Tuesday, November 01, 2016

In Re Bundy (9th Cir. - Oct. 28, 2016)

I'm impressed.

This mandamus petition was argued on October 21, 2016.  The resulting opinion and dissent were published seven days later, on October 28, 2016.

The opinion and dissent total 56 pages.

Incredibly speedy justice.  And good writing by both sides.

It involves a case you've likely already heard about.  Here's the first paragraph of Judge Bybee's opinion, and then the first paragraph of Judge Gould's dissent.

Judge Bybee says:

"Attorney Larry Klayman applied to be admitted pro hac vice in the highprofile criminal trial of Cliven Bundy. The district court denied his application without prejudice. Bundy has now asked this court for a writ of mandamus to force the district court to admit Klayman. We decline to do so. Under our decisions, the district court had more than ample cause to turn down Klayman’s application: he is involved in an ethics proceeding before the District of Columbia Bar, and he was not candid with the court about the status of those proceedings; he disclosed that he was twice barred in perpetuity from appearing pro hac vice before judges in the Central District of California and the Southern District of New York, but he failed to list numerous cases—all available on Westlaw or LEXIS—in which he has been reprimanded, denied pro hac vice status, or otherwise sanctioned for violating various local rules; and he has a record of going after judges personally, and shortly after Chief Judge Gloria Navarro denied his application, Bundy filed a frivolous Bivens action against her in her own court. This litany of reasons for denying Klayman pro hac vice status demonstrates that the district court did not abuse its discretion, much less commit clear error."

Wow.  I must say, that's a darn persuasive introduction.

Here's how Judge Gould begins his response:

"We confront in this case an unusual confluence of circumstances. A highly controversial criminal defendant is a few months away from an enormous trial effort in which he and eighteen other individuals are defendants. The defendant’s chosen attorney has been denied admission pro hac vice to the district court, raising in my mind serious concerns about the defendant’s ability to mount a vigorous defense and receive a fair trial. Despite the majority’s expressed apprehensions about the chosen attorney’s willingness to follow the rules of professional conduct and the orders of the district court, while recognizing the high standards for mandamus relief, I would hold that the writ should issue. My concerns about the defendant’s ability to present a strong defense and receive a fundamentally fair trial are simply too great, leading to my dissent."

Personally, I think Judge Bybee has the better of the argument.  The stuff in his opinion about Mr. Klayman is really devastating, I think.  I might well deny the guy pro hac vice status as well (though I might admit him provisionally, and see if he can follow the rules); regardless, I don't think it's a clear abuse of discretion to do so sufficient to justify mandamus relief.

But both opinions are nonetheless worth reading.  They definitely tell a tale.