An Appellate Procedure Perspective on the High School Anti-Homosexuality T-Shirt Case:
A reader writes:
[The Ninth Circuit panel decision in Harper v. Poway Unified School District is indeed] not binding precedent on the Circuit because it has been vacated by the Supreme Court. [But] I think it creates what is called a "come-back" situation. If appealed (certainty) the case should be assigned to the same panel as had the brother's case. Guess what they will do. By the time the case is ready for en banc, Kelsie (the sister) will have graduated from high school. The predictability of the panel re-doing what it did is pretty high. So the precedent will be back.
Very interesting.
Related Posts (on one page):
- An Appellate Procedure Perspective on the High School Anti-Homosexuality T-Shirt Case:
- Supreme Court Vacates Reinhardt Anti-Homosexual T-Shirt Decision:
- High School Anti-Homosexuality T-Shirt Case Vacated as Moot:
- Harper v. Poway Unified School District and the Supreme Court:
- 4 Votes 4 Bong Hits 4 Jesus:
- "Hate Speech":
- Pro-Taliban Speech Constitutionally Protected, Criticisms of Homosexuality Unprotected:
- Sorry, Your Viewpoint Is Excluded from First Amendment Protection:
Then I noticed that two of the 3 original panel were hearing cases in Pasadena the week before my scheduled oral argument (before MY panel listing was made). The Pasadena setting made sense if those judges were in southern California.
Surprise, surprise, NONE of the original 3 judges were on the new panel. I had a whole new panel. So is there a rule applicable in this case not applicable in mine?
It is highly unwise to infer anything at all from Roberts Court procedural decisions. Case in point: The Colorado redistricting plantiffs won a per curiam last term, and just as summarily lost this term. (I would attribute this increase in resolving cases on procedural grounds to Roberts' attempts to create more consensus.)
How do the Ninth Circuit's procedures work? The courts of appeals with which I am more familiar do not do this, and if a case bounces back and forth several times between a trial court and the court of appeals, the appellate panel is usually different every time.
If the CA9 assigns its panels randomly (even in successive appeals in the same case), then the chances of the same panel getting the case are quite low given the number of judges on that court.
Also, if the reader is correct, then end of the story is that the Supreme Court does again what it did in the first round, and the precedent disappears again.
So every high school student in the great state of California must be subject to a policy that is incapable of review? I should hope that Robert's drive for consensus does not leave our procedural jurisprudence that rigid.
See 9th Cir. General Order 3.7:
3.7. Comeback Cases
When a new appeal is taken to this court from a district court or agency decision following a remand, the calendaring staff shall notify the panel that remanded the case that the new appeal is pending. The notification shall contain a brief description of the issues presented. If the issues predominantly involve the interpretation and application of the original panel decision, the panel in its discretion shall consider the time and manner of submission and notify the staff whether it will accept the appeal. If the new appeal presents no issues that would benefit from the earlier panel research, or if it is impossible to reconstitute the panel, then the panel has no obligation to accept jurisdiction of the appeal. If the appeal is one that would not ordinarily be submitted on the briefs by a randomly drawn panel without oral argument, and if oral argument cannot be timely and conveniently calendared, then, in its discretion, the panel may reject the appeal. In the exercise of its discretion to accept or reject a return appeal, the panel should balance its convenience with that of the other judges of the court, with due regard to the interests of the litigants in a timely and appropriate disposition.
Note: Capital cases are governed by Circuit Rule 22-2(c), which states, A that once a capital case is assigned to a panel it retains jurisdiction for all future appeals. @
The panel is only supposed to take it "[i]f the issues predominantly involve the interpretation and application of the original panel decision," which they clearly wouldn't. It happens a lot that "comeback cases" present questions regarding what has already been decided and what hasn't. Here, there's no such question, because the Supreme Court has explicitly "cleared the way for relitigation" (the exact words escape me).
On the other hand, the grounds for rejection don't necessarily apply either: "If the new appeal presents no issues that would benefit from the earlier panel research, or if it is impossible to reconstitute the panel, then the panel has no obligation to accept jurisdiction of the appeal." Assuming that the panel can be reconstituted, since the issues would likely be identical, they'd certainly "benefit from the earlier panel research."
I suppose the end result is that the panel can have the case if it wants, or decline if it doesn't want. Whether the panel will want the case again is anyone's guess.