Former clerks of Judge Diarmuid O’Scannlain, David Lat and Daniel Sullivan, discuss clerking on the Ninth Circuit and the challenges of differing points of view among colleagues. They also delve into interesting legal cases involving Florida Governor Ron DeSantis, a prosecutor's First Amendment lawsuit, federal law preemption of a gas stove ban in Berkeley, and tensions in the law highlighted by judge concurrence and descent.
The Ninth Circuit panel ruled that Berkeley's ordinance banning the installation of new gas stoves is preempted by the Energy Policy and Conservation Act.
Judge O'Scannlain emphasized the need for clarity in preemption cases and called for a review of the court's precedents on preemption.
The denial of rehearing en banc by the Ninth Circuit raises the possibility of Supreme Court review.
Deep dives
Berkeley restaurant association challenges gas stove ban in court
The California Restaurant Association has filed a lawsuit against the city of Berkeley, challenging an ordinance that prohibits the installation of new gas stoves in buildings. The association argues that the ordinance is preempted by the Energy Policy and Conservation Act. The case has raised questions about the scope of express preemption provisions and the application of the presumption against preemption. The Ninth Circuit panel held that the ordinance is preempted by the EPCA, with Judge O'Scannlain writing a concurrence that highlights the need for clarity in the law. The denial of rehearing en banc by the Ninth Circuit creates the potential for Supreme Court review.
Ninth Circuit rules against Berkeley's gas stove ban
The Ninth Circuit panel has ruled that Berkeley's ordinance banning the installation of new gas stoves is preempted by the Energy Policy and Conservation Act. The California Restaurant Association challenged the ordinance, arguing that it is preempted by federal law. The panel held that the EPCA's express preemption provision applies to regulations concerning energy use, including those that indirectly affect consumer products. Judge O'Scannlain wrote a concurring opinion, calling for clarity on the issue of preemption. The denial of rehearing en banc by the Ninth Circuit raises the possibility of Supreme Court review.
Berkeley's ban on gas stoves challenged in court
The California Restaurant Association has filed a lawsuit against the city of Berkeley, challenging an ordinance that bans the installation of new gas stoves. The association argues that the ordinance is preempted by federal law, specifically the Energy Policy and Conservation Act. The Ninth Circuit panel ruled in favor of the association, holding that the ordinance is preempted by federal law. Judge O'Scannlain wrote a concurring opinion, emphasizing the need for clarity in preemption cases. The denial of rehearing en banc opens the possibility of Supreme Court review.
Ninth Circuit sides with California Restaurant Association in gas stove ban case
The Ninth Circuit panel has ruled in favor of the California Restaurant Association in a case challenging Berkeley's ban on the installation of new gas stoves. The association argues that the ban is preempted by federal law. The panel held that the ban is indeed preempted by the Energy Policy and Conservation Act. Judge O'Scannlain wrote a concurring opinion, calling for a review of the court's precedents on preemption. The denial of rehearing en banc has raised the possibility of Supreme Court review.
Federal appeals court rules against Berkeley's gas stove ban
A federal appeals court has ruled against Berkeley's ban on the installation of new gas stoves. The California Restaurant Association challenged the ban, arguing that it is preempted by federal law. The Ninth Circuit panel agreed, holding that the ban is preempted by the Energy Policy and Conservation Act. Judge O'Scannlain joined the majority opinion but also wrote a concurring opinion raising concerns about the clarity of the court's precedents on preemption. The denial of rehearing en banc suggests that the case may be appealed to the Supreme Court.
It’s a clerk reunion this week, at least for two former clerks of Judge Diarmuid O’Scannlain of the Ninth Circuit. We welcome back David Lat of Original Jurisdiction who is joined by Daniel Sullivan, a New York litigator at Holwell, Shuster & Goldberg. Both clerked for Judge O’Scannlain at one time, giving them keen insights into clerking on the Ninth and what it’s like to be a judge in a jurisdiction where your colleagues often take a different point of view. However, we start things off not out west but in the southeast where David details Florida Governor Ron DeSantis’ efforts to suspend an elected prosecutor, Andrew Warren, and Warren’s resulting First Amendment lawsuit. In an opinion chock-a-block with facts the Eleventh Circuit rebuffed the suspension. David also highlights a Judge Newsom concurrence (something we’re getting quite used to on Short Circuit) and some interesting state-law issues. Then Dan turns the gas stove on to cook up a story of preemption and evolving standards of statutory interpretation. The City of Berkeley did a very Berkeley thing by trying to prevent new gas ranges, but the Ninth Circuit said federal law preempted that decision even though several judges thought maybe the law in this area isn’t all that up-to-date. Including Senior Judge O’Scannlain. Also, there’s a recommendation for where to get chicken next time you’re in Chicago.