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.