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How Appealing Extra

Friday, May 27, 2005

Victims In Beating Case Awarded Ceremonial Costs

The Recorder
By Mike McKee
May 27, 2005

Restitution took on a new meaning Thursday when a state appeal court ordered a man who beat up three Hmong men to repay them for the costs of sacrificial cows, pigs and chickens.

Sacramento's Third District Court of Appeal ruled that the slaughtered animals and herbal medicines were part of a traditional Hmong spirit-calling ceremony called Hublee, designed to heal the souls of those who are sick and injured.

The justices upheld a restitution award of more than $6,000 -- half going toward the costs of sacrificial animals and ceremonial supplies and half going to medical bills -- against Chard Keichler, who pleaded no contest to violating the civil rights of Xiong Moua, Nhia Vue and Kenneth Lee during a fight. All three men were severely injured, with Moua sustaining a brain contusion.

After the fight, the injured men and their families bought herbs and animals to be sacrificed as part of healing ceremonies presided over by local shamans.

Butte County Superior Court Judge Robert Glusman granted restitution after a hearing at which experts explained that the spirit-calling ceremony is a Hmong tradition that dates back centuries. The Hmong people believe that when someone is ill or hurt, one or more of their souls may leave the body. Pigs, cows and chickens are sacrificed in an effort to tempt the souls back or be replaced by the animals' souls.

According to the ruling, the family of Moua, the most severely injured, had to kill a pig, two cows and several chickens -- at a cost of more than $1,800.

Keichler's lawyers had argued that restitution for nontraditional healing ceremonies was "beyond the bounds of reason" and not what was anticipated when the restitution laws for crime victims were put on the books.

The appeal court disagreed, calling the Hublee "the Hmong equivalent of western medical expenses."

"This ceremony is no more ephemeral or intangible than the psychological treatment a western practitioner might provide to his or her patient," Justice Ronald Robie wrote. "Indeed, even if the bare minimum result of this ceremony is that it calms the victims of this crime after their traumatic experience, this ceremony serves the same purposes for Hmong victims as counseling and other psychological treatment."

Justices Rodney Davis and Vance Raye concurred.

Apparently trying to head off jokes or criticism, the justices noted that their ruling isn't without precedent. The Minnesota Supreme Court reached the same conclusion in 1999.

The full text of People v. Keichler, C047014, will appear in Tuesday's California Daily Opinion Service.

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© 2005 The Daily Journal Corporation.
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May 27, 2005

High Court Strives To Recognize Rights of Same-Sex Couple

By Donna Domino
Daily Journal Staff Writer

SAN FRANCISCO - In its second hearing this week regarding gay rights, the California Supreme Court seemed to struggle Thursday to acknowledge the rights of same-sex couples without deciding whether they have equal standing with married couples.

The case involved B. Birgit Koebke, a longtime member of the Bernardo Heights Country Club in San Diego. She sued the club because it forced her registered domestic partner, Kendall E. French, to pay guest fees and limited her to playing there six times a year. Koebke v. Bernardo Heights Country Club, S124179.

The club allows spouses and children of married members to play at no charge.

The women's attorney, Jon Davidson, an appellate lawyer at the Lambda Legal Defense and Education Fund in Los Angeles, asserted the club's policy violates the Unruh Civil Rights Act. The high court could rule for the first time whether the law prohibits discrimination based on marital status.

The club chose an "arbitrary criteria for eligibility - a personal characteristic - which same-sex couples could not conceivably meet," Davidson argued. Under existing California law, he said, "heterosexual couples can marry but same-sex couples cannot."

Davidson denounced the club's explanation that the policy is meant to foster a "family atmosphere" as "code words [for] 'We don't want same-sex couples.'"

Justice Carlos R. Moreno wondered whether the policy might have a "valid basis," to ensure members don't fraudulently claim friends as their domestic partners to avoid paying two memberships.

"We need a bright line," he said.

Encino attorney Jeremy Rosen, who defended the country club, said the "Legislature has been engaged in a careful balancing act" regarding how much consideration should be given to marital status. "Marital status has never been part of the Unruh Act," he said.

He warned against allowing domestic partners to become a new protected category under the anti-discrimination law. "It's a very bad vehicle for determining that," Rosen said, asserting, "It's about marital status."

Davidson replied that the Unruh Act requires that public establishments treat all people equally, unless they can show a "good business reason why they shouldn't."

Rosen insisted the club had a very good reason for its policy. It was a matter, he said, of "deciding how to allocate club resources."

The justices asked both attorneys whether the state's newly enacted domestic partners law, which gives registered same-sex couples many of the same rights and responsibilities as married couples, should apply to the case.

"It's a difficult case," Justice Joyce Kennard said of the suit.

Davidson said that the broader issue was one of basic discrimination and "should not rest on any domestic partnership laws."

Rosen conceded the new law acknowledges same-sex couples and therefore "makes it a closer case" to decide.

But he insisted, "The club's policy of distinguishing between married and unmarried couples is not intentional sexual discrimination."

Even the state's domestic partner law allows marriage discrimination because it precludes gays and lesbians from filing state income taxes as married couples, Rosen noted.

"The state tax code intentionally discriminates," he said.

San Diego Superior Court Judge Charles R. Hayes dismissed Koebke's suit on summary judgment in 2001. The 4th District Court of Appeal reversed on narrow grounds in March 2004, holding that although discrimination based on marital status was legal, Koebke was entitled to present evidence that the club applied its membership bylaws in a discriminatory manner.

While hearing three cases Tuesday involving the parental rights and obligations of same-sex couples, several justices appeared willing to extend the same rights to lesbian couples that heterosexual couples enjoy.

"This has definitely been gay week at the court," quipped Davidson.

The court's decisions in all of the cases could signal the court's approach to another big issue headed its way - whether same-sex couples in California should be afforded the right to marry.

Following the hearing, Davidson noted that most San Diego country clubs either lack the restriction against same-sex partners or don't require proof couples are married.

Even so, Koebke noted that she has been a member of the club for 18 years.

"Why should I go someplace else," said Koebke, a television station executive. "Anytime someone is excluded, it makes you feel less, and we don't deserve this."

Even if the court hands the women a narrow victory on discrimination grounds instead of equal rights, Davidson said, that it would still be "a step in the right direction."

The Associated Press contributed to this report.

Wednesday, May 25, 2005

Justices Peer Into 'Parent' Trap;
Gays may gain rights with trio of lesbian mom cases

The Recorder
By Jeff Chorney
May 25, 2005

The California Supreme Court appears ready to hold that gays should be treated the same as heterosexuals when it comes to the rights and responsibilities of parenting.

The court heard oral arguments Tuesday in three cases testing the legal status of lesbians who have children with committed partners. Five of the seven justices seemed willing to look beyond biology in order to give estranged partners a role in the lives of children they once helped raise.

As soon as the first case was called, Justice Ming Chin jumped in with an equal protection question.

"Does it make any difference if it's two men, two women or a man and woman?" Chin asked Kara Read-Spangler of the state attorney general's office, who defended the government's attempt to try to collect child support in Elisa B. v. Superior Court, S125912.

Elisa B. and Emily B. of El Dorado County had three children together, but separated in 1999. Elisa B. had been the breadwinner but stopped sending financial support. After Emily B. went on welfare, county authorities went after Elisa B. for reimbursement, just as they would a so-called deadbeat dad.

Shelly Hanke, a Garden Grove attorney who represents Elisa B., told the court that her client was not a parent to the children and shouldn't have to pay anything.

But Chin pointed out that the partners filed tax returns together, named the children as beneficiaries on their life insurance policies, and even shared breast-feeding duties.

"What is this beginning to sound like to you?" Chin asked Hanke.

"That I shouldn't breastfeed someone else's child," Hanke replied, prompting laughter in the packed courtroom.

Chin returned to that same theme throughout the morning's arguments: that acting like a parent -- without physical conception -- can create rights and responsibilities.

Although each dispute pits lesbian vs. lesbian, gay groups have taken the position that, even without marriage, they deserve the same recognition as straight parents. That argument appeals to civil rights-minded liberals, as well as to conservatives, who believe in holding people to their familial obligations.

Although their positions weren't as clear as Chin's, Chief Justice Ronald George and Justices Marvin Baxter, Carlos Moreno and Joyce Kennard seemed inclined to agree with him.

Justices Janice Rogers Brown and Kathryn Mickle Werdegar, on the other hand, sounded more reluctant to give people legal rights simply because they were in committed relationships.

Brown told Courtney Joslin, a senior staff attorney with the National Center for Lesbian Rights, that she was concerned about "undermining" domestic partnership and adoption laws.

"If we agree with you, doesn't that open up [the parent-child relationship] to prenatal intrusion from strangers?" asked Brown.

In none of the cases argued Tuesday did the lesbians adopt the children they helped raise with their partners.

The second case, K.M. v. E.G., S125643, out of Marin County, asked the court to consider the force of a prenatal agreement and, more broadly, the question of whether someone can have two legal mothers.

Neither of the women could conceive and carry a child on her own, so doctors implanted one of K.M.'s fertilized eggs into E.G. The hospital required K.M. to sign away her parental rights. But now the couple has split, and K.M. wants partial custody.

Jill Hersh of San Francisco argued on her behalf.

Werdegar first read from the prenatal agreement and then emphasized to Hersh that E.G. intended to be the sole parent of the twins she gave birth to.

But Hersh responded that because K.M. was forced to sign something in order to reproduce -- a burden that a man in a similar situation would never have to face -- the court needs to step in.

"We have never permitted erroneous agreements to impinge on courts' ability to make legal determinations," Hersh said. "To impale these children just on that portion of the form is contrary to goals of the state."

Public policy came up again and again throughout the morning's arguments. And it could be key to bringing conservatives like Chin and Baxter to the same side as gay rights advocates.

But Diana Richmond, who argued on behalf of E.G., said the law was already settled.

"People act as a family all the time when they're not," such as step-parents, Richmond said. "That does not make that person the father or mother."

Richmond pointed out that K.M. gave up her parental rights and then changed her mind.

Baxter returned to policy concerns, suggesting children do better with two parents.

"This is not about whether it's better for children," Richmond replied, "it's a question of whose decision that is [and] whether the state should interfere."

The third case was Kristine H. v. Lisa R., S126945, out of Los Angeles County. The case reached the Supreme Court because the lesbians in the case obtained a court judgment saying both were parents. After they broke up, Lisa R. wanted visitation and Kristine H. sought to have the judgment vacated.

Although Brown called the judgment an "end run around adoption," other justices seemed to like the couple's creative approach to establishing parental rights even before the child was born and were concerned that Kristine H. is now trying to undo it.

"Kristine didn't understand what she was entering into," said her attorney, Honey Kessler Amado of Beverly Hills.

George seemed incredulous: "Even though she was the plaintiff who went into court, represented by counsel?"

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© 2005 The Daily Journal Corporation.
All rights reserved.

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May 24, 2005


By Brent Kendall
Daily Journal Staff Writer

WASHINGTON - With partisan passions sky-high over judicial nominations and speculation rampant about high-court retirements, the U.S. Supreme Court on Monday jumped back into the thorny abortion debate, agreeing to decide the constitutionality of New Hampshire's parental-notification law.

The court's decision to grant review in the case came as a surprise to many, especially in light of lingering questions about Chief Justice William H. Rehnquist's health and the looming Senate showdown on President Bush's stalled judicial nominees, which stems in significant part from political disputes over abortion.

"The politics certainly pointed to [the court's] staying out of it for a year," said Thomas Goldstein of Goldstein & Howe in Washington, D.C.

"It's one corner of the abortion fight, but even small corners of the abortion fight are very significant," Goldstein said.

Jay Sekulow of the American Center for Law and Justice, which is active in anti-abortion litigation, said the case "has huge ramifications for the abortion debate."

"It's a major case, not only for parental notification laws, but for all abortion regulations," Sekulow said.

The case will be heard during the court's next term, which begins in October. Ayotte, v. Planned Parenthood, 04-1144.

The high court's last abortion decision came five years ago in Stenberg v. Carhart, 530 U.S. 914 (2000), when the justices voted 5-4 to strike down a Nebraska law that barred so-called "partial birth" abortions.

The Boston-based 1st U.S. Circuit Court of Appeals ruled that New Hampshire's parental notification law was unconstitutional because it did not contain an exception for protecting a pregnant woman's health, and contained too narrow an exception for cases in which a woman's life was in danger.

The law barred abortions from being performed on a minor until 48 hours after the minor's parents were notified in writing. If the minor did not want her parents informed, the law allowed her to ask a state judge to authorize the abortion without parental notification.

Planned Parenthood, along with two health centers and a doctor, challenged the law as unconstitutional.

The New Hampshire attorney general argued that any challenge to the facial validity of the statute must be evaluated under the standard set forth in United States v. Salerno, 481 U.S. 739 (1987), where the Supreme Court held that a challenger "must establish that no set of circumstances exists" under which a statute would be valid.

However, the 1st Circuit held that, in the abortion context, the Salerno standard was displaced by Planned Parenthood v. Casey, 505 U.S. 833 (1992), in which the justices held that an abortion regulation places an unconstitutional undue burden on a woman's right to choose an abortion if the regulation "has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus."

The appeals court also relied on the high court's application of the "undue burden" standard in the subsequent Stenberg case.

The 1st Circuit's ruling agreed with decisions from six other appellate circuits, including the 9th Circuit, that applied the undue burden standard. The New Orleans-based 5th Circuit, however, has ruled that Casey did not replace the Salerno "no set of circumstances" standard.

New Hampshire Associate Attorney General Daniel J. Mullen filed the state's petition for review.

Jennifer Dalven of the American Civil Liberties Union's Reproductive Freedom Project filed Planned Parenthood's brief in opposition.

The case "could open up a very big can of worms," said Planned Parenthood attorney Dara Klassel.

"The standard of review determines what is struck down and what [regulations] we have to live with," Klassel said.

"Who's on the Supreme Court is critical to how this case is going to be decided," Klassel added.

Goldstein and others noted that a Rehnquist retirement will not change the court's line-up for abortion cases. But Sekulow said the court's decision to grant the case crystallizes what's at stake in the Senate battles over judicial nominations.

"This is an unprecedented converging of issues," Sekulow said, noting that the grant came a day before Republicans could attempt to outlaw Democratic filibusters of judicial candidates in what is known widely as the "nuclear option."

Thirty-three states have laws in effect that require parental consent or notification for minors seeking abortions.

California is one of 11 states that have notification or consent laws that are not in effect because they were enjoined or are not enforced.

California voters will consider a parental notification measure either this fall or in June 2006.

The court's decision to review the New Hampshire case comes two months after the justices declined to review a 9th Circuit ruling that invalidated Idaho's parental consent statute because the state's "medical emergency" exception was too narrow.

In other actions Monday, the justices declined to review lower-court decisions on these issues:

• Death Penalty, Ineffective Assistance - The New Orleans-based 5th Circuit denied the habeas petition of Texas death-row inmate Gary Sterling, who argued that he received ineffective assistance of counsel because his lawyer did not question a juror about his racial attitudes.

Sterling, an African-American, was convicted in 1989 of murdering a white man. Victor Walther, a white juror in the case, was interviewed during post-conviction proceedings and spoke critically of the "niggers" in his neighborhood. Sterling v. Dretke, 04-9337.

"Sometimes those niggers will start hollering and cursing," Walther said. "And pretty soon they'll start shooting. One of them stays in jail all the time."

Walther, however, also said that he was not a racist, had black friends and believed skin color made no difference.

Sterling's lawyer, who had known Walther for years, was aware of the juror's views at the time of the trial, but didn't question him about them during the jury selection process.

The lawyer, Robert Dunn, said he thought his relationship with Walther would work to Sterling's advantage. Dunn said he thought Walther would be fair, and described him as a "middle-of-the-road juror for Navarro County."

In denying Sterling's appeal, 5th Circuit ruled the Dunn's actions did not fall below the standard for ineffective assistance set forth in Strickland v. Washington, 466 U.S. 668 (1984), where the Supreme Court held that a defendant must show that his representation "fell below an objective standard of reasonableness."

The 5th Circuit panel held that Sterling "did not overcome the presumption that Dunn's challenged behavior might be considered sound trial strategy."

Robert Owen of Owen & Rountree in Austin, Texas, who filed Sterling's petition for review, argued that it cannot ever be considered reasonable trial strategy for defense counsel to allow someone he knows to be racially prejudiced to sit on a jury where a black defendant is facing a possible death sentence.

Texas Assistant Attorney General Fredericka Sargent filed the state's brief in opposition.

The NAACP Legal Defense and Education Fund filed an amicus brief in support of the petition.

• Takings, airspace - The Nevada Supreme Court overturned a $22 million judgment in favor of Las Vegas landowners whose property adjoining the airport faced height restrictions on development because of airspace regulations.

Clark County declared the property's airspace part of a "transition zone" for pilots to use when they needed to fly their planes outside of the airport's normal approach and departure paths. Hsu v. Clark County, NV, 04-1282.

The landowners, who own 37 acres near the McCarran International Airport, sued the county for just compensation, arguing the height restrictions amounted to a physical taking of their property.

The land in question is located near the Las Vegas Strip, and the owners contended that the best use of their property was to build a 400-foot hotel tower. Because of the height restrictions, they said, the property was limited to less profitable uses like a golf course, warehouse or cemetery.

A jury awarded them $13 million for the taking, and the trial judge entered a final judgment of $22 million after adding in interest, costs and attorney fees.

In overturning the judgment, the state Supreme Court held that, if a taking occurred, it raised regulatory, not physical, takings issues.

The court said the landowners must first submit development plans to the county and seek a variance from the airspace regulations. If the county rejected the development plan, the court said, then the landowners could pursue a regulatory takings claim.

The landowners said that process would take years.

Michael Berger of Manatt, Phelps & Phillips in Los Angeles filed the landowners' petition for review.

Kirk Lenhard of Jones Vargas in Los Vegas filed Clark County's brief in opposition.

The Sacramento-based Pacific Legal Foundation filed an amicus brief in support of the petition.

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May 24, 2005

9th Circuit Denies Fees in Child Porn Law Case

By Peter Blumberg
Daily Journal Staff Writer

SAN FRANCISCO - A leading First Amendment attorney who successfully challenged a federal child pornography law should not receive taxpayer funds to cover his legal bills, a federal appeals panel ruled Monday.

Reversing a San Francisco federal judge, a three-judge panel of the 9th U.S. Circuit Court of Appeals said the government's defense of the Child Pornography Prevention Act was not so unreasonable as to justify an award of fees to the private attorney who persuaded the nation's highest court to strike down the 1996 law.

After the U.S. Supreme Court agreed with Cincinnati attorney H. Louis Sirkin in 2002 that the law infringed on free speech rights, U.S. District Judge William Alsup ordered the government to pay Sirkin $143,423 for his work on behalf of an adult entertainment industry group called the Free Speech Coalition.

But the 9th Circuit panel said Alsup, in making the fee award under the Equal Access to Justice Act, didn't give the U.S. Justice Department enough credit for fending off Sirkin's attack on the law.

The law was designed to combat child pornography by banning computer-generated pictures that appeared to show minors involved in sexual activity. It prohibited any image that "appears to be" or "conveys the impression" of someone under 18 engaged in sexually explicit conduct.

The 9th Circuit concluded the law was too broad in outlawing youthful, but fake, "virtual" characters in pornographic films. The government appealed the ruling, noting that other federal appeals courts had upheld its provisions, but the U.S. Supreme Court sided with Sirkin and the Free Speech Coalition.

Addressing the fee issue, 9th Circuit Judge Michael Daly Hawkins wrote that because the government's legal arguments were persuasive enough to win votes from several judges, Alsup erred in concluding the government's position was not "substantially justified."

Hawkins said Alsup appeared to rely on hindsight to critique the government for defending "a constitutional flaw foreseeable from the outset." But Hawkins said that, judging by the mixed rulings from a handful of courts, "reasonable minds could differ" over the constitutionality of the law.

A Justice Department spokesman said the government was pleased with Monday's ruling.

Sirkin could not be reached for comment. Among his previous clients were the Cincinnati museum prosecuted for displaying photographs by controversial artist Robert Mapplethorpe and Hustler magazine publisher Larry Flynt.

Monday's case was Gonzales v. Free Speech Coalition, 04-16172.

Tuesday, May 24, 2005

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May 24, 2005


By Claude Walbert
Daily Journal Staff Writer

SAN DIEGO - A sharply divided federal appellate-court panel ruled Monday that judges are on safe constitutional ground when they instruct grand jurors not to nullify criminal laws.

A challenge to federal grand jury instructions came in two cases of men arrested at the Mexican border with smuggled drugs.

Both were indicted by a federal grand jury in the Southern District of California in San Diego. They pleaded guilty, but their attorneys from Federal Defenders of San Diego Inc. challenged their convictions, arguing that instructions given the indicting grand jury improperly constrained the jurors.

In a 6-5 ruling Monday, the en banc panel of the 9th U.S. Circuit Court of Appeals ruled that "the weight of U.S. history favors instructing the grand jury to follow the law without judging its wisdom." U.S. v. Navarro-Vargas, 02-50663, and U.S. v. Leon-Jasso, 03-50009 (9th Cir. May 23, 2005).

The decision upheld the two defendants' convictions.

Former Assistant U.S. Attorney Patrick K. O'Toole, who briefed and argued the case before the 9th Circuit, called the ruling "a very important decision."

"The opinion upholds the proposition that a grand jury is not entitled to a nullification instruction," said O'Toole, now head of the San Diego city attorney's public integrity unit.

If the judges had decided differently, O'Toole said, the decision would have laid a legal foundation for several similar cases on appeal.

Steven F. Hubachek of Federal Defenders filed the motion challenging grand jury instructions in a 2001 case. Hubachek contested a declaration by the Administrative Office of U.S. Courts that grand-jury secrecy puts the instructions out of the reach of any challengers, and since then Federal defenders lawyers have often questioned the instructions.

"Obviously, we're very disappointed with the majority opinion," said Hubachek, who argued the case at the 9th Circuit.

Hubachek said he was "virtually certain" that his office would seek U.S. Supreme Court review because he believes grand jurors do have discretion to evaluate criminal laws.

At the 9th Circuit, the challenge contested passages in three instructions: 1) "you cannot judge the wisdom of criminal laws enacted by Congress," 2) "you should vote to indict where the evidence presented to is sufficiently strong to warrant a reasonable person's believing that the accused if probably guilty," and 3) "you can expect candor, honesty and good faith in matters presented by the government attorneys."

The 45-page majority opinion by Judge Jay S. Bybee said that, if a grand jury could sit in judgment on the wisdom of the policy behind law, then the power to return no indictment in such cases is the "clearest form of jury nullification."

The instruction that forbids jurors to nullify law "is not so contrary to the grand jury's role that it violates the Fifth Amendment," Bybee wrote.

A passage in another instruction that advises jurors they "should vote to indict" when prosecutors provide enough evidence doesn't impose a "duty" to indict, Bybee said.

There is no check on a grand jury's decision not to return an indictment, he said.

About the passage referring to "candor, honesty and good faith" of government attorneys, Bybee wrote that it "reminds the grand jury that it stands between the government and the accused and is independent."

Bybee was joined in the majority opinion by circuit Judges Mary M. Schroeder, Barry G. Silverman, Johnnie B. Rawlinson, Richard R. Clifton and Carlos T. Bea.

In a 16-page dissent, Judge Michael D. Hawkins wrote that the majority doubts that the "grand jury is well-suited to make such judgments on the wisdom of the law" but that grand jurors traditionally have been viewed as the conscience of the community, "a function that goes far beyond the ministerial role" assigned by the jury instructions.

Hawkins also wrote that instructing grand jurors that they "should" indict undermines have the power to make decisions that cannot be reviewed.

As for the passage about government candor, Hawkins wrote that "the grand jury's independence is diluted by this instruction, which encourages deference to prosecutors" and is therefore unconstitutional.

Hawkins was joined the dissent by circuit Judges Harry Pregerson, Kim McLane Wardlaw, William A. Fletcher and Marsha S. Berzon.

Wednesday, May 18, 2005

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May 18, 2005

Club Can Blacklist Members Who Registered With Rival

By Peter Blumberg
Daily Journal Staff Writer

SAN FRANCISCO - The 9th U.S. Circuit Court of Appeals sank its teeth into a vicious scrap among dog breeders Tuesday and spat out a ruling that may leave some Northern California terrier owners foaming at the mouth.

A three-judge panel found that a 30-year-old national organization dedicated to promoting an English fox hunting breed known as the Jack Russell terrier did nothing illegal in blacklisting dog owners who registered their pets with a rival club.

As a result, a local group of Jack Russell owners can no longer participate in dog shows sponsored by the national organization with which they were once affiliated.

Sales May Slump
The ruling also means the locals may have a harder time selling their puppies because they won't bear the official stamp of approval from the 10,000-member Jack Russell Terrier Club of America.

The ruling upholds a San Jose federal judge's decision in 2002 to throw out a lawsuit that alleged a conspiracy by the terrier club to monopolize the breeding of Jack Russell terriers.

Regional Complaint
The complaint was brought by a former regional chapter of the club whose members were effectively excommunicated by national club leaders because they registered their dogs with the American Kennel Club, a nationwide registry for almost all kinds of pure-bred dogs.

The terrier club didn't trust the American Kennel Club to set proper standards for the breed, fearing that the brown and white hounds once favored by royals for fox hunting would lose their pedigree when promoted "form over function" as cute little canines.

List Published
So, starting around 2000, the terrier club used its bimonthly magazine, True Grit, to blacklist all former members who registered with the American Kennel Club. The magazine published a list of breeders it deemed unacceptable, and the organization barred them from competing in all shows and trials sponsored by the terrier club.

In the legal dogfight that ensued, plaintiffs Georgia Fisher and Claudia Sprague and others in the Jack Russell Network of Northern California filed suit in California's Northern District, alleging they were ostracized by fellow breeders.

Moreover, they complained, the blacklisting carried serious economic consequences because pooches that don't win show honors don't fetch the same sale prices on the open market as doggies that do.

U.S. District Judge James Ware took the complaint seriously, and according to one press account, he allowed several of the Jack Russells into the federal courthouse three years ago so he could size them up.

But he concluded the suit didn't have a leg to stand on.

After a seven-day bench trial, Ware ruled that the Northern California group lacked standing to bring a false advertising claim against the terrier club because the two groups technically were not commercial competitors. He said that because the club's actions were directed at the American Kennel Club, Fisher and Sprague were barking up the wrong tree.

Writing for the 9th Circuit on Tuesday, Judge Ronald Gould explained in a prelude that "this case arises from a philosophical disagreement between groups of well-intentioned people dedicated to a breed of dog, the Jack Russell terrier."

But Gould agreed with Ware that the claims in the lawsuit had more bark than bite.

Like Ware, Gould said the plaintiffs were off the mark in relying on the anti-trust "group boycott" provision of the Sherman Act and the "false description" provision of the Lanham Act.

But Gould did side with Fischer and Sprague on one point, refusing to make them pay attorney fees for the terrier club. Financially speaking, Gould concluded, Fisher and Sprague were not nearly as well-heeled as their adversary, making it appropriate for each side to pay its own costs, just as Ware had ordered.

Attorneys on both sides did not return phone calls Tuesday. Perhaps their clients have them on a tight leash.

Tuesday, May 17, 2005

Judicial Profile: Jay Bybee

Controversial past doesn't follow Bybee into courtroom

The Recorder
May 17, 2005

COURT: Ninth Circuit U.S. Court of Appeals

APPOINTED: March 21, 2003

DATE OF BIRTH: Oct. 27, 1953

LAW SCHOOL: J. Reuben Clark Law School at Brigham Young University


Ninth Circuit U.S. Court of Appeals Judge Jay Bybee had a smooth, bipartisan confirmation only two years ago.

But then scandal erupted last summer in the form of a memo signed while he was assistant attorney general for the Office of Legal Counsel. Detractors slammed Bybee for the document on forceful interrogation, saying it justified torture in President Bush's war against al-Qaida.

A year later, Bybee is anything but controversial.

While remaining true to his conservative roots, Bybee has emerged as a jurist with a knack for creating coalitions and tamping dissent.

And he seems to have good instincts for the jurisprudence of the current U.S. Supreme Court. At least three times, Bybee has lobbied the Ninth Circuit to take cases en banc. Although his was the minority view, the Supreme Court eventually overturned the rulings, vindicating his position.

"It tells you that he seems to be in tune with the Supreme Court in a way that other judges are not," said University of Pittsburgh School of Law professor Arthur Hellman. "In these cases, he shares the Supreme Court's view both of the merits and the importance."

In another sign of synergy, Bybee has already sent a clerk to the high court. Martha Pacold, who also worked at the Office of Legal Counsel, is clerking for Justice Clarence Thomas.

So far, Bybee hasn't issued any blockbuster opinions or gotten into any footnote tiffs with his colleagues. Of the 16 opinions he has authored since taking the bench, only three had dissents, and, so far, none has been taken up en banc or overturned by the Supreme Court.

Although he said that's a small sample of cases to analyze, Bybee noted that judges agree far more often than people think.

"The common ground among members of the court is much broader than the disagreement," Bybee said. "[But] people aren't interested in the hundreds of thousands of cases each year where there's no disagreement."

Bybee came to the bench after spending most of his life in government and academia. A member of the Church of Jesus Christ of Latter-day Saints, he completed a mission in Chile and attended Brigham Young University for his undergraduate and law degrees.

Eventually he landed in the Justice Department's civil division, arguing appeals. After serving as associate counsel to the first President Bush, Bybee became a law professor in Louisiana, then helped found the William S. Boyd School of Law at the University of Nevada, the first law school in the state.

Like many judges, Bybee works long days to keep up with the Ninth Circuit's "breathtaking" caseload. But he tries to get home in time for dinner with his wife and four children. And he'll do a Saturday, but always takes Sunday off.

Bybee can be active at oral arguments. Unlike some judges, who admit they question the side they're about to rule against to give them one last chance, Bybee said he hopes to be an equal-opportunity questioner.

He doesn't like it when lawyers don't know their cases, saying it's embarrassing for everyone "when we ask them about case cites and they left them at home and don't remember." Even more irritating is when lawyers come in and "over-argue," he said, either by pushing the facts beyond the record or pushing the law.

"Lawyers who do that will lose credibility," he said. "I will listen more carefully to a lawyer who will recognize the weaknesses in his or her own case."

After the Office of Legal Counsel memo was made public, academics and lawyers criticized Bybee for pushing the limits of the law. But others say it's not fair to bash him because of his resume.

"The work you've done as a practicing lawyer -- in and out of government -- really doesn't have a lot to do with being a judge," said David Rivkin, a partner at Baker & Hostetler in Washington, D.C., who worked with Bybee under the first President Bush. "You can have a very zealous advocate who becomes a strict constructionist on the bench."

The memo flap certainly doesn't seem to have had any effect on his relationship with colleagues. Judge Stephen Reinhardt, who is one of the bench's most liberal members, said that when people become judges it's "as though they're starting all over again."

Judge Alex Kozinski agreed.

"It's certainly had no effect on my relationship with [Bybee]," Kozinski said. "I haven't really given it much thought, if at all."

But not everyone is ready to forget.

Cynthia Hahn, an assistant federal public defender in Reno who has had three cases in front of Bybee, said she worries what the judge would make of a Fourth Amendment claim, for example.

"I wasn't sure I could reach him regarding a client's constitutional violations because of his previous writings," Hahn said. "He seems to not be very concerned about people's constitutional rights."

Rivkin called Hahn's comments an "argument unworthy of a lawyer" because the memo, he said, says nothing about balancing individual rights with the rights of the state.

"I bet you she hasn't read the memo," Rivkin said.

Hahn said she had, indeed, read it.

Bybee declined to discuss the memo.

-- Jeff Chorney

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