Appellate Law

Judicial procedural appellate activism?

By S. COTUS

Since most people that talk about ?judicial activism? are political hacks seeking the favor of non-lawyers, I don?t take them seriously.  In fact, I think they should be disbarred.  However, I have attempted to compile two definitions (taken in part from Professor Sunstein) that provide an ideological definition of ?activism.?

1. Any invalidation of any statute or regulation is per se activist. (Not that that is a bad thing.  A political decision by a court not confront the legislature or the executive because it is afraid of them would be a bad thing.)
2. Any decision by a trial court in which disregards the positions of both parties.  This may include sentencing above what the prosecutor requests, ruling on facts not in evidence, etc.

But, the Ninth Does an interesting thing. California Appellate Report reports thusly:

The parties briefed ... argued it in Seattle before a three-judge panel... almost a year later... before issuing a ruling, the panel asked the parties to brief whether the case should be decided en banc. At which point both of the parties said: "No." To which the Ninth Circuit appropriately responded, two months later, by taking the case en banc. ...

Got that?  The panel really wanted to go en banc.  The parties really didn?t want to.

...The Ninth Circuit sets the oral argument ... The parties don't feel like showing up.

The parties settled.  The appeal was dismissed.  And what was this great issue of constitutional moment that the Ninth Circuit so needed to take en banc to provide guidance for everyone?

I bet it was abortion.  Or pornography.  Perhaps a voting rights issue?  Or a criminal procedure issue that will effect the lives poor people and prosecutors?   Click below the fold for the answer.

The issue here is whether in light of Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988), it is proper in the 9th Circuit to enforce a forum selection clause ("FSC") by dismissal for improper venue under Fed.R.Civ.P. 12(b)(3) in removal actions involving purely domestic parties, when the FSC allows for the claim to be brought in an alternate federal district.

The case is       Foulon v. Klayman & Toskes (9th Cir. - March 24, 2008). 

• Appellant's Brief
• En banc order
• Order dismissing appeal.

Full post as published by Appellate Law and Practice on March 24, 2008 (boomark / email).