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Khatib v. County of Orange (9th Cir. - March 15, 2011)

By Shaun Martin

Last year, Judge Trott authored an opinion holding that an extremely large pretrial holding facility ("jail") in Orange County was not an "institution" governed by the federal Religious Land Use and Institutionalized Persons Act and that it was thus not a potential violation of that Act to force a Muslim woman to remove her hijab (headscarf).  Judge Wardlaw joined the opinion, and Chief Judge Kozinski authored a characteristically entertaining dissent.  I discussed both the holding as well as the dissent here.

Later that year, the case was taken en banc.  Which I noted was a pretty telling sign, and wrote that I anticipated that the panel's holding would (rightly) be reversed.

Which it indeed was.  Chief Judge Kozinski was -- of course -- on the panel, so you know his vote already.  But it wasn't even close.  11-0.  On a panel that included people like Judges O'Scannlain and Ikuta.  And that didn't include either of the two members of the majority on the panel (Judges Trott and Wardlaw).

It didn't take long, either.  Oral argument was December 13th.  The en banc opinion comes out on March 15th.  Three months.  Which is light speed for an en banc adjudication.

Plus, the en banc opinion isn't authored by Chief Judge Kozinski.  Nor does it use much of his stuff.  That's the downside of authoring something that's idiosyncratic.  Can't cut-and-paste much from it even when the en banc court totally agrees with you.  Judge McKeown instead has to write it herself.  (With a little help from her clerks, of course.)

So some speedy justice here.  In an outcome that's (1) utterly predictable, and (2) that even the Supreme Court would have a hard time reversing.

Full post as published by California Appellate Report on March 16, 2011 (boomark / email).