Okay, Kozinski. You're used to getting your posterior somewhat routinely kissed in this forum (as here and here). For good reason, of course. Always.
Regardless. Alex should read no further if he's not also willing to take his lumps when they're justly due. And everyone else should keep reading to see what happens, even to bright people, when they're both rushed and somewhat looking to stand on a white horse.
Here's the deal. Two dudes -- Moshe and Zvi Leichner, who are father and son -- con a variety of people out of a total of almost $100 million. Impressive. (Not too impressive, of course, since they eventually get caught.) They each plead guilty to various counts. So they're going to do some time. Indeed, a lot of it. I hope you two are as good at sweet talking 250 pound prisoners as you are with investors. You're probably going to need to.
Here's the rub. Moshe gets sentenced first. The Crime Victims' Rights Act gives crime victims the right to be heard at their perpetrator's sentencing. So a plethora of defrauded people submit victim impact statements, and several also personally appear and speak their mind. And Moshe gets sentenced to 20 years. Ouch.
Three months later, it's now time for Zvi to be sentenced. But the same judge has already heard all the victims at the first sentencing. So he tells them: Look, I already heard everyone the first time. There's nothing else that anyone can say that will matter at this point. So let's not waste time; I'm just going to put the guy in jail. Which he does, for over 11 years.
So one of the victims who was refused the right to speak at the second sentencing files a petition for writ of mandamus. The Crime Victims' Rights Act says that the victims have the right "to be reasonably heard" at, among other things, sentencing proceedings. So what does "heard" mean? Do they just have a right to submit statements? Or do they have a right to actually speak?
Judge Kozinski pens the answer, and concludes that it's the latter rather than the former. The opinion is good on several different levels.
First, the analysis is generally (but see infra) smart and well-written. Not surprising, given the author.
Second, it's a good example of how textualists who ostensibly don't like to use legislative history can (and do) use it when it's favorable to them. Kozinski argues that the term "heard" is ambiguous. Maybe. Could be. But given analogous statutes, I think a strong argument could be made the other way. And I wonder if Alex would be so keen on finding ambiguity if the legislative history supported the side that he wasn't backing. Mind you, I'm not saying that he might not get the right result in the end. But the content of the legislative history here, which is fairly persuasive (at least as Juge Kozinski artfully -- and I mean that as a tiny bit of a slam -- describes and articulates it), may be a good example of why a finding of alleged "ambiguity" shouldn't necessarily be required before you go looking at what the sponsors of the legislation and others said about it as they were adopting it.
Third, it's an important opinion because Section 2 contains what I honestly think is the most absurd and utterly unpersuasive analysis that Judge Kozinski has ever penned. And that's a lot of ink. I mean, this part of the opinion simply bites. Really, really, really bites.
Sure, Judge Kozinski may well be right that the statute should be read his way. That's plausible. But he also has to justify granting relief, since it's mandamus case. So how does he do so? That's what Section 2 (at 12-13) is all about. And, boy, what a stinker.
Alex first argues that even the normal -- incredibly strict -- requirements for mandamus are met here because "the district court clearly erred in its interpretation" of the statute. What?! You really think that this is a case of clear error?! Wow. I definitely want some of what you've been smoking. The text of the statute, especially alongside precedent, provides a totally, totally, totally plausible argument that the right to be "heard" means only the right to be "heard" in the manner we almost uniformly talk about in statutes; e.g., to submit papers or the like. The district court's interpretation was entirely plausible and credible. There's also no precedent at all to the contrary. If Judge Walter's ruling constitutes "clear" error, than every error so qualifies. Come on.
Perhaps understanding the lame (and utterly unsupported) nature of his first argument, Alex then argues that the normal rules don't apply anyway, because the statute contains a lot of special provisions -- like expedited review, single judge relief, required written decisions, etc. -- that suggest that Congress has a special desire for these issues to be fully examined by the judiciary. I totally agree. And I'd totally find that these things lessen the burden confronted by petitioners who seek the (ordinarily) "extraordinary" remedy of mandamus.
But Alex ain't content to merely so hold. Rather, he concludes that these provisions establish that the Court of Appeals "must" issue mandamus relief "whenever we find that the district court's order reflects . . . legal error." What?! Oh, my. Give me another hit of that stuff. Because it's got to be good. If the Court of Appeals is really compelled to grant relief whenever the district court commits a "legal error", we have a name for that. It's called an appeal, not mandamus. If Congress wanted the standard to be the one articulated by Judge Kozinski, they wouldn't have provided for potential mandamus -- which is discretionary -- relief, but rather would have allowed an immediate (and expedited) appeal. Congress knows how to do that. They've done it before. They didn't do it here. But Alex decides to do it for them anyway. Yikes.
Plus, how lame is it for Judge Kozinski to end Section 2 by stating -- and I laugh every time I reread this part -- that "The Second Circuit has come to the same conclusion." Dude. Read the quote that you cite. The Second Circuit merely held -- entirely correctly -- that the normal hurdles for mandamus relief are somewhat lower in these types of cases. They didn't do what you did: Entirely eliminate both these hurdles and discretion. To say that they already did what you did is, well, uh, not right. Way.
Fourth, especially if you're a textualist, follow the rules. Especially when, as here, they couldn't be clearer. The statute requires the Court of Appeals to decide the writ "within 72 hours after the petition had been filed." But Judge Kozinski doesn't issue his opinion until even 9 days after the case was argued. The opinion coyly insinuates that this was a bureaucratic problem, and is being fixed. But if the case was argued on January 11 -- and, since the term "Argued and Submitted" is shorthand, I looked it up, and yep, the case actually had oral argument on that day -- then the failure to render a decision by January 14th wasn't the fault of bureaucrats. It was the fault of the judges. Including -- and perhaps mostly -- Judge Kozinski. Don't blame others. Take it on the chin when you have to. Not your best day.
Finally, don't forget to read Judge Friedman's "dubitante". I always like those "dubitante" things, and I've seen several of them over the years. It's only three paragraphs, but I think that Judge Friedman may say more smart things in those three paragraphs -- and definitely says a lot fewer stupid things -- than Judge Kozinski does in his 13-page opinion for the majority. Great job, Judge Friedman. You senior judges from the Federal Circuit still got it!
So that's my stream of consciousness on this opinion. It's a very short one, and definitely worth the read. Unless you're looking for the traditionally good opinion by Judge Kozinski. In which case, oh my goodness, skip -- indeed, shred -- this one. This case was so, so, so not his best couple of weeks.
