Thursday, December 25, 2008

Case o' The Week: Sausage Carver, Mem Dispos and "final" Decisions

"To retain respect for sausages and laws, one must not watch them in the making." Otto von Bismark. Judge Stephen Reinhardt (left) takes us deep into to the sausage factory in a fascinating decision that illustrates just how much difference one judge can make . . . . Carver v. Lehman, No. 06-35176, __ F.3d __, 2008 WL (9th Cir. Dec. 22, 2008), decision available here.

Players: Decision by Judge M. Smith (upper right) joined by Judge Tallman; vigorous “concurrence in judgement” by Judge Reinhardt.

Facts: Carver, a convicted sex-offender, filed a § 1983 suit against the Washington Department of Corrections (“DOC”). Id. at *1. He alleged that DOC’s categorical rule for sex offenders (prohibiting early release to community corrections at the end of a sentence) violated his Fourteenth Amendment due process rights. Id.

Issue(s): “Carter argues that [Washington’s statutory release scheme] creates a protected liberty interest because it requires DOC to transfer an inmate to community custody in lieu of earned release ‘unless any one of the specifically designated reasons are found . . . .’” Id. at *3.

Held: “We disagree.” Id. at *4.

Of Note: The interesting bit of Carver is the sniping between Judges M. Smith and Reinhardt. Id. at *6. Turns out that the original panel on this case included Judge Ferguson (left, rest in peace), who was replaced by Judge Tallman upon his death. Id. at *9 (Reinhardt, J., concurring in judgement only). Six months before this revised Carver decision, the original panel filed a majority opinion holding that Carver had a liberty interest – with Judge Smith writing separately, disputing that holding. Id.; see Carter v. Lehman, 528 F.3d 659 (9th Cir. 2008), withdrawn by 540 F.3d 1011.

What changed in six months? Some new constitutional decision? An intervening Supreme Court opinion? Nope: Ferguson passed away, was replaced by Tallman (right), the filed decision was yanked, and Smith and Tallman reversed the original outcome.

As Judge Reinhardt observes, “To those who question whether the results in constitutional and other cases depend on the membership of the panel, or whether the replacement of even a single Supreme Court justice can change the fundamental nature of the rights of all Americans with respect to matters as basic as affirmative action, a woman’s right of choice, and the nature of religious liberty, the result in the case currently before our panel is merely a minor illustration of how the judicial system currently operates.Id. at *9.

Judge Reinhardt notes that there’s a mechanism for reversing a panel’s decision: en banc consideration. Id. at *11. This wasn’t that. This was a (new) conservative panel yanking an (old) liberal majority decision after it was published, but before it was “final.” Technically permissible, Reinhardt concedes, but bad form.

How to Use: In 2007, the grizzled vets on the Ninth warned us that the Supreme’s new rule allowing citation of memoranda dispositions was ill-advised. See article here, quoting Chief Judge Kozinski. They were right. In Carver, Judge Smith traces a number of unpublished memoranda dispositions in support of the reversed outcome, and claims the new Carver opinion tracks the state of the law (as stated in mem dispos). Id. at *7-*8. “[N]othing in our rules,” states Smith, “prohibits our own judges from considering or referring to unpublished dispositions issued at any point in time, and even relying on them so long as they do not conflict with binding precedential decisions.” Id. at *7 (emphasis added).

Judge Reinhardt describes this approach as “more than mindboggling.” Id. at *11. “If we were to accept this view, the law in this circuit would no longer be declared in opinions; ‘existing’ circuit law could be found in whatever sources suited anyone’s whim or fancy, including the Sewanee Law Review.” Id. at *11.

Citation of unpublished decisions is a flat-out bad idea that generally hurts the defense bar (how many of those sloppy mem dispos grant defense relief?) but if you’re going to do it, Carver does more to bolster mem dispos than any other case.

For Further Reading: Three weeks with no published Ninth Circuit criminal decision. What gives? Maybe the traditional holiday slowdown. Or maybe that insidious third “acceptance” offense level is finally having the chilling affect on criminal appeals that we’ve long predicted. See blogs here, here, here, here, and here.

Image of Hon. Milan Smith from . Image of Hon. Richard Tallman from Image of Hon. Stephen Reinhardt from Image of Hon. Warren Ferguson from

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.


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Anonymous Anonymous said...

While mem dispos are usually short and cryptic, I do think the defense bar benefits from having the ability to cite them as persuasive authority. Most defense victories seem to end up in unpublished memoranda, rather than published opinions. It is rather difficult to argue when you have no specific case examples to illustrate your position. I think that a better solution is to improve the quality of writing in unpublished opinions.

Tuesday, January 13, 2009 12:17:00 AM  

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