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Garcia v. Brockway (9th Cir. - May 13, 2008)

By Shaun Martin

"I wrote the majority opinion for the panel. Sure, Judge Fisher dissented, and he and his leftie allies may have successfully gotten the case taken en banc. Even though there was totally no circuit conflict.

But guess what? Just because you've got the votes to take the case en banc doesn't mean you're going to win once it gets there. And I got drawn for the en banc panel and Judge Fisher didn't. Plus, for me, it was a very good draw. I end up getting nearly every single vote.

So here's what I'm going to do. I'm going to assign the majority en banc opinion to myself. And I can do that 'cause I'm the Chief Judge. And guess what that majority opinion is going to say? That's right. It'll adopt in full my majority opinion for the panel. Ha! (After correcting some minor errors in the opinion and adding a more careful caveat or two than I wrote in the original opinion.)

What does that leave you with? Only the dissent of the two Carter (!) appointees -- Judges Reinhardt and Pregerson -- from my edict. Who merely adopt Judge Fisher's dissent from the original panel opinion as their own. And even though they add a couple of bonus pages of their own commentary as well, we're still left with what I originally wrote on the panel. Only this time it's a 9-2 decision instead of a 2-1.

In other words: Victory is mine!"

So sayeth Chief Judge Kozinski.

P.S. - Take off that "Dissent by Judge Fisher" from the second page of the caption. He's not on the panel.

Full post as published by California Appellate Report on May 13, 2008 (boomark / email).