Beldar is smug: Eleven-judge Ninth Circuit panel affirms district court in Shelley as standard of review proves outcome-determinative

The eleven-judge mini-en banc panel of the Ninth Circuit has issued a unanimous, thirteen-page per curiam opinion affirming the judgment of the district court — thereby overturning the result of the prior three-judge Ninth Circuit panel which had reversed the district court.  The California recall election will proceed as planned on October 7th.

How'd I do on my predictions?  Pardon me for feeling a bit smug.

In my original analysis of the three-judge panel's opinion, I discussed the standard of review that appellate courts are supposed to apply to appeals from decisions granting or denying preliminary injunctions.  I focused on one part of the standard that had been cited, but then ignored, by the three-judge panel opinion — the requirement that the appellate court not overturn a factual finding of the district court unless it could be shown to have been "clearly erroneous."  But I noted that by failing to make more explicit fact findings, the district court had hurt its chances of being sustained on appeal. 

The eleven-judge panel, however, simply shifted the standard of review up one notch to focus on a similar but closely related maxim — that a district court's decision to grant or deny a preliminary injunction will only be reversed if it can be shown to be an "abuse of discretion."  That's a level of analysis that includes both the district court's factual findings and its legal conclusions in one sweeping formulation.  By keeping the focus there, the eleven-judge panel simply swept over — with zero discussion — any disputes regarding the underlying facts of the case (including the district court's failure to more explicitly resolve those disputes).  This use of a very broad focus — this refusal to subdivide the district court's decision into its logical factual and legal subparts, which there is certainly supporting precedent for doing, and which is in fact the more common practice — was, shall we say, less than meticulous, almost to the point of being a deliberate blurring.  It's a bolder, blunter assertion of the appellate court's limited standard of review than I originally proposed.  But that's basically how the eleven-judge panel was able to replace the three-judge panel opinion's sixty-six pages with something about a fifth as long.

Metaphorically, if an appeal is the examination of the district court's decision under close magnification, then the "standard of review" is the lab manual that tells you how to adjust your microscope.  I criticized the three-judge panel opinion for cranking up the magnification so high that it was "finding facts" from the evidentiary record that the district court had never explicitly discussed.  The eleven-judge opinion, however, not only twirled the focus knob back up, it whirled over into a different set of lenses altogether — a very low-magnification scrutiny.  Instead of examining the whirls and curls and intricacies of the district court's fingerprints under a 300x lens, the eleven-judge panel took a glance under a 3x lens and said, "Yep, that's a fingerprint alrightee!"  And stopped. 

In short, I predicted that the standard of review would be important, and indeed, the selection of this level of review became, very simply, outcome-determinative. 

In my other predictions, made last night after the argument:

• I predicted that Chief Judge Schroeder would be in the majority; she was. 

• I predicted a large majority to affirm the district court, "perhaps even a unanimous one"; it was. 

• I predicted that she'd assign Judge Kozinski to write the opinion.  This we can't tell, since it was unsigned.  However, I am 99.99 percent certain that what was released this morning — the timing of the release already having been announced by a court spokesman last night — was drafted before the oral argument, most likely by whichever judge led the private charge within the court to get the three-judge panel opinion reheard.  Especially given the way he dominated the oral argument yesterday, I think it's a reasonable assumption that Judge Kozinski indeed was that mystery judge.

• I predicted that the three-judge panel's reliance on Bush v. Gore could be disavowed "in two paragraphs and a one-sentence quote:   'The question before the [Bush v. Gore Supreme] Court [was] not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections.'"  I nailed it on the one-sentence quote, but the eleven-judge panel took only one paragraph to use it (page 8, 2d paragraph).

• I predicted that there would be very different language from that used by the three-judge panel on the "balancing of interests," and indeed there was ringing language (pp. 9-11) about the special reasons for not enjoining elections and the public interest in proceeding as scheduled by state election authorities, even on the two ballot propositions in addition to the gubernatorial recall.

I'll now venture a further, much easier and safer prediction:   the en banc Ninth Circuit having acted to clean up the ugly mess made by the three-judge panel, the Supreme Court will absolutely refuse to have anything to do with this case.

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UPDATE (Tue Sep 23 @ 6:30pm):   Rick Hasen's Election Law blog quotes in full an ACLU press release announcing that it won't seek Supreme Court review, which can't quite resist throwing in a gratuitous shot at Dubya at the end:

We will, however, press forward vigorously with our national campaign for election reform and will fight to ensure the fairness and accuracy of all voting procedures in every future election, including the 2004 Presidential contest.

(Cue the clip from Candidate Ahh-nold.)  Presumably the ACLU's jointly-represented coplaintiffs will follow suit (not to suggest that they're anything less than the completely independent, completely distinct entities they were presented as being for purposes of avoiding the defendants' claim preclusion issue, which the eleven judge mini-en banc panel ignored anyway). 

Hasen had filed an amicus brief supporting the ACLU's position, and his polite grumbling (here and here, whenever Blogspot gets its archives back online) — based on how the eleven-judge panel extended the "abuse of discretion standard" to insulate from review not only factual findings but legal conclusions "if the district court judge came close enough to getting the law right" — is frankly very well taken. 

What he's talking about is exactly what I meant when I referred to the eleven-judge panel's failure to subdivide its analysis between the factual and legal subparts of the district court's decision; normally fact findings are immune unless "clearly erroneous," but legal conclusions are reviewed "de novo," with no deference at all to the district judge's views on the law.  The distinction is based on the unarguable proposition that while the appellate court didn't get a chance to see the witnesses and sniff out the liars, it nonetheless is in as good a position as the trial judge to decide what the applicable law should be.  If you do that sort of divided analysis, the "abuse of discretion" standard becomes almost meaningless as a separate standard of review; or to the extent it has independent meaning, it's only with respect to the "balancing of interests" part of the inquiry.  What this opinion does arguably extends or reinvigorates the "abuse of discretion" standard into one that, as Hasen points out, gives the district judge the benefit of the doubt on legal as well as factual issues — "close enough for government work," as Judge Kozinski repeatedly joked during the oral argument. 

I doubt, however, that this opinion will end up being cited for that proposition; rather, I frankly think that the eleven-judge panel used this deliberate blurring of standards as a way to compensate for the district court's failure to make fact findings in this specific case, and had no intention of writing any "new law" on the standard of review for preliminary injunctions.  If so, the case may become a "nonprecedential precedent" — meaning that the next time a litigant says, "Well, you should affirm because the district court got the law pretty close to right," the Ninth Circuit will say, "Hey, boy!  This isn't horseshoes or hand grenades!"  In any event, to call the opinion's discussion of this issue "terse" would be a considerable understatement.

According to one of his law students who blogs, Professor Tribe apparently shares my strong hunch that the opinion was written before the oral argument, based on the timing of its release.  Call me a pragmatist, or call me a cynic, but even with only the few hours of hindsight we have since the decision was announced, this seems clear to me:

• A majority of the active judges of the Ninth Circuit found the three-judge panel opinion extremely embarrassing.

• Someone — my bet is Judge Kozinski — led an immediate private charge inside the full Ninth Circuit to get the decision reheard en banc before the parties had even put finger to keyboard to draft their motions for rehearing.

• For all practical purposes, the reversal of the panel was assured as of the moment the rehearing en banc was announced.

• Speed was of the essence.  It is almost inconceivable that the en banc court could have acted any more rapidly than it actually did on this case.

• The decision to allow TV coverage of the oral argument was the most obvious example yet of a federal court engaging in spin control — in a word, "showbiz"!  Chief Judge Schroeder, on her own initiative or with urging, recognized that the Ninth Circuit needs some good PR.  Cleaning up the original three-judge panel's mess after a highly publicized, nationally televised (but completely meaningless) oral argument — and doing so unanimously, expeditiously, and with a panel on which a majority of the judges had been appointed by Democratic Presidents — was an excellent way to counter some of the deservedly bad press the Ninth Circuit has gotten from its high reversal rate and its rulings in cases like the recent ones involving the Pledge of Allegiance and the "three strikes" law.

I do not make these remarks in a critical way.  It is altogether appropriate for Chief Judge Schroeder and her colleagues to be concerned about the reputation and dignity of the Ninth Circuit, and just as it is their duty to uphold that reputation and dignity, it is their duty to act in appropriate, if indirect, ways to restore what's been tarnished.  In fact, if I'm right, then this course of action is exactly the way for the Ninth Circuit to "talk" to the people about what it is doing — in contrast to less subtle and more unethical methods of trying to affect public opinion.