Judge Robert Jones isn’t taking Stephen Reinhardt’s criticisms lying down.
After Ninth Circuit Judge Reinhardt publicly accused Nevada’s chief district judge of trying to evade appellate review of a decision that could theoretically swing the presidential election, Jones fired back Thursday with an order accusing Reinhardt of improperly meddling in the case.
“The undersigned was quite surprised when Judge Reinhardt contacted my chambers through the Ninth Circuit Clerk's Office and requested early entry of the order granting preliminary injunction, in light of a preliminary hearing date set by himself on the Defendants Emergency Motion to the Ninth Circuit for Stay Pending Appeal,” Jones wrote.
On Friday, Ninth Circuit Executive Cathy Catterson confirmed that a deputy clerk contacted Jones’ chambers to clarify the status of Townley v. Miller, 12-16881, and might have been acting at the behest of Reinhardt, who is the senior presiding judge of the Ninth Circuit’s motions panel for September. Such communications by a motions panel are “fairly common procedure,” Catterson said.
“I am going to enter an injunction that bars you from having that on the ballot,” Jones stated at an Aug. 22 hearing, adding he would prepare a written order “as quickly as I can.” Miller’s lawyer told Jones that time was running out for appellate review before the Sept. 7 deadline to print ballots. “Well, that’s your problem,” Jones told him. “I’m just trying to accommodate your problem with regard to notifying the printer.”
Miller filed an emergency motion for stay Aug. 28 and a week later the Ninth Circuit motions panel -- Reinhardt and Judges Kim McLane Wardlaw and Carlos Bea -- granted the stay. Reinhardt, considered one of the court's most liberal members, issued a concurrence accusing Jones of assigning the case to himself, then deliberately dragging his feet to evade appellate review. “Such arrogance and assumption of power by one individual is not acceptable in our judicial system,” he wrote.
Jones is an appointee of George W. Bush who graduated from the same Brigham Young University class as Romney. He is not a stranger to the Ninth Circuit, having served on its Bankruptcy Appellate Panel before his appointment to district court. The judge fired back at Reinhardt with his own order on Thursday, saying he’d made it crystal clear he intended to file a written decision.
“Unfortunately,” he added, “Judge Reinhardt chose to write separately impugning the personal integrity and motivation of the undersigned judge. Hopefully, his separate decision does not reflect a trend in appellate decision writing to attack the integrity and motivation of a colleague or lower court judge, rather than simply pointing out the error in a lower court opinion.”
Jones wrote that the case was originally assigned to Judge Edward Reed, who is stepping down from the court Sept. 30. “To date he has presently submitted several dozen [cases] for reassignment,” Jones wrote, and though most have gone to a random draw, any with exceptional time constraints Jones assigned to himself. “Judge Reinhardt’s suggestion of a nefarious motivation is false,” he wrote.
He then expressed his surprise at the contact from the Ninth Circuit. “I am not even sure if Judge Reinhardt was on the motions panel for the month of August, 2012,” he wrote. “Such contact for the purpose of influencing the lower court’s decision and earlier entry of its order, in order to establish appellate jurisdiction is an inappropriate judicial activity.”
Catterson said the case was assigned to the September motions panel based on the court’s standard procedure of assigning cases based on when responding briefs are due.
Those briefs were originally due on Sept. 5, though on Aug. 30 the Ninth Circuit moved the deadline up to Aug. 31.