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Saturday, September 20, 2003



More than you probably want to know about Southwest Voter Registration Education Project v. Shelley That's the California recall case that is being reconsidered by an en banc panel of the Ninth Circuit. How Appealing explains why the panel is pretty conservative and likely to overrule the three judge panel's decision here, here and here.

I don't normally quote the New York Times favorably, but Adam Liptak wrote a pretty good article about the en banc panel rehearing. I particularly liked this quote from Vikram Amar, of UC Hastings Law School:

But there is more to this case than politics and judicial philosophies, Professor Amar said.

"A lot of this case turns not only on intellectual and ideological leanings but also on personal moderation," he said. "You have to be a certain kind of person to try to stop an election."


Well put.

And, of course, it wouldn't be California if people weren't saying and doing ridiculous things. This is actually from one of the Ninth Circuit judges who was on the three-judge panel that issued the opinion that is now being reconsidered by the en banc panel. Once again, How Appealing points to an article in the L.A. Times in which Judge Harry Pregerson (no relation) speaks out about the case.

The makeup of the new panel caused one of the original three judges to predict their decision would be overturned.

"You know who's on the panel, right? Do you think it's going to have much of a chance of surviving? I wouldn't bet on it," Judge Harry Pregerson said in an interview.


Then later in the same article:

"Judge Paez, Judge Thomas and I — we did the right thing," Pregerson said. "We're there to protect people's rights under the equal protection clause of the Constitution, no matter who's involved, and a lot of people don't like it. That's their problem, not mine."

Attorney William J. Dyer of Texas reviews the relevant ethical codes for judges in California and federal Court of Appeals judges and comes to this conclusion:

In short, this is a clear ethical violation — a stunning and simply indefensible one. It is not a close call. It would not be excused even if Judge Pregerson thought he was speaking anonymously or off the record.

It is just very badly wrong.

No matter how much I personally agree or disagree with the panel opinion in the Shelley case (and I do strongly disagree with both its merits and the style in which it was written), my respect for the office Judge Pregerson holds and the bench upon which he sits simply makes me heartsick to read this.

I write and publish this conclusion with keen awareness of, but notwithstanding, my own general ethical obligation as a lawyer (albeit neither a member of the California bar nor that of the Ninth Circuit) to avoid bringing the judiciary into disrepute. Judge Pregerson's performing (and I use that word advisedly, in two different senses) in an extra-judicial capacity. Nothing I or any other lawyer could say on the subject would be more than a gnat on a whale's back given what Judge Pregerson has just done.


Finally, if you are total appellate litigation nerd like I am, you might be interested to hear that the Ninth Circuit en banc panel is allowing C-SPAN to televise and broadcast the oral arguments live. How Appealing reports that the oral arguments will take place on Monday at 1:00 pm Pacific, which would be 3:00 pm Central.

UPDATE: Regarding Judge Pregerson's comments, Eugene Volokh concurs with Dyer that the comments are clearly in violation of the applicable ethical codes. Volokh writes:

Pregerson's particular statement does not seem to be particularly harmful on its own: It doesn't tell the public anything about Pregerson's likely future decisions about the case beyond what the original opinion itself said, and while it suggests that the makeup of the en banc court may affect the outcome of the case, that's hardly a secret. In fact, the statement's assertion of judicial independence might actually be helpful to the public discussion.

But whatever I think, and whatever Judge Pregerson thinks, about whether the statement is harmful, it is pretty clearly prohibited. Judges should follow the rules, and the rule here seems pretty dispositive.


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