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Year in Review 2013: Highlights From the Ninth Circuit

By William Peacock, Esq. | Last updated on

What can one say about the Ninth Circuit? The rest of the nation, my former black-robed employer included, thinks that we're a bit looney. And the Circuit constantly contends for the "most reversed by SCOTUS" title.

Guilty as charged. But at least we have fun (and sunshine) while doing it. Here is just some of the fun that we had this year:

Ninth Circuit in the News

Can we just go ahead and call 2013 the "Year of Kozinski?" From the looks of our traffic numbers, posts involving California's Chief Justice were amongst your favorites (and ours). From bench-slapping "sea pirate hippies" as well as the judge that favored them, to crashing a Nissan Leaf settlement party (which led to two recusals and the best piece of unsolicited snail mail I've ever received), Kozinski was the recurrent story in the Ninth Circuit this year.

Koz aside, Arizona's failing lawmakers were arguably the second biggest story of 2013. It began with an unconstitutional post-20 weeks abortion restriction and continued with the nixing of a Planned Parenthood defunding law. Plus, Arizona's "unintelligible" immigrant harboring statute fell by the wayside, while one of the state's only court-approved immigration laws was just scheduled for an en banc rehearing.

That's quite the bad year for Arizona legislation.

Cases Headed to SCOTUS

The Ninth is a massive circuit, so plenty of cases will reach SCOTUS this year. We're most intrigued, however, by "colorful" protestors on a military base and a copyright dispute over the decades-old movie "Raging Bull."

In U.S. v. Apel, Dennis Apel, who once sprayed his own blood on a military base sign, was saved by precedent set by Hobart Parker, a fellow protester who occasionally wears tighty-whities on the outside of his jeans. Parker, and later Apel, had their convictions for re-entering a base after being banned reversed, as the road they protested on was technically part of an easement granted to the State of California.

And then there's the "Raging Bull" lawsuit. A screenwriter's daughter waited 29 years to sue over the allegedly copyright-infringing movie. Though the statute of limitaions would allow such a suit (because of ongoing infringement), the Ninth Circuit applied its one-of-a-kind laches-as-a-defense-to-copyright rule, and accused her of waiting to capitalize on the studio's labor.

Cases That Make You Go 'Hmmmm...'

Here's one, and it's Kozinski-related: do we have a Brady epidemic? In a dissent from the en banc denial of ricin-manufacturer Kenneth Olsen, Kozinsi was joined by four judges in asking whether we're starting to have an issue with Brady disclosures.

In that case, the prosecutor failed to disclose the full extent of an ongoing investigation into the now-disgraced forensic scientist who analyzed the evidence against Olsen. Kozinski cited a full page of cases that we know about (obviously, not all Brady failures are discovered). We also saw the Fourth Circuit rip into a U.S. Attorneys' office for a pattern of failed disclosures.

As Kozinski noted, what's the disincentive -- a retrial?

Got any favorites we missed? Join the discussion on our FindLaw for Legal Professionals Facebook page.

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