Nordyke - Cert filed at SCOTUS

[ltc444]

It is intresting that Voteing is brought into the mix. It would seem that excesive fees and charges could be attacked in the manner that POLL TAXES were found unconstitional. Those places, like Washington DC who charge 100 of dollars, I don't remember what the final total was for our Reporters efforts, would be inviolation of the same logic/reasons which caused the demise of the Poll TAX.

Any of you legal egales care to comment. I would like to hear your thoughts.

[jimpeel]

Originally Posted by KyJim

But you emphasized the wrong part. It says the right to vote "shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. . . ." So criminal disenfranchisement is okay under the Constitution.

So what we have is a qualified right. How many more disqualifiers can be added by the congress? As many as they want.

[Tom Servo]

So criminal disenfranchisement is okay under the Constitution.

For the time being. As it pertains to 2nd Amendment rights, the matter is being pursued in the lower courts.

[KyJim]

It is intresting that Voteing is brought into the mix. It would seem that excesive fees and charges could be attacked in the manner that POLL TAXES were found unconstitional. Those places, like Washington DC who charge 100 of dollars, I don't remember what the final total was for our Reporters efforts, would be inviolation of the same logic/reasons which caused the demise of the Poll TAX.

Any of you legal egales care to comment. I would like to hear your thoughts.

I believe the poll taxes, like literacy tests, were specifically intended to, and had the effect of, keeping African-Americans from voting. Therefore, the poll taxes clearly abridged the right to vote based on race and/or previous condition of involuntary servitude.

[maestro pistolero]

Motion to supplement the factual record filed today

Don Kilmer weighs in with more evidence that the county was playing both sides of the fence in interpreting their ordinance.

[Al Norris]

Nordyke v. Alameda County. The "decision" is in. Care to Guess? Here's the entire order (my emphasis):

Filed April 4, 2012
Before: Alex Kozinski, Chief Judge, Harry Pregerson,
Stephen Reinhardt, Diarmuid F. O’Scannlain,
Michael Daly Hawkins, Susan P. Graber, Ronald M. Gould,
Richard C. Tallman, Consuelo M. Callahan,
Milan D. Smith, Jr., and Sandra S. Ikuta, Circuit Judges.

Order;
Concurrence by Judge M. Smith;
Dissent by Chief Judge Kozinski


ORDER

The panel believes that the parties should attempt to settle this dispute by agreeing on the conditions for holding gun shows at the Alameda County fairgrounds, with the assistance of mediation. The case is referred to the Circuit Mediation Office for mediation, and its submission is deferred for 45 days or pending further order of the court.

The Circuit Mediator will contact the parties as soon as possible and shall provide a status report to the panel no later than 45 days following this order.
________________________________________

M. SMITH, Circuit Judge, concurring:

I concur with the Court’s order sending this case to mediation. However, I would have attached a copy of a proposed disposition in this case so that the parties would know what they would face in the event mediation fails.
__________________________________________

KOZINSKI, Chief Judge, with whom GOULD, Circuit Judge, joins, dissenting:

The parties have not asked for mediation; they have said nothing that suggests mediation would be fruitful; when asked about it in court, they displayed obvious distaste for the idea. We overstep our authority by forcing the parties to spend time and money engaging in a mediation charade. Our job is to decide the case, and do so promptly. This delay serves no useful purpose; it only makes us look foolish. I want no part of it.

There you have it. This is not even a punt.

Immediately after this, the Mediation Contact Order was filed (also attached). Mediation will begin with a teleconference on Apr. 13th.

In the meantime, all the CA9 cases that deal with the 2A, are still on hold, because there is no decision from the 9th.

The best that could happen would be for both sides to request Cert from the Supreme Court to exercise its supervisory authority.

[Armorer-at-Law]

Incredible.

[maestro pistolero]

After 12 years, this panel's answer is to go and chat it out? So now a mediator is to accomplish what the entire en banc panel, and every other court since the beginning of this case, could not and would not decide.

What an embarrassment.

[Al Norris]

Some thoughts about this case and this en banc panel from a blog by a USD Law Professor: http://calapp.blogspot.com/2012/04/n...il-4-2012.html

I tend to agree with his view. This was wasteful. It will not work. It's stalling, by the Court, no less.

[gc70]

Martin's view is most interesting. But what would motivate this action, what would be achieved if mediation were successful, or not successful, and which judges would be in favor of this dodge? There must be powerful forces working behind the scenes to prompt such strange action.

[Aguila Blanca]

Presumeably a mediated settlement (if one can be reached) cannot be cited as either legal precedent or (what's the legal term?) _____ authority. So it really IS a punt, of monumental proportions. In essence, it amounts to judicial nonfeasance.

[Al Norris]

Not a "punt," but a shunt.

See also, Lyle Denniston, Major gun case shunted aside, SCOTUSblog (Apr. 4, 2012, 2:42 PM), http://www.scotusblog.com/2012/04/ma...shunted-aside/

A 37 year appellate attorney over at MDShooters, says he has never heard of an order of mediation when the parties have not motioned it. Nor has he ever heard of such, after Orals were given. He agrees with Chief Judge Kozinski.

[Spats McGee]

I am at a bit of a loss. I've never heard of a Court of Appeals ordering mediation under these conditions (after 12 years of litigation and at this stage of appellate litigation ). . . I'll likely have more comments tomorrow, after I've slept on this and digested it.

With that said, here's what I find interesting:

Originally Posted by Ninth Circuit Court of Appeals

The panel believes that the parties should attempt to settle this dispute by agreeing on the conditions for holding gun shows at the Alameda County fairgrounds, with the assistance of mediation. The case is referred to the Circuit Mediation Office for mediation, and its submission is deferred for 45 days or pending further order of the court.

Not "they should go to mediation to settle the dispute," but rather "by agreeing on the conditions for holding gun shows." My gut feeling is that the panel really, really wanted to find for the Defendants, but simply could not find a way to do it without being overturned. So they did the next best thing, which was to try to leave the Defendants some bargaining power at mediation. Aguila Blanca may also have a point. Perhaps the 9th is trying to avoid letting this lawsuit have any precedential power.

[KyJim]

I'm very surprised they ordered mediation at this point. I'm also convinced it won't work unless the defendants make large concessions and also agree to pay large attorney fees. It's hard to see that happening.

[Aguila Blanca]

I suppose the one glimmer of hope for optimism is that the order says, "The panel believes that the parties should attempt to settle this dispute by agreeing on the conditions for holding gun shows at the Alameda County fairgrounds, ..." This tells the defendants that there WILL be gun shows and that the mediation isn't over "if" but rather over "how."

Also, unless the 9th Circus is different from most of the world, mediation isn't binding (unlike some arbitrations). I suppose if the County remains overly obstructive the plaintiffs can simply decline to agree, and let the clock run out on the mediation period.

[Al Norris]

Mediation is a good thing. Fact is, mediation is the "in" thing for courts, nowadays. It relieves all sorts of problems with Judges having to decide the cases.

I admit however, that I'm hard pressed to find one instance of a circuit court ordering mediation when the parties have not requested it. What is more troubling, is this sua sponte order being given after oral arguments.

This is not something that is unusual. This is without any precedent at all. It strikes a new low for any court, let alone an en banc circuit panel.

"We overstep our authority by forcing the parties to spend time and money engaging in a mediation charade. Our job is to decide the case, and do so promptly." Kozinski, dissenting.

That this was some sort of compromise that the panel was willing to make in order to not to have to reach a decision, is inescapable.

Given the general attitude of the 9th Circuit towards the second amendment, it gives rise to the idea that the decision was not one to sit well with these judges. Rather, as Lyle Denniston has noted, the court has shunted the decision to the side.

[Aguila Blanca]

Given the general attitude of the 9th Circuit towards the second amendment, it gives rise to the idea that the decision was not one to sit well with these judges. Rather, as Lyle Denniston has noted, the court has shunted the decision to the side.

I remain of the opinion that they "shunted" it to mediation so they would not be forced into issuing a decision they don't like, and which they do not wish to see established as precedent that can be cited.

[Al Norris]

Aguila, we pretty much agree.

What I would like to see (and what will not happen) is that both parties request a grant of cert to the SCOTUS to use its supervisory powers to tell the 9th to get off their butts and do their job.

There is recent precedent for this. The first case out of the gate in this session was a Per Curiam opinion. On 10/31/11, Cavazos v. Smith was decided. That case was the third time that the Court sent back to the 9th, a faulty decision and told them, point blank, they were wrong and to do their jobs.

Regardless, this "forced" mediation will have no good outcome, if any.

[CowTowner]

I now have a complete understanding as why my BIL refers to this court as "The 9th Circus".
What a show, folks.

[brickeyee]

So criminal disenfranchisement is okay under the Constitution.

With due process ANY right can be taken away.

Even life.

[gc70]

Assuming that the 9th does not want to set precedent with Nordyke, there are still 2A cases on hold pending Nordyke's resolution. Those other cases will establish precedents, so what is the value of avoiding establishing a precedent now, only to decide the other cases to establish precedent?

Since other cases are on hold, would one of the pending cases be chosen to proceed while the other cases remained on hold pending any precedent from the first case? Is there an anticipated order in which the other cases would be decided? Could the 9th be trying to avoid a pro-2A decision in Nordyke to allow an anticipated anti-2A decision in another case?

Is there some aspect of Nordyke that is not present in the other cases? To my limited knowledge, the other cases would also recognize the 2A outside the home, so Nordyke is not special in that regard. Since Nordyke would put the 2A on government property, is the 9th trying to avoid a precedent that would puncture the presumptive legality of "longstanding prohibitions on ... firearms ... in sensitive places such as ... government buildings?"

[Isk]

I think you guys are right on. It really looks like an attempt to avoid handing down a pro RKBA judgment. Fascinating. I've seen courts play some interesting games, but this one takes the cake. Seeking mediation AFTER trial, AFTER appeal and AFTER oral arguments, WITHOUT a request from the parties? I think once you get that far mediation really isn't going to help.

I don't think it would meet the standard for an interlocutory appeal to the Supreme Court (I know little about appeals), but that would make for some interesting entertainment.

[Al Norris]

gc70, of the CA cases, there are two cases at the 9th that are on hold:

On 12-20-2011, (#9 - Filed May, 2009) Richards v. Prieto was stayed pending Nordyke. This case is fully briefed and awaits scheduling for Orals.

On the same day, (#13 - Filed Oct. 2009) Peruta v. County of San Diego was also stayed. This case is also fully briefed and awaits assignment of Orals.

Both cases have pretty much the same issues: Does the right to self defense include the right to carry outside the home. If so, then the discretionary "Good Cause" clause, violates the 2A. Getting that clause ruled as unconstitutional, would make CA a "Shall Issue" State, much like MD is now (barring the temp stay currently in effect).

There is no real order at this point, unless you believe the Circuit will pick [i]Peruta{/i] for orals first, as it hit the Circuit before Richards. That's kind of a crap shoot. Riachards is, IMO, the cleaner case and is behind Peruta only because they settled with Sacramento County (a now dismissed defendant) and that held up the works.

Originally Posted by gc70

Is there some aspect of Nordyke that is not present in the other cases? To my limited knowledge, the other cases would also recognize the 2A outside the home, so Nordyke is not special in that regard. Since Nordyke would put the 2A on government property, is the 9th trying to avoid a precedent that would puncture the presumptive legality of "longstanding prohibitions on ... firearms ... in sensitive places such as ... government buildings?"

First, the last panel said that unless there were "substantial effects" upon the 2A right, enhanced scrutiny did not apply. That could be used to uphold the discretionary nature of CA permits. Further, since the prior ruling also held that Alameda's ordinance did not "substantially effect" the ability of people to acquire firearms, there was no need to look into the "sensitive places" or "longstanding prohibitions" issues.

Despite the fact that the ordinance was enacted back in 1998, it was challenged almost immediately by the Nordykes. Therefore, the only "long standing" thing about this case is that gun shows were held at the fairgrounds for umpteen years (with no problems, mind you), before the ordinance. That also goes to negate the "sensitive places" issue.

What we are actually left with is commercial activity interference/discrimination by the County, that just happens to be a protected activity, via the 2A: A Government Ban on the right to acquire the implements of the right itself.

In light of the rulings in Ezell, Woollard, Weaver, Bateman and now Fletcher, in order to uphold what the panel said, would make this a cert worthy case (in essence, this would be a circuit split). They would stand a good chance of being reversed and I believe they know this. They would also be taking a chance of setting nationwide precedent with an opinion against them.

While it is still up in the air about any appeals with Bateman, I don't believe NC will appeal. Weaver will not. That case is pretty much settled law. MA might still pursue Fletcher, but I think they would be foolish (Judge Woodlock was pretty thorough here). We know MD is appealing Woollard, but I strongly doubt that they will get anywhere. Judge Legg's opinion was solid.

[ltc444]

Sounds like the Court took a powder and does not have the courage to make a decision.

[C0untZer0]

I think it's ridiculous that mediation was ordered. We're talking about civil rights here - not a divorce or a contract dispute.

But I had court ordered mediation in a dispute with my ex-wife. And in discussion in chambers with only our two lawyers, the judge proposed a solution. My lawyer said "That's sounds fair, I know my client will go for that. My wife's lawyer said "I don't think my client will go for that."

Five days later we went back to court, I was completely OK with the judge's compromise solution, my ex was sticking to her demands 100%

The result was, the judge got angry with her and ruled against her flat out.

So anyway - my point is that

1) This situation seems to me to be uncharted territory with regard to gun rights litigation so who know what can happen?

2) If either party becomes intransigent and unreasonable - who knows what the consequences will be? They may anger the judges and affect a ruling against themselves.