Tag Archives: Court: 9th Circuit

. . . the U.S. Judicial Conference — the policymaking arm of the federal courts — wrote to Ninth Circuit Chief Judge Alex Kozinski, reminding him that the Conference has a policy against any ‘public dissemination’ of TV . . .

Bay Area Reporter: “Defending the anti-gay measure is the Alliance Defense Fund, which represents the group that pushed to pass Prop 8, ProtectMarriage.com. In a legal twist, both Governor Arnold Schwarzenegger and Attorney General Jerry Brown are not defending the state law and have, in fact, told the court that Prop 8 is unconstitutional.”

Seattle Post-Intelligencer: “Tuesday’s split ruling by a 9th U.S. Circuit Court of Appeals panel puts those restrictions in doubt, as two of three judges reviewing the voting rights lawsuit found that the state restrictions unfairly penalize minorities.”

Farrakhan v. Gregoire, No. 06-35669 (9th Cir. Jan. 5, 2010)

“Instead, the court concluded, the school is a private company . . . ”

Pat Trueman, special counsel for ADF, appeared on Wallbuilders Live to discuss the problem of sexting and recent obscenity rulings.

The MP3 runs just over 9 minutes.

Community Defense Counsel Abstract: 9th Circuit: National community standard must be applied in regulating Internet obscenity

Community Defense Counsel: 11th Circuit Obscenity Case Tests Community Standards on the Internet

“Walker’s New Year’s Eve surprise is a critical step in his evident ongoing effort to turn the lawsuit into a high-profile, culture-transforming, history-making, Scopes-style show trial of Proposition 8’s sponsors . . . ”

Volokh Conspiracy: “In the latest installment of Chief Judge Kozinski vs. DOJ(OLC)/OPM, discussed in my post below, Chief Judge Kozinski issued yet another order today, in apparent response to OPM’s statement on Friday refusing, based on DOJ/OLC’s advice, not to abide by his earlier orders.”

Related:

“Gay Marriage Gets Boost From 9th Circuit”

“Federal Judges Go to Bar For Their Married Gay Employees”

U.S. agency ordered by 9th Circuit to provide same-sex benefits

San Diego News: “The U.S. Court of Appeals for the 9th Circuit heard the case on Dec. 9, but no decision is imminent since the three judges are waiting for the U.S. Supreme Court to hear the Mojave cross case Salazar vs. Buno’ . . . ‘My impression is that the panel was attempting to reconcile its old views with the Supreme Court precedent, which is now very favorable to the cross,’ Infranco said. ‘This is a panel that, based on its history, would not be friendly to our perspective. Any panel, regardless of each judge’s philosophy, is still bound by Supreme Court decisions.’”

“The Obama administration refused Friday to follow a federal judge’s order to provide insurance benefits to the wife of a lesbian court employee in San Francisco and said its hands were tied by a discriminatory law.”

OneNewsNow: “Brian Raum of the Alliance Defense Fund tells OneNewsNow the Ninth U.S. Circuit Court of Appeals recently ruled that the First Amendment rights of its clients will be protected . . . ‘The communications and the thoughts of a campaign and their strategy and the messaging that goes along with that are all things protected by the First Amendment,’ Raum notes. ‘The fact is that the people of California voted [in November 2008] to restore the definition of marriage as one man and one woman, and that’s what’s important here.’”

Law.com (The Recorder): “The Judicial Council of the 9th Circuit authorized television cameras in certain district court proceedings Thursday, reviving a national controversy just weeks before a groundbreaking trial over same-sex marriage is slated to begin in San Francisco.”

LA Times L.A. Now blog: “Judges of the U.S. 9th Circuit Court of Appeals will vote soon on whether to reconsider their decision last week denying gay rights advocates access to internal communications of Proposition 8 supporters who succeeded in getting voters to ban same-sex marriage last year.”

LifeSiteNews: “A panel of eleven judges of the Ninth Circuit Court of Appeals sitting in San Francisco will hear oral arguments tomorrow, December 16, concerning the constitutionality of the San Francisco Board of Supervisor’s resolution attacking the Catholic Church for its teachings against homosexual adoptions.”

Religion Clause Blog: “Yesterday the U.S. 9th Circuit Court of Appeals heard oral arguments in Jewish War Veterans v. City of San Diego. (Recording of full arguments.) The case is part of the 20-year long series of lawsuits challenging the Mt. Soledad Veterans Memorial in San Diego, California, and the large Cross that is part of the memorial.”

San Diego Union-Tribune: “Joe Infranco, a lawyer with the Alliance Defense Fund, which has sided with the government and wants to keep the cross, said after the hearing it was ‘very hard to tell’ if the judges were leaning in any direction. But he seemed encouraged by the court’s focus. ‘The congressional intent is key here,’ he said.”

WorldNetDaily: “Joe Infranco is a lawyer with the Alliance Defense Fund, a legal group that filed a friend-of-the-court brief on behalf of the American Legion Department of California. He told WND that after 45 minutes of arguments in 9th U.S. Circuit Court of Appeals, it was difficult to tell which way the three-judge panel was leaning. ‘There was not a lot of heated debate. There were not pointed questions,’ he said. ‘My view of it is that the panel was attempting to reconcile its old views with Supreme Court precedent, which is now very favorable toward the cross.’”

ADF Senior Counsel Joseph Infranco and ADF Legal Counsel Timothy Chandler will be available for media interviews following oral arguments in a long-running lawsuit over the Mt. Soledad Veterans’ Memorial. In March, ADF attorneys filed a friend-of-the-court brief on behalf of The American Legion Department of California in defense of the 55-year-old Mt. Soledad cross after the American Civil Liberties Union and atheist Steve Trunk challenged its constitutionality.

Chronicle of Higher Education: “Gregory S. Baylor, a laywer for the Alliance Defense Fund, a Christian legal-advocacy group assisting the legal society in the case, said, ‘It’s completely unreasonable—and unconstitutional—for a public university to disrupt the purposes of private student groups by forcing them to accept as members and officers those who oppose the very ideas they advocate.’”

Pacific Justice Institute: “PJI President Brad Dacus noted, ‘We have been waiting so long on a decision in the national motto and Pledge of Allegiance cases that Michael Newdow has filed more lawsuits in the meantime—one attacking prayer at presidential inaugurations and the other attacking the longstanding tax exemption for ministers’ housing allowances.’”

“The three-judge appeals court panel said the sponsors ‘have made a strong showing that they are likely to succeed’ in their arguments.”

LA Times: “Lawyers for two gay couples told a federal appeals court Tuesday that they need access to internal communications from last year’s Proposition 8 campaign to show that the measure banning same-sex marriage was designed to sow ‘discriminatory animus’ toward gays and lesbians.”

San Francisco Chronicle: “The American Civil Liberties Union, which supports marital rights for gays and lesbians, is siding with opponents of same-sex marriage who are challenging a judge’s order to turn over campaign documents from last year’s effort to pass Proposition 8.”

Arizona Republic: “‘Religion speech should not be treated as a First Amendment orphan,’ said Defense Fund attorney
David Cortman. ‘Churches should certainly have the same First Amendment rights to speak, and that’s the principle of this case.’”

Law.com (National Law Journal): “A federal appeals court ruled 2-1 on Monday that rules that bar legal aid organizations financed by the Legal Services Corp. (LSC) from participating in class actions and collecting attorney fees do not violate their First Amendment rights.”

LEGAL AID SERVICES OF OREGON V. LEGAL SERVICES CORPORATIONNo. 08-35467

CitizenLink: “‘The government cannot require churches to abide by stricter rules than it places on other non-commercial signs,’ [Cortman] said. ‘The Constitution prohibits government officials from singling out religious groups for that kind of discrimination.’”

Fox-11 (AP): “Alliance Defense Fund attorney David Cortman, who represents the church, says he’s disappointed that the injunction was denied, but is pleased the case will go to court.”

Law.com (The Recorder): “Not one to be left out of a constitutional thicket, 9th U.S. Circuit Court of Appeals Chief Judge Alex Kozinski granted health benefits Thursday to the same-sex partners of court employees. Kozinski’s order comes a day after his colleague, Judge Stephen Reinhardt, issued his own published directive that a federal public defender be awarded back pay because his same-sex partner’s benefits had been denied.”

KGUN-9 (AZ Republic): “Alliance Defense Fund attorney David Cortman, who represents the church, says he’s disappointed that the injunction was denied, but is pleased the case will go to court.”

The Church Report: “‘Churches shouldn’t be discriminated against by a city’s sign ordinances,’ said ADF Senior Legal Counsel David Cortman, who argued the case before the 9th Circuit on April 15. ‘The government cannot require churches to abide by stricter rules than it places on other non-commercial signs. The Constitution prohibits government officials from singling out religious groups for that kind of discrimination.’”

East Valley Tribune: “Alliance Defense Fund lawyer David Cortman said in a statement Friday: ‘The government cannot require churches to abide by stricter rules than it places on other non-commercial signs. The Constitution prohibits government officials from singling out religious groups for that kind of discrimination.’”

Arizona Republic: “The 9th U.S. Circuit Court of Appeals affirmed an Arizona District Court decision to deny Good News Presbyterian Church, represented by the Alliance Defense Fund, an injunction against a signage code that it says violates its First Amendment rights . . . ‘Obviously we’re disappointed that the court affirmed the injunction denial but we’re pleased that it remanded (the case to district court),’ said Defense Fund attorney David Cortman.”

Leonard Link reports on the recent Ninth Circuit orderes by Judges Kozinski and Reinhardt.

Related:

U.S. agency ordered by 9th Circuit to provide same-sex benefits

9th Circuit judge orders compensation for denial of same-sex “spousal” benefits

Case sent back to lower court to decide whether town ordinance unconstitutionally favors non-commercial signs that aren’t religious.

Sacramento Bee: “Alex Kozinski, chief judge of the 9th U.S. Circuit Court of Appeals, Thursday ordered the U.S. Office of Personnel Management to quit interfering with health care benefits for federal judicial employees just because they are married to a person of the same sex.”

Although we conclude the provision of the ordinance directly regulating Good News’ signs does not of itself violate the First Amendment, the district court did not address Good News’ claim that the ordinance unfairly discriminates among forms of noncommercial speech

“Because the existing parties will adequately represent the Campaign’s interests, we affirm the district court’s denial of intervention as of right.”

“Reinhardt deemed the denial of healthcare and other benefits to the spouse of federal public defender Brad Levenson to be a violation of the Constitution’s guarantee of due process and discrimination on the basis of sexual orientation, which is prohibited by California state law.”

David French, Director of the ADF Center for Academic Freedom, writing at National Review’s Phi Beta Cons blog: “The Supreme Court may be preparing to decide — once and for all — whether student groups have a right to reserve membership and leadership for those who agree with the mission and purpose of the organization.”

Orin Kerr writes at the Volokh Conspiracy: “The basic dynamic of Ninth Circuit ‘liberal lion’ Stephen Reinhardt overturning a death sentence in a habeas case – and then the U.S. Supreme Court reversing Reinhardt — happens so often that it normally would not merit comment. But here’s a slight twist: Today the Supreme Court reversed Reinhardt for the third time in the same case, that of Fernando Belmontes, Jr.”

“The resolution criticized a directive by the Catholic Bishop that prohibited adoption placements with same-sex couples.”

How Appealing reports on the ruling in U.S. v. Hinkson, No. 05-30303 (9th Cir. Nov. 5, 2009).

Norse v. City of Santa Cruz, No. 07-15814 (9th Cir. Nov. 3, 2009)

Excerpts from the opening:

____________

Before: Mary M. Schroeder, Diarmuid F. O’Scannlain and A. Wallace Tashima, Circuit Judges.

Opinion by Judge Schroeder;
Partial Concurrence and Partial Dissent by Judge Tashima

Plaintiff-Appellant Robert Norse was ejected from two meetings of the Santa Cruz City Council, one in 2002 and one in 2004. He filed this 42 U.S.C. § 1983 action against the City and its Mayor and Council members alleging violation of his First Amendment rights. In a 2004 unpublished, nonprecedential disposition, we unanimously upheld the validity of the Council rules that were being enforced at the time of the ejections. Norse v. City of Santa Cruz, No. 02-16446, 2004 WL 2757528 (9th Cir. Dec. 3, 2004) (“Norse I”), at *1.

The rules authorize removal of “any person who interrupts and refuses to keep quiet . . . or otherwise disrupts the proceedings of the Council.” We observed that the rules are materially similar to the regulations we upheld in White v. City of Norwalk, 900 F.2d 1421 (9th Cir. 1990). Id.

A majority of us, however, reversed and remanded the district court’s dismissal on the pleadings, holding that there was no way of assessing the reasonableness of the Mayor’s actions, particularly his action in ordering Norse’s 2002 ejection after Norse gave a Nazi salute to protest the Mayor’s administration of the Council’s rules. Id. at *2.

There is no doubt that ordering Norse’s ejection in 2004 was a reasonable application of the rules of the Council. The videotape shows that Norse was engaged in a parade about the Council chambers protesting the Council’s action, and his conduct was clearly disruptive . . .

The State Press: “The [Alliance Defense Fund] disagreed with the court’s decision because a college campus is a public forum for students, as the Supreme Court has ruled for many years, Hacker said. ‘We believe that the court needs to address that issue of whether or not these forums are public forums because it has implications on how heavy-handed ASU can be in the future in regulating student speech,’ Hacker said.”

How Appealing reports on the today’s ruling in U.S. v. Kilbride, No. 07-10528 (9th Cir. Oct. 28, 2009).

This post will be updated.

OneNewsNow: “The Ninth U.S. Circuit Court of Appeals has issued a controversial ruling on pornography cases . . . According to the ADF attorney, the way these cases have previously been handled has been on the basis of local community standards. But Trueman suggests that if the Ninth Circuit’s ruling stands, it could make convictions far more difficult than they currently are. He is hopeful the decision will be appealed.”

How Appealing reports on the latest ruling and links to several reports.

Academic Freedom File: “The audio recording of Tuesday’s oral arguments in ASU Students for Life v. Crow can be found here. ADF Center for Academic Freedom attorney Heather Gebelin Hacker argued on behalf of ASU Students for Life. A decision is expected in several months.”

First Amendment Center: “‘It sounds like you have achieved a victory,’ Alex Kozinski, chief judge of the 9th U.S. Circuit Court of Appeals, told Heather Gebelin Hacker, an Alliance Defense Fund attorney representing the student group. But Hacker said during arguments Oct. 20 at the University of Arizona law college that there’s no certainty that the university won’t change its policies again without a court ruling in favor of protection of free speech on campus. The trial court ruling being appealed went in favor of the university, Hacker noted.”

Arizona Republic: “Attorneys will ask the U.S. Supreme Court to review an Arizona program that diverts tax revenue into private-school tuition scholarships.”

“The full 9th U.S. Circuit Court of Appeals on Wednesday declined to review a three-judge panel’s unanimous April ruling that the program could be unconstitutional by favoring religion.”

LifeNews: “Heather Gebelin Hacker, staff counsel with the Alliance Defense Fund, presented oral arguments today in the case. Hacker said, ‘Pro-life student groups shouldn’t have a price tag placed upon expression of their beliefs. Forcing any student group to pay for insurance in order to exercise their right to free speech guaranteed under the First Amendment is unconstitutional.’”

inth Circuit will hear arguments involving club required to purchase insurance
in order to exercise First Amendment rights

Protect Marriage Washington . . . said it will appeal Thursday’s federal appeals-court ruling that cleared the way for public release of the names . . .

“The group Protect Marriage Washington, which collected nearly 138,000 signatures to qualify R-71 for the November ballot, says those people could be harassed, amounting to an infringement on their free speech rights.”

Arizona Capitol Times: “Retired Supreme Court Justice Sandra Day O’Connor will be hearing cases once more, sitting in for two days on the 9th Circuit Court of Appeals. One case involves a right-to-life group that operates at Arizona State University . . . [Heather Gebelin Hacker] said, ‘Pro-life student groups shouldn’t have a price tag placed upon expression of their beliefs. Forcing any student group to pay for insurance in order to exercise their right to free speech guaranteed under the First Amendment is unconstitutional.’”

In Klein v. San Clemente, No. 08-55015 (9th Cir., Oct. 2, 2009) the U.S. Supreme Court for the 9th Circuit reversed a district court (C.D. Cal.) decision denying leaflet distributor Steve Klein a preliminary injunction against a San Clemente anti-litter ordinance that prohibits “deposit[ing] any commercial or noncommercial advertisement in or upon any vehicle.”

Law.com (The Recorder): “En banc arguments in a controversial gun rights case were animated Thursday, but don’t be surprised if the 9th U.S. Circuit Court of Appeals sits on this one for awhile.”

The Stranger: “The 9th US Circuit Court of Appeals agreed today to expedite a case about releasing the names and addresses of everyone who signed Referendum 71. A three-judge panel will hear oral arguments on October 14 in Pasadena, California. Each side will have 15 minutes to present their case.”

“A federal appeals panel has upheld a decision to bar the instrumental performance of a Christian hymn at a high school graduation in Everett, Wash.”

At The Volokh Conspiracy, Orin Kerr links to the 9th Circuit’s decision in United States v. Comprehensive Drug Testing, No. 05-10067 (9th Cir. Aug. 26, 2009) and writes: “The majority opinion, by Judge Alex Kozinski, announces a laundry list of brand-new rules, introduced with no citations to any authority, that henceforth the government must follow when executing warrants for digital information.”

In its opinion, the 9th Circuit undertook to “review the federal statutory scheme of the Controlling the Assault of Non-Solicited Pornography and Marketing (“CAN-SPAM”) Act of 2003, 15 U.S.C. § 7701 et seq., and assume the formidable task of determining the statutory standing requirements and the scope of federal preemption intended by Congress.”

The Recorder (Law.com): “The 9th U.S. Circuit Court of Appeals just agreed to host another shootout over gun rights. The court decided Wednesday to review en banc a panel ruling that had significantly broadened Second Amendment protections by applying them to state and local governments.”

Wesley J. Smith writing at Secondhand Smoke (First Things): “A three panel Court of Appeals panel reversed an injunction and sent the case back to the trial court for further consideration. But in finding that Washington regulations requiring pharmacists to carry and dispense all legal drugs and medications is a rule of general applicability–thus precluding religious conscience-based exemptions–it also means that all pharmacists in the state must dispense death to terminally ill patients in Washington who receive lethal prescriptions.”

Right Side News has posted an Alliance Defense Fund video and transcript detailing the Montana Canyon Ferry Road Baptist Church 9th Circuit victory. On Feb 25th, the U.S. Court of Appeals for the 9th Circuit reversed a ruling which had upheld as constitutional a Montana commissioner’s determination that a church violated state law by not registering as an “incidental political committee.”

ADF attorney Steve Aden appeared on the Dave Ross Show to discuss yesterday’s ruling in Storman’s v. Selecky.

The mp3 runs just over 11 minutes.

See also: 9th Circuit: Lower court erred when it blocked Wash. rules mandating sale of ‘morning-after’ pills

We must decide whether the district court [improperly] . . . enjoin[ed] the enforcement of new rules promulgated by the Washington State Board of Pharmacy (“Board”) that require pharmacies to deliver lawfully prescribed . . . medications . . .

San Francisco Chronicle (AP): “However, the judges say the matter should end with the admonishment, combined with Kozinski’s apology and other unspecified ‘corrective action.’”

How Appealing carries this report by Lawrence Hurly for the Daily Journal: “Back in December, the nine black-robed justices of the U.S. Supreme Court had an unusual experience during a routine oral argument: Both of the arguing counsel abandoned the reasoning of the federal appeals court ruling under scrutiny. The circuit court in question was the San Francisco-based 9th U.S. Circuit Court of Appeals. It was a moment that, in a sense, encapsulated the 9th Circuit’s performance before the high court in the term that ended Monday.”

Scott Jaschik reports at Inside Higher Ed: “So where does this leave colleges and students? Waiting. David French, senior legal counsel with the Alliance Defense Fund, said he views the Supreme Court’s decision to skip the Truth appeal as telling those involved in this issue not a flat ‘no’ but a ‘not yet.’ The Alliance Defense Fund has backed the Christian groups in these cases, and French said it would continue appeals to the Supreme Court until the matter is resolved. He said it was ‘problematic’ for universities and students to have such differing opinions coming from appeals courts.”

Aaron J. Leichman reports in The Christian Post: “Attorneys with the Alliance Defense Fund had filed a petition with the court in March, asking the justices to review the case in hopes that they would ‘bring an end to this discrimination once and for all. Christian student groups shouldn’t be penalized for their beliefs,’ said ADF Senior Counsel Nate Kellum after the Christian legal group took their case to the high court. ‘Excluding a club simply because its members are religious is a clear violation of their First Amendment rights and the Equal Access Act.’”

“This term, justices reversed, at least partially, 94% of the Western appeals court’s rulings. Part of the reason, experts say, is the court is perceived as liberal and partial to the underdog.”

Lindsay Toler reports in the Seattle Times: “‘We’re willing to keep fighting if we need to,’ Chandler said. He said his group, the Alliance Defense Fund, will continue to research the case, but their clients have not yet decided whether to begin another trial. ‘It’s not dead,’ acknowledged Chuck Lind, general counsel for the Kent School District.”

Among other provisions, the new rules required street performers at the Seattle Center to obtain permits before performing; set out specified locations of or street performances and established a first-come, first-served rule for using the locations; allowed only passive solicitation of funds by street performers; and prohibited any communication, by street performers or anyone else, within thirty feet of visitors to the Seattle Center who are waiting in line, attending an event, or sitting in a spot available for eating or drinking.

Bob Egelko reports in the San Francisco Chronicle: “The ruling allows the church to hold ‘meetings with religious content on the same terms and conditions as everybody else, from political groups to labor unions to neighborhood groups,’ said attorney Jordan Lorence of the Alliance Defense Fund, which represents the Faith Center Church Evangelistic Ministries in the long-running case.”

John Simerman reports in the Contra Costa Times: “‘The library has a basically wide open forum for private and community groups to engage in a wide spectrum of speech. About the only thing that’s excluded is religious speech,’ said Lorence, of the Alliance Defense Fund, a national Christian legal advocacy group. ‘This (ruling) reinforces what the Supreme Court has said in at least five major decisions since 1981.’”