The Limit of its Logic: Ninth Circuit Blog

Thursday, July 31, 2003

Math Problems

In this editorial from the San Francisco Chronicle, the authors claim that in the 2002-03 term, the Supreme Court reversed the Ninth Circuit in 10 out of 10 cases that were criminal in nature or directly related to criminal law issues. Regardless of the premises asserted and the conclusions drawn therefrom, I am having trouble figuring out which 10 cases the authors are referencing.

Here is my breakdown of the most recent term:


American Insurance Association v. Harry Low (California insurance code provision) Black & Decker Disability Plan v. Nord (ERISA) Boeing Company v. United States (tax regulation) Borden Ranch Partnership v. US Army Corps of Engineers (Clean Water Act) Chavez v. Martinez (Section 1983) Clackamas Gastroenterology v. Wells (ADA) Dastar Corporation v. Twentieth Century Fox Film (Copyright) Desert Palace, Inc. v. Costa (Title VII) Dole Food Co. v. Patrickson (personal injury, FSIA jurisdiciton) Hillside Dairy, et al. v. Lyons/Ponderosa Dairy (dormant commerce clause, 1996 Farm Bill) Inyo County v. Paiute-Shoshone Indians (Section 1983) Los Angeles v. David (Section 1983) Meyer v. Holley (Fair Housing Act) Nevada Dept. of Human Resources v. Hibbs (FMLA) Washington Legal Foundation v. Legal Foundation of Washington (IOLTA)

Administrative – Immigration

Demore v. Kim (detention pending removal hearing) INS v. Ventura (asylum)


Early v. Packer (was state court determination unreasonable application of clearly established federal law?) Lockyer v. Andrade (habeas – three strikes) Woodford v. Garceau (when is a habeas appeal "pending" for the purposes of the AEPDA?) Woodford v. Viscotti (ineffective assistance under Strickland)


Nguyen v. United States (conviction reversed by the Supreme Court because a unanimous three judge panel consisted of two Article III judges and one Article I judge instead of three Article III judges) Smith v. Doe (sex offender registration regime does not violate Ex Post Facto Clause) United States v. Recio (termination of conspiracy)

Certainly the three criminal cases and the habeas cases were counted, and the immigration cases likely were also in the mix. Presumably, one of the Section 1983 cases must have also been a part of the study. I wonder which one.

Tuesday, July 29, 2003

Partnoy's Order

Read Judge Moskowitz's order here.

Partnoy's Victory

The AP is reporting that Judge Moskowitz has struck down Cal. Elections Code Section 11382 as unconstitutional. This ruling allows those who do not wish to vote on the recall issue to vote for Davis' replacement if the recall is successful.

Monday, July 28, 2003

Partnoy's Complaint

The LA Times is reporting that U.S. District Court Judge Barry T. Moskowitz, from the Southern District of California, "plans to hold a hearing Tuesday on the constitutionality of a portion of the recall law that says voters who chose not to cast a vote either way on whether Davis should be recalled cannot vote on successors."

The case is styled Partnoy v. Shelley; you can read the complaint here (sorry for the gratuitous and unoriginal Phillip Roth reference). The Partnoy here is USD law professor Frank Partnoy .

The allegations track the analysis offered in a recent Findlaw article by Vikram Amar and Alan Brownstein positing that Cal. Elections Code Section 11382 is unconstitutional. The complaint states: "Voters may be, and often are, agnostic or morally opposed to voting on the recall of a particular official, but nonetheless have strong feelings (and wish to vote) on the successors(s) to that office."

The AP has a report on the San Diego suit here. The story claims that "two separate elections challenges were filed Monday with the California Supreme Court, which has yet to act on them. If one of the petitions, filed late Monday, is successful, the San Diego federal case may become moot." The San Diego federal case raises Equal Protection and Due Process claims under the 14th Amendment, so would the case become "moot" even if the California Supreme Court struck down Section 11382? See Article VI, Clause 2.

Equal Protection Behind Bars

In Johnson v. California, a three judge panel decided “whether a prison reception center housing policy, which uses race as one factor in assigning a new inmate’s initial cell mate for 60 days, violates the Equal Protection Clause.”

The court found no Equal Protection violation: “Although there may be many ways in which to achieve the state’s objective in reducing racial violence in the CDC, the path chosen by the State of California is reasonably related to the administrators’ concern for racial violence and thus must be upheld. If this policy were implemented beyond the prison walls, undoubtedly, we would strike it down as unconstitutional.”

The Ninth Circuit denied rehearing en banc today, with Judges Ferguson, Pregerson, Nelson, and Reinhardt dissenting. They argued that as a racial classification, the policy should have been reviewed using strict scrutiny. Read the Reuters account here.

Uncertified Conversion of Intangible Property

If the unending saga that is the case, the Ninth Circuit has ruled that the tort of conversion applies to intangible property under California law. The background of Judge Kozinski’s opinion begins: “‘Sex on the Internet?,’ they all said. ‘That’ll never make any money.’ But computer-geek-turned-entrepreneur Gary Kremen knew an opportunity when he saw it.” Let me know if you figure out the antecedent to the pronoun “they.”

The case was somewhat of a personal victory for Judge Kozinski who had argued strenuously that a question should not be certified to California Supreme Court: “Certifying the case shifts the difficult work of deciding it to the state court, which is often so busy keeping its own house in order that it scarcely has time for our overflow laundry.” Not wishing to do another load, the California Supreme Court denied the request to certify the question at issue. (An unrelated laundry point: the opinion discussed a California Court of Appeal decision holding that a laundry route was not subject to conversion.)

Thursday, July 24, 2003

More Circuit Blogging

Welcome Abstract Appeal, covering news in the Eleventh Circuit, to the blogging world.

Wednesday, July 23, 2003

Freedom Not to Speak

District Judge Lawrence Karlton has issued an order dismissing the complaint of tobacco companies who were challenging California's anti-smoking ads based on the First Amendment compelled speech doctrine. Read the AP report here.

Circuit City Redux, Again

For the third time in the last year and a half, the Ninth Circuit has ruled that an arbitration provision in a Circuit City employment contract is unconscionable under California law. Read the opinion here; and reports on the opinion here and here.

To Certify or Not to Certify?

In Palmer v. Pioneer Inn, the Ninth Circuit certified the following question to the Nevada Supreme Court: "What test does Nevada use in applying Supreme Court Rule 182 to an employee of a represented organization? If so, does Nevada interpret that portion of the commentary by analogy to FED. R. EVID. 801(d)(2)(D), by application of agency principles, or by a different analysis?"

The certification occurred on July 20, 2001 and the Nevada Supreme Court responded on December 27, 2002. In this instance, the answer to the certified questions was worth the wait: "The Nevada Supreme Court's enunciation of the applicable test for contact with a represented party dramatically changes the landscape of our case."

Tuesday, July 22, 2003

Nevada Legislature Case Now Moot?

In what could lead to the end of the legal challenges in Guinn v. Nevada Legislature, the AP is reporting that Nevada lawmakers in both the Senate and Assembly have approved a tax increase by a super-majority. The writ issued by the Nevada Supreme Court ordered the legislature to proceed with a special session using the simple majority rule. Even if this ruling was in fact violative of the U.S. Constitution, it appears that the case is now moot. (Although one can imagine an argument that the actions of the most recent special session of the legislature were ultra vires and impermissibly tainted by the writ of the Nevada Supreme Court).

Northern Goshawk

In Center for Biological Diversity v. Badgley, the Ninth Circuit affirmed a decision of the Fish and Wildlife Service not to classify the Northern Goshawk as an endangered species. The Court ruled that the Agency "considered the relevant factors and articulated a rational connection between the facts found and the choice made." Judge Lay, sitting by designation from the Eighth Circuit, authored the opinion.

Friday, July 18, 2003

The Seven District Judges in Nevada

In my earlier post on this issue, I linked to an AP report discussing the rare en banc district court hearing in Angle v. Nevada Legislature. That report had me scratching my head for two reasons: (1) it claims that the en banc district court would be comprised of 8 judges; and (2) it do not offer an explanation for why the en banc procedure was chosen. The order in Angle was issued today and clears up both issues.

First, the en banc court consisted of seven active district judges, not eight judges as earlier reported. Second, the court sat en banc because it anticipated "that other actions would be filed in the District of Nevada" raising similar challenges.

To my delight, the merits were decided based on the wildly popular Rooker-Feldman doctrine.

Thursday, July 17, 2003

Defendants Wanted

Judge Tallman's opinion in Anderson v. Pacific Maritime, a Title VII case, begins: "This case presents a cause of action in search of a defendant." While Judges Tallman and Reavley did not find one, Judge Betty Fletcher dissented, stating: "I accept their assertion that there is a cause of action because I have found the defendant, and it is PMA. "

Tuesday, July 15, 2003

En Banc District Court?

The AP has this report about a hearing to be held tomorrow before all of the district judges in Nevada. At issue is the recent Nevada Supreme Court decision allowing a tax increase without the 2/3 super-majority required by the Nevada Constitution because the Legislature "failed to accomplish its constitutionally mandated tasks of funding Nevada's public education system and balancing the budget." The Court found the 2/3 requirement "procedural" and the funding of schools "substantive." The federal district judges sitting en banc will be located in both Reno and Las Vegas.

The Volokh Conspiracy is all over this case.

District courts sitting en banc are rare but not unheard of in the Ninth Circuit. See United States v. Ortega Lopez, 684 F. Supp. 1506 (C.D. Cal. 1988) (in a "historic session," the en banc court found the U.S. Sentencing Guidelines unconstitutional); Matsumoto v. Pua, 775 F.2d 1393 (9th Cir. 1985) (reversing an en banc Hawaii district court decision in a local election dispute).

Monday, July 14, 2003

Abandoned Green Cards

Judge Clifton authored the opinion in Khodagholian v. Ashcroft ruling that an Iranian citizen had not abandoned his status as legal permanent resident based on several trips back to his home country. The opinion reversed the decision of the Board of Immigration Appeals even under the deferential "substantial evidence" standard of review.

Saturday, July 12, 2003

Jury Verdict Against Nursing Home

The Mercury News has this report about a jury verdict returned against a Santa Cruz nursing home. Plaintiffs alleged that the defendants enticed them to work at a nursing home by promising work permits and citizenship.

Thursday, July 10, 2003

Who Needs a Functioning Government?

The AP has this report on oral argument in the case of Ali v. Ashcroft. District Judge Marsha J. Pechman had granted an injunction prohibiting the federal government from deporting Somalis because there is no functioning government in Somalia. The panel consists of Judges Paez, Tashima, and Reavley. Read the OBP story here.

Rights, Rights, Rights

A Department of Transportation regulation forbidding disparate impact racial discrimination does not create a federal right that can be enforced under 42 U.S.C. § 1983. So says the court in Save Our Valley v. Sound Transit. In fact, the majority held that an agency regulation can never create a right enforceable through § 1983.

Judge Berzon was having none of the second point. In her dissent she writes that such a rule “flies in the face of seventy years of administrative law jurisprudence. Applying contemporary administrative law principles rather than antiquated ones, I can see no reason why valid agency regulations cannot create individual rights and do so independently of specific Congressional intent regarding the rights created.”

Wednesday, July 09, 2003

Rooker-Feldman Last Week, Feres Doctrine this Week!

In Zaputil v. Cowgill the Ninth Circuit held “that the Feres doctrine bars a military reservist, who had been discharged from the National Guard but not from the Reserve, from bringing an action for damages against the military personnel who allegedly wrongly revoked her National Guard discharge and ordered her back to duty.” Read the Met-News account here.

Defining the Irreconcilable

In Miller v. Gammie, an en banc court tackled the “sometimes very difficult question of when a three-judge panel may reexamine normally controlling circuit precedent in the face of an intervening United States Supreme Court decision . . . .”

The unremarkable answer: “where the reasoning or theory of our prior circuit authority is clearly irreconcilable with the reasoning or theory of intervening higher authority, a three-judge panel should consider itself bound by the later and controlling authority, and should reject the prior circuit opinion as having been effectively overruled.”

Of course, determining when a case is “clearly irreconcilable” with Supreme Court precedent and therefore “effectively overruled” is the real question. Judges O’Scannlain and Tallman sat on the original three judge panel in Gammie and felt bound by a prior circuit opinion. In their view, the intervening Supreme Court cases did not clearly undermine the previous holding and therefore they were not permitted to disregard circuit authority.

Tuesday, July 08, 2003

Certified Question Purgatory

In Malabed v. North Slope Borough, a three judge panel held that a local ordinance giving employment preferences to members of federally recognized Indian tribes violated the Equal Protection Clause of the Alaska Constitution. The district court had ruled that the ordinance at issue "cannot withstand even cursory analysis under the principles set forth in J.A. Croson and Adarand Constructors" and was therefore violative of federal law.

This case originally was argued on appeal in March of 2000. In the name of constitutional avoidance, the panel certified a question to the Alaska Supreme Court on July 28, 2000. On May 16, 2003, the Alaska Supreme Court responded. This time lag raises some of the concerns expressed by Judge Kozinski in his recent dissent from an order certifying a question to the California Supreme Court.

The Feds & Medical Marijuana, Again

Professor Gerald Uelmen argued a medical marijuana case yesterday before District Judge Jeremy Fogel in San Jose. Read the San Jose Mercury News article here. Plaintiffs, including the City of Santa Cruz, are seeking a preliminary injunction against further DEA raids of state-sanctioned medical marijuana co-ops.

Monday, July 07, 2003

Dean Dunlavey

The LA Times has this obituary for Dean Dunlavey, who argued the famous Betamax case 20 years ago.

Asylum En Banc

The Ninth Circuit has ordered rehearing en banc in Li v. Ashcroft. In that case, a three judge panel affirmed the Board of Immigration Appeals' refusal to grant asylum to a Chinese couple who claimed that they would be subject to forced abortion and sterilization if deported.

Thursday, July 03, 2003

Kozinski on the 2nd Amendment

The opinion in Sundt v. Dynamic Finance begins: "One commentator describes the frontier equivalent of mechanic’s liens: If you furnish lumber to a man to build his house and he doesn’t pay you, you shoot him. If he sells the house and the new owner refuses to pay you, you shoot the new owner. What this regime lacked in due process, it made up for in clarity . . . . "

It's all downhill from there.

Wednesday, July 02, 2003

If a Tree does not Fall in the Forest . . .

The Missoulian is reporting that District Judge Don Molloy has halted logging in the Kootenai National Forest.

One More Reason to Stay on the Strip

In this opinion, authored by Judge Paez, the Ninth Circuit reversed the district court's determination that "The Fremont Street Experience" in Las Vegas is not a public forum. On remand, city regulations dealing with solicitation and tabling on Fremont Street will now face the heightened scrutiny of speech regulation applicable to a traditional public forum.

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