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High School Anti-Homosexuality T-Shirt Case Vacated as Moot:

Thanks to Constitutionally Correct and How Appealing for the pointer. This means that the Ninth Circuit opinion upholding the school's prohibition of the T-shirt loses its precedential value.

Hans Bader (mail):
Professor Volokh is right that the Supreme Court's vacating the Harper v. Poway decision as moot means it lost its precedential value. Most Ninth Circuit judges (and district judges in its jurisdiction) will recognize that.

But Reinhardt, who wrote the decision, and other judges on the Ninth Circuit's far left wing, may not accept that.

In Garcia v. Spun Steak Co. (9th Cir. 1993), the Ninth Circuit recognized that a prior decision vacated as moot by the Supreme Court lacked precedential value, and thus reached the opposite holding from that prior decision on the merits, concluding that private employers who have English-only rules for job-related communications among their employees are not generally guilty of racial discrimination under Title VII. (I believe that the prior decision was written by Reinhardt).

However, a shrill dissent from a left-wing Ninth Circuit judge denied that the decision vacated as moot thereby lost its precedential value.

When you lose an ideological battle based on jurisdictional rules, it's sometimes hard for a committed ideologue to accept defeat.
3.5.2007 11:16am
Colin (mail):
However, a shrill dissent from a left-wing Ninth Circuit judge denied that the decision vacated as moot thereby lost its precedential value.

When you lose an ideological battle based on jurisdictional rules, it's sometimes hard for a committed ideologue to accept defeat.


Speakig of ideolgues, you've completely misconstrued Garcia. Reinhardt (in a dissent from the denial of an en banc rehearing, not a dissent to the opinion itself) said, "the majority dismisses Gutierrez v. Municipal Court, 838 F.2d 1031 (9th Cir.1988), reh'g en banc denied, 861 F.2d 1187 (1988), vacated as moot, 490 U.S. 1016, 109 S.Ct. 1736, 104 L.Ed.2d 174 (1989), in a footnote, without pretending to counter, or even examine, the case's reasoning. 998 F.2d at 1487 n. 1. In none of the three instances does the majority deal fairly with the case cited. Gutierrez, as a unanimous Ninth Circuit decision on precisely the same issue as faced the Spun Steak panel, merited examination for its reasoning and persuasive value. . . . Unconstrained by precedential considerations, the Spun Steak majority wrongly declined even to consider Gutierrez's reasoning. While it is true that Gutierrez lacks binding precedential value, it still represented the thinking of this court. As such, it was deserving of consideration. Gutierrez not only constituted a decision of a three-judge panel, but it had survived an en banc call. . . . Gutierrez was binding precedent within this circuit and might well have remained so, but for the happenstance of an employee's job decision. As far as our court is concerned, Gutierrez represented its official position, following completion of all our review proceedings. As such, it merited more than a dismissive footnote in Spun Steak."

You have his position exactly wrong.
3.5.2007 12:09pm
dts (mail):
Jordan Lorence, an ADF attorney, has a new post on the Constitutionally Correct blog regarding the Supreme Court's action in Harper today.
3.5.2007 12:21pm
RBG (mail):
I'm sorry, but Reinhardt's dissent makes his position sound even more bizarre. The fact that the decision was unanimous and survived an en banc call somehow trumps the fact that it was vacated by the court? And why? Because it "represented the thinking of this court"? Give me a break! I presume that Judge Reinhardt carefully takes into consideration the views of a majority of his colleagues as expressed during quarterly court conferences, etc., insofar as they are applicable to the cases before him. After all, if all that matters is accurately determining "the thinking of this court," both should be given equal weight, no?
3.5.2007 2:51pm
neurodoc:
I am confused as to the meaning of "precedent" here. Reinhardt says Gutierrez "was binding precedent within this circuit" in the short time between when the 9th Circuit decided it and the SCt vacated the decision as moot. Was it still "precedent" thereafter, albeit no longer "binding precedent?" Saying, "Unconstrained by precedential considerations...," was Reinhardt acknowledging that stare decisis did not come into play, or was he complaining that his colleagues did not give 9th Circuit's reasoning in Gutierrez the weight he thought it deserved, instead making only passing mention of it in a footnote to their decision to deny an en banc rehearing?

I don't know how many 9th Circuit judges it takes to deny an en banc rehearing, but it must be more than one, and it may be more than two. Reinhardt asserted that the two or more of his colleagues who voted against a rehearing "wrongly declined to even consider Gutierrez's reasoning," which "was binding precedent within this circuit and might well have remained so, but for the happenstance of an employee's job decision." If that is not a "den(ial) that the decision vacated as moot thereby lost its precedential value," then it sounds ambiguously close to it. Yes, Gutierrez was precedential in the 9th Circuit for a short while in 1988. And yes, "it might have remained precedential," but it didn't, just as Al Gore might have become president in 2000 but for a combination of circumstances that many thought should not have been, including Nader's spoiler role and the butterfly ballot in Palm Beach County. I see alternative understandings of the judge's dissent; I don't see Hans Bader's understanding of Reinhardt's opinion as clearly that of an "ideolgue" (sic) misconstruing Reinhardt for tendentious purposes.
3.5.2007 3:37pm
Colin (mail):
I really don't see where the agony over Reinhardt's dissent comes from, other than the general antagonism towards his opinions.

The fact that the decision was unanimous and survived an en banc call somehow trumps the fact that it was vacated by the court?
No, it doesn't. He explicitly says the opinion has no precedential value. His point is that the Ninth Circuit expressed its approval of a case that addressed exactly the same issue, and that this later panel, as a matter of comity and fairness, shouldn't dismiss the earlier panel's reasoning without a fuller explanation. Frankly, I think that most appellate judges would agree that if you're not following a prior panel's reasoning in a highly analogous case, it's proper (although not, and Reinhardt clearly recognizes this, necessary) to analyze and if possible distinguish the case. (I don't actually know how analogous Gutierrez is; it's not particularly relevant to the point that Bader's characterization of Reinhardt's position was completely wrong.)

[W]as Reinhardt acknowledging that stare decisis did not come into play, or was he complaining that his colleagues did not give 9th Circuit's reasoning in Gutierrez the weight he thought it deserved, instead making only passing mention of it in a footnote to their decision to deny an en banc rehearing?
Both. Again, this is not a complaint that that Gutierrez was binding, but that it deserved a full analysis.

If that is not a "den(ial) that the decision vacated as moot thereby lost its precedential value," then it sounds ambiguously close to it.
In case you missed the bold-font emphasis in the original quotation, Reinhardt wrote, "it is true that Gutierrez lacks binding precedential value." Nothing ambiguous about that.

He clearly thinks that, as a case that was approved by the circuit and was mooted rather than reversed on the merits, it deserved more consideration than the majority gave it. That is not an assertion that the case was in any way binding. He does not, for instance, argue that en banc review is appropriate because the majority went against binding caselaw, but that they failed to distinguish what he considers to be an on-point and persuasive analysis. He's very explicit about that: Gutierrez "merited examination for its reasoning and persuasive value."

I see alternative understandings of the judge's dissent
I don't think that you can justify them from the text, though. Reinhardt's point in saying that Gutierrez might still be precedent is merely that it was never overturned on the merits, so the analysis merits serious analysis rather than an off-the-cuff disposal.

Bader was flat-out wrong here. He claimed that Reinhardt "denied that the decision vacated as moot thereby lost its precedential value." But Reinhardt wrote exactly the opposite of that. I think that Bader is being an ideologue because he's so wrapped up in the "9th Circuit==wrong" meme that he's seriously misrepresented the facts (I presume unintentionally). I think the same thing about you, actually - you're really reaching to try to make Reinhardt's dissent say the opposite of what he wrote. What is an ideologue if not someone who is so committed to an ideology that contrary facts are rejected out of hand?
3.5.2007 4:26pm
Colin (mail):
In the interest of fairness, I should admit that I do this all the time - I read Scalia's opinions, for example, looking for evidence of bias. I'm sure I sometimes see it when it isn't there. We all have our skewed perspectives on judges with whom we often disagree. I'm just taking advantage of the easy correction here to point out that this is an unfair attack on Reinhardt. Please do the same for me if I post something inaccurate vis a vis a conservative judge.
3.5.2007 4:35pm
anonVCfan:
Colin's right.

The Reinhardt dissent is at 13 F.3d 296. He oversells Gutierrez a bit, but his point is only that Gutierrez made some arguments that deserve a response, not that a response is required by law.

It's a judicial craft thing, not a law thing. If a court of appeals decides to split with others, the panel often feels a responsibility to explain what is wrong with the arguments of the other courts (though they are not binding). If a court of appeals reverses a district court, the panel usually feels a responsibility to explain why the district court's decision was erroneous (though it is obviously not binding), as opposed to merely giving instructions for how the remand should proceed.

Reinhardt's dissent falls in this category, though the narrowness of his point is obscured somewhat by his overblown rhetoric.
3.5.2007 4:40pm
anonVCfan:
Reinhardt's point that the decision merits consideration because survived en banc review and was unanimous, however, has little currency in the Ninth Circuit, given its size and the variation and creativity of the jurisprudence of its judges.
3.5.2007 4:43pm
Hans Gruber:
If anything Bader was too kind. Having admitted the case has NO PRECENDENTIAL VALUE, he cites it anyway. Reinhardt's position is nonsensical, "While it is true that Gutierrez lacks binding precedential value, it still represented the thinking of this court. As such, it was deserving of consideration." Of course you can say he admits it has no binding precendential value, but then he goes on to claim it should (but he doesn't call it precedential value, he calls it being "deserving of consideration").
3.5.2007 5:01pm
Colin (mail):
I'm so confused. Which Hans tried to blow up the Nakatomi Tower? (Great handle, by the way. Unless it's your real name, in which case you only get half credit.)

H. Gruber, courts cite cases with no precedential value all the time. They're cited for their persuasive value, which is exactly what R. says Gutierrez should be valued for.

For another example of courts considering non-binding, non-precedential cases, see any appellate court citing another circuit's case or (less commonly) a district court case. You'll find lots of courts outside the 7th Circuit addressing its Booker opinion, for instance, even though that opinion wasn't precedential.
3.5.2007 5:11pm
Hans Gruber:
It seems to me nonsensical to contend a case has zero precendential value (I can buy the distinction between binding and non-biding) yet cite it because it's persuasive. That is precendential value, you are using a prior case to guide one's thought on a present case, citing it as persuasive on some point or another. That seems to this non-lawyer to be precedent. What I'm trying to say is that citing a case for support of one's position necessarily gives some precendential weight to the decision, even if that decision isn't binding (the Court isn't obligated to consider it).

Volokh, Kerr, and Bader seem to all contend that this makes the decision lack all precedential value, that in Kerr's words "it's taken off the books." That DOES conflict with Reinhardt's view, which seems to be only that the case is not binding precedent, but stll precedent.
3.5.2007 5:37pm
Hans Gruber:
All that said, I will correct my point about Reinhardt being nonsensical; his decision is logically consistent. The problem appears to be, though, that he's just wrong (if my reading of Volokh, Kerr, and Bader is correct). The decision not only lacks binding precendential value, it lacks all precedential value. I was perhaps taken in by your assertion that Reinhardt conceded that "the opinion has no precedential value." In fact, he did no such thing, he only wrote that the decision lacked binding precedential value.
3.5.2007 5:53pm
Colin (mail):

It seems to me nonsensical to contend a case has zero precendential value (I can buy the distinction between binding and non-biding) yet cite it because it's persuasive.

OK, but be aware that courts do this *all the time*. You'll look a little strange for criticizing Reinhardt for wanting to use a case as merely persuasive precedent---it's like criticizing him for wearing a black robe, or wearing shoes.

The problem is that lawyers are rarely specific when we say "precedential." When Volokh, Kerr, et al. say this case lacks precedential value, they mean it's not binding. I think they would encourage a future court, addressing exactly the same issue, to address the reasoning in this case. (That would make this case "persuasive authority," even if the future panel wasn't persuaded by it.)

A future opinion coming out the other way would be much stronger and more citeable if it analyzed and addressed the present case before disagreeing with it; doing it in a summary fashion leaves the door open to people arguing future cases under the logic and rationale of the present opinion, with no explicitly clear guidance that the reasoning will be rejected. It's not good for practitioners or the court's own body of caselaw to have panels whipping back and forth on potentially controversial issues with no explanation whatsoever.

This opinion is no longer "precedential" in that it isn't binding precedent; it's still "precedential" in that it is an opinion that came before our hypothetical future, analogous case. Similarly, the case is "off the books" in that the specific action the panel ordered in this case is moot; if they'd overturned a monetary award, for instance, the defendant would now be required to pay that amount. It's still "on the books" in that it can be found on Westlaw and in the bound reporters, and can be cited (with some constraints, depending on the court) by lawyers and judges.

"Precedent" can be a slippery term when you look at it that way, but from an attorney's perspective it's rarely difficult to tell what is meant in context. Here, for example, R. is clear that he only wants Gutierrez to be used as a persuasive example of correct reasoning, and as I said before, that's a very common thing. It's a good thing, too, whether or not you like the case being addressed - opinions are much, much better when they squarely address contrary reasoning and deal with it face on, rather than hiding it under the rug.
3.5.2007 6:06pm
Colin (mail):
The problem appears to be, though, that he's just wrong (if my reading of Volokh, Kerr, and Bader is correct).

We cross-posted. To clarify, your reading is incorrect, but only because this is one of those abstruse lawyerisms wherein a standard English word is commonly used in a non-standard way. It's like "consent" - it more or less means what the standard dictionary says, but with specific qualifications. With "consent," it's that certain people can't give it, no matter how much they consent to an action under the standard view of the word. With "precedent," it's that some precedent is more precedential than other precedent.
3.5.2007 6:10pm
Hans Gruber:
Thanks for the post. I still don't think your defense matches Reinhardt's words. Obviously the case can still be cited, I understand that. I think it's how it's cited that is the question. Reinhardt does more than cite the reasoning as persausive, he wrote:

"It still represented the thinking of this court. As such, it was deserving of consideration. Gutierrez not only constituted a decision of a three-judge panel, but it had survived an en banc call. . . . Gutierrez was binding precedent within this circuit and might well have remained so, but for the happenstance of an employee's job decision. As far as our court is concerned, Gutierrez represented its official position, following completion of all our review proceedings. As such, it merited more than a dismissive footnote in Spun Steak."

To me, that's flirting with the idea that Gutierrez should be binding precedent (or some close-equivalent); again, he's not merely saying "hey, Gutierrez made some good points, let's explore those," he is saying "Guitierrez represented this court's position, and as such its conclucions merit consideration." If he were only saying, "I stand by my reasoning in the Guitierrez case, " I would have trouble criticizing him for that. Nobody is asking him to pretend the case never happened. But he's not saying that, he's saying that Guiteirrez should be considered by the the court because it was the "official position of the court" before being vacated for mootness. He's pushing it further than you seem willing to acknowledge.
3.5.2007 6:43pm
Colin (mail):
To me, that's flirting with the idea that Gutierrez should be binding precedent

I don't see that at all, or where that comes from in the text. Again, R. explicitly disclaims the idea that Gutierrez is binding. Whether he wants it to be is completely irrelevant. Whether a case is binding is a binary thing - it either is, or it isn't. R. clearly understands that G isn't.

But he's not saying that, he's saying that Guiteirrez should be considered by the the court because it was the "official position of the court" before being vacated for mootness. He's pushing it further than you seem willing to acknowledge.

He's really not. He's just saying that G was good enough for the Court a short while back, so the court should at least explain what's changed since then. I truly think you're making a mountain out of less than a molehill.
3.5.2007 7:07pm
Hans Gruber:
"Whether a case is binding is a binary thing - it either is, or it isn't. R. clearly understands that G isn't. "

He clearly understands he has to pay lip service to the notion, but then everything he writes after that suggests he thinks it should have some binding effect on the court. Again, he isn't just suggesting that the reasoning was persuasive and should be addressed, he goes much further than that, implying that it should have some precendential value because the case "represented the thinking of this court" rather than merely being persuasive. He's doing more than citing reasoning when he writes "Gutierrez represented its official position, following completion of all our review proceedings. As such, it merited more than a dismissive footnote in Spun Steak." He basically suggests it was improper not to consider Guiterrez because it was the court's prior position, not because the decision is particularly persuasive. That seems like an appeal to stare decisis, and if it's an appeal to stare decisis, I think it's clear which sort of precedent Reinhardt considers Guiterrez.

"He's really not. He's just saying that G was good enough for the Court a short while back, so the court should at least explain what's changed since then. "

But that's not what he says in what you quoted. See the above. It's been a good exchange. I was aware of the two kinds of precedent; I wasn't aware it was common to regard only binding precedent as precedent. Thanks for clearing that up.
3.5.2007 8:32pm
Colin (mail):
(As an aside, feel free to move on at any point - I realize we've gone way off topic and are probably boring to other readers, but I'm enjoying myself.)

He clearly understands he has to pay lip service to the notion, but then everything he writes after that suggests he thinks it should have some binding effect on the court.

I don't see any support for that in his dissent. He says (A) the case is not precedential, but (B) our court took a position in that case and shouldn't do an about-face without explaining why it's no longer persuasive reasoning. That is nothing like an argument that the case should be persuasive - he is not saying that the majority should not be allowed to break with the earlier case, merely that he thinks they shouldn't do so summarily (or at all, but for substantive rather than procedural reasons).

If the judges had all co-written a law review article expressing certain positions, then took opposite positions in a case, R. could have written the exact same thing: don't reverse our previous course without an explanation, and by the way, you shouldn't anyway because we were right the first time. That would not be a statement that law review articles should be binding precedent.

I think you're way off-base on this one. Reinhardt just doesn't say anywhere that the court should be bound by the earlier opinion; he just thinks the earlier opinion was correct, and that it's bad policy to go the other way without at least explaining the court's newfound disagreement. That distinction - what the court must do versus what the court should do - is crucial and dispositive. He's very explicitly on the should side.

You're welcome for the explanation. I hope it was correct. This isn't the sort of thing most attorneys spend any time thinking about; it rarely comes up. (With the possible exception of a recent rule change making unpublished opinions citeable, but that's neither here nor there.)
3.5.2007 9:16pm
Christopher Cooke (mail):
Hans, Colin is correct.

You are getting caught up on the distinction between binding precedential authority and persuasive authority.

I once cited a Ninth Circuit opinion, vacated as moot, to a district court. The judge didn't have to follow its holding, but its reasoning still gave clues to how the Ninth Circuit might rule later, in a non-moot case, so it was "persuasive" authority.

Another example of persuasive authorities are district court opinions. They are binding on no one except the parties in the case in which the opinions are issued.

When a case is vacated as moot, you don't really know what the Supreme Court would have done with the case because it choose not to address the merits.

On the other hand, Reinhardt is being a bit disingenuous in criticizing the other judges for ignoring Gutierrez. The other judges are entitled to ignore that opinion because it was no longer binding authority. And, while it might be a prediction of how the Ninth Circuit might rule, it is no sure bet. A lot depends on the composition of the panel that gets the case raising the same issues. Reinhardt's dissenting opinion reflects his belief that Gutierrez is right and the other judges "dissed" him by not addressing its points. My guess is that he wrote Gutierrez and thought highly of his reasoning (did he Colin?)
3.5.2007 9:16pm
Colin (mail):
My guess is that he wrote Gutierrez and thought highly of his reasoning (did he Colin?)

Good guess. I didn't even think to check, but you're right.
3.5.2007 9:41pm
Hans Gruber:
Chris,

Yes, I see all that. I just think the language Reinhardt used is more appropriate for precedent which is actually binding. I wouldn't have a problem with him citing the case and going over its reasoning, and maybe he did a lot of that. It's just what Colin helpfully cited doesn't really convey that, Reinhardt gives off the not-so-subtle impression that he feels that the decision does (or ought to) enjoy some sort of deference based on stare decisis, which would put it in with binding precedent. Yes, I know Reinhardt said it wasn't binding; but let's not pretend people, and laywers in particular, don't play rhetorical games. Saying it's not binding precedent, but then insisting it be treated similar to binding precedent is what I feel Reinhardt more or less did. So I don't think Hans Bader was all that wrong. It's nevertheless been an aggreable disagreement. Have a good morning.

Also, I think Cooke is right that Reinhardt was off base chastizing his colleagues for not doing something they had absolutely no obligation to do; but that's one of the reasons why I think Reinhardt went further than both of you seem to.
3.6.2007 6:27am