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Quon v. Arch Wireless (9th Cir. - Jan. 27, 2009)

By Shaun Martin

They're both UCLA Law School graduates with stellar credentials. They both are well-recognized women in Southern California. They were even both O'Melveny lawyers, and indeed overlapped for six solid years. So you're presume that they might be relatively tight, no?

And yet this stuff is right out of Celebrity Deathmatch. "Let's get it on!"

On the one side is Judge Wardlaw. On the other is Judge Ikuta. Judge Wardlaw writes an opinion, Judge Ikuta wants to take it en banc (and explains why), and Judge Wardlaw writes a concurrence to the denial to explain her contrary vote. Pretty straightforward, right?

You might think so. But all I have to do is to recite the first couple of paragraphs from Judge Wardlaw's concurrence to reveal that, well, there's a vigor there that bespeaks of some hard feelings. Check it out:

"No poet ever interpreted nature as freely as Judge Ikuta interprets the record on this appeal. [Ouch!] The dissent is not bound by the facts, even those found by the jury; nor is it confined to the actual fact-driven Fourth Amendment holding. [Come on: Tell us what you really think.] The dissent?s lofty views of how the City of Ontario Police Department (?OPD?) should have guided the use of its employees? pagers are far removed from the gritty operational reality at the OPD. I write only to correct the seriously flawed underpinnings of the dissent and to demonstrate that our opinion carefully and correctly applied the tests set forth in O?Connor v. Ortega, 480 U.S. 709 (1987). That our opinion follows Supreme Court precedent and accords with our sister
circuits is obviously why this appeal failed to win the support of a majority of our active judges for rehearing en banc.

The dissent selectively recites facts to support its disagreement with the outcome of our panel?s Fourth Amendment analysis. For a full recitation of the record evidence, read the opinion."

If Judge Wardlaw has ever written anything equally harsh, I don't recall it offhand. Not, of course, that Judge Ikuta doesn't get in some powerful shots of her own.

Read the whole thing. It's dueling bench slaps extraordinaire.

Full post as published by California Appellate Report on January 30, 2009 (boomark / email).