The Coalition to Protect Marriage Nevada has petitioned the Ninth Circuit for a rehearing en banc for the marriage equality case ruled on just last week. It's likely to be denied because they do not have Article III standing to appeal a marriage equality decision. Nevada's governor and attorney general have declined to do so. However, the brief is rather amusing.
First, they say that the Ninth Circuit panel that decided in the SmithKline case got it wrong with regard to the level of scrutiny required in cases involving gays and lesbians. They say that it conflicts with most of the other appeals courts, Ninth Circuit precedent, and did not take into account the animus factor in the Windsor decision. Those are legal issues, and I guess that it's fair to bring them up even though I disagree with them.
But, then they accuse the Ninth Circuit of deliberately putting two of the judges on the panel rather than a random selection. And, they say that the appearance that the Ninth Circuit did this is also problematic. I don't think that line of reasoning is going to get them any support from the Ninth Circuit judges (well, maybe O'Scannlain). Anyway, they say that statistical probabilities indicate that those judges were not chosen randomly, but to insure a predetermined result. Interestingly, in one of the footnotes, they reference a Daily Kos diary -- 9th Circuit Gets Best Possible Panel For Marriage Equality authored by shrekk. They also reference an Equality On Trial post by Scottie Thomaston -- Liberal three-judge panel picked to hear marriage cases in the Ninth Circuit next week. See the footnote at the bottom of page 12 of the brief.
It was all a set up, you see -- by Kossacks For Marriage Equality and the good (but devious) folks over at Equality On Trial. We apparently engineered it all with the Ninth Circuit. It's just hilarious.
Anyway, here is the relevant part of the brief:
Further — en banc review is regrettably necessary to cure the appearance that the assignment of this case to this particular three-judge panel was not the result of a random or otherwise neutral selection process. Troubling questions arise because a careful statistical analysis reveals the high improbability of Judge Berzon and Judge Reinhardt being assigned to this case by a neutral selection process. The attached statistical analysis, Exhibit 3, explains that since January 1, 2010, Judge Berzon has been on the merits panel in five and Judge Reinhardt has been on the merits panel in four of the eleven Ninth Circuit cases involving the federal constitutional rights of gay men and lesbians (“Relevant Cases”), far more than any other judge and far more than can reasonably be accounted for by a neutral assignment process. Indeed, statistical analysis demonstrates that the improbability of such occurring randomly is not just significant but overwhelming. Thus, the odds are 441-to-1 against what we observe with the Relevant Case — the two most assigned judges receiving under a neutral assignment process five and four assignments respectively (and anything more extreme).
We bring the issue of bias in the selection process to the Circuit’s attention with respect and with a keen awareness that questioning the neutrality of the panel’s selection could hardly be more serious. But the sensitivity of raising uncomfortable questions for this Circuit must be balanced against the interests of ordinary Nevadans, who deserve a fair hearing before a novel interpretation of constitutional law deprives them of the right to control the meaning of marriage within their State. A hearing before an impartial tribunal is, after all, a central pillar of what our legal tradition means by due process of law, and the means of selecting the tribunal certainly implicates notions of impartiality. Measures have been put in place by this Court to assign judges through a neutral process. But in this case the appearance is unavoidable that those measures failed. En banc review is necessary to ensure that the appearance of bias is cured by a fresh hearing before a panel, the selection of which is unquestionably neutral.
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Box Turtle Bulletin
Lambda Legal Responds:
The Coalition's claims of an improper judicial selection process are unfounded, desperate, and sad. We are embarrassed that they have stooped to attacking the integrity of our federal judiciary, rather than accepting an outcome they disagree with a modicum of grace. We are confident the Coalition's request for rehearing will be rejected, for at least two reasons. First, its arguments about the law have been rejected repeatedly, including in the Fourth, Seventh, and Tenth Circuit decisions that the Supreme Court just let stand - and with near unanimity by all the courts who have considered since Windsor whether our Constitution requires that same-sex couples be allowed to marry. Second, the Coalition lacks standing to seek further review on its own. The law is clear: an actual controversy must exist throughout all stages of litigation. Given that the only defendants actually affected by this litigation are the government officials who have been allowing same-sex couples to marry since last week, it's clear that there is no further controversy to resolve.
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JMG
