Ninth Circuit Holds First Virtual En Banc Sessions

By Bill Cracraft, Communications Specialist, Ninth Circuit

U.S. Court of Appeals for the Ninth Circuit en banc hearing

Many courts, including the United States Supreme Court, have been hearing arguments via audio connections, but the U.S. Court of Appeals for the Ninth Circuit broke new ground when it held its first ever virtual en banc hearings from September 22-24.

Hearings are posted on the Ninth Circuit’s YouTube Channel. Each hearing had 11 judges, with Chief Judge Sidney R. Thomas presiding. One case, George Young, Jr. v. State of Hawaii, Case No. 12-17808, heard on Sept. 24, dealt with Hawaii’s laws on open carry guns. In less than 24 hours, the video had been viewed over 300 times. Another case, Maria Medina Tovar v. Laura Zuchowski, Case No. 18-35072, concerning the issuing of a visa, had 166 views. A third case, Jorge Rojas v. FAA, Case No. 17-55036, heard on Sept. 22, concerned a Freedom of Information request and had 244 views. A few days later, these videos had been seen by 959, 249 and 326 viewers, respectively. En banc hearings usually involve larger, often constitutional, issues.

Chief Judge Thomas has long been a proponent of allowing video argument in appropriate cases, and he participated in the first Ninth Circuit video argument over 20 years ago. “Consistent with the court operations plan established when the pandemic became widespread in March, and to preserve the health and safety of the court, court staff, attorneys and the public, the court has not held in person oral arguments since March,” said Chief Judge Thomas. “We have continued to hear virtual oral arguments and have successfully done so in well over 500 cases. We postponed en banc arguments in March and June, mostly to make sure that we felt confident in our technical ability to conduct virtual arguments.”

Attorney Neal Katyal presented the case for the State of Hawaii and he thought the virtual hearing was effective, overall. “I thought the format allowed the judges to ask their questions,” Katyal said, “and there wasn't a lot of cross-talk because the Chief Judge effectively played ‘traffic cop.’  It felt very orderly and allowed both my opponent and me to answer the questions to the best of our ability.”

Katyal was glad to have the option of holding the session via the internet. “I have been very worried for months about travel across the country due to COVID,” he said, “and fortunately the clerk's office early on told me that they did not think the argument would be in person. I thought it was a very significant thing, and one that I really appreciated tremendously.”

Katyal did note a couple of downsides. “I've been fortunate to have argued before the Ninth Circuit en banc in the past, and there is a dynamic to in-person argument that isn't fully replicated online,” he said. “Everything feels, well, a bit more remote. I also really like meeting my opposing counsel in person, and of course, we couldn't do that, but the clerk's office did put both of us in a \"breakout room\" half an hour before the argument, so we got to chat over Zoom for a while which was nice. 

“On a more hokey note, the Judges of the Ninth Circuit tend to be some of the warmest judges in my experience, and some of that gets a bit lost in the virtual environment. I was particularly worried that, for first-time advocates, distance might make things harder. I was, however, wrong. I watched the first two days of virtual en banc arguments in preparing for my own argument in the Young case so I could see how the format worked, and each of the advocates performed marvelously,” Katyal said.

Overall, Katyal was satisfied with the remote hearing and thinks continuing them is a viable option even after the dangers of the COVID-19 virus are past. “It's not an ideal replica, but it's a good one,” he said. “What makes it work is the shared view on the Court about format and how the ‘traffic cop’ protocol works. Because of that, it felt quite seamless. I've always appreciated that the Ninth Circuit has been a leader in letting the public see its proceedings on YouTube – that is such an important decision in terms of educating our citizens and giving the public confidence about the work of the Court.”

Alan Beck, who represented the appellant, Young, in the same case, was a little less enthusiastic about the virtual en banc session. “It was more convenient than had it been in person due to not having to travel,” he noted. He’d still consider participating in virtual en banc hearings after the COVID crisis has passed, but “I prefer being in court in person. I feel like I am a better advocate when physically in front of the judges … but the hearing still served its purpose and all the points were made,” Beck noted. “I think three judge panels would be better for online. It was a little cumbersome with 11 judges.”

Circuit Judge Kim McLane Wardlaw was on the panel that heard the Hawaii v. Young case, and generally agreed with the value of holding the hearing virtually, noting, “Virtual hearings are effective but no substitute for in-person hearings,” adding, “In the time of COVID, it is necessary to have virtual hearings, otherwise there would be no hearings at all.”

Judge Wardlaw also pointed out the downsides. “The argument was not interactive, as the judges had limited time and had to take turns. The technology is not perfect; my two different mic options failed. When COVID is eliminated, providing there are no other impediments, I would prefer in-person arguments.”

Molly Dwyer, Clerk of the Ninth Circuit Court of Appeals, weighed in on the technical end of the virtual hearings in the Ninth Circuit, noting that they will occur in other circuits,  if they have not already begun. “In general,” Dwyer said, “testing everyone’s connections up front is the biggest challenge, but we do that for all arguments, not just en bancs. I watched all of them and I thought they went smoothly. In a live session the judges have to compete with one another to some degree to ask questions – there is no order. In the virtual session, the Chief managed everyone by calling on them one at a time so there was no speaking over one another the way it can often happen in a live session.”

Dwyer rendered honors where due: “Our entire audio-visual staff have been the super heroes throughout this pandemic. We couldn’t have managed without them.”

One of those super heroes is Kwame Copeland, courtroom technology manager for the Ninth Circuit Court of Appeals, who said the technology is not new—they have been holding three-judge virtual sessions for some time—but this effort inverted their set up efforts. “For normal three-judge oral arguments, with many cases in a single session, we dedicate a short amount of time to connecting the three judges and making sure their connections are strong and their equipment is working well; then we use a longer period of time to handle the attorneys connections. In en banc court, we reversed this; just a matter of numbers: more judges, fewer attorneys,” Copeland said.

He noted that the ever-evolving technology added a useful function at a fortuitous time. “One thing that was remarkably useful was a new feature in that allows the host to manually drag and drop the video windows to change the order they appear on the screen. This feature was added a week or two before our sessions and made setting up the visual arrangement on the screen much easier than it would have been without this feature. If you look at our videos, you will see the three rows of judges arranged the way they would be on the bench.

Copeland noted that although setting up the technology had its challenging moments, it is still much easier to set up a virtual en banc hearing than to “have a large group of people travel to San Francisco from around the United States and meet in a big room for an hour, and then have a subset of that group meet in another room for an hour or two.”

Chief Judge Thomas noted there is no legal impediment to conducting oral arguments by video. “We have allowed parties, with the court’s permission, to appear by video for decades,” he said. “Judges have also appeared by video for argument when circumstances made personal appearance difficult or impossible. 

“Most judges prefer in person argument because it has an interactive dynamic that enhances the argument. That said, virtual argument is an entirely acceptable substitute, even in en banc cases. The virtual format in an en banc case requires a more orderly process, given the number of judges involved. But a number of judges expressed a preference for the format and suggested we use it when we return to live hearings,” said Chief Judge Thomas. 

Although the en banc hearings are still pending, so direct feedback has not been heard, the Ninth Circuit has conducted a survey of lawyers who appeared virtually before three judge panels, and the results were overwhelmingly positive. “We may make some changes with three-judge panels to allow greater virtual flexibility. Once it is safe to return to the courtrooms, we plan to resume in person en banc hearings,” said Chief Judge Thomas.