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To those who question whether the results in constitutional and other cases depend on the membership of the panel, * * * the result in the case currently before our panel is merely a minor illustration of how the judicial system currently operates.

"To those who question whether the results in constitutional and other cases depend on the membership of the panel, * * * the result in the case currently before our panel is merely a minor illustration of how the judicial system currently operates." So writes Ninth Circuit Judge Stephen Reinhardt, in an opinion concurring in the judgment issued today.

Judge Reinhardt's separate opinion begins:

Six months ago, the original panel in this case filed a majority opinion holding that Washington state law creates a liberty interest in an inmate's early release into community custody. We held that the prisoner's liberty interest is protected under the Due Process Clause of the Fourteenth Amendment and that, accordingly, when an inmate becomes eligible for a transfer to community custody, the prison authorities may deny his request for a transfer only for one of the reasons specified in the Washington statute -- and only if he is afforded a minimal opportunity to present his side of the story before they do so. In short, we held that Washington prison authorities must follow Washington law and abide by the United States Constitution. Joining me in that opinion was Judge Warren J. Ferguson, who died before we could deny the petition for rehearing; dissenting was Judge Milan Smith. As a result of Judge Ferguson's death, it was necessary to replace him on this case with another member of this court drawn at random. There were no intervening decisions that changed the law between the time Judge Ferguson and I issued our opinion holding that a liberty interest exists that protects the prisoners' rights at issue and the time that Judge Smith, joined by our colleague who replaced Judge Ferguson, issued a substitute opinion holding that no such liberty interest exists.

The unnamed colleague who replaced now-deceased Senior Circuit Judge Warren J. Ferguson on this particular three-judge panel is Circuit Judge Richard C. Tallman.

Apropos of my observation in a blog post published a little over one year ago that "[i]n the Ninth Circuit, to a degree not seen in any other federal appellate courts, published opinions often resemble works in progress," today's majority opinion, written by Circuit Judge Milan D. Smith, Jr., responds to Judge Reinhardt's separate opinion by noting, among other things, that "in the ninety days between July 11, 2008, and October 9, 2008, at least ten published opinions were withdrawn and at least ten opinions were amended in our circuit." (footnotes omitted).

Judge Reinhardt wrote the original panel's opinion in this case. That opinion was withdrawn on August 26, 2008 after Judge Tallman replaced Judge Ferguson on the panel.

Full post as published by How Appealing on December 22, 2008 (boomark / email).