In other words, “Please tell us what the heck you were trying to say in that mess (and in the seemingly inconsistent cases that followed).”  But they asked it nicely.

California Appellate Report offers some details on the “frenetic pace” at which the Ninth Circuit has been certifying questions to state supreme courts this year, as well as some tongue-in-cheek commentary on the wisdom of the ordinance challenged in this case.

Undue Delay Precludes Coram Nobis Relief Even Where No Prejudice Results from Delay

A petitioner for writ of coram nobis must satisfy a four-part test, one element of which is that  “valid reasons exist for not attacking the conviction earlier.”  Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir. 1987).  In United States v. Riedl, case no. 06-10424 (August 6, 2007), the petitioner argued to the Ninth Circuit that even if the court did not accept her reasons for delay as valid, the delay could not preclude relief unless the government asserted laches, i.e., that it would suffer prejudice from a grant of the writ in light of the delay.  The Ninth Circuit rejects the argument, finding that undue delay precludes relief even in the absence of prejudice:

We agree with the district court that Riedl’s petition must be denied. She has failed to provide any valid reasons for waiting so long to challenge her convictions on these grounds, and thus plainly does not satisfy the requirements for the highly unusual remedy of coram nobis relief. See Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir. 1987) adopting four factors as predicates for coram nobis relief, including that “valid reasons exist for not attacking the conviction earlier”). Riedl attempts to overcome her unjustified delay by invoking the equitable doctrine of laches, arguing that the government has not been prejudiced by her tardiness. Cf. Telink, Inc. v. United States, 24 F.3d 42, 45 (9th Cir. 1994) (addressing laches in coram nobis context). We reject the notion that a petitioner can employ laches in such a fashion. To follow Riedl’s suggestion under the circumstances of this case would transform the extraordinary writ of coram nobis into a free pass for attacking criminal judgments long after they have become final.

Riedl was attempting to turn laches from a shield into a sword.  The Ninth Circuit finds offensive use of the doctrine . . . well, offensive:

Nevertheless, Riedl is incorrect that coram nobis relief is available as long as it is not barred by laches. Our decisions that have considered laches have done so only because the government invoked the doctrine as a supplemental defense.  Those decisions have not purported to overrule the Hirabayshi framework, which places the initial burden of justifying delay squarely on the petitioner, nor as three-judge opinions could they have done so.

(Emphasis in original.)

More on U.S. v. Larson

A few days ago, I blogged about the odd reasoning behind the en banc Ninth Circuit’s purported resolution in United States v. Larson of a 3-way intra-circuit split over the applicable standard of review in Confrontation Clause cases. Here’s some other blog coverage.

While my post concentrated on the intra-circuit split, Split Circuits gives you coverage of the split among the federal circuits on the same issue.

California Appellate Report comments on the odd 4-4-7 split vote of the en banc panel that results in one of the 4-judge opinions being the opinion of the court.

Larson is Ninth Circuit Blog’s Case o’ the Week, where the federal defenders’ blog digs into the substantive aspects of the case and notes that despite the intent of en banc review to clarify important issues, this case will be “all things to all people” and the poster, Steve Kalar, also responds to my comment.

 UPDATE (8/3/07): University of Michigan Law School Professor Richard Friedman addresses the standard of review issue in depth, along with some of the substance.  It’s the most comprehensive post about the case that I’ve run across.

En Banc Ninth Circuit Resolves Intra-Circuit Split on Standard of Review in Confrontation Clause Challenges

In United States v. Larson, case no. 05-30076 (August 1, 2007), an en banc Ninth Circuit court resolves a 3-way intra-circuit split on the standard of review to apply in Confrontation Clause challenges. Citing one line of Ninth Circuit cases applying de novo review, another reviewing for abuse of discretion, and a third applying a “combination” of these two standards, the courts states that it is adopting the last of these, but its analysis seems less than clear to this reader . . .

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Defendant’s Waiver of Right to Appeal Does Not Deprive Ninth Circuit of Appellate Jurisdiction

Ninth Circuit Blog has a pretty good write-up on last Wednesday’s Ninth Circuit en banc decision in United States v. Castillo, case no. 05-30401 (July 25, 2007), in which the court vacates the panel opinion and holds that it has jurisdiction to hear a criminal defendant’s appeal based on a pre-plea motion where the defendant waived appeal of pre-plea issues as part of his guilty plea.  Federal Rules of Criminal Procedure cannot expand or contract subject matter jurisdiction, and it cannot be waived.

In my observation, the tendency to confuse jurisdiction with procedure is way too common.  I recently posted, for example, about confusion between forum selection and jurisdiction in a civil case. 

The Ninth Circuit likewise notes the lamentable prevalence of confusion, citing Kontrick v. Ryan, 540 U.S. 443, 455 (2004):

[c]larity would be facilitated if courts and litigants used the label “jurisdictional” not for claim-processing rules, but only for prescriptions delineating the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction) falling within a court’s adjudicatory authority.

Amen.

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UPDATE: (7/31/07): California Appellate Report offers some thoughts on how Judge Callahan’s dissent in this 14-1 decision might affect her chances for a nomination to the U.S. Supreme Court.

Ninth Circuit’s Annual Judicial Conference Convenes Under Cloud of More “Split the Circuit” Controversy

This article at Law.com starts:

While a bill to split the nation’s largest federal appeals court lies dormant in Congress, that didn’t prevent grumbling at the opening of the 9th Circuit’s annual judicial conference over repeated efforts to divide the circuit.

There are several quotes from judges on their views — and fears — about a potential circuit split, including Chief Judge Schroeder’s reaction to the L.A. Times opinion piece arguing that the Ninth Circuit has a high reversal rate because its size makes it more likely that two “extremist” judges will be assigned to any given panel.  My coverage of the L.A. Times piece, with links to coverage by other blogs, is here.

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Procedural Maneuvering at its Finest and the Double Duty Judge

The Ninth Circuit’s decision in Vacation Village, Inc. v. Clark County, Nevada, case no. 05-16173 (July 23, 2007) delivers a “two-fer” of “bloggable” items.

First, the procedural maneuvering.  Landowners sued Clark County for inverse condemnation in Nevada state court.  While the action was pending, the Landowners filed a voluntary Chapter 11 bankruptcy petition, listing the inverse condemnation claim as a contingent and unliquidated claim of the estate. When the Landowners advised the state court judge that they were not ready to proceed with trial, the court advised them that there were no available trial dates between then and the expiration of the five-year limitations period under state law for bringing a claim to trial (which was about three months off) and that the case would be automatically dismissed when the limitations period ran.

What to do?
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