Kozinski returns to 9th Circuit, as an advocate

For the first time since his abrupt resignation nearly two years ago, former 9th U.S. Circuit Court of Appeals Judge Alex Kozinski participated in proceedings at Pasadena's federal courthouse Monday, this time as an advocate.

The return of the former jurist -- whose departure in 2017 came amid a hail of sexual misconduct allegations -- drew widespread media notice but proceeded without spectacle. Kozinski composedly delivered arguments claiming Fox Searchlight Pictures Inc.'s film "The Shape of Water" infringed upon his client's 1969 play, "Let Me Hear You Whisper."

Offering a counselor's customary salutation, Kozinski, who spent 32 years on the circuit bench, introduced himself to Monday's panel, which included a longtime Pasadena colleague, Circuit Judge Kim McLane Wardlaw.

"Good morning, may it please the court; I'm Alex Kozinski," the attorney began, eliciting a cordial "good morning" from Wardlaw.

Kozinski, befitting the deferential role of an appellate advocate, yielded to judges' interjections, entertained their varied hypotheticals, and pleaded for additional time to rebut his opponents' claims.

"If you didn't know about the history, I don't think you'd have guessed it," said University of Pittsburgh School of Law professor Arthur D. Hellman, who has long studied the 9th Circuit. "He was obviously well-prepared, as you'd expect. You would have thought it was a normal, pleasant oral argument."

That history includes a raft of sexual misconduct allegations that surfaced two Decembers ago; multiple former law clerks and other women told media outlets Kozinski touched or kissed them without permission, showed them pornography in chambers or subjected them to explicit sexual comments. The judge announced his immediate retirement on Dec. 18, 2017.

On Monday, Kozinski evidenced an unsurprising familiarity with 9th Circuit precedent, citing a concurrence from an unpublished 2018 decision that, he said, counseled against early dismissals in copyright infringement actions, like the one rendered in this case by U.S. District Judge Percy Anderson.

"It is not only unwise, but even a denial of due process to deny a plaintiff the opportunity to present evidence," the counselor argued.

Kozinski represents David Zindel, whose father, Paul Zindel, penned the 1969 romantic story about a janitorial cleaning woman in a laboratory who develops a loving bond and mode of communication with an aquatic mammal housed in the facility. Fox Searchlight's 2017 drama, Kozinski argued Monday, bore enough similarities to Zindel's tale to at least survive the defendants' motion to dismiss.

Hellman remarked that Kozinski's citation to unpublished authority clashed with the latter's previous efforts to block a rule change, made in 2006, that began allowing appellate attorneys to rely on such precedent.

"It's very ironic. Kozinski was by far the most vehement and prominent opponent of the rule change," Hellman said, referring to the addition of Rule 32.1 to the Federal Rules of Appellate Procedure. "Here he is now as a lawyer citing an unpublished opinion. I wonder if he remembers that if his position prevailed, he wouldn't have been able to do that."

Loeb & Loeb LLP partner Jonathan Zavin, representing Fox Searchlight Pictures, and Kelli L. Sager, a Davis Wright Tremaine LLP partner representing Macmillan Publishers Ltd., which published a companion book along with the film, claimed the more recent works possessed only passing commonalities with Zindel's play.

In rebuttal, Kozinski flashed his characteristic argumentative ardor, calling a portion of Sager's argument "nonsense." Zindel v. Fox Searchlight Pictures, 18-56087.

Hellman could not recall a similar reappearance of a resigned 9th Circuit judge arguing before the court but drew parallels between Monday's argument and those delivered by former U.S. Supreme Court Justice Abe Fortas, who pursued appeals in the high court after quitting under a cloud of financial controversy.

The professor added that Kozinski's return to the court seemed reasonable, despite his ignominious exit and serious allegations. In Hellman's view, the two years Kozinski spent away from the circuit, husbanding a small practice in Pasadena, amount to sufficient penance.

"It's harsh to say he's conflicted out altogether from arguing before the court," Hellman said. "Unless you're going to say forever, [two years] strikes me as reasonable."

According to the circuit's spokesperson, the court has no official guidelines governing how long past judges should wait before presenting an appeal to former colleagues. Since the judge's resignation, President Donald J. Trump has filled eight circuit seats and verges on two more. Circuit Judge Kenneth Lee, appointed in 2018, and visiting District Judge Matthew F. Kennelly rounded out Monday's panel. "The court has changed," Hellman said. "He hasn't been a colleague; he hasn't been a part of it."