Minor Update: State Of Hawaii Seeks En Banc Review, In The Ninth Circuit…

Attorneys for the State of Hawaii parties have overnight asked the Ninth Circuit to make the initial merits brief and oral argument an en banc proceeding. Citing “the exceptional importance of the questions presented” — and the outcome’s nationwide effect on our system of ordered liberty — in addition to quoting portions of the Fourth Circuit’s own order which granted en banc review, out east (on the same general matter), I would bet that the Ninth Circuit’s Chief will poll the judges — and let a majority vote decide, as it did last time, in late February/early March.

The only potential downside is that the Ninth Circuit decision will be on essentially the same time line as the Fourth’s. [As a prior three member panel, logistically speaking, the Ninth was all but certain to be the first to publish a decision.] Here’s a bit:

. . . .Yesterday, the U.S. Court of Appeals for the Fourth Circuit ordered initial hearing en banc in a similar case that involves a challenge to the same Executive Order. In light of the Fourth Circuit’s action, Appellees respectfully move this Court to hear this case en banc as well. Appellees have conferred with the Government, which states: “In light of the government’s interest in an expedited resolution of the important legal issues presented by both the stay motion and the merits appeal, the government supports initial review by the full Court if, but only if, the Court determines that initial en banc consideration would not delay the briefing, argument, or resolution of the stay or the appeal. . . .”

Countering that small concern of “which Circuit gets an opinion out first“, however, is the reality that by its very nature, the much larger Ninth Circuit en banc roster is decidedly sympathetic to First Amendment claims — so this greatly reduces the chance that (by a draw of lots), Hawaii gets an unduly narrowly-minded three member panel. Now you know. Grinning — at the prospect of making new law.



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