Barnes-Wallace v. City of San Diego, 551 F.3d 875 (2009) Today, our court [Ninth Circuit] promulgates an astonishing new rule of law for the nine Western States. Henceforth, a plaintiff who claims to feel offended by the mere thought of associating with people who hold different views has suffered a legally cognizable injury-in-fact. No other circuit has embraced this remarkable innovation, which contradicts nearly three decades of the Supreme Court’s []standing[] jurisprudence. In practical effect, the three-judge panel majority’s unprecedented theory creates a new legal landscape in which almost anyone who is almost offended by almost anything has standing to air his or her displeasure in court. I must respectfully, but vigorously, dissent from our failure to rehear this case en banc. This opening sentence in the Barnes-Wallace opinion is astonishing not only for the vigor of its language but also for the consequences of the majority decision. What fact pattern can account for this paragraph in an appellate court decision dissenting from a refusal to hold an en banc hearing in Barnes-Wallace? Alleging violation of the Establishment Clause and the No Religious Preference Clause of the California Constitution (Art. I. Sec. 4; Art. XVI. Sect. 5) a lesbian couple and an agnostic sued the City of San Diego for leasing a portion of a public park to the Boy Scouts. According to their Complaint, both plaintiffs had visited the park and were offended by the City lease. They observed no religious symbols, the Boy Scouts opened their facility to anyone who wanted to use the land, and did not deny the use of the facilities to plaintiffs. The district court had dismissed the Complaint, the plaintiffs appealed and in the original Ninth Circuit opinion, the three judge panel affirmed the dismissal on grounds the plaintiffs suffered no injury in fact required for standing other than psychological discomfort with the Boy Scout policy excluding homosexuals; Barnes-Wallace v. City of San Diego, 471 F.3d 1038 (9th Cir. 2006). Despite that decision, the three judge panel decided to reconsider its opinion and completely changed the result ibid, 530 F.3d 776 (9th Cir. 2008). The grounds: if the plaintiffs would have visited the property (which they never did) that could arguably consist of some form of injury. Other than that, their injury consisted of an ideological disagreement, never a judicial ground for standing, i.e., the basis for filing a lawsuit requires an injury in fact. The Ninth Circuit refused to rehear the case (en banc) despite the inconsistent decisions, and refused to change the ruling. Quoting the dissent in criticizing failure of the full court to rehear the case: . . . [O]n rehearing, the majority reversed itself and adopted the theory it had initially rejected. It concluded that the Breens and Barnes-Wallace have avoided [the Boy Scouts] Camp Balboa and the Aquatic Center because they object to the Boy Scouts’ presence on, and control of, the land. They do not want to view signs posted by the Boy Scouts or interact with the Boy Scouts’ representatives in order to gain access to the facilities. The Article III injury-in-fact, according to the majority, was the Breens’ and the Barnes-Wallace [offense] at the Boy Scouts’ exclusion, and publicly expressed disapproval, of lesbians, atheists and agnostics, their aversion to the facilities, and their feelings of [unwelcomeness] there because of the Boy Scouts’ policies that discriminated against people like them. Having satisfied itself that it had jurisdiction, the panel then certified the California Constitutional law questions on the merits to the California Supreme Court. Aside from the issue of standing, the three judge panel only satisfied itself of jurisdiction but certified the issue on the merits to the California Supreme Court to decide the case under California law. Unless the City petitions the Supreme Court for certiorari, this case becomes precedent for standing and opens the door to anyone who is offended by the policies of a particular group. No other federal circuit court has adopted the rationale of the three judge panel in Barnes-Wallace.

Gonzales v. Duncan, (Warden), 551 F.3d 875 (2009) The Constitution provides for two separate court systems, state and federal. The Ninth Circuit regards its role as another rung in the ladder of appellate review to oversee California courts. Despite Congressional attempts to strip it of jurisdiction, and frequent reprimands from the Supreme Court, the Ninth Circuit continues its habeas corpus power in reviewing California court decisions and simultaneously jeopardizing society. Consider the Ninth Circuit decision in Gonzales v. Duncan. Assume the following facts: Cecilio Gonzales was convicted in state court of failing to update his annual address as a registered sex offender. Because of his prior record of felony convictions of serious crimes, this conviction qualified him for sentencing under the California Three Strikes Rule, and the trial court sentenced him to twenty eight years in prison. Here is his record as reflected in the California Court of Appeal decision in Peo. v. Gonzales, 2003 WL 178631 (Non.Pub. Non. Cite). “Gonzalez was convicted in 1988 of possession for sale of a controlled substance. Also in 1988 he was convicted of felony joyriding. Less than two months after he was paroled in 1989, he was arrested and later convicted of attempted rape and committing a lewd act on a child under the age of 14. He was paroled in 1992 and, less than a year later, was arrested and convicted of robbery. Once paroled, he committed at least three violations, including battery and spousal abuse, for which he returned to prison in 1997, 1998 and 1999. Gonzalez’s failure to annually update his sex offender registration, the offense for which he was convicted here, occurred after his birthday in February 2001, less than one year following his discharge from parole. The probation report identifies three aggravating and no mitigating factors: (1) Gonzalez has engaged in a pattern of violent conduct which indicates a serious danger to society; (2) his prior convictions as an adult . . . are numerous or of increasing seriousness; and (3) his prior performance on probation or parole was unsatisfactory. Based on this evidence, the trial court acted well within its discretion by finding Gonzalez could not be deemed outside the [Three Strikes] scheme’s spirit, in whole or in part. “Gonzalez also asserts his sentence violates the federal prohibition against cruel or unusual punishment but provides no separate Eighth Amendment analysis, contending the analysis is the same under both state and federal law. We would not reach a different result under the federal Constitution. [T]he principles developed by our court [regarding cruel or unusual punishment] are similar to those developed by the United States Supreme Court [citation] … [and] the federal high court’s reminder that appellate courts, of course, should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes[.] [Citation.] (Peo. v. Barrera (1993) 14 Cal.App.4th 1555, 1566, fn. 7, 18 Cal.Rptr.2d 395). After losing on appeal of his conviction, and denial of his habeas corpus petitions in state court, and denial of a petition for habeas corpus in the U.S. district court, Gonzales contended on appeal to the Ninth Circuit his punishment violated the Eighth Amendment prohibiting Cruel and Unusual Punishment. According to the Ninth Circuit, failure to annually register his change of address is a regulatory process of minimal importance and bears no relationship to Gonzales previous criminal history. Ignoring the record of criminal behavior as relevant, the panel grants the petition for habeas corpus despite the absence of any objection to the sentence at the trial court and an issue never raised in the California Court of Appeal. This case is another example of federal arrogance. The Ninth Circuit panel shows no deference to the state court as required under AEDPA and simply injects its own opinion. The Supreme Court has reversed the Ninth Circuit for its two previous opinions invalidating the Three Strikes law; Andrade v. Lockyer, 528 U.S. 77 (2003); Ewing v. California, 538 U.S. 11 (2003). The California Attorney General will decide whether to seek review of the Gonzales case. The result in Gonzlales is typical of the Ninth Circuit which began reversing the California Three Strikes rules as early as 2002; Brown v. Mayle, 283 F.3d 1019 (9th Cir. 2002). In Brown, the Supreme Court reversed the Ninth Circuit and remanded the case under its previous decision in Lockyer v. Andrade; Mayle v. Brown, 538 U.S. 901 (2003). The Ninth Circuit affimed the original district court rule-as ordered by the Supreme Court- denying the petition for habeas corpus; Brown v. Mayle, 66 Fed.Appx. 136. The jurisdictional dimension in Gonzales is repeated regularly by the Ninth Circuit in this familiar scenario: A habeas corpus petitioner files a writ in district court seeking review of multiple issues previously resolved against him in state court. The district court denies the petition and petitioner appeals to the Ninth Circuit on multiple grounds. The panel resolves a single dispositive issue in petitioner’s’ favor, ignoring the other issues. The State seeks review of the Ninth Circuit decision in the Supreme Court, which rules on the single issue asserted, as it did in Mayle v. Brown, reverses the Ninth Circuit, and remands to the Ninth Circuit to decide other issues not raised by the petition. The Ninth Circuit now addresses all the other issues previously asserted. And another round of appeals starts. An example of this misuse of judicial power: Belmontes v. Ayers, 2008 WL 5398912 (C.A. 9). Although in Mayle the Ninth Circuit on remand from the Supreme Court denies a ruling in favor of the petitioner on his other claims, in other cases they rule in favor of the petitioner; 66 Fed.Appx. 136. Which causes another appeal.