Earlier this month, while trying to block the City of San Francisco from forcing cellphone retailers to hand out fact sheets about radiofrequency energy, Wiley Rein partner Andrew McBride put U.S. Distirict Judge William Alsup's handling of the case in play.
“The judge proposed his own language to revise [the fact sheet], San Francisco adopted that language in a week, and I never got an opportunity to put in evidence on this new revised fact sheet,” McBride told the Ninth Circuit on August 9.
Claims that a trial judge committed error is nothing new at the court of appeals, but Judge Alsup apparently was incensed after reading an account of the argument Monday in sibling publication The Recorder. Alsup wrote a letter to the Ninth Circuit on Monday afternoon accusing McBride of misstating the record.
"Counsel has implied that the court gave no further opportunity to comment prior to approving the final version of the revised fact-sheet. This is incorrect," Alsup wrote in CTIA The Wireless Association v. City and County of San Francisco.
"CTIA did not request a further opportunity to submit evidence or a further hearing," Alsup wrote on Monday.
It's doubtful the point of Alsup's letter is lost on the Ninth Circuit. San Francisco defended the procedure vigorously in its response brief and, as can be seen on this video of the argument posted at the court's website (from 13:00 to 21:00), all three Ninth Circuit judges quizzed McBride extensively about the procedure Alsup described. At 20:10 McBride actually reads aloud part of the Oct. 27 order that Alsup quoted.
Alsup wrote his letter pursuant to Ninth Circuit General Order 12.10, which provides that a district judge can write to the court when it "wishes to comment on a pending petition for a writ of mandamus or other extraordinary relief that arises out of that judge’s cases." CTIA originally framed its appeal as an emergency motion for injunction.
UC Hastings law professor Rory Little said such letters from trial judges are unusual, but not unheard of. U.S. District Judge Jed Rakoff of New York filed a brief just last week with the Second Circuit U.S. Court of Appeals in the litigation between Citigroup and the SEC, for example.
"It seems to be an increasing phenomenon now that judges want to file their own briefs on appeal," Little said.