Breaking News: Ninth Circuit Denies Order in Monterey Case; Stays Briefing Pending Resolution of Padilla En Banc Order

I have posted the Court's two page order here. The court accepted my amicus letter and another amicus letter for filing, and then denied the motion of plaintiffs, which would have had the effect of putting the Monterey initiative back on the ballot. The court, in an order from Judges Kozinski and Rymer, then wrote:

This court's decision in Padilla v. Lever, 429 F.3d 910 (9th Cir. 2005), is currently under consideration for rehearing en banc. Briefing in this appeal shall be stayed pending the resolution of the petition for rehearing en banc in Padilla. If this court denies the petition for rehearing en banc, the Clerk will establish a new briefing schedule in this appeal. If this court grants the petition for rehearing en banc in Padilla, the briefing schedule in this appeal shall be stayed pending a decision of the en banc court in Padilla.

This of course is bad news for the initiative proponents in Monterey, but what is its broader significance? Perhaps the court is about to grant rehearing en banc in Padilla (and at least we know that Padilla now has the attention of two judges in the Ninth Circuit who care about grants in en banc cases), which would have the effect of wiping out the panel decision. See Circuit Advisory Committee Note to Rules 35-1-35-3: if court grants rehearing en banc, "The three-judge panel decision shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent allowed by the en banc court."

While the grant of en banc in Padilla would not preclude a district court judge from holding, as the district court did in the Monterey case, that initiative or recall petitions must be in multiple languages to comply with section 203 of the Voting Rights Act, I would think that judges would be much less likely to do so with no (citable) appellate court precedent so holding, and two cases from other circuits reaching the contrary conclusion. At the very least, the grant of en banc rehearing in Padilla would signal to lower court judges that a number of Ninth Circuit judges have serious questions about the three-judge panel ruling.

-- 
Rick Hasen 
William H. Hannon Distinguished Professor of Law
Loyola Law School 
919 Albany Street 
Los Angeles, CA  90015-1211 
(213)736-1466 - voice 
(213)380-3769 - fax 
rick.hasen@lls.edu 
http://www.lls.edu/academics/faculty/hasen.html 
http://electionlawblog.org