Ninth Circuit asked to rehear Boy Scout appeal en banc
Boy Scouts of America has asked the United States Court of Appeals for the Ninth Circuit to rehear its appeal in Barnes-Wallace v. Boy Scouts of America.
On December 18, 2006, a three-judge panel of the Ninth Circuit concluded by a 2-1 vote that Plaintiffs represented by the ACLU have direct standing to sue the Scouts. The panel also asked the California Supreme Court to decide three questions about the "No Preference" and "No Aid" Clauses in the California Constitution.
George A. Davidson, the Boy Scouts’ attorney, said after the Ninth Circuit’s ruling: "It is disappointing that after all these years, proceedings in the case are to be further extended, especially since, as the dissenting opinion of Judge Andrew J. Kleinfeld so forcefully points out, none of the plaintiffs has suffered any injury or has any standing to sue."
On December 26, 2006, however, the Ninth Circuit entered another order asking the California Supreme Court to delay because a Ninth Circuit Judge "filed a notice that may lead to en banc review of our certification order." If the Ninth Circuit decides to rehear the case "en banc," an 11-judge panel would consider the issues and could overturn the December 18, 2006 decision.
On January 3, 2007, Boy Scouts filed a petition for rehearing and petition for rehearing en banc with the Ninth Circuit. In support of its petition, Boy Scouts argued that the panel majority's decision on standing is in conflict with controlling United States Supreme Court precedent. Boy Scouts also argued that the panel's request of the California Supreme Court ignores the procedural posture of the case and fails to include the facts necessary for an informed resolution of the questions posed to the California court.
For more information on Barnes-Wallace v. Boy Scouts of America, please visit our page on the February 14, 2006 oral argument.
Ninth Circuit Order, 12-18-2006
Ninth Circuit Order, 12-26-2006
BSA Petition for Rehearing, 1-3-2007
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