Forum Shopping? Even a Monkey Can Do It!

Author: Michael S. Dorsi

Attorneys often must choose where to file a lawsuit. They must estimate where the judge will be more favorable on procedure and substance, which court has more favorable procedures, and where the jury pool may be more sympathetic to the client. And readers should not be shocked  to learn that attorneys often consider the political leanings of judges.

However, forum shopping to the Ninth Circuit Court of Appeals can have unintended consequences. While the Ninth Circuit has a liberal reputation and has historically ruled in ways that pleased Democrats and against President Trump, it is also a large court. Six of the twenty-two active judges were appointed by George W. Bush, and another eight judges on senior status were appointed by Republican presidents. Every sitting, numerous litigants draw a panel with two or three Republican-appointed judges. Many of these Republican appointees are well-regarded by lawyers and litigants of all political stripes, but if a plaintiff’s goal is to file in the Ninth Circuit and draw a politically friendly panel, that is just bad math.

This appears to be what recently happened to a monkey, or at least its purported legal representative, People for the Ethical Treatment of Animals (“PETA”). PETA sued a photographer and publisher, claiming that the monkey took the photo in question, and that by publishing it the defendants violated the monkey’s rights under the Copyright Act. [fn1] It is unclear whether any panel of the Ninth Circuit would have entertained PETA’s monkey business, but the panel they drew did not. [fn 2]

The panel was comprised of Judges Carlos T. Bea, N. Randy Smith, and Eduardo C. Robreno. Robreno is a district judge from Pennsylvania, sitting by designation. Admittedly, I do not know much about him.  But Judges Bea and Smith are George W. Bush appointees and are not the judges you want to draw if success of your case depends on judges with liberal judicial philosophies. Bea recently joined a group of judges dissenting from en banc review of the travel ban case, suggesting that the Ninth Circuit should at least have reconsidered its decision blocking Trump Administration’s plan. And Judge Smith dissented from the panel decision finding that Prop 8 — the ban on same-sex marriage in California — was unconstitutional. I do not mean to suggest that either Judge Bea or Judge Smith will prejudge your case. However, if your case is a liberal political statement, they probably will not be the most receptive audience.

That seems to be what happened to PETA in this instance. The unanimous panel followed Ninth Circuit precedent indicating that the Constitution does not prohibit the monkey’s lawsuit, but found that monkeys cannot own copyrights and ordered PETA to pay the defendants’ attorneys’ fees on for the appeal. [fn 3]



[fn1] A separate legal dispute emerged between the photographer and Wikipedia, with Wikipedia claiming that the monkey’s role in taking the picture made it public domain. In a savvy move, the photographer went ahead and published a book including the photo in question.


[fn 2] The politics of copyright do not match ordinary right-left political divides, but given that PETA also lost at the district court before Judge William Orrick  — an Obama appointee who ruled against the Trump Administration’s plan to deny funds to sanctuary cities — I suspect PETA would have lost anyway. But it provides a lesson: counting on the political tilt of a court is not a reliable way to win your case.


[fn 3] The amount of fees is to be decided by the District Court, presumably with Judge Orrick presiding. There is some question whether a settlement applies, but the Court of Appeal noted that the monkey did not agree to the settlement.

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