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Vukmirovic v. Holder (9th Cir. - Sept. 8, 2010)

By Shaun Martin

There's the soft touch, and then there's a hard touch. Rarely does one combine the two. Rarer still is a decision to employ both of these alternative approaches in adjoining sentences.

But Judge Rawlinson's dissent gives it a go.

The first sentence is a classic softie. "I respectfully dissent." Nice. Deferential. Traditional.

The second sentence, however, somewhat strongly contrasts with the first. It'd stay on theme to say something neutral like: "I disagree with my colleague's conclusion that the facts of this case present an 'extraordinary' circumstance." That says what you want to say consistent with the meme of the first sentence.

But Judge Rawlinson goes the other way. Her second sentence instead says: "I am in complete and total disagreement with the majority's conclusion that the facts of this case present an extraordinary circumstance." Saying that you disagree with the majority is neutral. Saying that you completely disagree with them ups the ante. Then adding, lest there be any ambiguity, that your "complete" disagreement is also "total" jacks up the rhetoric even more. In a manner that more often follows a stark "I dissent" opening -- or even a "I strongly dissent" -- than the classic manner employed by Judge Rawlinson.

I recognize, of course, that the "respectfully dissent" line is one that is subject to various uses, and doesn't necessarily mean what it actually says. Sometimes, for example, a judge ends a blistering, personalized dissent with the single line -- I respectfully dissent -- in a manner that's essentially sarcastic. As in: "This dissent is anything but respectful, and you and I and everyone who reads the thing knows it, and I'm ending this dissent by saying that my dissent is respectful only to let the world know how much I hate you and that I'd be even harsher if I didn't have institutional norms that I felt obliged to follow." So it's not that I'm unused to the lingo.

Still, I thought that this one was a funny study in contrasts. Especially given the relative brevity of the dissent. Judge Rawlinson ends her dissent by repeating: "Accordingly, I respectfully dissent." Even though that line concludes a relatively harsh paragraph that accuses the majority of distorting precedent, I thought it made sense there. Saying it at the conclusion made more sense to me than saying it at the outset and immediately adopting a contrasting style.

With due respect, of course.

Full post as published by California Appellate Report on September 08, 2010 (boomark / email).