Metropolitan News-Enterprise


Thursday. March 18, 2010


Page 1


Ninth Circuit to Offer Remote Viewing of En Banc Hearings


By STEVEN M. ELLIS, Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday announced it will offer remote viewing in Pasadena next week of en banc proceedings in San Francisco, including arguments in a Southern California case involving art allegedly stolen by Nazis.

The court said it will broadcast live video and audio of arguments in four cases to viewers at the Richard H. Chambers U.S. Courthouse—and at Ninth Circuit courthouses in Seattle and Portland, Ore.—from March 23-25.

Among others, the 11-judge panel is scheduled to review a decision in a case arising out of California’s Central District that Claude Cassirer, the descendant of a wealthy German Jewish family, can sue the Kingdom of Spain over a painting he says was stolen from his grandmother in 1939.

A three-judge panel ruled in September in Cassirer v. Kingdom of Spain 06-56325 that a foreign governmental entity may be sued in U.S. courts for possession of expropriated property, even if that entity is not the expropriator.

The decision affirmed, in part, U.S. District Court Judge Gary Feess’ denial of a motion by the Spanish government to dismiss Cassirer’s suit claiming his grandmother was forced to relinquish Camille Pissarro’s “Rue Saint-Honoré, après-midi, effet de pluie” without payment by a representative of Germany’s Nazi government in order to escape the country.

The painting is currently housed at Madrid’s Thyssen-Bornemisza Museum.

The Spanish kingdom and the museum’s Collection Foundation, whose board is dominated by representatives of the government, had sought dismissal under the Foreign Sovereign Immunities Act. The act provides that a foreign government, or an entity over which a foreign government exerts majority ownership or control, may not be sued in this country’s courts unless an exception applies.

The three-judge panel, however, directed Feess to reconsider his ruling that Cassirer was not required to exhaust remedies that might exist in German or Spanish courts before suing in this country.

En banc courts are used to resolve intra-circuit conflicts or other legal questions of “exceptional importance,” the Ninth Circuit said. The 11-judge panel, consisting of the chief circuit judge and 10 judges chosen at random, reviews anew a case previously decided by a three-judge panel. The prior panel decision is not considered precedential.

The Ninth Circuit said it typically receives more than 1,000 petitions each year seeking en banc review, of which 20 are granted.

Chief Judge Alex Kozinski said next week’s remote broadcast was “simply an extension of what the court is already doing, using the court’s own facilities.” He noted that the circuit has permitted cameras in its courtrooms since 1991 and that appellate panels have granted “more than 230 requests without problem.”

Kozinski announced last December that the Ninth Circuit’s governing body had approved the limited use of cameras in district courts on an experimental basis. However, the decision later led to controversy when U.S. District Judge Vaughn Walker in San Francisco authorized real-time streaming of proceedings in the high-profile trial on the constitutionality of California’s ban on same-sex marriage.

The U.S. Supreme Court ultimately blocked cameras from the trial because Walker had not formally requested authorization.

Public access to the viewing areas in the remote courthouses for next week’s proceedings will be on a first-come-first-served basis, the Ninth Circuit said, and no photographs or recording will be allowed.

The proceedings are set to begin at 9 a.m. on Tuesday, when the en banc court will hear argument in United States v. Begay, 07-10487. A three-judge panel held in June that Arizona prosecutors offered insufficient evidence of premeditation to support Kenderick Begay’s two convictions for first degree murder.

Argument in the Cassirer case is set to follow the same day at 3 p.m.

On Wednesday, the court is scheduled at 2 p.m. to hear an appeal in Chapman v. Pier 1 Imports, 07-16326. A three-judge panel ruled in June that Byron Chapman, who uses a motorized wheelchair, lacked standing to challenge the retail store’s Americans with Disabilities Act compliance with respect to alleged barriers he never personally encountered.

The court on Thursday will hear proceedings in United States v. Aguila-Montes De Oca, 05-50170, at 10 a.m.

A panel ruled in April that Guillermo Aguila-Montes De Oca’s California first degree residential burglary conviction did not categorically constitute a conviction for the generic offense of burglary of a dwelling warranting enhancement of a sentence for attempting to reenter the United States following removal. The judges did, however, conclude that the enhancement was warranted under a modified categorical approach.


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