Thursday, September 03, 2015

National Council of La Raza v. Cegavske (9th Cir. - Sept. 3, 2015)

Is Judge Jones becoming the new Judge Real?

Three civil rights organizations claim that Nevada isn't following the National Voter Registration Act of 1993.  That statute creates a private cause of action, and plaintiffs have some pretty good evidence that Nevada isn't, in fact, doing what the statute requires.  (For example:  Plaintiffs "showed that the number of voter registration applications submitted to Nevada public assistance offices “decreased precipitously”—by 95% from 2001–2002’s high point to 2009–2010’s low point—despite a four-fold increase in the number of food stamp applications during this period. Second, the letter cited U.S. Census Bureau data from 2010, which showed that only 47.6% of low-income Nevadans were registered to vote, compared to 72.4% of high-income Nevadans. Third, the letter presented the results of field investigations Plaintiffs conducted in December 2011, approximately five months before they sent the letter. Plaintiffs’ investigators visited Nevada public assistance offices and surveyed the clients and clerks of thoseo ffices. They discovered that clerks in seven of nine offices they visited provided voter registration application forms only to people who affirmatively requested them. Office staff indicated that this was “standard procedure.” Of the clients surveyed, only one out of the five who affirmatively requested a voter registration application form received one. Two of the nine offices did not have voter registration application forms at all. Only nine out of the 51 clients surveyed received voter registration application forms with their benefits applications or other forms. Only two of nine sites displayed the notifications required by state law.")

So plaintiffs sued.  Following, as they were required to do, the various administrative prerequisites to such a lawsuit.

The district court nonetheless dismissed the lawsuit.  Virtually sua sponte.  Doing so in a series of maneuvers that, at a minimum, are unusual, and -- to some viewers, no doubt -- outright bizarre.

I shan't describe in detail all that transpired in Judge Jones' courtroom.  For that, you'll have to read the entire opinion.  But, in the end, the Ninth Circuit not only reverses Judge Jones, but assigns the case to a different judge on remand.  Saying:

"The reasons for our conclusion are apparent from what we have written above, and we review them only briefly here. The judge sua sponte sought to limit the effectiveness of representation by insisting unreasonably that only two of Plaintiffs’ chosen out-of-state attorneys be given pro hac vice status. [Citation]. The judge did this despite the plea of Plaintiffs’ Nevada lawyer that he needed the expert assistance of out-of-state counsel who specialize in NVRA litigation, and over the objection of one of the would-be out-of-state counsel that the judge’s ruling would prevent depositions from being taken in Nevada by associates in his firm. The judge’s actions came very shortly after the Ninth Circuit had deemed “troubling” his comments regarding out-of-state counsel in another case involving a different Nevada agency. [Citation]. Based on this and other cases, a reasonable observer could conclude that the judge’s feelings against out-of-state attorneys are both well-established and inappropriately strong. See Great Basin Res. Watch v. United States Dep’t of the Interior, No. 3:13-CV- 00078-RCJ, 2014 WL3697107, at *3 (D. Nev. July 23, 2014) (this same judge expressly stated he would “presume[] that the out-of-state lawyers are unwilling to obey the ethical strictures that govern all other attorneys”). Further, the judge sua sponte and without notice dismissed Plaintiffs’ case based on a motion the State had previously withdrawn, pursuant to a joint stipulation by the parties. Still further, the judge misread the complaint when he concluded that Plaintiffs had failed to allege that they had changed their behavior and had thus suffered no injury, when Plaintiffs had alleged that they had expended additional resources on voter registration as a result of the State’s violation of Section 7. Finally, the judge dismissed the complaint without leave to amend despite Plaintiffs’ explicit request that they be allowed to amend their complaint if the judge found its allegations insufficient."

That's a pretty telling indictment of the district court's conduct.  As is the assignment to a different judge.

And it's not the first time, either.

Maybe it's just Judge Jones' distaste for out-of-state lawyers that's the problem.  Or maybe there's a larger problem here as well.

But today's opinion suggests, at a minimum, that there's a problem.

One that hasn't -- and likely won't -- go away.