I'm generally okay with those "create a theme based on the case" type of opinions. Not a fan of them, to be sure, but if they're done well, I'm okay with it. I know others disagree, and think that it makes light of the litigants. I get that. So, at a minimum, if you're going to do it, make sure you do it well.
I'm not sure that this opinion from the Ninth Circuit satisfies that standard.
Here are the first two paragraphs of the opinion:
"Dr. Lawrence P. Rudolph is an award-winning hunter
who made his way to the top of Safari Club International
(“SCI”), a sport hunting and wildlife conservation
organization. Following his term at the helm, various SCI
members accused him of official misconduct, stripped him of
his awards, and then exiled him permanently from the
association. That’s when the season opened. Rudolph sued
SCI and its president, his friend, John Whipple, whom he
assured was named only by virtue of his position at the head
of the organization. With his quarry in sight, Rudolph lured
Whipple to lunch, brought up the pending litigation, recorded
the conversation surreptitiously, and then posted it on
YouTube for public consumption.
Outraged, Whipple and SCI fired back at Rudolph with a
barrage of legal claims, including statutory invasion of
privacy, negligence per se, and common law invasion of privacy. The district court granted Rudolph’s motion to strike
under California’s anti-SLAPP statute as to four claims for
relief, but denied the motion as to these privacy claims,
finding plaintiffs had demonstrated a reasonable probability
of prevailing on the merits. On appeal, Rudolph seeks to line
up the perfect shot, arguing all three claims must fail because
there can be no objectively reasonable expectation of
confidentiality in a conversation that occurs in a public place.
Rudolph’s marksmanship, apparently on target in the tundra,
here is wide of the mark. We have jurisdiction pursuant to
28 U.S.C. § 1291, and we affirm."
Maybe it's just me, but I found all those hunting references distracting and not worth much humor value. The fact that the underlying humor involves killing living things (and translating that to the ostensible hunting of humans) probably doesn't help either.
On the merits, I totally understand where the opinion is coming from, and why it affirms the denial of the anti-SLAPP motion.
I just have one question.
In first -- extremely long -- footnote, the opinion notes that the plaintiff passed away in late 2014, and that this death mooted (under state law) most, but not all, of the types of damages sought in the case. The opinion goes on to suggest at some length that this might well obviate Article III standing, but then notes that since the parties didn't raise or brief this issue, the Ninth Circuit was leaving this issue for determination by the district court on remand.
Can you really do that?
I thought that Article III standing was a prerequisite for an appellate decision as well. So if there was a question about it, that'd have to be something decided first -- by the Court of Appeals -- before the appeal gets resolved. After all, if there's no Article III standing, then the Ninth Circuit doesn't have jurisdiction to decide the case. Period. Right?
It might be otherwise if we were only dealing with prudential standing. But the Ninth Circuit makes clear that we're talking entirely about Article III standing. That you've gotta have. So it seems to me the Court of Appeals has to first decide whether there's in fact standing, and hence jurisdiction, and can't simply decide the appeal on the merits and then remand the case back to the district court for a determination of whether or not there's constitutional standing.
Am I wrong? Missing something?
