This one is hilarious. Simply hilarious. In part because it's fairly rare. And in part because of both the tenor and content of what it says.
This is the latest installment of the (somewhat) high-profile case in which a bunch of parents sued when their kids were given various sex tests in a Palmdale, California public elementary school. Back in November 2005, my old boss, Judge Reinhardt, issued this opinion, in which he upheld the 12(b)(6) dismissal of the lawsuit.
At which point there was a fair amount of attention paid to the controversy -- as well as Judge Reinhardt's opinion -- both in legal circles and in the press. To which the plaintiffs wisely respond by promptly getting a new lawyer, backing themselves up with several amici, and filing a petition for rehearing en banc. Note: They don't file for a petition for rehearing. They know they ain't getting anywhere with Judge Reinhardt. So they go directly over his head.
At that point, reading between the lines, one gets the definite sense that the petition is getting a fair amount of attention from the Ninth Circuit. As these things sometimes do. Various exchanges are going back and forth amongst the judges in connection with what's likely an en banc call. Again, these things happen. At which point the judge who issued the opinion typically defends it internally, other judges attack it, and then you take a vote. Simple.
But what's funny here is that Judge Reinhardt does something a little different. Instead of merely addressing the matter internally, he decides -- in light of the petition for rehearing en banc -- to issue a new opinion nostra sponte. Now, mind you, he's not amending and replacing the old opinion. That one stays. Rather, all that he's basically doing in the new opinion is essentially responding to the petition for rehearing en banc, as well as some of the various issues that his colleagues have (presumably) raised internally in connection with the en banc call. True, in connection with this response, he also modifies a couple of sentences in the first opinion, in part (again) to placate his detractors. But the prinipal point -- and it's just funny to read -- of the new opinion is to (1) defend his original opinion, and (2) defeat the call for en banc review. Which usually is far, far from what happens. Sure, sometimes you amend your opinion in response to a petition for rehearing. Sure, often you defend your opinion in response to a petition for rehearing en banc. But rarely, rarely, rarely do you write something like this, which directly responds -- at length -- to the particularlized attacks on your opinion. And that ends with: "The Opinion filed November 2, 2005, is REAFFIRMED."
Anyway, read this one. Its tone is very funny, and sounds exactly like Judge Reinhardt speaks in chambers. When something this unusual comes along, it's definitely worth a read. Rarely do Ninth Circuit judges sound so much like advocates. Too funny.
