Farrakhan, et al v. Gregoire, et al

Filing

FILED PER CURIAM OPINION (ALEX KOZINSKI, MARY M. SCHROEDER, DIARMUID F. O'SCANNLAIN, PAMELA ANN RYMER, ANDREW J. KLEINFELD, SIDNEY R. THOMAS, SUSAN P. GRABER, M. MARGARET MCKEOWN, KIM MCLANE WARDLAW, RONALD M. GOULD and RICHARD R. CLIFTON) (concurrences by Judges Thomas and Graber) AFFIRMED. FILED AND ENTERED JUDGMENT. [7501126]

Farrakhan, et al v. Gregoire, et al

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F IL E D
OCT 07 2010

Farrakhan v. Gregoire, No. 06-35669 G R A B E R , Circuit Judge, concurring in the judgment:

MOLLY C. DWYER, CLERK
U . S . C O U R T OF APPE A L S

I concur in the judgment. Because I would resolve the case on the ground th at we specifically remanded to the district court, I would not reach the issue ad d ressed by the majority. I therefore do not concur in the majority opinion. In Farrakhan v. Washington, 338 F.3d 1009, 1016 (9th Cir. 2003), we held th at Plaintiffs' felon disenfranchisement claim is cognizable under Section 2 of the V o tin g Rights Act ("VRA"). We held that the district court had applied an erro n eo u s standard instead of the correct "totality of the circumstances" standard. Id. at 1016-19. Rather than apply the test ourselves, we remanded to the district co u rt for it to "make any requisite factual findings following an appropriate ev id en tiary hearing, if necessary, and assess the totality of the circumstances." Id. at 1020. W e denied Defendants' petition for rehearing en banc. Farrakhan v. W a sh in g to n , 359 F.3d 1116, 1116 (9th Cir. 2004) (order). Seven judges dissented fro m denial of rehearing en banc. Id. at 1116-27 (Kozinski, J., dissenting from d en ial of rehearing en banc). The dissenting judges would have reversed the ju d g m en t of the three-judge panel because of their view that Section 2 of the VRA d o e s not reach felon disenfranchisement laws. Id. The Supreme Court denied

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c er tio r a ri.1 Locke v. Farrakhan, 543 U.S. 984 (2004). O n remand, the parties conducted additional discovery and filed new a ff id a v its and other submissions, including expert reports. The district court d u tifu lly applied the "totality of the circumstances" test and concluded that, "[t]ak in g all of the relevant factors into account," Washington's felon d isen fran ch isem en t law does not violate the VRA. Farrakhan v. Gregoire, No. CV9 6 - 0 7 6 , 2006 WL 1889273, at *9 (E.D. Wash. July 7, 2006) (unpublished). I agree w ith the district court's thorough analysis and its conclusion that, although one of th e many relevant factors supports a finding of discrimination, none of the other facto rs does. Id. at *6-9. I would affirm the district court on that ground. Accordingly, there is no need to reach the question whether felon d isen fran ch isem en t laws may be challenged under Section 2 of the VRA. Reaching that question is unnecessary because we can affirm on the ground d e s cr ib e d above--the ground that we mandated the district court to determine. P erh ap s more importantly, judicial prudence strongly suggests that we d e c lin e to reach that question. We already decided that question in this case more th an seven years ago. We declined to rehear the case en banc, over a vigorous
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I note that we voted to deny rehearing en banc and that the Supreme Court d e n ie d certiorari only as important procedural history. I do not intend to imply that e ith e r we or the Court actually voted on the merits of the legal issue. 2

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d issen t, and the Supreme Court denied certiorari. In the many years that have fo llo w ed , the parties have conducted additional discovery, filed voluminous su b m issio n s, and written dozens of pages of briefs. The district court followed our m an d ate in detail and resolved the case on the ground that we had specified. On ap p eal to this court, the parties filed additional briefs, and the three-judge panel, to o , resolved the appeal on the ground that it previously had specified. O n ce we have resolved a preliminary and important point of law and the full co u rt and the Supreme Court have declined to intervene, judicial prudence strongly su g g ests that we should not later disturb that ruling--and thereby undo years of effo rt by the parties and the courts--in the very same case when doing so is en tirely unnecessary. The animating principles of the "law of the case" doctrine ap p ly here: "when a court decides upon a rule of law, that decision should co n tin u e to govern the same issues in subsequent stages in the same case." Arizona v. California, 460 U.S. 605, 618 (1983). I do not question the authority or le g itim a cy of the majority's opinion; I merely disagree with its discretionary d ecisio n to resolve this case on its chosen ground.2 Were the result of this case to

The decision to revisit a precedent in a later, different case presents a d ifferen t issue than whether to revisit an issue decided in an earlier stage of the s am e case. 3

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h in g e on that ground, or were there some compelling reason to reach the issue,3 I m ig h t well come to a different conclusion.

That the Supreme Court may soon vote to decide the issue is, in my view, a r ea so n to defer submission of this case, not a reason to decide this case with haste. 4

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