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SAN FRANCISCO � Pity the poor 9th U.S. Circuit Court of Appeals, called wacky, liberal, activist and sometimes a few unprintable names. But the 27-judge court does not get to pick its cases. The court’s Dec. 4 argument calendar in California gives a glimpse of the sorts of appeals the judges face in just one day � issues that might show up once a year in other circuits. That December day in San Francisco will begin with two religious rights appeals. The first challenges the use of “In God We Trust” on currency as a violation of the Constitution’s establishment clause and the Religious Freedom Restoration Act. Newdow v. U.S. Congress, No. 06-16344. The second case revisits the injunction against school students including “under God” in a recitation of the Pledge of Allegiance. Newdow v. Carey, No. 05-17257 Then the judges move on to a pair of cases over medical marijuana. The first challenges a ban on operation of medical marijuana clubs in Oakland, Calif. Although state voters approved medical use of marijuana, a lower court said it violated the federal Controlled Substances Act. U.S. v. Oakland Cannabis Buyers Cooperative, No. 05-16466. The second case challenges seizure of marijuana plants allegedly grown medicinally pursuant to California’s Compassionate Use Act. Browne v. Salas, No. 06-15345. By lunchtime, environmentalists will have joined the fray. They challenge federal approval of oil company offshore drilling plans in Alaska’s Beaufort Sea. The session closes with a civil rights class action against Arizona for alleged failure to pay for English language learner programs in state schools. Flores v. Horne, No. 07-15603. Next up: Krishnas Meanwhile, on that same day in the Southern California courthouse in Pasadena, judges will hear the International Society for Krishna Consciousness’ challenge to a Los Angeles city ordinance restricting Krishna adherents from soliciting money at Los Angeles International Airport. International Society for Krishna Consciousness v. City of Los Angeles, No. 01-56579. “This perfectly illustrates what I and others have been saying for a long time: that the reputation of the 9th Circuit arises from the mix of cases,” said Arthur Hellman, law professor at the University of Pittsburgh School of Law, who has studied and written about the 9th Circuit. “A regular feature of the 9th Circuit docket is all these issues that are hot button,” he said. “It is highly unlikely that you would find another state outside the 9th Circuit that would in any way countenance the use of medical marijuana. It is the 9th Circuit where it comes up because California passed a law.” “There is something novel about the appeals, so existing law doesn’t declare a clear decision one way or the other. Appeals may produce a decision that looks counterintuitive . . . and people say [of the circuit], ‘There they go again,’ ” Hellman said. John Hemann, a former federal prosecutor who is now a white-collar defense partner in the San Francisco office of Morgan, Lewis & Bockius, noted that “[p]erhaps it was meant as a Christmas gift from the 9th Circuit docket clerks to [U.S. Supreme Court justices] Scalia and Thomas. “This is a con law professor’s dream,” said Laurie Levenson, a constitutional law professor at Loyola Law School, Los Angeles. “Seriously, what will be interesting are the panels [of judges]. A particular panel can distort what is going on in the circuit. This points out the luck of the draw,” she said. The Dec. 4 calendar does help to explain why the 9th Circuit is different, he said. “You would not get this mix and concentration of cases in any other circuit,” he said. And a week later, on Dec. 11, an en banc court will hear a First Amendment challenge by members of the Top Hatters Motorcycle Club to a dress code at the annual Gilroy Garlic Festival that prevents them wearing their “colors,” vests with patches on the back depicting a skull with wings and a top hat. Villegas v. City of Gilroy, No. 05-15725. But that’s an appeal for another day.

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