I freely admit I’m a huge fan of Chief Judge Kozinski, particularly when he’s dissenting from a majority opinion that concerns surveillance or other privacy issues. In this case, the Ninth Circuit Court of Appeals had declined to rehear a case en banc. At issue is the right of juvenile plaintiffs to file a civil rights complaint anonymously. In this case, the minors were complaining about discrimination against white students in the school’s admission policies. The Chief Justice starts his dissent by quoting from comments on the case seen on the Internet:
These are some of the threats made after plaintiffs, four non-native Hawaiian children, filed their civil rights suit:
- It’s about time that someone put some pressure on these litigious people and their kids! (online post)
- 4 kids . . . . will need 10 bodyguards lol (online post)
- Good that the judge ordered them to make these little brats names known to the public, so they can be tormented (online post)
- Sacrifice them!!!!!!!! (online post)
- [If their names were revealed, the Does] would have to watch their backs for the rest of their lives! (online post)
- [E]veryone is going to know who your clients are. . . . [Y]ou and your haole [white] clients can get the lickins’ you deserve. Why do you fucking haoles even come to Hawaii . . . ? (said over the phone to the Does’ attorney)
If threats like that were made against me or my family, I’d be worried. I’d call the U.S. Marshals, as federal judges are repeatedly cautioned to do when targeted by a threat, whether it’s made in person, by mail, by telephone or over the internet.
I doubt I’m alone. My guess is that most federal judges, including those who decided this case here and below, would take such threats directed against them seriously; the speakers, if they could be identified, might well be prosecuted. See, e.g., Mark Fass, Blogger Found Guilty of Threatening Judges in
Third Federal Trial, N.Y. L.J., Aug. 16, 2010, at 1.
I believe that the federal courts must be safe havens for those who seek to vindicate their rights. No litigant should fear for his safety, or that of his family, as a condition of seeking justice. Sure, if the purported fear is that they will be captured by Martians and served as dinner, that can be dismissed as fanciful. But when there are real statements, oral and written, that suggest or urge physical violence on account of the lawsuit, how can we force parents to the grim choice of abandoning the rights of their children or exposing them to the risk that they “would have to watch their backs for the rest of their lives!”? I don’t believe that we should have a double standard —one for ourselves and another one for the parties before us —and so have no difficulty concluding that the district court here egregiously abused its discretion when it denied plaintiffs the right to proceed as Does.
Circuit Judge Reinhardt, with whom Chief Judge Kozinski joined, also dissented:
Our court inexplicably and contrary to all precedent holds that a district judge acts within his discretion when, in a racially charged environment, he requires juveniles to publicly disclose their names, and put their physical and mental well-being at risk, in order to bring a civil rights lawsuit in federal court. Doe v. Kamehameha, 596 F.3d 1036, 1041, 1044-45 (9th Cir. 2010). Because it is entirely unacceptable to ask minors to test the seriousness of the “undoubtedly severe” threats that have been made against them in order to gain access to the federal legal system, I strongly dissent from the court’s refusal to hear this case en banc. Id. at 1043. I also dissent because the members of the three judge panel, like the district judge and the magistrate judge before them, were apparently unaware that a special rule applies to the right of juveniles to litigate anonymously, and thus failed to consider the federal rule of civil procedure which permits juvenile litigants to assert anonymity in the ordinary course of civil litigation.
You can read their full dissenting opinions here.