Re: CA9 takes case in banc
My colleague, Charlie Sullivan, thinks the ACLU ought to petition for cert. With the rule of 4, what would the Bush v. Gore dissenters do with that? Michael Zimmer Seton Hall Law School Michael Zimmer [EMAIL PROTECTED] To: [EMAIL PROTECTED] Sent by: Discussioncc: list for con law Subject: Re: CA9 takes case in banc professors [EMAIL PROTECTED] v.ucla.edu 09/23/03 10:22 PM Please respond to Discussion list for con law professors Here is my read: Whether we agreed with the result in Bush v. Gore or not, almost all of us were surprised the Court took the cases in the first instance. Most of us, in our hearts even if it was not only justified but necessary, nevertheless thought that the Court in making the decision to stop the recount was making much less of a decision as a court deciding a question of law and much more of a non-judicial political decision. The original 9th Circuit panel members are probably not much different than we are in these regards. They thought, ok, the Court said it was acting as a court deciding a question of law in Bush v. Gore, so let them deal with it in this context. I think the en banc panel decided to let the Court out of the bind between the rock -- Bush v. Gore is law, so equal protection jurisprudence is implicated punch card problems with 135 candidates in the recall -- and the hard place -- confessing that Bush v. Gore was a political, non-judicial decision. Should anyone try to take the en banc decision to the Court, does anyone think it would hear the case? Michael J. Zimmer Seton Hall Law School
Re: CA9 takes case in banc
So, it's probably just me, but it seems as if the 9th Circuit produced a particularly facile analysis of the balancing of the interests in the en banc opinion. Could it be they are daring the Supremes to reverse them? -Original Message- From: Scarberry, Mark [mailto:[EMAIL PROTECTED] Sent: Friday, September 19, 2003 12:46 PM To: [EMAIL PROTECTED] Subject: Re: CA9 takes case in banc No, I don't think so, because the mandate has not issued (or effectively was recalled). In the absence of issuance of the mandate, the panel's opinion has no effect on the parties, I think. Per Judge Thomas's order of Sept. 16, the mandate is not to issue except on further order of the court (as I noted in an earlier post). Per the court's web site the hearing is set for Monday 1pm Pacific Time. The en banc panel will consist of Chief Judge Schroeder, and Judges Kozinski, O'Scannlain, Kleinfeld, Tashima, Silverman, Graber, McKeown, Gould, Tallman and Rawlinson. See http://www.ca9.uscourts.gov. Click on En Banc Court Information. Mark S. Scarberry Pepperdine University School of Law -Original Message- From: Samuel Issacharoff [mailto:[EMAIL PROTECTED] Sent: Friday, September 19, 2003 12:43 PM To: [EMAIL PROTECTED] Subject: Re: CA9 takes case in banc I notice the order says that the decision is not to be cited as precedent to not only the Ninth Circuit, but any district court in the Ninth Circuit. Under Ninth Circuit procedure, does this include not being cited to the district court that refused to stay the election? If so, is this the functional equivalent of lifting the stay? ** Samuel Issacharoff Harold R. Medina Professor in Procedural Jurisprudence Columbia Law School 212-854-2527 212-854-7946 (fax) Edward A Hartnett [EMAIL PROTECTED] To: [EMAIL PROTECTED] Sent by: Discussioncc: list for con law Subject: CA9 takes case in banc professors [EMAIL PROTECTED] v.ucla.edu 09/19/2003 03:21 PM Please respond to Discussion list for con law professors The order taking the case in banc is available at http://www.ca9.uscourts.gov/ca9/newopinions.nsf/F656D78784F3200988256DA60063 06FE/$file/recall_enbanc.pdf?openelement I notice that the order does not vacate the panel decision, but rather decrees that it not be cited as precedent in the Ninth Circuit. Is that the Ninth Circuit's usual practice? My understanding was that most courts of appeals vacated the panel decision upon deciding to rehear the case in banc, reflecting the view that the court of appeals (whether held by a panel or sitting in banc) is a unitary court exercising appellate review over the district court (or administrative agency). An alternative view might be that the in banc court exercises appellate jurisdiction over the panel. The difference in how the in banc court is conceptualized can matter if the in banc court divides evenly, but thankfully that should not be an issue with an eleven member in banc panel. Ed Hartnett Seton Hall
Re: CA9 takes case in banc
Perhaps fascile wasn't the most appropriate word (I know I misspelled it - that was a typing error). Perhaps disingenuous is more what I am thinking. I have a hard time believing these judges would let economic interests prevail over the right to vote, or that the burden of having to vote again is somehow greater than the danger one's vote won't count at all. -Original Message- From: Gregg Miller [mailto:[EMAIL PROTECTED] Sent: Tuesday, September 23, 2003 3:28 PM To: [EMAIL PROTECTED] Subject: Re: CA9 takes case in banc So, it's probably just me, but it seems as if the 9th Circuit produced a particularly facile analysis of the balancing of the interests in the en banc opinion. Could it be they are daring the Supremes to reverse them? -Original Message- From: Scarberry, Mark [mailto:[EMAIL PROTECTED] Sent: Friday, September 19, 2003 12:46 PM To: [EMAIL PROTECTED] Subject: Re: CA9 takes case in banc No, I don't think so, because the mandate has not issued (or effectively was recalled). In the absence of issuance of the mandate, the panel's opinion has no effect on the parties, I think. Per Judge Thomas's order of Sept. 16, the mandate is not to issue except on further order of the court (as I noted in an earlier post). Per the court's web site the hearing is set for Monday 1pm Pacific Time. The en banc panel will consist of Chief Judge Schroeder, and Judges Kozinski, O'Scannlain, Kleinfeld, Tashima, Silverman, Graber, McKeown, Gould, Tallman and Rawlinson. See http://www.ca9.uscourts.gov. Click on En Banc Court Information. Mark S. Scarberry Pepperdine University School of Law -Original Message- From: Samuel Issacharoff [mailto:[EMAIL PROTECTED] Sent: Friday, September 19, 2003 12:43 PM To: [EMAIL PROTECTED] Subject: Re: CA9 takes case in banc I notice the order says that the decision is not to be cited as precedent to not only the Ninth Circuit, but any district court in the Ninth Circuit. Under Ninth Circuit procedure, does this include not being cited to the district court that refused to stay the election? If so, is this the functional equivalent of lifting the stay? ** Samuel Issacharoff Harold R. Medina Professor in Procedural Jurisprudence Columbia Law School 212-854-2527 212-854-7946 (fax) Edward A Hartnett [EMAIL PROTECTED] To: [EMAIL PROTECTED] Sent by: Discussioncc: list for con law Subject: CA9 takes case in banc professors [EMAIL PROTECTED] v.ucla.edu 09/19/2003 03:21 PM Please respond to Discussion list for con law professors The order taking the case in banc is available at http://www.ca9.uscourts.gov/ca9/newopinions.nsf/F656D78784F3200988256DA60063 06FE/$file/recall_enbanc.pdf?openelement I notice that the order does not vacate the panel decision, but rather decrees that it not be cited as precedent in the Ninth Circuit. Is that the Ninth Circuit's usual practice? My understanding was that most courts of appeals vacated the panel decision upon deciding to rehear the case in banc, reflecting the view that the court of appeals (whether held by a panel or sitting in banc) is a unitary court exercising appellate review over the district court (or administrative agency). An alternative view might be that the in banc court exercises appellate jurisdiction over the panel. The difference in how the in banc court is conceptualized can matter if the in banc court divides evenly, but thankfully that should not be an issue with an eleven member in banc panel. Ed Hartnett Seton Hall
Re: CA9 takes case in banc
I have resisted commenting on the California recall litigation, but this is really too much. I cannot let pass the assertion that the need for finality and closure in electoral processes somehow should shield the recall from legal challenges. I'm not sure what it looks like from Harvard Yard, but as a California voter myself, I find the recall itself a gross perversion of the public's interest in finality and closure of elections, and the recall itself fundamentally endangers the public's opportunity to change its leaders at specified time periods. We had such an opportunity last November. That a disgruntled minority of my notoriously inattentive and politically tuned-out fellow California citizens (probably including many who, unlike me, didn't even bother to vote last November) signed petitions demanding a recall vote does not create a very weighty public interest in holding this recall on Oct. 7 rather than March. At least as balanced against the serious threatened harms to constitutional equal protection rights, any such interest is vanishingly slight. When weighed against the obvious inequities of using inferior vote-counting machines in almost half the state (a half that is disproportionately racial minorities who disproportionately oppose the transparent rightwing power grab behind this recall) the equities clearly favor postponement. I really don't see how those who support going ahead with the recall despite the very serious constitutional objections asserted against it, can argue with anything other than a very red face that Bush v Gore could possibly have been correct or should be taken seriously. The 9th circuit panel decision was riveted most convincingly to a perfectly reasonable application of Bush v Gore (if such is possible). But apparently the principles behind Bush v Gore are only applicable in the case of an election process that appears to threaten Republican political interests. I mean really! It's OK for the US Supreme Court to stop a presidential vote recount and tip the decision in a national presidential election, but it would be an intolerable disruption merely to POSTPONE for a few months (TO a regularly scheduled election date!) a state recall election that no one (to begin with) had any rightful expectation would take place at all, much less as soon as Oct. 7? Conservatives screamed bloody murder in Florida 2000 that the Florida courts and officials were violating state law in the recount. Funny, I've heard few if any complaints from conservatives about how rushing the ballot propositions onto the Oct. 7 recall ballot (after they had been scheduled more than a year before to appear on the March 2004 ballot) blatantly violates the notice and deadline requirements for circulating the ballot pamphlets in advance of elections, under California state law. California law says ballot propositions should be put on the next available election ballot. Why was Oct. 7 ever deemed available when it was too late to comply with state law deadlines? Judge Thomas's 9th circuit panel opinion convincingly explained that Secretary of State Shelley violated state law at least as to the ballot propositions. Even some of the en banc judges in oral argument Monday seemed to concede that virtually no reason at all had been given why the ballot propositions needed to be rushed onto the Oct. 7 ballot. They wouldn't even take effect, if passed, until January 2005! Bryan Wildenthal Thomas Jefferson School of Law -Original Message- From: Ilya Somin [mailto:[EMAIL PROTECTED] Sent: Tuesday, September 23, 2003 4:15 PM To: [EMAIL PROTECTED] Subject: Re: CA9 takes case in banc I don't mean to dwell on the obvious, but it is likely that many of the apparent weaknesses of the opinion are due to the fact that it is unanimous. What we see is the lowest common denominator that 11 judges of widely differing ideologies could agree on. As to the Greg's point regarding the balancing of burdens, I think the en banc court's more powerful argument is not that of financial expense, but that of the need for finality and closure in electoral processes. The search for complete or near-complete equality in ballot technology could result in lengthy postponements of numerous elections. Such postponements could undermine the right to vote as much or more so than defective technology. After all, the purpose of voting is not only to have your vote count but to ensure that the electorate has the opportunity to change its leaders at specified time periods. Moreover, the interest in swift finality is particularly strong in the case of a recall, the whole point of which is to allow voters the opportunity to rid themselves of an allegedly harmful incumbent sooner rather than later. On Tue, 23 Sep 2003, Gregg Miller wrote: Perhaps fascile wasn't the most appropriate word (I know I misspelled it - that was a typing error). Perhaps disingenuous is more what I am thinking. I have a hard time
Re: CA9 takes case in banc
What the heck is the rush? Bryan asks. The California Constitution specifies that recall elections take place within 60-80 days after certification. You may not like the constitutional provision, any more than you like the requirement that Presidential elections be held on the first Tuesday in November (how many candidates believe that they were surging at the end and would have won if only they had another week to campaign!). We either play by the rules, or the rules become meaningless. (And does anyone really believe that there will not be a significant impact on the outcome of this election if it is postponed to March when, due to a contested Democrat presidential primary and an uncontested Republican primary, there will be a much higher turnout among Democrats?). As for disparaging the precious right to vote -- I did not such thing. I disparaged those who somehow think the extra couple of blocks would block them from exercising what is truly a precious right (not to mention basic obligation of citizenship). Yes, I'm a law professor, and can often take the afternoon to go vote if I want. But I also run a constitutional litigation center, and am often traveling, thousands of miles from my polling place. That distance has NEVER prevented me from voting, even before California liberalized its absentee voting requirements. So I don't have much sympathy with the claim that moving the polling place a few blocks will disenfranchise voters. John C. Eastman Professor of Law, Chapman University School of Law Director, The Claremont Institute Center for Constitutional Jurisprudence -Original Message- From: Bryan Wildenthal [mailto:[EMAIL PROTECTED] Sent: Tuesday, September 23, 2003 5:18 PM To: [EMAIL PROTECTED] Subject: Re: CA9 takes case in banc It is truly unfortunate, in my view, that Professor Eastman trivializes and almost mocks the burden on the precious right to vote of having fewer polling places in an election, especially for the millions of working class voters for whom (unlike us well paid law professors who can take off an afternoon most days) voting on a workday is a serious logistical burden. In between rushing home from work, picking up kids, and preparing for dinner, is it any wonder that American voting turnout is so abysmal? Having a large percentage of polling places simply unavailable for this needlessly rushed special election adds a very serious burden and obstacle to the right to vote. But of course, that suits just fine the rightwing interests behind this recall power grab, who have no desire to see most poorer, heavily minority voters participate. Most countries that take democratic elections seriously devote a national holiday to them. What is actually hogwash and nonsensical, as Professor Pollock suggests (though I borrow Professor Eastman's phrasing), is the claim that some kind of reliance interest on the part of absentee voters, candidates, or state officials justify sticking to the needlessly rushed and self-inflicted Oct. 7 date. That a state has spent money preparing for an unconstitutionally timed election can hardly be a permissible defense to the constitutional challenge. That state law supposedly dictated Oct. 7 rather than March is irrelavant and entitled to no weight, because the challenge is precisely that state law violates the federal Constitution as applied in this case. As the 9th Circuit panel opinion noted (I mistakenly referred to it as Judge Thomas's earlier, based on speculation I have heard that Thomas is the author), with notable understatement, giving weight to adhering to state law seems to undermine the principles of the Supremacy Clause! Nor can the political ambitions of wannabe politicians like Arnold properly trump the public's right to vote, as preposterously suggested by Professor Bruce Ackerman in a recent op-ed -- and anyway, the investments of time and money by candidates and contributors are not wasted but would simply have been applied and extended to the new March election date. No candidate ever had any rightful expectation, of constitutional dimension, that a special election would take place on Oct. 7. The burden of absentee voters re-voting in March would have been trivial as compared to the burden of almost certainly disfranchising some voters on Oct. 7. (I don't think Professor Pollock's idea of hanging on to them until March would work, though it's a creative suggestion. The absentee voters would be unable to change their minds like other voters as the campaign continued to March, and it might be difficult to verify who had voted by absentee in October and thus could not vote again in March.) Indeed, the 3-judge panel opinion itself pointed out that some potential absentee voters, including some military personnel serving overseas, have already been disfranchised from the Oct. 7 election because of the rushed timing. There would have been far less risk of any such disfranchisement at the regularly
Re: CA9 takes case in banc
In response to John's first point, I would cite the Supremacy Clause. I agree we should play by the rules, and the federal constitutional rules (as construed in Bush v Gore, a decision I recall John favored) trump the state constitutional rules (which actually don't invariably dictate that a recall must happen within 80 days -- if the petitions had been certified slightly later, which could happen for any number of essentially trivial reasons, state law would itself have authorized postponing the vote to March). So what is the sacred or weighty state interest in Oct 7 as against March? In response to John's second point, I would note that if the March election is inauspicious for those backing the recall, that is their own self-inflicted problem. I agree on general principle that having any election decisions other than primaries themselves is unwise on primary day, given the obvious potential for skewed turnout. I favor amending California state law to fix that. But the recall backers knew that risk when they started the process. Yes, those of us who oppose it found it very amusing poetic justice that it might have been bumped to March, and I honestly believe the law pointed to that result, the 9th circuit en banc notwithstanding. In response to John's final point (about the right to vote) I still think he underrates the burden at issue here. Yes, absentee voting is theoretically available. But it requires considerable sophistication, education, and forethought for a voter to take advantage of that. Most average voters busy with work and family don't think about elections until election day draws near, and it's too late to vote absentee. Plus they may be undecided and not want to commit themselves till the last minute, an ESPECIALLY important factor in this outrageously rushed and shortened recall election season. Finally, it is often NOT just a question of a few blocks further to walk. It may be a matter of many miles out of the way, perhaps in dangerous neighborhoods, for many voters. Bryan Wildenthal Thomas Jefferson School of Law -Original Message- From: Eastman, John [mailto:[EMAIL PROTECTED] Sent: Tuesday, September 23, 2003 5:30 PM To: [EMAIL PROTECTED] Subject: Re: CA9 takes case in banc What the heck is the rush? Bryan asks. The California Constitution specifies that recall elections take place within 60-80 days after certification. You may not like the constitutional provision, any more than you like the requirement that Presidential elections be held on the first Tuesday in November (how many candidates believe that they were surging at the end and would have won if only they had another week to campaign!). We either play by the rules, or the rules become meaningless. (And does anyone really believe that there will not be a significant impact on the outcome of this election if it is postponed to March when, due to a contested Democrat presidential primary and an uncontested Republican primary, there will be a much higher turnout among Democrats?). As for disparaging the precious right to vote -- I did not such thing. I disparaged those who somehow think the extra couple of blocks would block them from exercising what is truly a precious right (not to mention basic obligation of citizenship). Yes, I'm a law professor, and can often take the afternoon to go vote if I want. But I also run a constitutional litigation center, and am often traveling, thousands of miles from my polling place. That distance has NEVER prevented me from voting, even before California liberalized its absentee voting requirements. So I don't have much sympathy with the claim that moving the polling place a few blocks will disenfranchise voters. John C. Eastman Professor of Law, Chapman University School of Law Director, The Claremont Institute Center for Constitutional Jurisprudence -Original Message- From: Bryan Wildenthal [mailto:[EMAIL PROTECTED] Sent: Tuesday, September 23, 2003 5:18 PM To: [EMAIL PROTECTED] Subject: Re: CA9 takes case in banc It is truly unfortunate, in my view, that Professor Eastman trivializes and almost mocks the burden on the precious right to vote of having fewer polling places in an election, especially for the millions of working class voters for whom (unlike us well paid law professors who can take off an afternoon most days) voting on a workday is a serious logistical burden. In between rushing home from work, picking up kids, and preparing for dinner, is it any wonder that American voting turnout is so abysmal? Having a large percentage of polling places simply unavailable for this needlessly rushed special election adds a very serious burden and obstacle to the right to vote. But of course, that suits just fine the rightwing interests behind this recall power grab, who have no desire to see most poorer, heavily minority voters participate. Most countries that take democratic elections seriously devote a national holiday to them. What
Re: CA9 takes case in banc
I am having a terrible time typing today. I apologize for the improper use of it's in my last post. -Original Message- From: Gregg Miller [mailto:[EMAIL PROTECTED] Sent: Tuesday, September 23, 2003 6:15 PM To: [EMAIL PROTECTED] Subject: Re: CA9 takes case in banc I don't mean to pick here, but I didn't recall finality being part of the court's reasoning for coming to it's decision. So, I did an Acrobat word search, and sure enough, no mention of the word finality or final at all. I would be more inclined to accept the argument that finality in the election process was a strong consideration, had the court actually adopted such an argument. -Original Message- From: Ilya Somin [mailto:[EMAIL PROTECTED] Sent: Tuesday, September 23, 2003 4:15 PM To: [EMAIL PROTECTED] Subject: Re: CA9 takes case in banc I don't mean to dwell on the obvious, but it is likely that many of the apparent weaknesses of the opinion are due to the fact that it is unanimous. What we see is the lowest common denominator that 11 judges of widely differing ideologies could agree on. As to the Greg's point regarding the balancing of burdens, I think the en banc court's more powerful argument is not that of financial expense, but that of the need for finality and closure in electoral processes. The search for complete or near-complete equality in ballot technology could result in lengthy postponements of numerous elections. Such postponements could undermine the right to vote as much or more so than defective technology. After all, the purpose of voting is not only to have your vote count but to ensure that the electorate has the opportunity to change its leaders at specified time periods. Moreover, the interest in swift finality is particularly strong in the case of a recall, the whole point of which is to allow voters the opportunity to rid themselves of an allegedly harmful incumbent sooner rather than later. On Tue, 23 Sep 2003, Gregg Miller wrote: Perhaps fascile wasn't the most appropriate word (I know I misspelled it - that was a typing error). Perhaps disingenuous is more what I am thinking. I have a hard time believing these judges would let economic interests prevail over the right to vote, or that the burden of having to vote again is somehow greater than the danger one's vote won't count at all. -Original Message- From: Gregg Miller [mailto:[EMAIL PROTECTED] Sent: Tuesday, September 23, 2003 3:28 PM To: [EMAIL PROTECTED] Subject: Re: CA9 takes case in banc So, it's probably just me, but it seems as if the 9th Circuit produced a particularly facile analysis of the balancing of the interests in the en banc opinion. Could it be they are daring the Supremes to reverse them? -Original Message- From: Scarberry, Mark [mailto:[EMAIL PROTECTED] Sent: Friday, September 19, 2003 12:46 PM To: [EMAIL PROTECTED] Subject: Re: CA9 takes case in banc No, I don't think so, because the mandate has not issued (or effectively was recalled). In the absence of issuance of the mandate, the panel's opinion has no effect on the parties, I think. Per Judge Thomas's order of Sept. 16, the mandate is not to issue except on further order of the court (as I noted in an earlier post). Per the court's web site the hearing is set for Monday 1pm Pacific Time. The en banc panel will consist of Chief Judge Schroeder, and Judges Kozinski, O'Scannlain, Kleinfeld, Tashima, Silverman, Graber, McKeown, Gould, Tallman and Rawlinson. See http://www.ca9.uscourts.gov. Click on En Banc Court Information. Mark S. Scarberry Pepperdine University School of Law -Original Message- From: Samuel Issacharoff [mailto:[EMAIL PROTECTED] Sent: Friday, September 19, 2003 12:43 PM To: [EMAIL PROTECTED] Subject: Re: CA9 takes case in banc I notice the order says that the decision is not to be cited as precedent to not only the Ninth Circuit, but any district court in the Ninth Circuit. Under Ninth Circuit procedure, does this include not being cited to the district court that refused to stay the election? If so, is this the functional equivalent of lifting the stay? ** Samuel Issacharoff Harold R. Medina Professor in Procedural Jurisprudence Columbia Law School 212-854-2527 212-854-7946 (fax) Edward A Hartnett [EMAIL PROTECTED] To: [EMAIL PROTECTED] Sent by: Discussioncc: list for con law Subject: CA9 takes case in banc professors [EMAIL PROTECTED] v.ucla.edu 09/19/2003 03:21 PM Please respond to Discussion list for con law professors The order taking the case in banc is available at http://www.ca9.uscourts.gov/ca9/newopinions.nsf
Re: CA9 takes case in banc
Here is my read: Whether we agreed with the result in Bush v. Gore or not, almost all of us were surprised the Court took the cases in the first instance. Most of us, in our hearts even if it was not only justified but necessary, nevertheless thought that the Court in making the decision to stop the recount was making much less of a decision as a court deciding a question of law and much more of a non-judicial political decision. The original 9th Circuit panel members are probably not much different than we are in these regards. They thought, ok, the Court said it was acting as a court deciding a question of law in Bush v. Gore, so let them deal with it in this context. I think the en banc panel decided to let the Court out of the bind between the rock -- Bush v. Gore is law, so equal protection jurisprudence is implicated punch card problems with 135 candidates in the recall -- and the hard place -- confessing that Bush v. Gore was a political, non-judicial decision. Should anyone try to take the en banc decision to the Court, does anyone think it would hear the case? Michael J. Zimmer Seton Hall Law School
Re: CA9 takes case in banc
I notice the order says that the decision is not to be cited as precedent to not only the Ninth Circuit, but any district court in the Ninth Circuit. Under Ninth Circuit procedure, does this include not being cited to the district court that refused to stay the election? If so, is this the functional equivalent of lifting the stay? ** Samuel Issacharoff Harold R. Medina Professor in Procedural Jurisprudence Columbia Law School 212-854-2527 212-854-7946 (fax) Edward A Hartnett [EMAIL PROTECTED] To: [EMAIL PROTECTED] Sent by: Discussioncc: list for con law Subject: CA9 takes case in banc professors [EMAIL PROTECTED] v.ucla.edu 09/19/2003 03:21 PM Please respond to Discussion list for con law professors The order taking the case in banc is available at http://www.ca9.uscourts.gov/ca9/newopinions.nsf/F656D78784F3200988256DA6006306FE/$file/recall_enbanc.pdf?openelement I notice that the order does not vacate the panel decision, but rather decrees that it not be cited as precedent in the Ninth Circuit. Is that the Ninth Circuit's usual practice? My understanding was that most courts of appeals vacated the panel decision upon deciding to rehear the case in banc, reflecting the view that the court of appeals (whether held by a panel or sitting in banc) is a unitary court exercising appellate review over the district court (or administrative agency). An alternative view might be that the in banc court exercises appellate jurisdiction over the panel. The difference in how the in banc court is conceptualized can matter if the in banc court divides evenly, but thankfully that should not be an issue with an eleven member in banc panel. Ed Hartnett Seton Hall
Re: CA9 takes case in banc
No, I don't think so, because the mandate has not issued (or effectively was recalled). In the absence of issuance of the mandate, the panel's opinion has no effect on the parties, I think. Per Judge Thomas's order of Sept. 16, the mandate is not to issue except on further order of the court (as I noted in an earlier post). Per the court's web site the hearing is set for Monday 1pm Pacific Time. The en banc panel will consist of Chief Judge Schroeder, and Judges Kozinski, O'Scannlain, Kleinfeld, Tashima, Silverman, Graber, McKeown, Gould, Tallman and Rawlinson. See http://www.ca9.uscourts.gov. Click on En Banc Court Information. Mark S. Scarberry Pepperdine University School of Law -Original Message- From: Samuel Issacharoff [mailto:[EMAIL PROTECTED] Sent: Friday, September 19, 2003 12:43 PM To: [EMAIL PROTECTED] Subject: Re: CA9 takes case in banc I notice the order says that the decision is not to be cited as precedent to not only the Ninth Circuit, but any district court in the Ninth Circuit. Under Ninth Circuit procedure, does this include not being cited to the district court that refused to stay the election? If so, is this the functional equivalent of lifting the stay? ** Samuel Issacharoff Harold R. Medina Professor in Procedural Jurisprudence Columbia Law School 212-854-2527 212-854-7946 (fax) Edward A Hartnett [EMAIL PROTECTED] To: [EMAIL PROTECTED] Sent by: Discussioncc: list for con law Subject: CA9 takes case in banc professors [EMAIL PROTECTED] v.ucla.edu 09/19/2003 03:21 PM Please respond to Discussion list for con law professors The order taking the case in banc is available at http://www.ca9.uscourts.gov/ca9/newopinions.nsf/F656D78784F3200988256DA60063 06FE/$file/recall_enbanc.pdf?openelement I notice that the order does not vacate the panel decision, but rather decrees that it not be cited as precedent in the Ninth Circuit. Is that the Ninth Circuit's usual practice? My understanding was that most courts of appeals vacated the panel decision upon deciding to rehear the case in banc, reflecting the view that the court of appeals (whether held by a panel or sitting in banc) is a unitary court exercising appellate review over the district court (or administrative agency). An alternative view might be that the in banc court exercises appellate jurisdiction over the panel. The difference in how the in banc court is conceptualized can matter if the in banc court divides evenly, but thankfully that should not be an issue with an eleven member in banc panel. Ed Hartnett Seton Hall
Re: CA9 takes case in banc
The comment to the circuit rules indicates that the ban on citation applies to all en banc review. -Original Message- From: Scarberry, Mark [mailto:[EMAIL PROTECTED] Sent: Friday, September 19, 2003 12:46 PM To: [EMAIL PROTECTED] Subject: Re: CA9 takes case in banc No, I don't think so, because the mandate has not issued (or effectively was recalled). In the absence of issuance of the mandate, the panel's opinion has no effect on the parties, I think. Per Judge Thomas's order of Sept. 16, the mandate is not to issue except on further order of the court (as I noted in an earlier post). Per the court's web site the hearing is set for Monday 1pm Pacific Time. The en banc panel will consist of Chief Judge Schroeder, and Judges Kozinski, O'Scannlain, Kleinfeld, Tashima, Silverman, Graber, McKeown, Gould, Tallman and Rawlinson. See http://www.ca9.uscourts.gov. Click on En Banc Court Information. Mark S. Scarberry Pepperdine University School of Law -Original Message- From: Samuel Issacharoff [mailto:[EMAIL PROTECTED] Sent: Friday, September 19, 2003 12:43 PM To: [EMAIL PROTECTED] Subject: Re: CA9 takes case in banc I notice the order says that the decision is not to be cited as precedent to not only the Ninth Circuit, but any district court in the Ninth Circuit. Under Ninth Circuit procedure, does this include not being cited to the district court that refused to stay the election? If so, is this the functional equivalent of lifting the stay? ** Samuel Issacharoff Harold R. Medina Professor in Procedural Jurisprudence Columbia Law School 212-854-2527 212-854-7946 (fax) Edward A Hartnett [EMAIL PROTECTED] To: [EMAIL PROTECTED] Sent by: Discussioncc: list for con law Subject: CA9 takes case in banc professors [EMAIL PROTECTED] v.ucla.edu 09/19/2003 03:21 PM Please respond to Discussion list for con law professors The order taking the case in banc is available at http://www.ca9.uscourts.gov/ca9/newopinions.nsf/F656D78784F3200988256DA60063 06FE/$file/recall_enbanc.pdf?openelement I notice that the order does not vacate the panel decision, but rather decrees that it not be cited as precedent in the Ninth Circuit. Is that the Ninth Circuit's usual practice? My understanding was that most courts of appeals vacated the panel decision upon deciding to rehear the case in banc, reflecting the view that the court of appeals (whether held by a panel or sitting in banc) is a unitary court exercising appellate review over the district court (or administrative agency). An alternative view might be that the in banc court exercises appellate jurisdiction over the panel. The difference in how the in banc court is conceptualized can matter if the in banc court divides evenly, but thankfully that should not be an issue with an eleven member in banc panel. Ed Hartnett Seton Hall
