Here it is:
It is expounded as a witty pronouncement of dissent from the powerful judge Alex Kozinski and several of his colleagues, here is the full panel of dissenters:
- Judge Alex Kozinski,
- Judge Diarmuid Fionntain O'Scannlain,
- Judge Ronald Murray Gould,
- Judge Richard C. Tallman,
- Judge Jay S. Bybee,
- Judge Consuelo Maria Callahan,
- Judge Carlos T. Bea,
- Judge Milan D. Smith, Jr.,
- Judge Sandra S. Ikuta, and
- Judge N. Randy Smith.
The 10-judge dissent is from a decision denying review of a certain decision by the 9th Circuit "en banc" - by all judges of the court.
Here is the full list of 9th Circuit's judges listed on the court's website today:
11. Paez, Richard A.
16. Bybee, Jay S.
18. Bea, Carlos T.
20. Ikuta, Sandra S.
21. Smith, N. Randy
22. Murguia, Mary H.
23. Christen, Morgan
So, why such a substantial number of judges - even though not a majority - "just" 10 out of 28 judges - voted to hear a certain case by a all judges of the U.S. Court of Appeals for the 9th Circuit?
What kind of case that was?
A death penalty case?
A wrongful conviction case?
Police misconduct, prosecutorial misconduct, judicial misconduct?
Abuse of power by social services?
Discipline of attorneys for criticism of judges as part of their jobs for their clients?
Let's remember that federal appellate court toss nearly 100% of civil rights cases through 2-3 page summary orders authored mostly by 80-year-old senior judges, and, as the same Judge Alex Kozinski acknowledged, without proper review of the case - because it requires, according to Judge Kozinski, "exponentially" more time to produce a full-fledged opinion of the court than a summary order.
So, civil rights cases are put on a fast-and-sloppy track and are tossed without looking by octogenarian judges.
As to topics, see above - that's nearly all civil rights cases.
So, what was SO IMPORTANT for the 9th Circuit judges to so vigorously dissent in a 25-page opinion?
A question, no doubt, of paramount importance, already decided by a 3-judge panel of the 9th Circuit:
Whether employers whose employees get tips as part of their jobs (in restaurants, casinos and the like) may involuntarily force such employees to share those tips with other people, like kitchen staff, who do not get tips for doing their work.
In other words - can employers, instead of paying the kitchen staff straight and proper living wages, force their servers/waiters to act as employers of kitchen staff and contribute to the portion of their wages, involuntarily?
The decision by 3 judges of the 9th Circuit said "no" - quite fairly, in my opinion. Moreover, the 3-judge decision did not rule in favor of the tipped workers - not yet, it only reversed a decision precluding a jury trial for such workers and sent the case back to the district court to be tried.
That was the most offending part. You know those juries - what if they actually rule for the poor, not for the employers?
So. 10 well-paid, privileged, men and women, used taxpayers' scarce resources, yours and mine, to produce a 25-page full-fledged dissenting opinion explaining in top-lofty legal theory terms why that is wrong.
In that opinion, they talk:
- separation of powers;
- division of powers between the executive and legislative branches;
- what the U.S. Congress may and may not delegate;
- how to read and interpret federal regulations;
- what can and cannot be found through interpretation in federal regulations.