Every so often a case comes along that splits the Ninth Circuit U.S. Court of Appeals almost perfectly along ideological lines. Such a case came today, as arguably the court's seven most conservative judges clamored to rehear a notable workplace privacy case to no avail.
Judges Sandra Ikuta, Diarmuid O'Scannlain, Andrew Kleinfeld, Richard Tallman, Consuelo Callahan, Carlos Bea and N. Randy Smith dissented from the denial of en banc review (.pdf) in Quon v. Arch Wireless, in which a Southern California police department snooped through a SWAT team officer's text messages.
Pointed remarks, after the jump.
A three-judge panel led by Clinton appointee Kim McLane Wardlaw had ruled in June that the Ontario Police Department violated Officer Jeff Quon's Fourth Amendment rights. The OPD had a written policy allowing it to review employee e-mail messages, but the local commander had told officers they wouldn't review text messages so long as officers reimbursed the department for excessive use charges. Eventually the commander, Lt. Steve Duke, grew tired of acting as bill collector, and the next thing you know internal affairs was poring over raunchy messages between Kuon, his wife and other members of the force.
In Tuesday's dissent, Ikuta charged Wardlaw and her panel colleagues with "hobbl[ing] government employers from managing their workforces" and flouting U.S. Supreme Court precedent. In particular, Ikuta wrote that SWAT team members could not reasonably expect that communications occurring during "highly charged, highly visible situations" would not be subject to review by an investigating board, during litigation arising from a SWAT team incident, or news media outlets.
In a separate order Tuesday (.pdf), Wardlaw fired back, saying, "No poet ever interpreted nature as freely as Judge Ikuta interprets the record on this appeal." It sounds like debate within the Ninth Circuit was pointed, as Wardlaw allowed herself a gloat: "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."
— Scott Graham