Judge Fisher, joined by Judge Paez, wants to -- and does -- decide both the particular case at hand as well as the underlying legal issue.
Judge Hurwitz isn't totally irate, but thinks that may go too far. Saying:
"This case does not turn on whether the government must
prove in a misprision prosecution under 18 U.S.C. § 4 that the
defendant knew the underlying offense was a felony. As the
majority correctly concludes, the evidence at trial sufficed for
a misprision conviction even if the government bears that
burden of proof.
The majority’s interpretation of the statute may be
correct. But, I would leave such analysis for another day, in
a case in which it matters to the outcome. See Whitehouse v.
Ill. Cent. R. Co., 349 U.S. 366, 372–73 (1955) (“These are
perplexing questions. Their difficulty admonishes us to
observe the wise limitations on our function and to confine
ourselves to deciding only what is necessary to the
disposition of the immediate case.”); PDK Labs. Inc. v. DEA,
362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring
in part and concurring in the judgment) (noting “the cardinal
principle of judicial restraint” that “if it is not necessary to
decide more, it is necessary not to decide more”)."
Judge Hurwitz has a point. Though so does Judge Fisher. Sometimes it's nice to actually decide issues rather than let them linger.
Both positions are reasonable, in my view.
