The Monterey Herald offers this report on the oral argument in Padilla v. Lever before an en banc panel of the Ninth Circuit. (The article mistakenly says that the judges (whom the article referred to as “justices”) usually take about 90 days to decide a case. That’s true in California appellate state courts, which have a 90-day rule. The ruling in Padilla could come much more quickly, or much more slowly.
I listened to part of the oral argument yesterday, and I was surprised by just how much some of the judges were concerned about the question of mootness, querying whether a claim for declaratory relief now is enough, and whether this is an issue capable of repetition yet evading review. It would be a great shame if the court does not decide the issue on the merits, because, before the Padilla three-judge panel opinion was vacated, it caused a great deal of uncertainty in California not only for recall elections, but also for initiatives and referenda. It is in everybody’s interest (except for jurisdictions that might want to use the uncertainty as a reason to remove measures from the ballot that the jurisdiction does not like) to clarify what the rules are going to be. Indeed, if the court dismisses this on grounds of mootness, the Ninth Circuit (perhaps en banc) is going to end up having to decide this issue eventually anyway, in either the Monterey case or another of the cases working their way through the appellate process.