That’s what I hear, third-hand (via Chris Geidner (Law Dork)) about what Judge Walker supposedly said at a hearing today; he was reporting that such an order for en banc review will be issued this afternoon. I blogged about the panel decision here.
UPDATE: Geidner reports that “A spokesperson for the Plaintiffs’ legal team confirmed that Judge Walker said that he had received a call from the Ninth Circuit that the en banc order would be forthcoming on the docket.”
FURTHER UPDATE: Apparently not — here’s what seems to be the relevant order:
A judge of this court has called for a vote to determine whether this case will be reheard en banc under Federal Rule of Appellate Procedure 35(a). The parties are requested to file simultaneous briefs setting forth their respective positions on whether this case should be reheard en banc, including whether rehearing en banc is warranted in light of Mohawk Industries, Inc. v. Carpenter, 558 U.S. —, No. 08-678 (Dec. 8, 2009).The briefs shall be filed on or before December 24, 2009.
Thanks to Ben Sheffner (Copyrights & Campaigns) for the pointer.
Parenthetical Greg says:
I suspect that it was accepting collateral-order jurisdiction that moved the court to consider this en banc.
December 16, 2009, 6:08 pmBen Sheffner says:
The case was not actually taken en banc. Rather, the court issued an order directing the parties to brief whether it should be taken en banc. Here’s the text:
Before: WARDLAW, FISHER and BERZON, Circuit Judges.
A judge of this court has called for a vote to determine whether this case will be reheard en banc under Federal Rule of Appellate Procedure 35(a). The parties are requested to file simultaneous briefs setting forth their respective positions on whether this case should be reheard en banc, including whether rehearing en banc is warranted in light of Mohawk Industries, Inc. v. Carpenter, 558 U.S. —, No. 08- 678 (Dec. 8, 2009).
The briefs shall be filed on or before December 24, 2009. Parties who are registered for ECF must file the brief electronically without submission of paper copies. Parties who are not registered ECF filers must file the original brief plus 50 paper copies.
IT IS SO ORDERED.
December 16, 2009, 8:25 pmTweets that mention The Volokh Conspiracy » Blog Archive » Rumor: Judge Walker States That the Prop. 8 Campaign Documents Discovery Dispute Will Go En Banc at the Ninth Circuit -- Topsy.com says:
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December 16, 2009, 9:34 pmAnatid says:
Hey, edit this post to close that italics tag. You’ve got the entire main page below your post in italics.
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December 17, 2009, 12:02 amjelisgito says:
Mohawk (Sotomayor’s first opinion) seems to say that even if disclosure of the protected information might chill future speech, the magnitude of that harm is basically the same whether the forced disclosure is subject to interlocutory review or postjudgment review. Therefore interlocutory review is not necessary.
Slip op. at 7.
But the Ninth Circuit panel knew that. Mohawk came out a few days before the panel’s opinion. The panel acknowledged Mohawk, distinguished it, and then stated that even if Mohawk prohibits interlocutory review, the panel would still retain mandamus jurisdiction over the District Court’s ruling. The panel then held that, under the circumstances of the case, mandamus was warranted.
It is unclear how the en banc review based on Mohawk would affect the mandamus ruling. I suppose the idea is that the en banc court is much less likely to buy into the panel’s reasoning that the circumstances are so extraordinary as to deserve mandamus.
December 17, 2009, 2:50 pmuberVU - social comments says:
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December 17, 2009, 7:02 pmParenthetical Greg says:
Granting mandamus in these circumstances seems like an extremely unlikely motivator for rehearing en banc. But, the panel’s tentative holding that, as a class, First Amendment privilege discovery disputes satisfy the collateral-order doctrine seems like something the court might want to revisit. After all, that is (sort of) Circuit precedent that other panels would need to honor. Reversing the collateral-order jurisdiction holding, but leaving the mandamus and, perhaps, First Amendment privilege holdings intact may be what the judge is after.
Of course, for all I know, it is the substance of the First Amendment application that the motivated the judge requesting the vote.
December 18, 2009, 1:58 pmFreedom!!!!! says:
Rumor has it that Walker is a homosexual himself. He’s done nothing but show absolute contempt for the Prop 8 side in this lawsuit. It’s a foregone conclusion that he is going to rule against Prop 8. He should recuse himself, but he won’t.
December 20, 2009, 7:18 pmThe evildoers hate our freedom! says:
Fuckwit! Would a homosexual sue the Gay Olympics? Walker did.
January 12, 2010, 1:31 pm