It was a highly unusual step that the federal appeals court in San Francisco took on Tuesday when, assuming the initiative, it asked opposing sides in the California recall fight whether a larger panel of the court should review the delay ordered on Monday by three judges.
Such rehearings are almost always prompted by a request from the losing side. But neither the defendant in this case, Secretary of State Kevin Shelley, nor the recall proponent who has intervened in it, Ted Costa, had made such a request. Indeed, Costa had announced his intention to bypass the larger appeals court and take the matter straight to the Supreme Court.
The request on Tuesday, by the 9th U.S. Circuit Court of Appeals, asked the parties for briefs to be filed on Wednesday "setting forth their views on whether or not this case should be reheard" by the larger panel.
The significance of the call for briefs was disputed. The plaintiffs, a coalition of minority groups represented by the ACLU Foundation of Southern California, discounted its importance. They noted that any active judge is entitled to call for a vote on rehearing by a larger panel, and that the court's own rules call for a briefing from the parties before the vote is taken.
"One judge or another said, 'Why don't we get the parties' views?"' said Ben Wizner, a lawyer with the ACLU.
Charles P. Diamond, a lawyer for Costa, said the request suggested something far more significant than one judge's call for a vote.
"This is a clear signal," Diamond said, "that a majority of the judges on the 9th Circuit are highly unhappy with the panel decision and that a significant number are bent on overturning it and making it come out right."
Legal experts took a middle ground.
"This is clearly an extraordinary step, because ordinarily you wait for a party to ask for rehearing," said Vikram Amar, a professor at Hastings College of the Law in San Francisco. "This may betray a decision in the direction of taking the case."
Though going directly to the Supreme Court remains an option, Diamond said Costa had now changed his mind about doing so.
Shelley said in a statement that he, too, would ask for reconsideration by a larger panel of the appeals court.
"I believe it is in everyone's best interest that this case be heard swiftly and considered thoroughly," he said, "so the court can resolve these legal issues with the finality that the voters expect and deserve."
For a larger panel of the court to hear the case, a majority of the active judges on the full court who have not recused themselves must vote in favor of rehearing. There are 26 active judges, but at least one, Stephen Reinhardt, is expected to recuse himself, as he is married to Ramona Ripston, executive director of the ACLU of Southern California.
By the standards of federal courts of appeal, the 9th Circuit is generally considered liberal. But the judges on the court have diverse and often unpredictable views, and the court's procedures for so-called en banc review are unique. An en banc panel of the Ninth Circuit is made up of only 11 judges, while those in the other circuits include every active judge of the court. If the 9th Circuit decides to rehear the case, the panel will be made up of Chief Judge Mary M. Schroeder and 10 judges selected at random.
In the end, then, a six-judge majority of an en banc panel — less than a quarter of the full court — could determine the outcome of the case, making all predictions highly speculative.