906 F.3d 800
9th Cir.2018Background
- Joe Arpaio was convicted of criminal contempt in district court; President Trump pardoned him before sentencing. The district court dismissed the prosecution but denied Arpaio’s motion to vacate the conviction; Arpaio appealed the denial.
- The Ninth Circuit motions panel asked whether the government would defend the district court’s denial; the DOJ stated it would not defend the order and would argue vacatur was proper.
- The motions panel published an order authorizing appointment of a private "special prosecutor" under Fed. R. Crim. P. 42(a)(2) and the court’s inherent authority to provide briefing and argument to the merits panel on behalf of the government.
- Several judges sought en banc rehearing of that order; a majority of non-recused active judges denied rehearing en banc.
- Opinions: Judge W. Fletcher (joined by six judges) concurred in denial of rehearing emphasizing the limited role and legality of a Rule 42 appointment; Judge Callahan (joined by three judges) dissented, arguing the appointment was unprecedented, unnecessary, and a separation-of-powers violation; Judges Tashima and Tallman issued supporting statements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a federal court may appoint a private "special prosecutor" on appeal to defend a contempt conviction when DOJ declines to do so | The court (motions panel) may appoint a special prosecutor under Rule 42(a)(2) and inherent judicial power to ensure the merits panel receives adversarial briefing | DOJ and dissent: appointment is beyond Rule 42’s scope on appeal and intrudes on executive prosecutorial power; amicus appointment would suffice | Motions panel order authorizing appointment stands; en banc rehearing denied and concurrence affirmed the appointment’s legality and limited role |
| Whether Rule 42(a)(2) authorizes appointment of private counsel in appellate proceedings | Rule 42 implements the judiciary’s inherent power and can be applied to authorize appointment to defend a conviction on appeal | Dissent: Young and Rule 42 authorize appointment only to initiate contempt proceedings in district court; Rule 42 is not a source of new executive-like power on appeal | Concurrence: Rule 42 and inherent power support appointment when DOJ declines; dissent disagrees but lost on rehearing vote |
| Whether the judiciary’s inherent power to appoint a prosecutor is limited to initiation of contempt proceedings | Concurrence: inherent power includes appointing counsel to continue prosecution and defend convictions on appeal if DOJ refuses | Dissent: Young limits judicial appointment power to initiation only; once proceedings are initiated the court’s interest is vindicated and executive functions resume | Court majority (motions panel/concurrence) rejected the narrow limitation and allowed appointment to continue prosecution on appeal |
| Whether appointment was necessary (practical necessity and separation-of-powers concerns) | Motions panel: appointment was necessary to provide full adversarial briefing and defend the district court’s denial of vacatur after DOJ declined | Dissent: unnecessary because amici curiae already briefed the issue; appointing amici avoids executive encroachment and preserves separation of powers | En banc rehearing denied; disagreement remains in published opinions—concurrence finds it lawful and limited; dissent warns of constitutional infirmity and unnecessary intrusion |
Key Cases Cited
- Young v. United States ex rel. Vuitton, 481 U.S. 787 (recognizing courts’ inherent authority to appoint a disinterested private prosecutor to initiate contempt proceedings)
- Buckley v. Valeo, 424 U.S. 1 (separation-of-powers principles constrain branches from encroaching on others)
- Morrison v. Olson, 487 U.S. 654 (limits on judicial exercise of nonjudicial executive functions)
- Mistretta v. United States, 488 U.S. 361 (judicial vigilance against exceeding judicial power; separation-of-powers concerns)
- United States v. Wilson, 421 U.S. 309 (contempt power restraint; use the least power adequate)
- Sibron v. New York, 392 U.S. 40 (judicial duty to independently examine confessed error)
- Anderson v. Dunn, 6 Wheat. 204 (historical discussion of judges’ contempt authority)