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CA Appellate Law Podcast - Cory Webster

How Appellate Lawyers Debate Gun Control and Abortion

Tim Kowal     October 24, 2023

Ninth Circuit correspondent Cory Webster joins us to discuss the court’s unusually busy en banc docket and its own species of “shadow docket.” We discuss how parties and judges are moving a few hot-button cases into procedural positions that may suggest what the merits decision will be—but without really touching the merits.

We discuss:

  • Gun Rights: The 9th Circuit used a “comeback” procedure to send a case back to the same en banc panel that heard the case before the Supreme Court’s new Bruen test. The Procedural Trick: Judge Nelson says this “disenfranchises” other circuit judges who will be cut out of any say on how the old panel approaches the new Bruen test.
  • Abortion Rights: After a 3-judge panel granted a stay motion, thus staying a district court injunction of Idaho’s abortion ban, the 9th Circuit voted to rehear the matter en banc, and thus re-implemented the district court’s injunction (meaning abortions may go forward despite the law). The Procedural Trick: Now that the en banc has taken up the motion, it will likely hold on to the case on the merits, too. That means expedited briefing and decision, and no possibility of further en banc review.
  • En banc review granted where the 3-judge panel vacated a sentence because a prosecutor breached a plea a greement.
  • En banc review denied, despite 11 judges (very close to a majority) who would have granted.

Cory Webster’s biography and LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:


Announcer  0:03 
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis. Welcome, everyone.

Jeff Lewis  0:17 
I am Jeff Lewis.

Tim Kowal  0:19 
And I'm Tim Kowal. Both Jeff and I are certified appellate specialist and as uncertified podcast co hosts we try to bring our audience of trial and appellate attorneys some legal news, and perspectives they can use in their practice. As always, we appreciate your referrals of this podcast to a colleague if you find it useful.

Jeff Lewis  0:33  
Yeah. Before we jump into this week's discussion, we want to thank casetext for sponsoring our podcast Keefe, Texas is a legal technology company that has developed AI back tools to help lawyers practice more efficiently since 2013. Casetext relied upon by 10,000 firms nationwide from solo practitioners to amlaw 200 firms and in house legal departments. And in March 2023 keys Tex launched co counsel, the world's first AI legal assistant co counsel produces results lawyers can rely on for professional use, all while maintaining security and privacy and listeners of our podcast enjoy a special discount on casetext's basic research at casetext.com/calp that's casetext.com/calp.

Tim Kowal  1:14 
All right, and speaking of case text and and legal AI, Jeff, if we have time later in the episodes, we have an AI based story and other AI foibles that we can talk about but first, we got to cover our light docket talking about some an abortion case, a gun control case. What do we have? Do we have a death penalty case in there to help help us spice that snooze fest have a docket we have night circuit dispatch advocate here Corey Webster back to the to the podcast. Corey is an appellate attorney at Dykema where he works on appeals and also serves as embedded appellate counsel on trial teams. Corey, works on appeals and key trial motions in complex commercial litigation formerly served as a Ninth Circuit clerk for Judge Consuelo Callahan. And Jeff, it's always good to have to have someone on the podcast who can when we're talking about this inside baseball on the ninth circuit to have someone who has been a clerk on the Ninth Circuit. He was also a court he was also a clerk in the US District Court for the Central District of California. And, you know, Cory has been on the podcast a couple of times, we'd like to have him back for dispatches from the Ninth Circuit. Corey, welcome back. Thanks for joining us again,

Cory Webster  2:27 
Jeff. And Tim, it's great to be back. Thanks again for having me. And I think at this point, I can call myself a regular guest, right? You

Tim Kowal  2:35 
are a regular guest, we had some interesting news coming out of the Ninth Circuit, you report on it regularly on your LinkedIn page, anyone who is the listener of the podcast and not also following Corys, LinkedIn posts you are missing out, make sure to follow Cory on LinkedIn, we're going to be talking about some of the cases that he was mentioning coming out of the Ninth Circuit recently, the reason the cases are interesting, in addition to their subject matter which you know, as as good appellate attorneys, we always find the subject matter the very least interesting thing of what we talked about. Instead, we like to talk about the rules and the procedures of how we get there. So we can narrow the playing field or broaden the playing field on the merits as needs dictate for our clients. But here we're just kind of nerding out and talking about some of the talk that's been going on about the Ninth Circuit, some of the rules may be applied in ways that maybe are unexpected, or some of the rules are just not known to many attorneys when it comes to how the on bonk procedure works in the Ninth Circuit. We know that usually it's three judge panels who decide things but then there's sometimes fireworks when, when on when the on Bach or when the court boats to take things up on Bach. So let's get right into it. Cory, we're going to talk about I think the first case, we're going to talk about the Dunkin case first. That sounds good. Yeah, Duncan versus Bonta. That came out just earlier this month in October 2023. This is the this is the gun control case that came to it's a combat case. So you're gonna have to explain to our listeners what it means to be a combat case. But why don't you take us through this case? Alright.

Cory Webster  4:12 
Yeah. So this is, as you said, a combat case. And we kind of lay some groundwork here on helping us understand what a combat case is. Let me kind of start at the beginning here that back in 2019, a trial court judge granted an injunction against a California law that bans large capacity magazines. So the state appealed. And how that appeal went down was first you had a three judge panel that affirmed meaning upheld to this injunction against the law. And then the court voted to take it on bonk. It went on balk an 11 judge on board panel was drawn and that panel reversed. It was a seven four decision and in the majority upheld the law, and then the challengers, the plaintiffs. wanted to take that up to the Supreme Court they did. But while when they filed their petition for cert, de Bruin case was brewing in the Supreme Court. And if you don't remember that the Bruin case is the landmark Second Amendment case that came out last year, almost 18 months ago. And that case was pretty landmark in the way that it established pretty much a whole new test for Second Amendment cases than the one that had been employed before. So unsurprisingly, you get a new test, then, the outcome for this Duncan case was, it was GVR. Granted, cert was granted, the lower decision vacated and remanded to have a new decision in light of Ruin,

Tim Kowal  5:40 
refunded back to the ninth circuit, where it had been sent up where it was last before and on, bonk panel,

Cory Webster  5:47 
right. And so now you have the all bog panel who has to decide, okay, what are we gonna do? And the first thing they did is they asked for a briefing from the parties on whether the Ninth Circuit on bunk panel should decide the case, or whether it should go back to the district judge, given this new standard, this new test that needed to be used, and what the panel so the

Tim Kowal  6:06 
question was whether the on bunk panel was going to take it up after the GVR or whether it was going to go all the way back down to the District Court.

Cory Webster  6:14
Yeah. Right. And there's not as there's not a protocol that pre determines what that the answer to that question should be it. Was there

Tim Kowal  6:22 
any. Was there any question whether there was a third option being going back to the three judge panel

Cory Webster  6:26 
at that point? I mean, I think it would be really anomalous for it to go back to the three judge panel when a the aanbod court assumed jurisdiction, it's unusual. It's not like a again, like the rules allow for I mean, that the on bonk panel can take can decide to take control over even just part of the case. Just one issue. I don't remember the last time I I've seen that, but that's permitted by the rule. So they could send it back to three judge panel, but once it once the court granted, rehearing on bog, I just I don't think that it was ever going to send that back to the three judge panel in that first case. But you know, we're gonna get to another case. So what the panel end up doing on bulk panel says we're going to send it back to the district judge to now apply this new test and the test. The Bruin test is often called the text history to revision test, and they wanted the district judge to rule out there was the there were two dissenting votes, there was not a written statement or opinion, explaining the rationale of granting or sending it back to the district court or the two judges who dissented. But it's, it's worth noting, because of some other things that that are going to come up here in our timeline, who those dissenting judges were, it was Judge Van Dyck and judge humantay. They were in the dissent on the bunk decision that had come out before Bruin. But an interesting kind of tidbit here by dissenting from that order sending it back to the district judge. They didn't explain it, but I think they're pretty clearly stating their position, that is Judge Van Dyck and judge boobity that the bunk panel should have just applied the test. And one thing that's interesting, there is Judge bootay had written one of the dissents. There were several opinions on the 11 judge on bunk panel, pre Bruin, the total all the opinions together is something like over 350 pages. It was a lot of time, a lot of ink spilled over that first decision, but judge Buma taste decision. Interestingly, he says, Do you know what the test we should use? It's called Text history and tradition. Again, keep in mind this is before Bruin Yeah, but he said this is the test we should adopt here and here. And now as the on bonk core. And there were several concurrences in that original opinion, read a blog opinion that spent a lot of time and space addressing this text history and tradition test that they thought this is a really bad idea. We shouldn't do it. I gotta go back in that timeline, because when you fast forward and get to Bruin, that's the test the Supreme Court adopted and now here you are judge bootay, having beat just been handed this thing saying, Yeah, Judge Boomer taste tests that he had in his dissent. That's the one you should use. And so then you had the bog panel. Well, should we do it or should we send it to the district court, send it to the district court, the district judge pretty quickly in pretty short order only took a few months to reach another ruling there again and joined the law playing this existence.

Tim Kowal  9:22  
Now. Just to put us back, make sure I'm straight on the timeline. This was after Bruin now, it's gone back back to the Kanban. Panel, they decided to send it back down to the district court to apply the Bruin history, tax history and tradition analysis.

Cory Webster  9:37 
Exactly right. Yep. That's exactly what's happened. So it gets sent back all the way down to the district court district court again and joins the law and then it gets appealed again. And now here's where we get to the where the controversy kind of started that this the procedural controversy you you were foreshadowing earlier where this is now what's called a combat case. I want to start with the definition, there is a definition in the Ninth Circuit's general orders for what is a combat case. So a comeback means subsequent appeals or petitions from a district court case or agency proceeding involving substantially the same parties and issues from which there previously had been a calendar appeal or petition. Okay. A lot of lawyer the words to say, when a case comes back that that presents similar issues.

Tim Kowal  10:26 
Yeah. So in this case, the the Ninth Circuit had already decided the question, but then it had to go back to be redone under a different analysis as dictated by the Supreme Court. Right.

Jeff Lewis  10:37  
So of course, I have a question because this all new to me, if you have a case, it goes up on appeal, the Ninth Circuit and they decided, let's say, a slap issue, we all know, they love slabs, and then it goes back down. And then there's a jury trial, and there's some issue regarding the conduct of trial, and that goes up on appeal. That's not a comeback case, because it's different issues being addressed.

Cory Webster  10:56 
Well, it's potentially a comeback. So what happens is, if it's in the same proceeding at all, what happens is the clerk's office flags that and sends a message to the prior panel, saying there has been a subsequent appeal in the same district court proceeding or agency proceeding and has some sort of summary of like, what the issues are at least as reflected in the the decision that's being appealed. And does the panel want and then it has a question poses a question to the prior panel, does the panel want to take it as a comeback? So that happens very routinely. That's That's exactly how it happens in any subsequent appeal from the same case, but in this scenario, you just described, Jeff, I'm gonna go out on a limb and say, 10 times out of 10, that panel is going to say, no, he's going to decline to take it as a combat case. So then it will get assigned out like the, like the ordinary course, is, whatever

Jeff Lewis  11:49  
issue excited the envelope panel to take it up in the first place is probably not present. In the second case, you know, they're, they're excited about questions of law that might be presented on a slab, but maybe not so much a jury issue or a trial, an issue after trial, right? Is that generally, yeah,

Cory Webster  12:04 
yeah, that's, that's basically it. And it's kind of a core deficiency thing. So having dug in on the prior appeal, and we've already done a lot of legwork on this issue, it makes sense from just a time management standpoint, to have us pick up and look at the same issues, maybe in light of just a few new facts or whatever. But in your example, there's not going to be any real efficiency there, because you weren't looking at any of the same issues that will now be addressed. So that's why I say like, 10 out of 10, because they're looking at, like, given what we did. And there's a time element to if it was, if it's been a long time, and there might even if it looks like it might be the same issues, if the judges are like, I have no recollection of this case, I'm not seeing any benefit to you know, from a time management standpoint to like, have it come to us? I'm gonna say no, and it's too it's in the discretion of, of the panel that had it before. So just because a case meets this definition, I mean, it's a kind of a loose definition here, right. But it's kind of meant to be what the panel determines whether to take it as a combat case.

Tim Kowal  13:07 
So we have one example of a combat case, which is the one that we're talking about in the Duncan versus Bonta. case, where the were the district court and the Ninth Circuit decided this this high capacity magazine issue under under the Second Amendment analysis. And then the supreme court said no, no, use a different test, and then sends it back down. It makes its way all the way back down to the district court who applies the Supreme Court's Bruin test, it's a different analysis. So this is deemed to be a comeback. Even though the analysis is different. It's under a different test, but it's still deemed to be a saint, the same issue. Maybe we can leave that aside. My question was to you, Cory, what is another example of a comeback case other than one like this, where it's bounced all the way up to the Supreme Court and all the way back down to be applied under a different test?

Cory Webster  13:53  
Well, I don't know if that I can think of one particular example of where you have a different test scenario. But a comeback? I think a good example of when the court is in is usually gonna be inclined to take a case as a comeback as if you had a jury trial that presented a dispute over a particular issue, maybe it's a jury instruction, and the court reverses for some reason, on that jury instruction, and then in the trial, you have a new trial, and then it comes down on appeal. And then second appeal turns on like whether that same instruction was properly given, okay, they're going to take that as a comeback. But it's panels are presented with the potential for a comeback far more times than they accept it. Like it's a it's a small minority of times, that a case is potentially a comeback. That

Tim Kowal  14:46 
what is the upshot of it being a comeback? What is the what's the practical effect to the parties and to the attorneys to

Cory Webster  14:53 
the parties and the attorneys. There's really none other than knowing that the panel who had your case before has your Your case now is really as simple as that. Okay. And it usually doesn't present the kind of fireworks that were generated here. Because there's a there's in this case and Duncan, there's just some procedural sort of a unique procedural posture that creates it to where you have kind of a fight about, hey, should this have happened the way that it did? So let's, let's tell everyone what happened. So certainly consistent with that protocol. I just described, what happened when this appeal was filed. Is there was a message sent to the on bulk panel. Hey, that was the panel that had the case before saying, here's this new case. Do you want to accept this as a comeback? And then

Tim Kowal  15:44 
it sends that come back notice to the on bunk panel, not to the three judge panel?

Cory Webster  15:49 
Yeah, I think that's exactly what would have happened. Because the the case, yeah, they took control the case. And like I was mentioning before, there can be times I can't remember the last time I saw this, but there can be times that the Amang panel does whatever it intended to do, and then then sends it back to the three judge panel in case there's other issues that need to be dealt with. But nothing like that happened here. So you the prior panel had the case. So the issue here is do they take it as a comeback? And and we actually know that there was a divide on this issue, because the court the first action taken by the court was a kind of an administrative order where they granted what's called an administrative stay, which is just it's kind of like a TRL, the Appellate Court were to give us time to rule on your preliminary injunction. We're going to trial judge, I'm going to grant this tiara Oh, it's kind of like that, but even less into the merits than a tiara does where the court is just administer it strangely saying from just a what's at stake perspective, we're going to stay the lower court decision pending our ability to review a motion to stay pending appeal. So the court the court issues this an order that's just an administrative stay. And that order by doing so it's the unbound court, it's publicly making known that that they on bunk panel has accepted it as a comeback. And in that initial order. You had a dissent that will get two dissents actually, from that decision to take it as a comeback. They also descended from granted the administrative stay, but judge boomin Tay and judge Van Dyck issued a dissents from the decision to take it as a comeback.

Tim Kowal  17:31 
There are two decisions here now at this at this stage, there's a decision to take it as a comeback. And there's two dissents to that. And then once it's taken as a comeback. Nonetheless, there is the the order granting the guest affirming the district courts stay. I know the stayed. Yeah. It's not state, the the the large capacity law, large capacity ban is if is in effect is the upshot of That's

Cory Webster  17:59  
right. We did to get connect some dots to get there. But that's exactly where we are currently, as we sit today is that the the law is not enjoined, currently. Right. But to get there. So we've I just mentioned the order disputing or dissenting from the dissent from bootay and VanDyke, dissenting from the decision to take into the comeback. So after that happens, the court then has this temporary administrative stay in place for them to decide the motion for a stay pending the appeal. And now that stay means it's a state of the injunction issued by the District Court. So what the onboard panel does after deciding to take this as a comeback, they then grant this motion for a stay pending appeal. Judge Nelson dissents from that and judge bootay dissents from that the right to sense what's what's clear here is you have four, four dissenters, in addition to Bluetooth and Dyck, Nelson, you also have a judge of CUDA. So now that second order, I think that's the one that that really kind of got a little bit more attention, because it's not just an administrative kind of an order. This is granting a stay pending the entire duration of the appeal.

Tim Kowal  19:11 

Right. And there's a discussion of the likely merits of the appeal itself. Yeah. And

Cory Webster  19:15  
it's not surprising to me that Judge bootay is the one writing that dissent and and that his dissent there, gets into the merits. You can't help but touch on the merits because this standard for a stay it's like an injunction standard where you have the likelihood of success. So he he really, he couldn't wait to get to, I think writing a decision here when he was the one that wrote text history and tradition before Berlin. And now the Court has said hey, Bruin, but the one from the procedural standpoint, it's the judge Nelson dissent. That raises something to me that's really fascinating here, where he challenges this, this whole process by which this case came to this on bunk panel, and

Tim Kowal  19:55 

what have you read this? If you read that opinion, the judge boom it A dissent is very long, very thorough, because it gets into the merits of the Texas history tradition argument. But yeah, Judge Nelson joins judgment with his dissent, but then also writes this short kind of appellate nerd opinion dissenting, and yeah, tell us about that he raises this issue about federal rule of procedure 46 C, which has to do with the the kind of ties in the comeback issue and the aanbod procedures into this novel issue that has now come to a head in the Ninth Circuit.

Cory Webster  20:30  
Yeah, so it's actually it's not in a frappe. It's in the it's in the US Code. It's 28 USC 46. C, which when you're dealing with pellet procedural rules, you are almost never in the US Code. But there are enactments of Congress that deal with the power of courts and procedure of courts. And this is one that I feel like, I don't know if I've ever looked at before, I'm sure that I have, but I can't remember the last time, you usually have a frappe, or a local circuit rule that covers a situation and we need, when neither of those to do you've got the general orders from the court, which spell out a lot of details, too. But this was really interesting, right, Judge Nelson focuses on this section 46. C, and which covers like, who, what is the makeup of a panel that decides cases and controversies in the courts of appeals. And it basically sets out that it's a three judge panel, unless a majority of the active service judges vote to take it on board. And then there's a discussion in 4060, about who can sit on that on block panel. And this is where you get into senior judges. So a senior status judge can sit on an oblong panel, but only in certain circumstances. And that is if that judge was sitting on a three judge panel and elects to be among the pool to be picked from for the the among panels, some circuit some senior judges have no interest in doing that. So they don't put themselves into that pool. But if you see pick up any random on bunk decision from the Ninth Circuit, and you notice, hey, that's a senior judge, do you know what else you'll see is if you go back and look at the three judges opinion, that judge was on that case, that's the only time that that can happen. But because of this, go all the way up to the Supreme Court back down all that you have an interesting posture here. There are of the current enfant panel they are there are five judges that are senior status judges. Now there weren't three, if there weren't five judges, senior judges on the three judge panel, it's just with the passage of time you just now have from the original on bog panel, you got five senior service judges. And one of the points that I think Judge Nelson is getting at is that that arguing that that doesn't mesh with what 46 C says? No, I think it raises an interesting question. The majority seem to acknowledge the sort of novelty of the situation here. And in fact, so much so that the order granting after the order granting this day, the Court issued an order directing the parties in their briefing on the merits to actually brief this issue under 46. Eight. And the questions that they asked the party to address I think are kind of illuminating, like what what they're looking at here. So they say there's two questions under 4060 that we want your you the parties to address. Number one is when a case or controversy in the court of appeals may be heard and determined or rehearsed and determined by the onboard court rather than by a three judge panel. So this is that issue of why are they taking it as a comeback rather than having it go to the on bonk handle from before? If it's if it's to go on board. And I think that Judge bootay suggested this in his initial dissent. There should be a vote of all the majority of the judges now I think it's anyone can call for that initially to be heard this this case to be heard on bunk but it should go to a vote of the majority of all the judges not just the prior panel.

Tim Kowal  23:53 

Yeah. So now now it's starting to become clear that this the reason that the comeback is important here is because it allows the case to be fast tracked back to the onboard panel, but not to a full on bonk vote of the current court, as Judge Nelson says the what's happened here is there's been a disenfranchising and effect of seven new active judges. Because if it would, if it had gone to a three judge panel, and then that panel rules However rules, then there will be the full opportunity for normal aanbod vote to take it all up. But this new or the by by taking it as a come back to the old aanbod panel, whatever that panel says goes and the rest of the act of judges will not have an opportunity to take this up to an on a new on bonk vote.

Cory Webster  24:38 
I think that's exactly what Judge Nelson is referring to when you when you use it, that word disenfranchised, that's exactly what he's talking about. And it wouldn't necessarily even need to go to a three judge panel. It can have a there can be initial hearing on Bach. It's very rare that that happens, but it can happen but that would itself would involve a vote of a majority. You know, if all the judges act as a service jet So either way, whether you under judge Nelson's argument, what what should have happened is go to a three judge panel or call for a vote. But that vote would be done by the full court, not just the prior panel. So that's his beef. And and if you read, there's a counter to that in the majority's decision granting this day, you know, they focus on the state issue, but then at the end of their the majority's decision there, they address judge Nelson's points. And they present, I think, a very defensible position on why the procedure that happened here is proper. I think under the basic framework I kind of gave at the outset here, I think that they are probably on solid ground. I think the rub here is that, and I think what what gets judge Nelson kind of worked up here is I just don't think that the statute and the rules as they exist, perfect are like perfectly account for this kind of unusual situation. And when that's the case, people who care about process and care about procedure get worked up about something being bent to fit one way or another. And, you know, I think that part of the thing that makes us procedure nerds so fascinated with procedure is when you have procedure in place, it takes the decision out of someone who could do it for reasons that are good, or reasons that are bad to go one way or the other. And I think that's kind of what's really going on.

Jeff Lewis  26:25 
You know, we had the author of the shadow docket on. And you know, prior to having him on prior to reading that book, I always thought the Supreme Court just calls balls and strikes when cases come before Him and what people are asking for administrative stays. And you know, that kind of thing. And after, you know, hearing from him and reading the book, I realized there is gamesmanship going on there. And this, this type of grabbing the case backs is similar. It's not just calling balls and strikes. It's trying to tweak the results. That's interesting issue. Yeah,

Cory Webster  26:53  
it's a very interesting issue. And I think that again, I think if if the rules had like, specifically, like, expressly contemplated this type of scenario and said, Here's what should happen in that scenario, I think we wouldn't be where we are. But I think it's just it's kind of a gray area where it allows for an opportunity to kind of believe, rightly or wrongly, whatever side you're on that, like the decision is being made based on somebody like the with the end in mind, or whatever. And I think that's what really gets judge Nelson worked up here. Yeah.

Jeff Lewis  27:24 

And, you know, the court acknowledges its novel issue. And if they had flipped it, if they had said, you know, we're thinking about grabbing it back, but we're not sure we're gonna request special briefing on this issue. And then after that, we'll decide whether really grab it back or not, probably be a lot less nerd outrage out there. But because they made a move on this novel question, and they're gonna get briefing later, probably causing a lot of nerd uproar. Yeah, I

Cory Webster  27:47 
think that's right. I do think it would probably have played it differently. If it had gone that route. You just said there, Jeff. Because right now, I can't help but think in my mind, if I'm the one writing that brief, to respond, I'm addressing the merits of the case, and then have a separate section saying, here's why it's okay that you have the case, more, here's why you shouldn't have the case. And then you go to oral argument, and you have the panel asking questions about what should our disposition be? And then questions about should should it even be us deciding it is, it's very sort of odd, like, I just have a hard time seeing the majority of walk back, having taken it at that point. Whereas if gone the other way that you did, you'd said there's plenty of room to sort of contemplate, really consider the decision, should we take it as a comeback? So I thought was really interesting that they asked for a briefing on that, because I'm just not sure what that's kind of how that's playing out. Yeah,

Jeff Lewis  28:42 
yeah. could cause a lot of schizophrenia in terms of Yes, I should win win win, but court you have no business hearing this.

Tim Kowal  28:48 
Court. Let me ask you this, because I admittedly skipped to the dissent, and didn't read the majorities discussion on 28 USC Section 46, the Socrata statute about about when the case goes to the on bunk panel in this situation. So it says the cases or controversies shall be heard by by the three judge panel, etc, etc, unless a hearing or rehearing before the court on bonk is ordered by a majority of the circuit judges of the circuit who are in regular active service that would tell me that this, you know, I guess the question is if as a comeback, is there an exception it doesn't provide for the comeback exception in this statute. It goes on to say that defines what on Bach mean. So in case there was a difference of definition about well, on voc, and this situation means the original Umbach panel that last had control of the case, but the statute actually defines a court on bonk shall consist of all circuit judges in regular active service. And then or I think it talks about the provision, the exception you mentioned about if there was a senior judge on the original three judge panel, who then elects to be part of the on bond pot panel, but I don't see in this statute where it contemplates an exception based on the comeback scenario. That's here. Am I misunderstood? Understanding that? Do you know if the majority has a response to that?

Cory Webster  30:03 
Yeah, I think what the majority would say is, is the the answer can't be addressed from 4060. Alone, the 4060 doesn't even contemplate a comeback scenario. Without an Akbar come, it's just not addressing that. So, the night the the majority requires looking at other rules that the the Ninth Circuit already has in place, including the, quote, general order 3.6 B, which says, matters arising after remand are directed to to the panel, whether three judge panel or on bonk core, which will decide whether to keep the case or refer it to the three judge panel when it's an on bunk. So they're, they're building into the scenario that like we have separate rules for how the comeback situation is dealt with. And then you get into this sort of gnarly, hairy situation where you're like, it's the enfant court deciding a new appeal. And if you ignore the comeback thing, then you have run into that problem of 46. C like, well, you don't have a majority vote here.

Tim Kowal  31:00 
Yeah. But aren't they aren't the comeback rules promulgated by general orders and circuit rules, when the United States Code supersede the comeback rules?

Cory Webster  31:10 

It absolutely would if they were in conflict, but I don't know that they necessarily are I think, if they're, I think Judge Nelson would say they're in conflict. I think it's not a it's not a clear conflict to me. I recognize the tension. And I think he has definitely pinpointed a valid thing that I think the rules will be would do well to account for because it is it's unusual, but I think there's a way to reconcile it. There's a way to read it as in conflict. There's a way to reconcile it. I just think it doesn't directly answer it. Yeah.

Tim Kowal  31:41  
So it's no surprise then that the court invited briefing on this question. And this and this was a question that's still in play. Yeah.

Cory Webster  31:48  
Whether it's it's in play, technically. But I just feel like when you're asking for that to be dealt with in the merits brief, it's like, well, that ship has sailed. I just have a hard time believing that ship at what will not have sailed by the time. Yeah, that's

Tim Kowal  32:00  
Well, that's the other question, then if let's, let's say in the abstract that I mean, let's say that it goes up to the Supreme Court again, and the Supreme Court takes the side of Judge Nelson that yeah, this judge Nelson has has the right side on section 46. Then what does that mean that the unbond panel never had jurisdiction over the case and its opinion is void. Yeah,

Cory Webster  32:21  
that's interesting. I, let's play that out. I think if you have a merits decision from this on both panel, you know, just rules on the merits, say they uphold the law. They've reversed the injunction. And then you have the plaintiffs file a cert petition. Now they I feel like your first argument is the first angle with the Supreme Court would be, hey, this misapplied bro and here are likely that would be the first point to make there. But this is an interesting kind of thought experiment here. What might they also say? And the court that ruled on it, that panel was not a proper panel under Section 46. C. And so as a separate basis, you should just vacate it, and tell them to convene a proper panel. Technically, if Judge Nelson is right. I think that that's what that mean.

Tim Kowal  33:14 

Well, that would be interesting. That would be the triumph of the appellate nerds in that scenario. Yeah. I wanted to ask you another question. Cory, about just just about dissents. Generally, it was it was sometime last year that the MacDougal versus county of Ventura case came out. Jeff and I discussed that one that was that's the one that involved. Judge Van Dyck wrote the majority in that in that gun control case. And he also wrote his own concurrence, which included a draft that the anticipated on bonk, pinion reversing his own majority opinion.

Cory Webster  33:50 
So it was a recall. I recall that one very well. Yeah.

Tim Kowal  33:53 
So it was a it was a cheeky approach for Judge Bandag. To take. But both Jeff and I kind of agreed that look, if there is, if there's an important issue to be discussed here. You can't there is a value in dissents in offering clarity in where the fault lines are among the points of view and among appellate judges. And for the for the hygiene of developing that difference of opinion. You can't you know, you can't just beat around the bush with it with with padded language, you have to just go right for the jugular and say, here's what I say, here's what they say, you know, make it as black and white as possible. And I was reminded of this because judge Newman, the embattled judge Newman in the in the is it the district, the Federal Circuit Court of Appeal, I believe, who is, you know, been in battle because she's, you know, accused of not not processing her cases quickly enough. And she didn't subject a medical examination, anyway, but she not apropos of that, but she said he's a notorious dissenter, prolific, prolific dissenter and, and her her recent comment was a comment recently reported of her as, quote, the dissent helps the student to understand the balance that the court decided to reach what philosophy what logic, what evidence they rejected as being not probative for whatever reason, and what was accepted without the dissent. You don't have that information because it's not presented in a majority opinion. I wonder if if you comment on the importance of the dissents, in this case, and in otherwise, generally, in the Ninth Circuit, are they a little bit more abrupt or confrontational than they have been in the past? Does that token any, anything anything else about the collegiality on the court? Or is it just is it just a development of the practice of law that we're a little bit punchier in how we present opinions and points of view?

Cory Webster  35:43 

I'm going to take it, I'm gonna divide what you just asked into two questions first, being just sort of the value, what's the role of dissent? And I wanted to mention that the Orange County Bar Association, we recently had an event where we, Judge boobity, came and spoke on the topic of the value, the role of dissenting opinions, but I thought he made a very compelling case for just a very important role that dissenting opinions have, and I think you were mentioning judge Newman, I think she's she's written so many dissenting opinions, style of them, temperature of them aside. We didn't You didn't comment on that, on that. Just the fact of her writing so many dissents? I do think it's worth just sort of pausing it. And making clear. I think that dissents have extraordinary value. And I think that it's interesting that there's a kind of a it's a difference that the three of us certainly recognize in the California state court system versus the federal system. dissents are so much more common in the Ninth Circuit than they are in a state court of appeal. interesting phenomenon. I think it would be an interesting side road for another discussion to sort of speculate as to reasons and such. But But what I see dissents from the Ninth Circuit, I think, first and foremost, I think they're extraordinarily valuable. The second part is more likely to tone the temperature, are we punching harder now? That sort of thing? I don't know that, I'd say just collectively across the country, and maybe more broadly, just like in the Ninth Circuit, not any particular judges, but just maybe a little bit, but I think probably not a ton more, I think the ones that are extra spicy, tend to get extra attention. And you know, and I think we where we are as a society now versus even 20 years ago, it there's just such a broader dissemination of things that are attention grabbing. So I don't know that it's as much as it seems, in terms of like the rising temperature in the dissents that we see in the appellate courts. But but there's certainly examples. And I think that the the McDougal case is a great one where you know, that that was pretty hard hitting in terms of style, in a way that you won't see from from many judges who would think that that's not proper. You know, I think there's a wide range of views from judges on what makes a good dissent. What are the bounds of a good dissent, but the spicy ones are definitely there. Yeah.

Tim Kowal  38:19 
All right. Well, let's, let's leave behind the gun control issue and move to another sleepy topic, abortion rights in the ninth circuit. This is there's an Idaho what's called a trigger law. Idaho, had passed a statute some some years ago, I guess it was in 2020, passed a trigger law that said if Roe v Wade has ever overturned, then we enact this, this abortion ban and I think it was effectively at all stages of pregnancy. And the in a district court enjoined that law. But then what happened in the Ninth Circuit recently that was appealed to tell us what happened in the Ninth Circuit quarry.

Cory Webster  38:58 
Yeah. So first of all, why is the why is the court and joining the law? I think it's helpful to note who are the players here? So is actually the United States is the federal government that sued the state of Idaho, saying, hey, that law is preempted by a federal statute. So you have a US versus Idaho? Is there a case named here because he got the federal government suing the state government, and it's a preemption issue. So when the the appeal comes up, it's the state of Idaho is appealing also, as a separate party, you have the legislature of Idaho, that is a party that intervened below and appealed. So both the state of Idaho and the legislature appeal, the legislature immediately filed a motion for a stay pending appeal. Not surprising in a case like this, that's going to strike down a law that says as hot button is this, the losing side is going to say hey, stay stay that decision one way or the other. So they bring that motion and you have a three judge panel. Know Who grants this day. So it gets assigned to a three judge panel, likely a motions panel. I don't know that for certain. The reason I don't know that for certain is that the preliminary injunction appeals are expedited. So the briefing happens pretty quick. So in fact, the state motion was not not filed. They're often found the same day as the notice of appeal. But it wasn't filed so quickly here, that you ended up having the state motion filed by the state legislature being briefed, basically, simultaneous with the merits brief. So

Tim Kowal  40:31 
this was a this was a motions panel as as distinct from the merits panel.

Cory Webster  40:37 
That's my guess. But because it's a expedited appeal like that, and the state motion didn't come right away, it could have been assigned to us a merits panel, and then the merits panel, you know, I just don't know whether that three judge panel was a merits or emotions panel, my guess is probably emotions panel. But you know, who

Tim Kowal  40:55 
decides whether the Motion Panel remains as the merits panel? And when is that decision made? Now, none of the matter. The motions panel has made this decision, the

Cory Webster  41:04 
assignment of a merits panel is independent of emotions panels there to resolve that motion, and that's what happens. Okay. So what happened here is we

Tim Kowal  41:13 
just don't know if it's it's a motions panel, and then we don't know if it's a motions panel or merits panel. But if the court had designated as emotions panel, then there will be a new merits panel.

Cory Webster  41:25
Well, there won't now because it would happen next. So that's what would ordinarily happened. But what happened here is the panel grants this day, meaning the law is in effect, and immediately, the federal government brings a request for reconsideration on bonk, you'll note the wording difference, there was not a petition for rehearing on bonk, because that comes after the merits. So when the motion is decided, and someone thinks that that the ruling on that motion is so important that I want the on ballcourt an example when not to do that you brought a motion for an extension of time that was denied. There's no reason to ask the full court for something like that. Okay. But when you have an abortion case, and you have a state issued saying, yeah, the state of Idaho can ban abortions. That's one that might be of interest to off panel judges. So and in a situation like this, the court often acts very quickly, and they did here. The state request came in, I think the the order was September 28, or something like that. And then the motion for reconsideration on bonk came in right after that you immediately had requests an order requesting opposition, a response to that motion, then recently last week is when the court voted to take the case on bonk. So again, what's what's I think worth pointing out to a procedural narrative here is what's being taken on bonk is the state motion. It's it's the read they're reconsidering just that preliminary motion of whether there should be a stay pending appeal. Wow. Okay.

Tim Kowal  43:08
So after the the the entire court on bog decides the state motion, or or redesigns reconsiders the state motion, then what happens then does it go to a three judge merits panel?

Cory Webster  43:20 

In theory it could. But I think it's very unlikely because what will happen is the on bunk panel will then decide whether to keep the case essentially, to like, because because really, the court votes to take a case on bunk for any number of reasons. But once the on bunk panel has it, the case is theirs. And they can carve out and keep you know address only what they care to address. But if what they care to address as the whole case, the whole case is there. I suspect that this is a case where the unbound panel will just keep it because in a state motion, it's going to be tied up with the with the merits, because it's going to come down to likelihood of success, I think. And so I think they're going to look at that and say we just analyzed the likelihood of success. That is the merits. So I think I think that's what we'll see. And it's

Tim Kowal  44:08 
interesting. That's another potential conflict with the 28 USC 46, isn't it? Like we were talking about the case, a case or controversy is to be decided by a three judge panel unless a hearing a rehearing on bonk is ordered by a majority of the so I guess maybe that comes in addition of what's a hearing or rehearing? And like you said, Well, it's yeah, it's just on a on a state motion, but it bleeds into the merits. But are they really distinct? Or are they is the state motion really the merits?

Cory Webster  44:39 

Is it really I think there's not. I think there's not a conflict and I think it's because that statute is about cases or controversies. A motion within an appeal is not a case or controversy. It's a matter to be ruled on. Well, I think,

Tim Kowal  44:51 
but isn't that the isn't that an argument in my favor the decision to take up the motion which is not a case or controversy on bonk. means that the ambiance pent up on panels control is limited to deciding the motion. And then the rest of the case the case or controversy has to be decided by the three judge panel. An

Cory Webster  45:10 
interesting argument I think when a vote passes to take to decide something on bonk, whether initially or rehearing, it's the case going to the to the panel, I don't see that as a conflict with 4060. But the other interesting tidbit here is because it's a permanent preliminary injunction appeal that's kind of going to be put on would have typically a short clock anyway, this is I don't know that the the panel is gonna be on bonk court, they're going to rush to decide the state motion any quicker than the appeal would be decided which also that's another reason why I'm just thinking there's not there's probably won't be much daylight from a timing perspective or from a decision perspective on ruling on the state requests. But But I think one thing that I I suspect the Idaho folks are going to be probably not too tickled about is the order that took the case on bonk. It gets rid of this day or issue by the three judge panel, which means the injunction by the by the district court is still in effect. And so if the if the court doesn't act as swiftly on the state requests, as they did on the, you know, to decide whether to take it or hearing about it just could it, in effect be the same as having denied it. This

Tim Kowal  46:27 
this is how appellate lawyers decide gun control and abortion issues is by never talking about the merits only talking about procedure. Well, you

Cory Webster  46:35 

know me, when you when you ask me on a podcast, I assume it's because you want me to just go full procedural nerd on.

Tim Kowal  46:43 

Absolutely. Well, yeah, that's that's what's so interesting about this is it's in a way it's if look, if a non lawyer is listening to this, and God helped them if they are, I could see them being upset if they could follow what's happened so far is that well, we never even talked about the actual merits of the issues, but they're effectively being decided and jockeyed into a position that the deciders may want them to be in before they've even whispered, you know, hummed a few bars on the merits.

Cory Webster  47:11 

Yeah, and I gotta believe that the everyone internally at the core is going to be paying very close attention to the draw. That happens on this one, because, but as is often the case, with the very ideologically driven issues, who gets drawn matters in a court where you have so many judges to draw from, and you only have less than half of the judges will participate on the panel, it could go any number of ways. Here's

Tim Kowal  47:35 

here's one other potential objection, when you were talking about how this this might, this might go, or just procedurally in the US versus Idaho case. So now the aanbod panel has taken it up, the stay imposed by the three judge panel motions panel is vacated. And so the the original stay of the Idaho abortion ban is in effect, and you mentioned that the unbond panel, because you know, because it has to decide to stay Am I do it quickly. And because the stay is so closely related to the merits, I might just decide it all very quickly. Does that suggest that suggests to me that two ways that this that the whole consideration may be truncated, and maybe there may not be an opportunity for full full consideration that you normally get on the appeal usually get a long briefing process, long decision or oral argument decision process? Now, that's all going to be kind of cut short because of the the exigency of the whole thing. And then you might say, Oh, well, at least I can petition for for rehearing on BOC No, sorry, it's already been decided by the Ombak. So it's all done. The whole process has been quite a bit truncated on a very important substantive issue is that would see that as a valid potential objection.

Cory Webster  48:45 
I would say no, and I doubt that Idaho would either because I think on a case like this, the one thing the parties does probably disagree about a lot. The one thing they probably agree on is that like, this is not a case that should linger in the court. And you know, it even I think there could be legitimate frustration over if they're say it didn't go on balk and was just a three judge panel enters an order that flips what the district court did say. And then there's a petition for here on bonk that is being considered internally. And because of that, there's there's some more time that that that takes for the internal decisional process to play out, deciding whether to take it on board, and could have just so much time pass, and then they flipped. And you could have just had various things happen along the way that were all very preliminary. And I think someone could legitimately say, Hey, man, why does this take so long? I think that the speed at which cases like this, and this one will likely move at is probably something that's Welcome to both sides, I would think but you're totally right that there is a very much a shortening here because number one preliminary injunction appeals, like I said, they're expedited, but here you jumped To bonk to so you're cutting out that process that could come later to So conceivably, if the the panel could have a hearing in a month, the case is fully briefed the merits fully briefed. I don't think they will. But it can happen in a month have a decision within a few weeks after that. And it's done here.

Tim Kowal  50:17 
You have you have a nerd question or a regular question.

Jeff Lewis  50:19 
I have a completely diverting the the train of thought here question, because I'm all about anti slaps when the ninth circuit takes up an anti slap appeal. And we know they're hostile many of the judges on the ninth circuit are hostile to them. Are they heard by the Fast Track motions panel or by a merits panel?

Cory Webster  50:38 

an anti slap appeal would not be heard by emotions panel, even though

Jeff Lewis  50:43 

the anti slap is supposed to? The reason I asked is, you know, you want a ruling quickly on on appeal of an injunction. Right? You want to get that her right away?

Cory Webster  50:52 
Yeah. But there's a there's a difference between a case being decided by motions panel and being expedited. So like, like in a preliminary injunction case that I was talking about, that's expedited, but it goes to a merits panel in a similar way that other cases do it. Just shorten the time. Got

Jeff Lewis  51:08 

it. Okay. Interesting. All right. Back to you, Tim. Sorry.

Tim Kowal  51:11 

All right, Cory, I think we have just a couple other cases that we're going to briefly mentioned by way of kind of footnote and wrapping up this discussion about recent on bonk. news out of the Ninth Circuit, you want to cover those for us?

Cory Webster  51:24 

Yeah, there's just a couple other recent ones by recent like, last week, I mean, last week was a really hot hop and we're in the on the on bulk docket and ninth circuit. There was one case in which the Court granted rehearing on bonk in a criminal case. The panel, the three judge panel on that case, vacated a sentence and remanded for resentencing before a different judge. And they held that the government had implicitly breached a plea agreement, by the way, the prosecutor advocated at the sentencing hearing, it was really sort of an interesting one where this government's position on paper was what was required by the plea agreement, they agreed to recommend a certain sentence, but because there were some kind of some knocks on the character, and there were facts pointed to that might say, hey, this, this person deserves a high sentence, the court found that to be an implied breach of the plea agreement. Well, that case is now going to be reheard on bonk. And it will be argued in January a second case last week, the court didn't take on bonk. But it was one of those ones where a bunch of judges voiced their views that it should have taken it on board. This is in a an immigration case will an immigration detention case where you have someone who was served a sentence and when they finish their sentence for a crime, along came a federal government saying, now we're going to detain you because we have reason to send you out of the country because of your crime. So we're going to detain you in the meantime. And the issue is whether in a prolonged detention like that, do you get should you get a second bond hearing? And the court the three judge panel, a divided panel said, No, you don't get a second bond hearing and senior judge pious wrote a statement respecting the denial of rehearing on Bach, sometimes we think, Oh, the dissent decentral. But technically, because he's a senior judge, he has no vote. So his is labeled a statement respecting the denial of rehearing on Bach and which he said, which looks identical to a central otherwise, where he says we shouldn't have taken on bulk that was joined by 10. Judges, not a, that's not a small minority, you know, that's getting close, pretty close to the number you need to get a vote. Yeah, 11. And that was, you know, one of those ones, that's just a notable non rehearing granted, but then it also highlights that the Ombak docket in the ninth circuit is fascinating, especially from like a law clerks perspective, because even cases that don't go on Fox, but where a vote is called for, there's a lot of activity going on internally. And it's very interesting stuff. And one thing that just tells me it's a, it's been a hot season for aanbod gotten an unprecedented kind of way. But there's some ebbs and flows in terms of how hot or cold the ondoc docket is. And it's pretty hot right now. And as a law clerk, and as a former law clerk, I put my mind by myself in the shoes of current law clerks think they're not missing out. Is that an

Tim Kowal  54:12 

added burden added workload to have all this activity on the on Vonk brought? Well,

Cory Webster  54:17 
yeah, it is. It's more work. Absolutely. But I think that it's the excitement of the work kind of makes that go down a little easier. Yeah.

Tim Kowal  54:26 

Well, yeah, they're they're important momentous issues. All right, Cory, any other big picture, comments, takeaways from these discussions about all the recent on bonk activity?

Cory Webster  54:36 
No, just that. I think the Ninth Circuit when you see on block stuff going on, it reflects that the judges care about what the law is in the courts. And a common thing that I get back to a lot is the law, the rules, judicial precedent, and you know, what's binding, what's not binding, what every three judge panel opinion is binding law. And I think that and now active on bunk docket is one that reflects judges who care what the law is. And to want to get it right. And I think that that's a good I think, active on bunk docket. There's it can make for lots of interesting things to talk about. But I also think it's a good thing.

Tim Kowal  55:16  
Well, Cory, thanks for joining us for this conversation. I'm just looking at the at the clock now and Time flies when you're when you're talking good appellate nerdery. So, this has been a fun conversation for for Jeff and me. And I hope it's I hope I can say the same for our listeners. And we will, we will be checking back in with you before too long for more dispatches from the Ninth Circuit from our ninth circuit circuit correspondent Corey Webster. Yeah,

Cory Webster  55:42 

but in the meantime, you can bet that if you follow me on LinkedIn, you'll see more updates on at least a weekly basis on things going on in the night, sir. Yeah,

Tim Kowal  55:51  
yeah. Again, to to our listeners, make sure you are following Corey Webster on LinkedIn. So that's gonna wrap up this episode. We want to thank casetext once again for sponsoring the podcast each week when we include links to the cases we discussed, we will use casetext's daily update database of case law statutes, regulations, codes, and more listeners of the podcast will receive a special discount on casetext basic research when they go to casetext.com/calp. Yeah,

Jeff Lewis  56:18 

and if you have suggestions for future episodes, or you have suggestions on how the Ninth Circuit should rule rule, it's on bog procedures, please email us at info at Cal podcast.com. And in our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial.

Tim Kowal  56:32 
All right, see you next time.

Announcer  56:33 

You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases a news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at Cal podcast.com. That's c a l podcast.com. Thanks to Jonathan Cara for our intro music. Thank you for listening and please join us again

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.
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