9th Cir. Reassignment Policy Causes Confusion

Last Friday's DJ had 9th Circuit Reassignment Policy for Dead and Retired Panel Members Causes Confusion: The tumultuous five months during which Judges Harry Pregerson and Stephen Reinhardt died and Alex Kozinski resigned were difficult for the 9th Circuit. Recent decisions by the court to publish or not publish their decisions have confused attorneys in recent weeks. 9th Circuit Clerk of Court Molly Dwyer spoke with the Daily Journal to clarify the process.

General Order 3.2 (h) "has been consistently applied, but because each situation is different, it may appear that there's no certain outcome," 9th Circuit clerk of court Molly Dwyer said in a phone interview Thursday.

"Generally, it all comes down to timing and both remaining judges decide" whether there is a need to add a new judge to the panel, she said.

The decision is made based on how far along the panel was in deciding the case. If the case was heard and submitted to a panel, the three judges participated at post argument conference, a draft opinion was circulated and all the judges on the panel expressed a vote to concur in a proposed decision or drafted a full dissent before a judge's death or departure, panels can opt, based on a totality of the circumstances, to decide the case using a deceased judge's vote because the now unavailable judge "fully participated," Dwyer added.

But when deliberations are in their early phase, argument hasn't yet been heard and there is no decision in circulation or there is no affirmative vote in writing to concur in a decision, panels routinely request the assignment of a replacement judge before issuing a final opinion.

"In my experience, one judge's request for a replacement is enough to trigger the general order's application," Dwyer said.