Monday, March 05, 2007

Lombardo v. Warner (9th Cir. - March 5, 2007)

Here's another advantage of certification.

The panel decided a tough First Amendment issue regarding the validity of an Oregon sign permitting regime. The Ninth Circuit subsequently took the case en banc. After oral argument, the en banc court decided to certify to the Oregon Supreme Court a couple of state law questions regarding the scope of the ordinance at issue. At which point the Oregon Supreme Court, after taking a couple of years to decide the issue, elected to hold that various provisions of the ordinance violated the Oregon Constitution, and decided to excise them from the statute.

And, with those provisions gone, the Ninth Circuit case became moot. So the en banc court unanimously dismisses the appeal on that basis.

See? Certification works! At least if you're willing to wait three years or so and are, thereafter, lucky enough to have your sister court do all of the actual work for you.

Still, I'm sure the en banc court calls this one a win. As, most likely, it should.