Polly Estes

If you’ve ever wondered why federal appellate court judges bother to write dissents, especially dissents from the denial of rehearing en banc (“dissentals”), read the recent U.S. Supreme Court case of Kernan v. Cuero, where the Court observed that, “The Ninth Circuit denied rehearing en banc over the dissent of seven judges.” This seemingly short, procedural sentence in the Court’s per curiam decision speaks volumes. It reveals that Cuero is just the most recent example of conservative judges on the Ninth Circuit using that court’s en banc procedures to try to send what they believe are important, incorrect cases up to the Supreme Court—and it’s working.

Cuero is a habeas case born out of a California state felony conviction. While on parole, Cuero drove under the influence with a loaded semiautomatic pistol in his possession, hitting the victim with his car and causing serious bodily injury. Cuero was charged with two felonies and a misdemeanor. On the original plea bargain form, he pleaded guilty to the two felonies and admitted that he had previously served four separate prison terms, including one conviction which qualified as a predicate offense under California’s three strikes law.

After the court accepted Cuero’s original guilty plea, but before sentencing, the prosecution realized it had made a mistake. A second one of Cuero’s four prior convictions qualified as a “strike” even though the guilty-plea form Cuero signed had erroneously listed only one strike. This second strike increased Cuero’s maximum sentence from just over 14 years to 25 years. The trial court granted the State’s motion to amend the complaint, but permitted Cuero to withdraw his guilty plea in light of the amendment. Cuero then withdrew his original guilty plea and entered a new guilty plea on the amended complaint, agreeing that two of his priors counted as strikes. The trial court sentenced Cuero to the stipulated term of 25 years to life. The state courts denied Cuero relief.

The Ninth Circuit panel held that clearly established Supreme Court law entitled Cuero to specific performance of the lower 14-year, 4-month sentence that he would have received had the complaint not been amended. Both panel rehearing and rehearing en banc were denied.

Here’s where it gets interesting. As I explained in a previous column in September (Petitions for Rehearing En Banc in the Ninth Circuit), when one or more judges on the Ninth Circuit believe a panel opinion is such an egregious error that it meets the standard for en banc review, the judges often engage in a spirited campaign involving the exchange of internal written memoranda. That process is well-guarded and takes place entirely behind the court’s closed doors. Thus, the party whose request for rehearing en banc is ultimately denied may never know just how close he came to having his case reheard. That is, unless the judges in favor of rehearing feel strongly enough to publish a dissental.

In that case, the judges in favor of rehearing make their position public, attacking the panel opinion in detailed dissentals. But while these dissents may be interesting, and perhaps somewhat consoling to the losing party, the dissenting judges have an entirely different audience in mind: the U.S. Supreme Court.

Cuero is the most recent in a long line of cases where judges have used published dissentals as “letters” to the U.S. Supreme Court explaining, with detailed analysis, why their colleague’s panel opinion should be reversed. Beyond providing the losing party an invaluable outline for his petition for a writ of certiorari, these dissentals provide the Court of Appeals judges the unique opportunity to write what is essentially a mini-brief on the case, in their own words, knowing it will be front and center when the Supreme Court considers the case.

In Cuero, the Supreme Court not only granted cert., but reversed the Ninth Circuit panel opinion in a per curium opinion issued without merits briefing or oral argument. This likely means the Supreme Court considered the Ninth Circuit panel opinion as the primary brief in favor of affirming, and the dissental as the primary brief in favor of reversal. And this time, the dissental won, 9-0.

Appellate court judges have learned that the dissental is an effective tool for their legal analysis to carry the day, even if that day is delayed until the Supreme Court ultimately reviews the case.

On rare occasions, dissents from three-judge panel opinions can also be so forceful as to short-circuit the normal process of review. In Riggs v. Fairman, the issue was the remedy that should be afforded to a mentally ill man who had received ineffective assistance of counsel and was serving a life sentence for shoplifting a bottle of vitamins because he had previous strikes under California’s three-strikes law. The majority held the parties should be returned to the position they were in before any plea bargain was offered, but Judge Bea wrote a vigorous dissent arguing that under clearly established Supreme Court law the only proper remedy was to return Riggs to the point just before he received ineffective assistance of counsel—when the plea bargain offer of five years was already on the table. His dissent led to the case being taken en banc. Between the panel dissent and oral argument by the en banc court, the State got the picture and settled the case, letting Riggs out for time served.

Frequently, these dissenters are not mentioned by name in the higher court’s opinion, but the adoption of their reasoning, and sometimes even their language, is indeed the greatest compliment of all. So, the next time you read a Supreme Court case or an en banc decision, check to see if its reasoning isn’t derived from a dissent below.

On Appeals is a monthly column by the attorneys of the California Appellate Law Group LLP, the largest appellate specialty boutique in Northern California. Polly Estes is of counsel with the firm and served for more than a decade as a Ninth Circuit law clerk. Find out more about Polly and the California Appellate Law Group LLP at www.calapplaw.com.