The Limit of its Logic: Ninth Circuit Blog

Tuesday, August 26, 2003

San Jose Preclearance Update

There will be a hearing on an Order to Show Cause on Friday in San Jose. While the TRO was heard only before Judge Fogel, the OSC will be in front of a three-judge panel consisting of Judges Fogel and Whyte, district judges in San Jose, along with Judge Consuelo Callahan, the most recently confirmed judge on the Ninth Circuit Court of Appeals.

Wednesday, August 20, 2003

Latest Development in the Preclearance Cases

In the Salazar case (Prop 54), the State of California has filed a communication from the DOJ dated August 19, 2003. Of note is the following excerpt:

"We also write to seek clarification about whether, in its August 4, 2003 letter to the Department, the state intended to submit for preclearance under Section 5 the change in the date for the initiative election from March 2, 2004, to October 7, 2003, and the several attendant changes to the timetable for certain events leading up to this election. It is our understanding that on August 15, 2003, the United States District Court . . . held that these changes were covered by Section 5, and that the State may not implement them in the absence of compliance with Section 5. To enable us to meet our responsibility to enforce the Voting Rights Act, please inform us of whether the State of California intended to submit these changes in its submission of August 4 or whether it will make a subsequent submission."

The letter is signed by Joseph D. Rich, Chief of the Voting Section.

Friday, August 15, 2003

Judge Fogel's Order in the Preclearance Cases

Judge Fogel's has issued an order; it directs Defendants to "appear before this Court at 3:00 PM on Friday, August 29, 2003, there and then to show cause, if any they have, why they . . . should not be restrained and enjoined pending trial of this action from accepting any ballots, including absentee ballots, or operating any polling place in connection with the special election . . . ."

He also issued a TRO preventing the County of Monterey "from mailing absentee ballots to overseas voters registered to vote in Monterey County until Section 5 preclearance has been obtained or until further order of the Court."

It looks like the preclearance clock is now running.

Preclearance and the Recall

Judge Fogel, District Judge in San Jose, held a hearing on a TRO this morning in a case challenging the recall election under the Voting Rights Act. The State of California and the County of Monterey conceded that election changes related to the recall election required federal preclearance under the Voting Rights Act and that such preclearance had not been obtained.

The defendants also did not dispute that the election cannot proceed unless preclearance is obtained. Judge Fogel seemed to be searching for a preclearance deadline after which it would simply be too late to wait any longer for the Justice Department to clear the election. For the recall portion at least, he seemed to key on the date that the first vote could be cast -- absentee, overseas or otherwise. The parties did not speculate on when a preclearance decision could be expected from the Justice Department

Judge Fogel asked the parties if they were available for a hearing on August 29 and September 5. It looks like another hearing will be set for one of those days, and that if preclearance has not occurred by the date of that hearing, the election may well be postponed.

Wednesday, August 13, 2003

More Recall in Federal Court

Judge Fogel's calendar lists two recall election-related cases set for a hearing on a TRO:

FRIDAY, AUGUST 15, 2003 CV-03-3584-JF AURELIO SALAZAR ET AL V. MONTEREY COUNTY, ET AL. Temporary Restraining Order @ 9:30 AM Related to CV-03-3658 CV-03-3658-JF JUAN OLIVEREZ, ET AL V. STATE OF CALIFORNIA, ET AL Temporary Restraining Order @9:30 AM Related to CV-03-3584

These suits challenge the recall election and the inclusion of Proposition 54, alleging that state officials have failed to obtain pre-clearance from the US Attorney General or the DC District Court under Section 5 of the Voting Rights Act. The next few months should be interesting.

Thursday, August 07, 2003

Judge Alsup Strikes Back

Yesterday, I attended a Federal Bar Association event entitled "Remembering Justice William O. Douglas: A Reply to Recent Critics." Chief Judge Patel introduced the two speakers, Judge William Alsup and Jerome Falk, Jr., former clerks of Justice Douglas. More than a dozen other former Doulgas clerks were also on hand, including David Ginsburg, Douglas' first clerk, and former Secretary of State Warren Christopher. (Two former wives of Doulgas were also in attendance.)

Judge Alsup's detailed presentation focused on refuting the factual record as set forth in Bruce Allen Murphy's Wild Bill. Judge Alsup was passionate in his oration and took umbrage with Judge Posner's review of Wild Bill, James Ryerson's review in the New York Times, and of course BAM himself. He challenged these men to get their facts straight before attacking a great American. Judge Alsup also mentioned a Washington Post article casting doubt on the proposition that Douglas never should have been buried at Arlington National Cemetery.

If Judge Alsup's portion was the mind of the presentation, Falk's was the heart. He corroborated an anecdote attributed to him in the book, but noted that BAM focused only on the negative stories relating to Douglas' interactions with his clerks, turning a blind eye to the more compassionate side of his character. Falk speculated that events not fitting within BAM's view of Douglas were simply omitted from the book.

Judge Alsup

Jerome B. Falk, Jr.

Monday, August 04, 2003

Math Answers

The Criminal Justice Legal Foundation was kind enough to provide me with the cases referenced in the recent San Francisco Chronicle article on the Ninth Circuit and criminal law:


Woodford v. Visciotti 04-Nov-2002; Early v. Packer 04-Nov-2002; Lockyer v. Andrade 05-Mar-2003; Woodford v. Garceau 25-Mar-2003.


Nguyen v. United States 09-Jun-2003; Smith v. Doe 05-Mar-2003; U.S. v. Jimenez Recio 21-Jan-2003.

Civil – Section 1983

Inyo v. Paiute-Shoshone 19-May-2003; Chavez v. Martinez 27-May-2003.

Administrative – Immigration

Demore v. Kim 29-Apr-2003.

Blake and Hobson wrote: "Of 72 cases decided by the U.S. Supreme Court in the 2002-03 term, 28 of them were criminal cases or directly related to issues of criminal law. Ten of these 28 were from the Ninth Circuit and all 10 were reversed. That means the Supreme Court reversed the Ninth Circuit 100 percent of the time when considering criminal cases."

You be the judge whether or not the linked cases above represent instances where the Ninth Circuit was "considering criminal cases."

Disappearing Arks and Plea Enforcement

Two noteworthy opinions today:

In Kesel v. UPS, Judge McKeown recounts the tale of Ukranian art “that vanished like the Ark of the Covenant” from a Kentucky warehouse.

In Brown v. Poole, the Court reversed the district court’s denial of habeas relief and ordered specific performance of a plea agreement. Judge Silverman dissented.

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.

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