Supreme Court adds to growing list of 9th Circuit reversals

In a series of cases during 2018 the U.S. Supreme Court decided national issues widely reported by the media and lawyers. In National Institute of Family and Life Advocates v. Becerra, 138 S. Ct. 2361 (2018), the court cited the California legislative mandate to post an announcement in public pro-life facilities informing women of the alternative to abortion and its attendant services. The Supreme Court reversed the 9th U.S. Circuit Court of Appeals' decision on First Amendment grounds and reversed other 9th Circuit decisions on a similar topic: A Woman's Friend Pregnancy Resource Clinic v. Becerra, 138 S. Ct. 2711 (2018); Livingwell Medical Clinic Inc. v. Becerra, 138 S. Ct. 2707 (2018). In each case, 9th Circuit panels cited these opinions respectively and remanded to the district court.

In an unrelated case from Hawaii, the Supreme Court reversed another 9th Circuit appeal and confirmed the independence of the president in restricting entry of migrants from foreign countries. Trump v. Hawaii, 138 S. Ct. 2392 (2018). In an appeal from a 7th Circuit decision, the justices restricted collection of fees from employees who disagreed with union political programs. Janus v. American Federation of State, County and Municipal Employees, 138 S. Ct. 2448 (2018).

Adding to prior reversed 9th Circuit decisions often cloaked in constitutional language, the Supreme Court had previously allowed gerrymandering as a legislative issue, not a judicial one. All these cases, including potential inroads in abortion litigation, a tightening border policy, the diminution of union financial support of election issues, and judicially construing voting issues differently, tend to affect not only further judicial decisions in these categories but incur volatile public reaction.

Aside from political issues, the 9th Circuit continues to overrule state courts in the language of federal habeas corpus. This doctrine is included in the U.S. Constitution to affect federal courts ruling in federal cases. But the late Justice William Brennan discovered, in the mythical history of English jurisprudence, the right of habeas corpus in federal courts to reverse state courts. This rule has enabled the 9th Circuit to reverse decisions of state courts of appeal and state supreme court judges who had already affirmed convictions in their own trial and appellate courts.

The 9th Circuit uses habeas corpus language interpreting constitutional law issues in state courts, i.e., reversing Sixth Amendment cases alleging ineffective counsel; Fifth Amendment Miranda decisions; Fourth Amendment issues of search and seizure; and due process in criminal case penalty phase hearings. Reversing decisions of California courts causes endless delays, inability of the prosecution to retry reversed cases attributable to the death of witnesses or a variety of other dilatory issues. Unfortunately, Congress will not restrict use of federal habeas corpus any further in state courts, although the Legislature has the jurisprudence to do so.

In Sexton v. Beaudreaux, 138 S. Ct. 2555 (2018) the federal appeals court granting habeas corpus reversed the state court decision. The Supreme Court, granting certiorari, said "The [9th Circuit] Court of Appeals decision ignored well established principles ... it analyzed respondent's (California) arguments without any meaningful deference to the state court." Reversed.

Martinez v. Cate, 903 F.3d 9 82 (2018), illustrates another example. Detectives in a murder case questioned the defendant, and a transcript related the ambiguous conversation. The state court judge ruled no Miranda error occurred. The jury found the defendant guilty, the California Court of Appeal confirmed, and the California Supreme Court dismissed the case. The defendant filed habeas corpus in district court and the magistrate judge recommended denial. The trial judge agreed and denied the petition.

The defendant filed habeas corpus in the 9th Circuit and the panel reversed on grounds a Miranda violation prevailed. Five courts had previously disagreed, and unless the prosecution can retry the defendant, a convicted murderer will be released. In addition, the 9th Circuit panel did not consider other evidence in the case to find prejudice.

The 9th Circuit writes appeals from decisions of federal district courts in a variety of unusual cases and is reversed. In United States v. Sanchez-Gomez, 859 F.3d 649 (2017), federal marshals informed trial judges of the increase in violent prisoners and the concurrent shortage of deputies had caused danger to judges, staff and jurors. In response, the trial judges concurred and ordered an increase of shackles and handcuffs on prisoners in all non-jury, pretrial hearings.

Four defendants awaiting trial in their unrelated cases filed an action in district court to vacate the decision. The trial judge eventually denied the motion, and the defendants, whose own cases by that time had concluded, appealed this decision to the 9th Circuit. These judges classified the appeal as a class action to obtain standing and denied the case as moot. In granting certiorari the Supreme Court dismissed analysis by the 9th Circuit decision in a lengthy critical opinion, and ordered reversal and remand. United States v. Sanchez-Gomez, 138 S. Ct. 1532 (2018). And then, in a tiny order buried in a press release, the chief judge of the 9th Circuit on remand returned the case to the district court 'in accordance with the Supreme Court decision." Ninth Circuit panels use this verbal format frequently, e.g., the United States v. Hernandez-Lara, 2018 DJDAR 9571 (Sept. 20, 2018), case remanded from the Supreme Court in vacating the judgment.