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MOST-LIBERAL APPEALS COURT USED TO REVERSALS.

Byline: Lisa Mascaro Staff Writer

Plunging headlong into a storm of controversy as it did in striking ``under God'' from the Pledge of Allegiance, the nation's most liberal and most frequently overruled federal appeals court delayed California's recall election Monday.

For many who had been waiting for this last of a dozen recall lawsuits to play out, the bombshell from the three-judge panel came as no surprise. All three judges - Harry Pregerson, a long-time Woodland Hills resident, Richard A. Paez and Sidney R. Thomas - are liberal Democratic appointees accustomed to controversy.

``Knowing the 9th Circuit and knowing in particular this panel, which is an extremely liberal panel, it is not surprising,'' said Stephen R. Bennett, professor emeritus at the University of California at Berkeley's Boalt Hall School of Law. ``There was no one there who wasn't a Democratic appointee who might have dissented or otherwise imposed some limit on the majority.''

Now, for the circuit court that was overruled in 75 percent of its cases before the U.S. Supreme Court in 2002, the question is: Will this decision stand?

``Without meaning any disrespect at all, they are all three liberal Democrats,'' said Bill Mount, an attorney for the conservative Pacific Legal Foundation in Sacramento. ``This court as a whole has the highest reversal rate of any of the 11 circuits. They tend to be somewhat nonmainstream.

``In terms of this court's status before the U.S. Supreme Court, their track record suggests this ruling may well be vulnerable if review is sought.''

Pregerson is the elder statesman of the panel. A much-honored judge who was asked after he was appointed to the appeals court whether he would choose his conscience or the law if the two were conflicted, he said he would choose his conscience and has lived by his statement, analysts said.

Paez, a longtime public interest attorney in Los Angeles, survived a tough nomination to become what some consider one of the court's most liberal of President Bill Clinton's nominees.

And Thomas wrote this summer's opinion that overturned 100 death penalty sentences in the West.

The panel's decision released Monday, making the case that problematic old voting machines like the ones used in Los Angeles County could lead to voter discrimination, relied heavily on the Bush v. Gore case before the Supreme Court during the similarly circuslike 2000 presidential election.

``This is a classic voting-rights, equal-protection claim,'' the panel wrote.

But critics of the 9th Circuit say the panel selected only parts of the Supreme Court's ruling in Bush v. Gore and ignored key points.

``They're trying to tweak their ruling,'' said John Eastman, a law professor at Chapman University in Orange and director of the Claremont Institute's Center for Constitutional Jurisprudence, who clerked for Justice Clarence Thomas.

``I think what they've done here is so contradictory to what the Supreme Court said in Bush v. Gore. ... I think they could well weigh in and reverse the 9th Circuit.''

Others said both sides will use the Bush v. Gore ruling to bolster their arguments, although the Supreme Court had said it applied only to that case.

``It does look like the 9th Circuit is asking the Supreme Court to decide whether Bush v. Gore is a ticket good for any other train than the 2000 election,'' David Frederick, a Washington lawyer and expert on Supreme Court procedure and the 9th Circuit, told The Associated Press.

Mark Rosenbaum, legal director of the Southern California chapter of the American Civil Liberties Union and a lead plaintiff in the recall case, discounted the 9th Circuit's history of being overturned, saying he believes the ruling will stand.

``What's important here is if the decision is correct, and we believe it is,'' Rosenbaum said.

``This was a carefully thought-out decision and cites the Supreme Court's own decisions in making its rulings.

``This is the decision of patriots,'' he said. ``This isn't about the integrity of the 9th Circuit. It's about the integrity of our voting system.''

Staff writer Rick Orlov contributed to this story.

Lisa Mascaro, (818) 713-3761

lisa.mascaro(at)dailynews.com

CAPTION(S):

3 photos

Photo:

(1) PREGERSON

(2) PAEZ

(3) THOMAS
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Publication:Daily News (Los Angeles, CA)
Article Type:Statistical Data Included
Date:Sep 16, 2003
Words:692
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