• California Supreme Court,  Certified Questions,  Ninth Circuit,  Standing to Appeal

    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…

  • Media and the Law,  Ninth Circuit

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

    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…

  • Legal Humor,  Ninth Circuit

    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…

  • California Procedure,  Ninth Circuit

    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[.] *** 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!

  • Judges,  Ninth Circuit

    Chief Judge Kozinski Profiled

    Image via Wikipedia All my California readers undoubtedly know this already, but for the benefit of readers elsewhere in the Ninth Circuit, here’s a link to the cover article of this month’s California Lawyer magazine, which is a profile of Chief Judge Alex Kozinski. You do not have to be a subscriber to get to the article.

  • Federal Procedure,  Ninth Circuit,  Rehearing

    En Bancs on the Upswing under Chief Judge Kozinski

    Image 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 –…

  • Events,  Ninth Circuit

    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.

  • Judges,  Ninth Circuit

    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.”

  • Ethics,  Judges,  Ninth 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.

  • Ninth Circuit

    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…

  • Ninth Circuit

    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.

  • Judges,  Ninth Circuit

    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.

  • Federal Courts,  Judges,  Ninth Circuit

    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…

  • California Supreme Court,  Constitutional Law,  Judges,  Ninth Circuit

    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…

  • Judges,  Ninth Circuit

    Judge Kozinski set to Take the Helm

    National Law Journal’s L.A. Legal Pad links to the NLJ profile (behind subscription wall) of Judge Alex Kozinski, who takes over as Chief Judge of the United States Court of Appeals for the Ninth Circuit on December 1, the “first conservative in a decade to lead what is widely viewed as the nation’s most liberal federal appellate court.”

  • Ninth Circuit

    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.

  • Federal Courts,  Ninth Circuit

    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…

  • Constitutional Law,  Ninth Circuit,  Search & Seizure

    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…

  • Appellate Jurisdiction,  Appellate Procedure,  Labor & Employment,  Ninth Circuit,  Writ Review

    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…

  • Appellate Procedure,  California Procedure,  California Supreme Court,  Federal Courts,  Federal Procedure,  Ninth Circuit,  Standard of Review

    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…

  • Coram Nobis,  Criminal Procedure,  Federal Procedure,  Ninth Circuit,  Writ Practice

    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…

  • Appellate Procedure,  Confrontation Clause,  Constitutional Law,  Criminal Procedure,  Ninth Circuit

    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…

  • Appeals,  Appellate Procedure,  Criminal Procedure,  Ninth Circuit,  Standard of Review

    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 . . .

  • Appellate Jurisdiction,  Appellate Procedure,  Criminal Procedure,  Federal Courts,  Ninth Circuit,  Waiver of Issues

    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…

  • Federal Courts,  Judges,  Ninth Circuit

    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…

  • Federal Courts,  Federal Procedure,  Ninth Circuit

    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…