Supreme Court Mohawk Decision Complicates Perry Appeal

12/09/09 episodically blogging:

Yesterday, the Supreme Court handed down a unanimous decision in Mohawk Industries v. Carpenter. The Court held that attorney-client privilege disputes are not appropriate for collateral-order appeals. (The Ninth Circuit and two others allowed these appeals under the collateral-order doctrine; the Eleventh Circuit, which rejected Mohawk’s invocation of collateral-order review, joined most of the other circuit courts on this question.) The Mohawk decision will almost certainly force the panel considering the First Amendment privilege dispute in Perry v. Schwarzenegger to resort to a writ of mandamus (or, less likely, punt for want of jurisdiction).