Feb. 26, 2010
9th Circuit Dukes It Out Over Dicta
By John Roemer
Daily Journal Staff Writer

A long-running argument between prominent judges over limits on appellate decisionmaking erupted again earlier this month at the 9th U.S. Circuit Court of Appeals.

The antagonists: Chief Judge Alex Kozinski and Senior Circuit Judge A. Wallace Tashima. Kozinski, a President Reagan appointee, and Tashima, whom President Clinton placed on the circuit bench, sit in Pasadena.

The issue: Can a three-judge appellate panel overrule a decision by a previous panel? The short answer is no, because panel opinions are intended to be binding circuit precedent that can be reversed only by 11-judge en banc courts.

Tashima has long contended there are exceptions, which Kozinski has strongly disputed.

Tashima asserts that subsequent panels are free to ignore parts of an earlier opinion that express ideas or background information - in language known as dicta - that are not essential to the ultimate disposition of the case before the court.

Kozinski has cited opinion to the contrary by no less an authority than the noted 7th Circuit jurist Richard A. Posner of Chicago, who wrote that dicta can be binding when a previous panel has fully considered an issue and clearly intended future interpreters to rely on it. U.S. v. Crawley, 837 F.2nd 291 (7th Circuit, 1988).

Tashima shot back quoting a U.S. Supreme Court decision that noted "the rule against advisory opinions [or dicta] was established as early as 1793" and that it "has been adhered to without deviation." Flast v. Cohen, 392 U.S. 83 (1968).

Tashima also argues that circuit precedent loses its controlling force when a subsequent U.S. Supreme Court decision or legislation undermines it.

The question came up earlier this month in a case about sentencing enhancements for a prison cook who smuggled drugs to inmates. Should she have gotten a longer sentence because she was in a position of trust, as a trial judge ruled? Not according to a 1993 clarification by the U.S. Sentencing Commission that upped prison terms only for position-of-trust defendants who enjoy professional or managerial discretion at work, unlike cooks.

Tashima, writing for a three-judge panel last year, held that the commission's clarification of the official sentencing guidelines was an example of intervening higher authority that undermined a 1990 9th Circuit case that had stood as precedent on the issue of prison terms in position-of-trust cases. U.S. v. Contreras, 581 F.3rd 1163 (2009).

The circuit voted to take Tashima's opinion en banc not simply to endorse his disposition of the matter, in which the cook got a lighter sentence, but chiefly to reject his claim that a subsequent three-judge panel can reverse an earlier one.

"We do not agree that the three-judge panel had authority to overrule cases decided after the 1993 amendment to the Guidelines," the en banc court wrote in an unsigned opinion by the en banc panel, whose members included Kozinski. U.S. v. Contreras, 2010 DJDAR 1849 (Feb. 2, 2010). Tashima wrote a brief protest, saying he stood by his earlier analysis.

It was the latest skirmish in an ongoing war. Kozinski and Tashima first clashed over the question almost a decade ago in an en banc opinion over the constitutional limits constraining police in a warrantless search of an area surrounding a home. The question was whether drugs found during the search were valid evidence or must be suppressed.

Kozinski was on the losing side and Tashima was with the majority in a 6-5 decision holding that the police overstepped because they did not have probable cause and were not in hot pursuit when they entered the area near the home. U.S. v. Johnson, 256 F.3rd 895 (2001). Kozinski and Tashima wrote separate concurrences to shoot down each other's arguments over the broader dicta issue.

"Judge Tashima's concurrence raises a fundamental question concerning the development of our circuit law," Kozinski complained. "To what extent is a later panel bound by statements of law contained in opinions of an earlier panel? Judge Tashima would hold that a later panel is free to ignore statements in an earlier opinion - even statements supported by reasoned analysis - if the later panel concludes that the earlier ruling is not necessary to the result reached."

For himself, joined in part by five others, Kozinski wrote in a concurrence designed to address the dicta issue, "We hold, instead, that where a panel confronts an issue germane to the eventual resolution of the case, and resolves it after reasoned consideration in a published opinion, that ruling becomes the law of the circuit, regardless of whether doing so is necessary in some strict logical sense."

Tashima used Kozinski's pronouncement to illustrate his own position. Tashima wrote that in no way were Kozinski's words in the six-judge concurrence a "holding" that bound the court. Instead they were dicta, Tashima maintained.

Two years later Kozinski and Tashima squared off again in a case about legal immunity for family-service social workers. Then-Chief Judge Mary M. Schroeder devoted part of her opinion to explaining why it was necessary to decide the matter en banc. Tashima conceded in a concurrence that Schroeder's explanation, "while technically dicta, is nonetheless authoritative and binding precedent for this circuit." Miller v. Gammie, 335 F.3d 889 (2003).

Kozinski pounced. "Judge Tashima's view in [Johnson] that some rulings of our court may simply be ignored as 'dicta' has just flunked its first reality-check," Kozinski wrote in his own concurrence.

Tashima's position is unworkable, Kozinski held, because judges themselves often disagree about what is and isn't necessary to resolve a case. If Tashima prevails, judges and lawyers reading en banc decisions will be confused about what parts are holdings and what are dicta, Kozinski warned.

"These infinitely amorphous inquiries undermine the guidance litigants are entitled to expect from our en banc opinions," he wrote.

Kozinski pointed to another en banc opinion, Miranda B. v. Kitzhaber, 328 F.3rd 1181 (2003), that he claimed expressly adopted his position in Johnson, and accused Tashima of adding "yet another wrinkle to his hidebound theory" by claiming that the part of Miranda B. supporting Kozinski can be disregarded as dicta.

"Tashima's theory is now so riddled with lesions and encrustations we can never be quite sure which portions of our case law are holdings and which dicta, unless and until the Oracle at Pasadelphi tells us," Kozinski concluded.

Tashima shot back that the Miranda B. panel was wrong, and, "Thus, Judge Kozinski's assertion that 'my view . . . is now the law of the circuit,' is as expansive and as ill-supported as his view of what constitutes dicta."