When you’re arguing to a 3-judge panel, the furthest thing from you mind is a tie vote. However, that’s exactly what the parties got yesterday — sort of — way across the country in the Second Circuit Court of Appeals in Kiobel v. Millson, case no. 07-3903-cv (2d Cir. Jan. 8, 2010). The issue on which the judges deadlocked — whether a federal magistrate judge has authority to impose sanctions under rule 11, Federal Rules of Civil Procedure — was rendered moot because the court’s resolution of a second issue was dispositive, yet the judges took the trouble to point out their moot stalemate in the majority opinion:
The panel is evenly divided on the first ground raised in this appeal, with one member of the panel concluding that magistrate judges have authority to impose Rule 11 sanctions, another judge concluding that they do not, and the third declining to endorse either view in light of the statute’s ambiguity.
Moreover, each wrote separately on it. The reason why the judges decided to air their differences is provided in Judge Leval’s concurring opinion:
Because we decide this appeal on a different basis, we could simply ignore the mooted question, burying our considerable research and analysis. On the other hand, some day a court may need to decide the question. Especially because the question has proved more complex than superficial inspection suggests, and because many of the significant points require an understanding of the gradual evolution of the existing statute and the interpretive authorities, and the gradual growth of magistrate judge power, publication of our conflicting views may be helpful to whatever court eventually needs to decide that question. Accordingly, I set forth my view of the question, and Judge Cabranes sets forth his, for whatever benefit the airing of our debate may confer if and when the question need be resolved.
Yet another reason, less explicitly stated, appears in the footnote omitted from that quotation, in which Judge Leval suggests that he “agree[s] with Judge Jacobs that amendment to the Federal Rules of Civil Procedure or the governing statute could usefully dispel interpretive disagreement as to Congress’s intention and obviate further confusion.”
Nudge, nudge.
(Hat tip: How Appealing.)
