Tuesday, March 06, 2012

Klestadt & Winters v. Cangelosi (9th Cir. - March 6, 2012)

This is a case about bankruptcy, sanctions and appellate jurisdiction.

I know what you're thinking.  Zzzzzzzzzz.  But it's actually a neat little dispute.

Judge Ikuta says that circuit precedent is clear, there's no appellate jurisdiction, and that precedent is normatively correct.  Judge Graber agrees that circuit precedent is clear and that there's accordingly no appellate jurisdiction, but thinks that the court should revisit the issue en banc and overrule that precedent, which she argues was wrongly decided.  Judge Quist, sitting by designation from the Western District of Michigan, agrees that circuit precedent is clear and that there's no jurisdiction, and refuses to take a position on the normative question, saying that it's "not for [him] to decide" whether the case should be taken en banc.

I tend to like it when a judge questions existing precedent.  Especially when, as here, the circuit precedent on the issue seems to be somewhat of an outlier.

I imagine that Judge Graber will call for an en banc vote -- otherwise why write the concurrence -- unless the handwriting on the wall is crystal clear (and perhaps even then).  Despite the snoozy nature of the case, it's not a nontrivial chance of getting a majority vote.  None of the members of the panel who decided the prior circuit precedent (Judges Ferguson, Canby & Hall) have a vote.  And it's not a starkly political case.  It's all about procedure.

That said, maybe the en banc court will decide to leave the circuit split for the Supreme Court to resolve.  Which is another way of saying that the circuit split on this issue might well fester for the next century.

One more thing.  This may well be much ado about nothing.  My (admittedly half-informed) sense is that the sanction orders here appear pretty well-taken.  So even if the appellants prevail, this may well just involve a lot of time and expense just to watch the orders affirmed.