180 F.3d 1091 | 9th Cir. | 1999
Concurrence Opinion
concurring in the order denying rehearing en banc, with whom BOOCHEVER, Senior Circuit Judge, joins with respect to the order denying rehearing en banc:
As the dissent from our denial of taking this case en banc notes, this is the third recent occasion on which the court has
The criteria for taking a case en banc are clear and well-established — either necessity “to secure or maintain uniformity of the court’s decisions,” or to decide “a question of exceptional importance.” Fed. R.App. P. 35(a)(1) and (2) (emphasis added).
So should it be with hearing cases en banc. Subject to rare exceptions, unlike the comments in the Burdeau panel opinion, we should review the statements in three judge panel opinions only to “determine whether the [panel’s] legal error resulted in an erroneous judgment....” Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). If we were to follow the dissent’s suggestion, we would take en banc, for example, a case in which a three judge panel harshly criticized a state supreme court, see Trident Center v. Connecticut Gen. Life Ins. Co., 847 F.2d 564 (9th Cir.1988),
Those joining in the dissent have repeatedly voiced their opinion that opinion-editing of three judge panel opinions is a proper and almost routine function of the en banc court, even though they may have no disagreement with the judgments of those opinions. Although I am reluctant to write a separate concurrence to an order denying rehearing en banc, I write this concurrence because, in spite of the repeated expressions that the correcting of statements in opinions which do not affect the judgment is a proper en banc function, no contrary opinion has been expressed. Those repeated expressions should not go unchallenged.
The en banc court is not the Language Police. Its function is not to maintain uniformity of language or thought by three judge panels, but to maintain uniformity of decisions. Because the only purpose of this en banc call is to curb “meddling” by a three judge panel,
. The "question” referred to in Rule 35(a)(2) is, obviously, a question that has been decided by a three judge panel or is to be decided by the en banc court.
. In Trident Center, a three judge panel launched a broadside attack against the California Supreme Court for its version of the parol evidence rule, as adopted by that court in Pacific Gas & Elec. Co. v. G.W. Thomas Drayage & Rigging Co., 69 Cal.2d 33, 69 Cal. Rptr. 561, 442 P.2d 641 (1968). See 847 F.2d at 568-70. The panel suggested that the rule was not a wise one, id. at 569 ("While we have our doubts about the wisdom of Pacific Gas ....”), 570 ("It may not be a wise rule we are applying ....”), and, indeed, that "[i]t chips away at the foundation of our legal system,” id. at 569. The panel then suggested to the California Supreme Court that “[w]hich the benefit of 20 years of hindsight, the California Supreme Court may wish to revisit the issue.” Id. at 570. To its credit, however, the panel did not withhold issuance of the mandate so that the California Supreme Court could correct its 20-year old alleged mistake.
.There is no suggestion that the only action by the panel of which the dissent complains, staying the mandate for 60 days, is of itself en banc worthy.
Dissenting Opinion
dissenting:
For the third time in six months, a panel of this court has offered unsolicited advice to the other branches of government. Dissents in the two previous cases pointed out the impropriety of using a majority opinion to deliver a lecture to the political branches. See United States v. Harris, 165 F.3d 1277 (9th Cir.1999) (Kozinski, J., dissenting from the order rejecting the suggestion for rehearing en banc); United States v. Mussari, 168 F.3d 1141 (9th Cir.1999) (Kozinski, J., dissenting from the order rejecting the suggestion for rehearing en banc). Bad as the earlier cases were, the opinion here breaks dangerous new ground in two ways.
First, rather than merely giving advice to the legislative branch on how it should resolve broad questions of sentencing policy, see United States v. Harris, 154 F.3d 1082, 1085 (9th Cir.1998), or to the Executive Branch on the future use of its prose-cutorial discretion, see United States v. Mussari, 152 F.3d 1156, 1159 (9th Cir.1998), the majority here tries to buffalo the Department of Justice into changing its position in the very case now before the court. See United States v. Burdeau, 168 F.3d 352, 359 (9th Cir.1999). After determining that “defendant’s legal arguments are unavailing,” id. at 358, which ended their legitimate role in the case, the majority trots out a detailed plan of action for sparing defendant a portion of his sentence. See id. at 359. Unseemly as it is for a court to offer abstract policy recommendations, it is much worse to leverage the court’s moral authority to change a result when we are supposed to be impartial arbiters. As Judge Graber notes, we “are not asked for our personal preferences about the results of eases.” Id. at 360 (Graber, J., concurring in part and dissenting in part). Except as the law requires, a court must not take sides-or appear to take sides-among the litigants before it. Concurring and dissenting opinions, which speak only for the signatory judges, are the appropriate vehicles for airing our personal views.
Second, the majority did not merely come up with a plan of action; it also stayed the mandate 60 days to give the United States Attorney on opportunity to act on its advice. See Burdeau, 168 F.3d at 359. While staying the mandate is “entrusted to [our] sound discretion,” Bryant v. Ford Motor Co., 886 F.2d 1526, 1528 (9th Cir.1989), we abuse that discretion when we exercise it without a legitimate basis. See Calderon v. Thompson, 523 U.S. 538, —, 118 S.Ct. 1489, 1502, 140 L.Ed.2d 728 (1998). Delay of the mandate, like any other judicial act, must be supported by a legally sufficient reason. A panel may not delay the mandate for no reason (“We stay the mandate for two weeks because we feel like it”); it may not delay the mandate for a bad reason (“We don’t like the defendant and we therefore stay the mandate just to irk him”); it mat not delay the mandate for a reason unrelated to the case before it (“We stay the mandate to give the government lawyers a chance to read and absorb the tightly-packed wisdom of The Anatomy of an Execution: Fairness vs. ‘Process’, 74 N.Y.U. L. Rev. 313 (1999)”); and it may not delay the mandate to pressure the parties into accepting advice the court has no authority to give and cannot order the parties to follow.
Judge Tashima objects to the use of the en bane process to correct objectionable language, but he concedes that this is not a universal rule. Tashima concurrence at 6886 (“Subject to rare exceptions....”). Judge Tashima thus agrees that the full court can act as the “Language Police,” id. at 6887, when a panel says or does something, even in dicta, that other judges find inappropriate. Despite his sweeping language, then, Judge Tashima’s cavil is rather narrow: He does not think that this is one of those “rare exceptions.” Respectfully, we disagree. When a panel, even in dicta, breaches the wall that insulates the
By leaving this opinion on the books, we encourage future panels to meddle in the business of the political branches. This will further erode the separation of powers and undermine respect for the judiciary. See Burdeau, 168 F.3d at 360 (Graber, J., concurring in part and dissenting in part). The consequences may be serious. When we act like politicians we can expect to be treated like politicians.
Lead Opinion
ORDER; Concurrence by Judge TASIMA; Dissent by Judge KOZINSKI.
ORDER
The panel has voted to deny Appellant’s Petition for Rehearing.
A sua sponte call for a vote on rehearing this case en banc was made by an active judge of this court. The call failed to receive a majority of the votes of the non-recused active judges. Fed. R.App. P. 35.
The petition for rehearing is denied and the sua sponte en banc call is rejected.