Analysis of Prop 8 En Banc Filing: Proponents Looking For Stronger Dissent to Take to SCOTUS

Prop 8
Protesters at a 2011 hearing on Prop 8. (Photo: Scott Shafer/KQED)

Proponents of Proposition 8, California’s same-sex marriage ban, have asked the 9th Circuit Court of Appeals for an en banc review of a ruling by a three-judge panel upholding a lower court’s striking down the law as unconstitutional.

An en banc panel is made up of 11 judges, chosen at random from the circuit.

Read the petition for an en banc panel here.

Earlier today, KQED’s Scott Shafer talked to Hastings law professor Rory Little about the procedure for and the legal strategy behind asking for an en banc panel. Edited transcript

Scott Shafer

Explain the en banc process.

Rory Little

Normally the filing is styled as a petition for a rehearing or for a rehearing en banc. A rehearing by the original panel is not granted very often. It’s possible that the original panel either determines that the petitioners have shown an obvious error, so we don’t need to go en banc because we can correct it ourselves, or the panel will sometimes adjust their opinion trying to head off an en banc. They’re not likely to consider granting a rehearing of their own, but you never know.

In a case like this, almost certainly the panel will refer it to the en banc court. It would then go to a judge who’s called the en banc coordinator. That coordinator will send it out and say here’s a petition for rehearing en banc – and they get a ton of these. But this one will get special attention.

A majority of active judges in the circuit needs to grant an en banc hearing. That’s 13 votes, which is very hard to get in a circuit that has 7,000 – 8,000 appeals filed a year. They grant maybe 15-20 en bancs a year.

The Supreme Court has said more than once that the 9th circuit ought to use its en banc power to clear up problematic decisions before the cases get to us. Then there are other judges who believe that if a case is an outlier, it’s the Supreme Court’s job to clear it up, not the en banc court.

Here’s the kind of case that’s always granted en banc: a case in which different panels of the 9th circuit have reached opposite conclusions, meaning an intra-circuit conflict. This case is not going to have any intra-circuit conflicts associated with it. The other kind of case is an inter-circuit conflict, where the opinion of the panel conflicts with opinions from other circuits.

The Prop 8 backers will assert that the panel’s opinion conflicts with Supreme Court authority. The other thing they’ll say is this is a matter of exceptional importance, even though it’s a California case, because it’s a huge state and also because parts of the panel’s opinion cannot be limited to California. For example, the panel’s rejecting the pro-Prop 8 rationale for the law as not having a rational basis is not restricted to California. That rational basis analysis, you would think, applies to virtually any gay rights case.

There are judges on the circuit who believe that if there’s an inter-circuit conflict, that’s not a job for the en banc court, it’s a job for the Supreme Court. But the Supreme Court, frankly, believes that 9th circuit panels generate more outlier decisions, and that a number of decisions every year are obviously incorrect. So they think these cases should be handled by the circuit en banc and not by the Supreme Court in a summary reversal. Every year a large number of summary reversals by the Supreme Court are from the 9th circuit.

Scott Shafer

What’s the legal strategy in asking for an en banc panel? The en banc panel is chosen at random, so it’s a bit of a crapshoot, isn’t it?

Rory Little

The strategy is that if they ask for en banc and it’s denied, then in a sense they’ve exhausted all the remedies, and it makes it a slightly stronger case for Supreme Court review. Because the Supreme Court often says ‘why didn’t you ask for an en banc hearing?’

Secondly, my guess is they believe they would do better if the right judges were put on the en banc panel. If they get O`Scannlain or Bybee or Ikuta my guess is they might get a stronger dissent.

I think they’re pretty disappointed with Judge Smith’s dissent, which was not a ringing Scalia-like forceful “this is wrong.” It was more like “we should be cautious, although there are a lot of good points here.”

Here’s the best result for proponents: They don’t get enough votes for en banc, but they get a forceful dissent from the denial of en banc from O`Scannlain and Bybee and whoever they can pick up, which they can then use as their petition to the Supreme Court. Bybee and O`Scannlain have had a number of cases granted in the last five years from their dissents from en banc. Those guys are in the business of writing cert petitions, basically. And they’re powerful writers.

Scott Shafer

In terms of timing, do new briefs have to be filed with the en banc panel?

Rory Little

They do not have to have a second round of briefing. There are circuits that routinely do en banc without new briefs being filed. The 9th Circuit has tended to ask for a new en banc briefing, because sometimes the cases on which they grant en banc haven’t been briefed very well, frankly. But that’s hard to say in this case.

There will be people really strategically maneuvering within the court on this one, on both sides. There is an argument that says, fine, let’s re-hear it en banc, and now we’ll get eight judges to say it’s unconstitutional instead of just two.

Author

Jon Brooks

Jon Brooks writes mostly on film for KQED Arts. He is also an online editor and writer for KQED's daily news blog, News Fix. Jon is a playwright whose work has been produced in San Francisco, New York, Italy, and around the U.S.

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