Ninth Circuit to Litigants: “Go to Your Room”

There’s an epidemic of grade-school punishments sweeping the the Circuit Courts of Appeals.  First, the Fifth Circuit told a lawyer to do her homework — a three-page single-spaced letter.  Or perhaps, it was more like “a kid writing on the blackboard as punishment after class. ‘I will not question Marbury v. Madison, I will not question Marbury v. Madison, I will not question…’” (via  And now, the Ninth Circuit is sending litigants to their rooms for a time out.

Well, not really. But it’s close. Here’s what happened:  After more than ten years of litigation and multiple appeals in a Second Amendment case, the lawyers in Nordyke v. King were once again before the Ninth Circuit for oral argument.  You can watch here, but you probably don’t want to, because it’s over an hour.  I didn’t watch the whole thing myself, but most of what I saw centered around the questions (1) whether and to what extent a remand was needed for further development of the record, and (2) whether, prior to the remand, the Ninth Circuit would provide the parties with a test of some kind to instruct the District Court in how to evaluate the plaintiffs’ Second Amendment claim.

So what did the Court do?  None of the above.  Today the Ninth Circuit issued the following Order, which directed the parties to go away.

The panel believes that the parties should attempt to settle this dispute by agreeing on the conditions for holding gun shows at the Alameda County fairgrounds, with the assistance of mediation. The case is referred to the Circuit Mediation Office for mediation, and its submission is deferred for 45 days or pending further order of the court.

Judge Smith concurred in the Order, but added the following:

I would have attached a copy of a proposed disposition in this case so that the parties would know what they would face in the event mediation fails.

I’m assuming the “proposed disposition” would not be of the “X wins, Y loses” variety, but something more along the lines of setting out a test for the District Court would to apply on remand.  Of course, I have no idea.

Chief Judge Kozinski, joined by Judge Gould, takes the cake.  He dissents:

The parties have not asked for mediation; they have said nothing that suggests mediation would be fruitful; when asked about it in court, they displayed obvious distaste for the idea. We overstep our authority by forcing the parties to spend time and money engaging in a mediation charade. Our job is to decide the case, and do so promptly. This delay serves no useful purpose; it only makes us look foolish. I want no part of it.

I want no part of it!  Now that’s a dissent.

My personal view, having not read the briefs and lacking any real understanding of the case, is that I would join Chief Judge Kozinski’s dissent.  It’s very difficult to resolve a case when there is no certainty or mutual understanding regarding the applicable law. Without an opinion setting forth the applicable legal standard to decide the claims, neither side will be able to form a reasonable evaluation of its likelihood of success. And that makes settlement hard if not impossible.

A few added thoughts: It seems like a remand for additional fact-finding might have had the same chance of achieving the same result.  The prospect of additional prolonged litigation may well have driven the parties to mediation.  But from my cursory look at the case, this seems like the sort of “cause litigation” that is wholly unsuitable for mediation.  The parties likely have no interest in resolving their differences.  Each party wants to win.  People who dislike Second Amendment rights want to score a victory against the NRA.  And people who support gun rights want a published opinion vindicating their rights.  Mediation achieves neither result.

Lastly, has anyone heard of an appellate court — federal or state — do anything like this?  I’ve certainly heard of trial court judges tell litigants to go work it out or something informal along those lines.  And I know some courts of appeals and trial courts have general rules requiring the parties to engage in some sort of good faith settlement effort prior to a trial or argument date.  But I’ve never seen anything like this: an appellate court, post-argument, ordering the parties to mediate in lieu of entering an order/opinion that somehow terminates the court’s jurisdiction over the case.  Anyone?

Update: SCOTUSBlog has some more information about the case (which is apparently well known among folks who know anything about the Second Amendment).  According to SCOTUSBlog, there were “post-argument filings between the gun show advocates and Alameda County, California governing officials [that] brought out new details of a side issue over whether the county would allow gun shows at a public fairgrounds.” So maybe there is some chance the folks can work this out. Although Lyle Denniston adds: “There appears to be frayed relations between the two sides, with each accusing the other of misleading the court.”  So maybe not.  I guess we’ll see.


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