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Golden Gate Restaurant Ass'n v. City and County of San Francisco (9th Cir. - March 9, 2009)

By Shaun Martin

No one writes a dissent from the denial of rehearing en banc with the Supreme Court as the target audience, right? Nah. Never. How could one think such a thing? How would a judge even try to write an opinion that was designed to encourage the Supreme Court to grant certiorari -- talking about intercircuit splits, the need for national uniformity, the national importance of the issue, etc.? That's crazy talk.

And if some hypothetical judge somehow did so, surely no one would respond by authoring a concurrence in the denial that was designed to convince the Supreme Court to not take the case. Of course that's right. That'd just be silly.

Nope. That's surely not what's happenning here. In an ERISA case, of all things. Judge Milan Smith -- joined by Judges Kozinski, O'Scannlain, Kleinfeld, Tallman, Bybee, Callahan, and Bea -- definitely didn't author what's essentially a fully completed petition for writ of certiorari. And Judge Willie Fletcher didn't essentially author the brief of the respondent in opposition thereto. Definitely didn't happen.

One more thing. Politics doesn't matter. The San Francisco ordinance here -- upheld by the panel -- is meant to ensure health care for individuals in low-wage jobs. It's totally random that the conservatives are the ones who dissent from the denial of rehearing en banc, and the liberals are the ones who don't. Yep. Random.

Full post as published by California Appellate Report on March 09, 2009 (boomark / email).