As readers of this blog know, the Ninth Circuit granted an en banc hearing in Padila v. Lever, in which a panel of the Ninth Circuit held that recall petitions circulated in California must be translated into multiple languages to comply with section 203 of the Voting Rights Act. The initial order granting review stated: “The three-judge panel opinion shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court.”
Today, the Ninth Circuit en banc panel hearing this case took an unusual step: it issued this order, which reads in full: “A majority of the en banc court has voted to withdraw the opinion of the three judge panel. IT IS SO ORDERED.”
Like Howard Bashman, I am baffled by what the court’s order means for the future of this case. Presumably it is good news for those who think the panel decision was wrong. But will there be a hearing? Will the “majority” (we don’t know who the judges are on the en banc panel) issue an opinion? Will there be a dissent? Here is what the relevant Circuit Advisory Committee note says about en banc grants: “After the en banc court is chosen, the judges on the panel decide whether there will be oral argument or additional briefing. If there is to be oral argument, the Chief Judge (or the next senior active judge as the case may be) will enter an order designating the date, time and place of argument. If no oral argument is to be heard, the Chief Judge will designate a date, time, and place for a conference of the en banc court. That date will ordinarily be the submission date of the case. If any issues have been isolated for specific attention, the order may also set forth those issues and additional briefing may be ordered. The opinion of the three judge panel shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court.”
Perhaps the court wanted to get a ruling out early, so that the panel opinion will not be used by any more lower court judges to interfere with ongoing recall or initiative elections. But it would be nice if the court clarified what is to come next.