Mediation Message No. 76



Ninth Circuit Chief Judge Alex Kozinski once again has established his credentials as a legal iconoclast. In Nordyke v. King (9th Cir. 2012) 676 F.3d 828 (Nordyke II), he issued a short but sharp rebuke of the en banc panel’s order that the parties mediate a long-running dispute concerning the right to bear arms.

Nordyke I involved an Alameda County ordinance prohibiting firearm’s sellers from possessing firearms on County property and at County fairgrounds. The Ninth Circuit affirmed the trial court’s dismissal of the gun sellers’ action challenging the ordinance as a violation of the Second Amendment because an ordinance exception allowed gun sales as long as the firearms were secured to prevent unauthorized use when not in the actual possession of the authorized participant. Thus, the Court reasoned, the ordinance did not violate the Second Amendment since it only minimally regulated the sale of firearms at gun shows.

On en banc review of Nordyke I, the majority in Nordyke II held that “the parties should attempt to settle this dispute by agreeing on the conditions for holding gun shows at the Alameda County fairgrounds, with the assistance of mediation. The case is referred to the Circuit Mediation Office for mediation, and its submission is deferred for 45 days or pending further order of the court.”
Kozinski dissenting, with Judge Gould concurring, stated “The parties have not asked for mediation; they have said nothing that suggests mediation would be fruitful; when asked about it in court, they displayed obvious distaste for the idea. We overstep our authority by forcing the parties to spend time and money engaging in a mediation charade. Our job is to decide the case, and do so promptly. This delay serves no useful purpose; it only makes us look foolish. I want no part of it.”

The majority’s order is an appropriate recognition of mediation’s value and, perhaps, as well, a subtle effort to sidestep a possible appeal of the Second Amendment issue to the U.S. Supreme Court, where its affirmation might be reversed. Kozinski’s dissent is notable because it reflects the distaste of a well known jurist for imposing mediation on unwilling parties.

Judge Michael D. Marcus (Ret.)

ADR Services, Inc.

1900 Avenue of the Stars, Suite 250

Los Angeles, California 90067

(310) 201-0010

Copyright Michael D. Marcus, June 2012

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