Judge Friedland begins the new year with somewhat of a bang.
She generally doesn't like written dissents from the denial of rehearing en banc; e.g., "dissentals." For this reason, before today, she'd neither written nor joined one, thinking that they're somewhat unhelpful.
The operative words being "before today."
Today, she authors one, dissenting from the denial of rehearing en banc in a case holding that the City of Berkeley's attempt to ban natural gas hookups as a part of its building code was preempted by federal law.
Seven other Ninth Circuit judges join Judge Friedland's dissental. Since Judge Friedland has been on the Ninth Circuit for nearly a decade, and this is her first time writing or joining a dissent from the denial of rehearing en banc, it makes a fair amount of sense to have her author the thing. After all, it highlights the importance of the issue to have her author her first-even dissental.
Though having Judge Friedland write the thing (as opposed to any of the other judges who agree with her) does result in one slight complication. Judge Friedland drops a footnote at the outset of her opinion noting that she doesn't generally think that dissentals have a point, which is why she has never signed onto one previously. The seven other judges who join her agree with her on the merits, but not with respect to this footnote. So every other judge joins her opinion, but expressly notes that they don't agree with this particular footnote. (A complication that could have been avoided had someone else written the opinion and then had Judge Friedland join that opinion with the slight addition of her supplemental footnote.)
Still, a big day for Judge Friedland, and a way to rock in 2024.
P.S. - She almost made it a full decade. She joined the Ninth Circuit in April of 2014. If the case had taken just a few more months to resolve, Judge Friedland could have opened her opinion with "In over a decade on the bench . . ." rather than "In nearly a decade on the bench. . . ."
So close.
