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Prop 8 Proponents File for En Banc Hearing at Ninth Circuit

Instead of appealing the 3-judge panel’s ruling directly to the Supreme Court, the proponents of Prop 8 file a motion with the Ninth Circuit for a rehearing en banc—essentially, a second level of appellate review that would replace the 3-judge decision and reconsider Judge Walker’s ruling anew.  Meanwhile, Judge Walker’s opinion remains stayed by the Ninth Circuit.

In between the district courts, which hear initial arguments in individual cases and are the only courts where witnesses are brought in to testify, and the Supreme Court, which has the final say on any case it takes up and can choose which cases it wants to hear, lie the 13 Courts of Appeal.  California falls under the Ninth Circuit, which is the largest in the U.S.  Any case that has been decided by a trial court has an automatic right to appeal, although these appeals often take a lot of time.

Smaller appellate courts often have a handful of judges on staff, but the Ninth Circuit has 29 active judgeships.  Because of the enormous number of cases that come to the appellate courts throughout the year, appeals are assigned to 3-judge panels, chosen at random, who consider the ruling of the lower district court. After a 3-judge panel has ruled, the lower side can either appeal to the Supreme Court or they can choose to seek an en banc rehearing in which all of the active judges in a specific circuit rehear the appeal.  The earlier 3-judge panel ruling is vacated, and the case is considered anew.  These en banc appeals are not guaranteed, and are rarely granted due to the inherent complexity of having a large number of judges hear a case together in one location.

Because of its size, the Ninth Circuit has its own en banc procedures: since it is impractical to have 29 judges hear one case, en banc panels in the Ninth Circuit have 11 judges on them, with 10 chosen at random and the Chief Judge, Alex Kozinski, joining them.  Intriguingly, this means that en banc decisions in the Ninth Circuit do not necessarily reflect the majority opinion of the entire court.  For this reason, en banc rehearings in the Ninth Circuit are unlikely to be granted.

Petitions for en banc hearings normally take quite some time: the request has to be sent to all of the nearly 30 active judges on the court, the judges exchange memos, and then vote on whether or not to grant the rehearing.  If it is granted, names are drawn for the panel and new briefs and oral arguments are required.

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