Court of Appeals panel Overturns Nazi Salute Ban Ruling--City Council May Face Trial Again

The following notification was forwarded to me by attorney Kate Wells:

United States Court of Appeals for the Ninth Circuit

Notice of Docket Activity

The following transaction was entered on 03/12/2010 at 10:03:41 AM PST and filed on 03/12/2010

Case Name: Norse v. City of Santa Cruz, et al
Case Number: 07-15814

Docket Text: Filed Order for PUBLICATION (ALEX KOZINSKI, Chief Judge) Upon the vote of a majority of nonrecused active judges, it is ordered that this case be reheard en banc pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit. [7263210] (RP)

The following document(s) are associated with this transaction:
Document Description: Main Document
Original Filename: 0715814ebo.pdf
Electronic Document Stamp:
[STAMP acecfStamp_ID=1106763461 [Date=03/12/2010] [FileNumber=7263210-0] [66039c3c25580a8472e665763f445d5de5a12a955595c2532d0c82d2469e8c202e0f5f8926c949a584c0e05f102df36f7f0c2944fc48ce709447ca5177d005e6]]


Notice will be electronically mailed to:
Mr. Beauvais, David John, Attorney
Mr. Kovacevich, George J.
USDC, San Jose
Ms. Wells, Kathleen Elizabeth, Attorney
Honorable Whyte, Ronald M., Senior District Judge

The following information is for the use of court personnel:
DOCKET ENTRY ID: 7263210
RELIEF(S) DOCKETED:
for panel and en banc rehearing (statistical entry)
for panel and en banc rehearing (panel, all active judges, any interested senior judges)
for panel and en banc rehearing (panel, all active judges, any interested senior judges)
DOCKET PART(S) ADDED: 6865135, 6646487, 6646489, 6646488, 6693203, 6646487, 6646488, 6865138

Audio of Federal Court Arguments in Norse "mock-Nazi" salute case
http://www.indybay.org/newsitems/2009/07/16/18608384.php


Additional Coverage:

http://beckyjohnsononewomantalking.blogspot.com/2009/07/debunking-of-past-sentinel-coverage-of.html ("Debunking of Past Sentinel Coverage in Nazi Salute Case")

http://www.topix.com/forum/us/TNIO9EVN3P5TLQ686 (A Sentinel story along with many many comments)

I'm sure that Kate and Dave are ecstatic that they will have the privilege of performing more free work on your personal behalf.

I am surprised that there may be a little bit of justice imposed upon our fair town.

Good luck to you, Robert.

Congratulations to ROBERT NORSE, KATE WELLS, and DAVID BEAUVAIS for keeping this case going, and finally, getting the ruling I expected from the start. I currently, on my blog, have an imbedded video of a REAL disruption of a public meeting. What ROBERT did in 2002,in no way constituted a disruption of a public meeting, and hence his arrest was false.

He was picked out for abuse by TIM FITZMAURICE who harbors personal animosity towards NORSE which he has demonstrated in the past by WALKING OUT ON NORSE when he was speaking at the public podium, DENOUNCING HIM AS HE WENT as "anti-Catholic". NORSE was reading the mission statement of CATHOLIC HEALTHCARE WEST.

FITZMAURICE again staged a 2nd walkout on NORSE, and got other council members to follow him, loudly denouncing NORSE as "racist" when NORSE performed a skit during his oral communications, playing a fictional character he invented called "SWAMI Y". NORSE used an Indian accent to create his character----a very mixed up Indian Guru.

On this occasion, FITZMAURICE insisted NORSE be ejected from the council chambers for being "anti-Jewish".
Neither FITZMAURICE or any of the sitting council members at the time were Jewish, however, NORSE himself is of Jewish ancestry. Later, FITZMAURICE explained his actions saying that his wife who is Jewish, had she been in the chambers at the time, would have been offended.

"The cases, which have cost the city at least $114,000 to fight, have been consolidated. If Norse wins, the appellate panel could order the city to pay his attorney's fees, which also exceed $100,000." from http://www.santacruzsentinel.com/localnews/ci_14669448

Nevermind the city needs ~$40,000 to keep the homeless shelter open which it might have if this suit was never filed. The homeless population of Santa Cruz can thank Robert for his tireless efforts to help them.

If Santa Cruz needs money then it shouldn't be doing stupid crap like that. Don't blame Norse.

I thought Robert was not paying attorney fees. He's been getting lawyers to do this free of charge. How could the award him attorney fees he's never even paid?

That is standard practice and is called a contingency fee. Haven't you seen all those injury claim lawyers and SSI lawyers advertising "no fee unless you win"?

Former attorney and homeless defender from the 1980's and early 1990's Ray Gloch-Grueneich, noted some inaccuracies in my initial story. His comments and corrections follow.

March 13, 2010

Dear Robert,

Congratulations to you and your legal team! The battle isn't over yet, but this is a very important (and rare) victory skirmish.

I have the ill-grace to correct you on some details, but I know that you would prefer to get it right.

Technically, the decision was not to "reverse" the panel's decision, but to "rehear" it. The granting of a rehearing of the whole case, which is what occurred here, has the effect of vacating the entire earlier decision. The legal consequence is that as of March 12, 2010 the earlier opinion no longer stands as binding precedent within the Ninth Circuit (California, Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, and Guam), and indeed it is now illegal to even cite the earlier opinion in a federal brief filed in any court within the Ninth Circuit.

This interim effect is even greater than when the US Supreme Court grants a hearing on a case. In the latter instance, the Circuit Court of Appeals opinion remains as precedent within that circuit until the Supremes have their say. Even then, the Circuit Court of Appeals opinion remains as precedent on all matters upon which the US Supreme Court did not expressly reverse the lower court decision.

The group that decided to grant the rehearing consists of all of the active-duty Judges of the Ninth Circuit. All 3 Judges who participated in the earlier panel decision (Judge Schroeder, who authored the majority opinion, Judge O'Scannlain, who joined the majority opinion, and Judge Tashima, who wrote a dissenting opinion), were able to participate in that vote, and presumably voted in the same direction on the rehearing petition that they had on the panel opinion.

Senior Judges, i.e., semi-retired Judges who are doing part-time duty, and various jurists who participate in the decision of 9th Circuit cases as "visiting judges," even when a visiting judges was a member of the 3-member panel deciding the initial appeal, cannot vote on a petition for rehearing. There are approximately 35 active-duty Judges in the 9th Circuit. No oral argument is permitted before the vote on the rehearing petition. A majority of the active duty Judges is required to grant a rehearing /en banc/. (I don't know whether this is a majority of those actually voting, or a majority of the entire active-duty roster. It could make a difference if an active-duty Judge were ill and not voting.)

The granting of /en banc/ rehearing only occurs a few times each year out of literally hundreds of cases and dozens of petitions for rehearing /en banc/.

The rehearing /en banc/ will not be before a new 3-Judge panel, but rather will be before a specially selected 11-Judge panel. The 11 Judges will be chosen at random from the entire group (@ 35) of active-duty Ninth Circuit Judges.

The prospects are in our favor. In the Ninth Circuit there are more "liberal" Judges than "conservative" Judges. However, Schroeder is counted as one of the liberals and authored the majority opinion of the original panel. On the other hand, a majority decided Schroeder's opinion didn't represent a statement of the law that met with their comfort. A random draw does not mean that it will be a representative cross-section of all of the active-duty Judges. Sometimes, a random draw gives disproportionate representation to a minority bloc. But usually it gives greater representation to the majority point-of-view.

It will be interesting to see how many, if any, of the original 3 panelists will be included within the random draw.

This is really an exciting development!


Ray Glock-Grueneich

Isn't taking on a case on contingency different than taking one on pro bono? All of the accounts I've read suggest that Norse's attorneys are performing pro bono work.

Also, isn't publishing a court document with "Not for Publication" stamped at the top a no-no?

(Sorry.. that wasn't formatted correctly.)

** "Isn't taking on a case on contingency different than taking one on pro bono? All of the accounts I've read suggest that Norse's attorneys are performing pro bono work."

Yes. They are entirely different. (With 'contingency' the client of the attorneys will pay the attorneys from the money that they win from a lawsuit. If they lose then no pay.)

However, even though the attorneys are pro-bono they can be awarded the costs of their services by the court. Those costs will be paid by the other side in the lawsuit.

Just because the attorneys are pro-bono doesn't mean that the other side gets off without paying.

And payment of attorney fees isn't automatic. If it happens it might only cover fees related to the appeal. And I think it only happens when something unreasonable has happened. But I'm no expert....

** "Also, isn't publishing a court document with "Not for Publication" stamped at the top a no-no?"

No. "Not for Publication" means that the decisions made in the case can't be referenced in other lawsuits. The decision will not be published in official court documents. Or something like that...

Thanks Answer Man for the clarification. If your explanation of the "Not for Publication" notice is correct (and I have no reason to believe it is not), then does that mean that the results of this en banc proceeding will not be available as reference in future, similar matters?

My understanding, after some research, is that the decision about whether an opinion is "for publication" or "not for publication" is made by the judges AFTER an opinion has been written.

So, when a decision is made, it will be determined whether or not it is for publication.

I think that the "Not for Publication" that you see above on the Court Order for re-hearing only applies to that document, not the entire case.

That brings me back to my original question: Isn't posting to the Internet a legal document stamped "Not for Publication" a breach?

Granted, in and of itself that's a very minor transgression. However, it does seem consistent with RN's lack of respect for rules, process and decorum.

Get a grip, pal. You sound like you are longing for something - anything - that you can accuse Robert Norse of. You're barking up the wrong tree on this one.

Here's a quote from Wikipedia (http://en.wikipedia.org/wiki/United_States_courts_of_appeals):

Decisions of the United States courts of appeals have been published by the private company West Publishing in the Federal Reporter series since the courts were established. Only decisions that the courts designate for publication are included. The "unpublished" opinions (of all but the Fifth and Eleventh Circuits) are published separately in West's Federal Appendix, and they are also available in on-line databases like Lexis or Westlaw. More recently, court decisions are also available electronically on the official Internet websites of the courts themselves.

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As you can see, even the ones that are "not for publication" can be 'published'. "Not for Publication" means that it won't be published in the Federal Reporter and the decisions can not be referenced as precedents, etc in other legal documents.

Relax, I'm not barking up any trees.

I found it odd that a document marked "Not for Publication" was posted here. You explained the intended meaning of the designation.

Don't you see the irony of having a document associated with a legal action concerning an individual's lack of respect/decorum posted on a public forum by that same person with "Not for Publication" plastered on it?

Without your explanation (thank you again), it looks like that person is just thumbing his nose at another authority/institution.

IMO, you're both feeding the guys need for attention, which I consider to be his primary motivation in all of his actions.

If he really wanted to help folks, he'd work collaboratively with other groups; either those in control of the situation or those who oppose the control.

But instead, he has a 20 year track record of virtually zero improvements for the homeless, several nuisance lawsuits, and just as many complaints from homeless who resent the way he used or played them as pawns to further his cause.

Ignoring him, as opposed to gratifying his ego by engaging, is the best course of action for anyone who truly wants to help resolve the current situation and help the homeless community in Santa Cruz.

I think you mean Judge Ronald Whyte. He's a federal judge in San Jose.