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Leppind v. Mukasey (9th Cir. - June 20, 2008)

By Shaun Martin

Sometimes you author a dissent for the ages. Sometimes you author a dissent to persuade other circuits, or even the Supreme Court. And sometimes you write a dissent to "persuade" lower courts.

But usually you write a dissent in response to something contrary that was written by the majority. They say that X is true, so you write that X is false. Makes sense.

But to every rule there's an exception. As Judge Ikuta demonstrates here.

The majority enters a bold and unprecedented order referring the action to voluntary mediation. At the suggestion of the parties. Shocking, I know. They then write an order saying that they do so because there's an intervening case that might -- just might -- affect the resolution of the case, and rather than remand the matter for the BIA's initial take, the government suggested that mediation might do wonders instead, at which point the Ninth Circuit says: "Sure."

Judge Ikuta, however, dissents. And writes a lengthy opinion in which she argues that the intervening case is distinguishable from the present dispute. Recall that the majority never said that it wasn't. Just that it may or may not be. Hence the order. And the (hardly fanciful) hope that a successful mediation might moot the need to resolve the matter.

So you've got a case that may well be successfully and efficiently mooted out, a majority that doesn't decide a thorny judicial question, and an order that merely send the case the mediation to see if it can be resolved. In light of all that, why dissent? And why write a dissent now, as opposed to when (and if) the case comes back in the event the mediation is unsuccessful?

The answer, of course, depends upon who your audience is, and what you're trying to accomplish. If you are trying to resolve a particular dispute, both efficiently and without the need to address potentially unnecessary disputes, then you don't author a dissent, in my view. At least at this point. The majority has merely said that an intervening case may be relevant -- not that it's dispositive -- and that mediation might help. You can sign onto both those statements as well as the resulting reference to mediation even if you believe the intervening case to be distinguishable.

By contrast, if you're worried that the present dispute might, in fact, settle at mediation -- or want to influence the BIA in another (or intervening) case raising the same issue, or the influence the outcome of the mediation -- or are worried that this case might be your only opportunity to personally opine about the merits of the legal dispute at issue, you write a dissent now. One that makes sure to get across your personal opinion about the issue that the majority on the panel expressly does not reach. For anyone who might want to listen.

An interesting decision.

I'm not saying that I'd never do that. In an appropriate case, I might well. But I wouldn't do it here. Especially given the particular context -- mediation -- as well as the underlying legal issue, I'd have definitely been with Judge Wardlaw and Judge Fogel (sitting by designation) on this one.

Full post as published by California Appellate Report on June 20, 2008 (boomark / email).