Saturday, March 01, 2008

Case o' The Week: Ninth Makes Up its Mind on Inability to Make Up its Mind, Bradley and Plurality Decisions

Win on one theory, win on two theories -- no matter how you slice it, still a win for the Bay Area's appellate powerhouse Dennis Riordan (left). The Ninth's recent order limiting the holding of a plurality opinion illustrates a trend in the Supremes and Ninth. See Bradley v. Henry, __ F.3d __, 2008 WL 540360 (9th Cir. Feb 29, 2008), Ord. Amend. & Denying Petit. Rehearing, decision available here.

Players: Admirable win by SF’s own appellate guru, Dennis Riordan.

Facts: Nicole Bradley shot a car’s driver during a carjacking and was found guilty at trial of murder and other crimes. See Bradley v. Henry, 510 F.3d 1093, 1095 (9th Cir. 2007). She raised several habeas claims, including a challenge to an in camera meeting about her case outside of her presence, and attacking the trial court’s refusal to allow retained counsel to represent her. Id. at 1099. District Judge Phyllis Hamilton denied the habeas petition.

An en banc panel of the Ninth reversed. Five judges (of eleven) joined the plurality decision; four concurred; two dissented (Judges Silverman and Tallman).

Issue(s): Five of the en banc judges would grant the habeas petition on two grounds: that the in camera hearing was unlawful, and that the refusal to allow a retained attorney into the case denied Bradley’s Sixth Amendment right to counsel. Id. at 1099 (Judge Noonan (author), joined by Judges Pregerson, Ferguson, Thomas, and Rawlinson).

Four judges concurred that the refusal to permit the retained attorney in the case was error meriting habeas relief. Id. at 1099 (Judge Clifton (author, concurring), joined by Judges Schroeder, W. Fletcher, and Berzon).

On eleven-member en banc panels, a win takes six. What is the holding of Bradley?

Held: "The plurality opinion has been joined by only five of the eleven judges on this limited en banc panel. Because that constitutes less than a majority of the panel, that opinion does not announce the law of the circuit. The precedential effect of this decision does not extend beyond the conclusions expressed in this separate opinion, which concurs in the judgment on more narrow grounds. See Marks v. United States, 430 U.S. 188, 193 (1977)." Bradley v. Henry, Slip. op. at1799, ord. (Feb. 29, 2008) (footnote added to page 1099 of separate Judge Clifton opinion).

Of Note: Maybe increasingly divided federal courts reflect a more divided society? Who knows why, but whatever the reason it is hard to deny that split opinions are increasingly common. Plurality and concurring decisions are becoming the norm in both the Supreme Court and the Ninth Circuit – look at the chaos of the Booker line of authority for proof.

When the new President sets up shop, it’s a fair bet that a bevy of judicial new appointments will aggravate splits. This Bradley order is interesting, because it is re-teaching the art of reading more frequent split opinions.

How to Use: Teasing the holding out of plurality and concurring decisions isn’t just an abstract concept – fights over what the true "holding" of a divided opinion has made a big difference in the Ninth. In February ‘06, we blogged the regrettable Williams decision, that tossed the "cat out of the bag" Miranda theory. See blog here. In Williams, the Ninth (arguably) adopted a factor in the "mid-stream Miranda" test that had been rejected by seven Justices in the Siebert plurality decision.

A far better example on how to read fractured opinions is an earlier Miranda case. See United States v. Rodriguez-Preciado, 399 F.3d 1118 (9th Cir. 2005). In Rodriguez-Preciado, Judge Berzon explains what to do when there is no clean "narrower" opinion in a plurality decision. It is the Ninth’s best primer on the art of divining the holding from a splintered opinion.

For Further Reading: Mary Whisner has a useful collection of articles on plurality opinions at her blog, here. An interesting article on judicial collegiality and its impact on unanimous decisions can be found here.

Come to think of it, if the federal judiciary is increasingly hostile to the rights of criminal (and particularly, indigent) defendants, maybe plurality decisions are good things. After all, an exploitable ambiguity is far better than a clear defense defeat. If that’s the case, keep up the good work, Supremes and Ninth!

Photo of Dennis Riordan by Lacy Atkins, San Francisco Chronicle.

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


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