February 11, 2017 · 4 Comments
9th District Appellate Court – (ECWd) –
Yesterday, the Chief Judge of the 9th District, Judge Thomas, took steps that may prove to be a game-changer yet we find nothing in the national news on this matter? The Chief Judge “made a sua sponte request that a vote be taken as to whether the order issued by the three-judge panel on February 9, 2017, should be reconsidered en banc.
O Romeo, Romeo! wherefore art thou Romeo?
Or should it be;
O Romeo, Romeo! wherefore art thou Spokeo, as in SPOKEO, INC. v. ROBINS?
Or in layman’s terms, what is missing from the 9th District Appellate Court’s recent opinion that denied the Governments motion to stay?
The Spokeo case was a 9th District case that was overturned by the US Supreme court only 9 months ago and dealt with a matter of standing. Does anyone else find it very odd that the recent ruling dealing with standing heard in the 9th Circuit involving the US Government, and the State of Washington & Minnesota, failed to cite the most recent case law on the matter of standing? Their 9th Circuit opinion can be found here.
Is this the reason for the Chief Judge filing his sua sponte request? For those not familiar with the legal terms “sua sponte” and “en banc” let us explain.
sua sponte – “Latin for “of one’s own accord; voluntarily.” Used to indicate that a court has taken notice of an issue on its own motion without prompting or suggestion from either party.”
Did you catch that? The “Court” has taken notice of an issue on its own motion without prompting or suggestion from either party. That points to them realizing something is wrong. I can only wonder if the Chief Judge sees what appears to be a glaring omission from the three-judge ruling in his court, as in language from Spokeo v. Robins.
en banc – “French for “in the bench,” it signifies a decision by the full court of all the appeals judges in jurisdictions where there is more than one three- or four-judge panel. The larger number sit in judgment when the court feels there is a particularly significant issue at stake or when requested by one or both parties to the case and agreed to by the court.”
How serious is this request? According to Cornell University Law School, “An en banc hearing or rehearing is not favored and ordinarily will not be ordered unless:
The request asks for briefs from all parties, not just the plaintiff and defendant. That means each and every party involved in this case is being asked to provide a brief on their position on whether this matter should be reconsidered by the full court; “en banc”
The filing, found below, indicates this matter is not finished before the 9th District Court as so many have insisted is the case. It would appear there is something missing from the recent ruling and I am going to guess this action is being taken in order to secure or maintain uniformity of the court’s decisions, or in this case, one that was recently overturned by the Supreme Court.
O Romeo, Romeo! wherefore art thou Spokeo!
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By Kirk Allen
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