Posted 3:25 PM by Howard Bashman

Patent Lawyers Push Whyte for Circuit

The Recorder
By Brenda Sandburg
June 30, 2005

Members of the patent bar are lobbying to get U.S. District Judge Ronald Whyte of San Jose appointed to the next opening on the Federal Circuit U.S. Court of Appeals, which has nationwide jurisdiction over patents, international trade and government contracts.

Though there are no current openings, many patent lawyers expect one of the judges to take senior status by the end of the year.

At its annual meeting last weekend, the Federal Circuit Bar Association voted to support Whyte's nomination. And on Wednesday five Silicon Valley companies sent a letter to Sen. Dianne Feinstein, a member of the Senate Judiciary Committee, urging her to push for Whyte's appointment.

"Judge Whyte has honed his formidable judicial skills in the trenches resolving Silicon Valley high-tech disputes," said Edward Reines, a partner at Weil, Gotshal & Manges and newly elected vice president of the FCBA. "It is hard to envision a better judge to add to the Federal Circuit."

The Federal Circuit has never had a district judge among its ranks, which patent lawyers say is a shortcoming of the court. Such an addition would also be significant because the Federal Circuit has been criticized for failing to give deference to district judges in their patent decisions.

A district judge "will be able to bring a more realistic view of how the Federal Circuit's legal rules will affect the practice of law," said Stanford Law School professor Mark Lemley. While some of the opinions the Federal Circuit has issued "seem perfectly reasonable in the abstract, in fact they create collateral consequences for litigators or trial courts that are unintended."

Judge Jeremy Fogel, who sits with Whyte on the federal bench in San Jose, agrees.

"It's one thing to look at things from a remote perspective," Fogel said. "You have a different perspective if you've been there" deciding when to allow an evidentiary ruling or an expert to testify.

Patent attorneys began lobbying for Whyte after rumors swirled that Federal Circuit Judge Raymond Clevenger III plans to seek senior status by the end of the year. Clevenger, who turns 69 in August, was appointed to the Federal Circuit in 1990. He could not be reached for comment.

Other judges on the Federal Circuit are also eligible for senior status. Judge Pauline Newman, 78, is the oldest member of the bench, and several others are 64 or older.

Whyte said he's flattered by the attention and is open to an appointment.

"I certainly would be very interested in it," Whyte said. "I think it's always a challenge to have a new job and look at things from an appellate standpoint rather than a trial standpoint."

He said the judges he's met on the Federal Circuit seem to be collegial.

The 62-year-old Whyte has perhaps handled more patent cases than any district judge in the country. Whyte said one lawyer calculated that he's had 150 patent cases since his appointment by the first President Bush in 1992.

Among his most noteworthy cases, he oversaw Sun Microsystems Inc.'s $1 billion antitrust suit against Microsoft Corp., and he was in charge of settlement talks in InterTrust Technologies Corp.'s patent dispute with Microsoft Corp.

Whyte helped craft model patent jury instructions for the Northern District that have been used by other courts. And the Federal Judicial Center has frequently asked him to teach other judges about patent law.

Prior to his appointment to the federal court, Whyte had a three-year stint on the Santa Clara County Superior Court. A 1967 graduate of the University of Southern California Law School, he was a white-collar defense lawyer at Hoge, Fenton, Jones & Appel before joining the bench.

The Federal Circuit Bar Association submits recommendations for court appointments to the White House counsel's office and the Justice Department. The association recommended Whyte, along with a handful of other judges, when the Federal Circuit last had an opening in 2001. This time around Whyte is its only candidate.

Some members of the patent bar say Washington, D.C., insiders have often been appointed to the bench, while district judges have been overlooked. Judge Sharon Prost, the last appointee, had been chief counsel of the Senate Judiciary Committee. Judge Randall Rader also served as counsel to the Senate Judiciary Committee prior to his appointment, and Chief Judge Paul Michel was previously counsel and administrative assistant to Sen. Arlen Specter.

"The No. 1 priority for the improvement of the Federal Circuit is to start with one and then get a stream of district court judges elevated to the court," said Harold Wegner, a partner at the Washington, D.C. office of Foley & Lardner. "Judge Whyte is superbly qualified and would be a tremendous boon for the system."

The Federal Circuit was created in 1982 to handle all appeals in patent cases. Formed from the merger of the U.S. Court of Customs and Patent Appeals and the appellate division of the U.S. Court of Claims, the Federal Circuit also has jurisdiction in international trade, government contracts and certain claims for money from the U.S. government. A primary reason for the court's creation was to give more certainty to the law and to end forum shopping.

Technology companies also have joined the campaign to get Whyte nominated. In their letter to Feinstein, Apple Computer Inc., Genentech Inc., Intel Corp. and Oracle Corp. said the addition of Whyte to the Federal Circuit would benefit the tech community around the country.

"His strong reputation for the fair and effective resolution of complex technology disputes is well earned," they wrote. "The Federal [Circuit] needs a judge with district court experience managing complex patent disputes."

Gary Loeb, Genentech's director of litigation, said his company had never had a patent case before Whyte but knew him well from IP seminars.

"He's willing to dig in deep and understand the technology," Loeb said. "Sometimes judges leave that to magistrates or experts."

While Whyte's colleagues think he's a good choice for the appellate court, they are reluctant to see him go.

"It would be a tremendous loss to our court and me personally and great for the country and the Federal Circuit," Fogel said. "Part of me hopes it happens, and part of me hopes it doesn't."

Copyright 2005 ALM Properties, Inc. All rights reserved.

Posted 3:20 PM by Howard Bashman

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June 28, 2005

SEAL OF 9TH CIRCUIT SEEMS TO BE SAFE
9th Circuit Seal Seems to Be Safe for Now

By Peter Blumberg and Claude Walbert
Daily Journal Staff Writers
SAN FRANCISCO - An image of the Ten Commandments in the official seal of the highest court in the West appears to be safe - at least for now.

In light of Monday's U.S. Supreme Court rulings on displays of the Ten Commandments in courthouses and other public spaces, experts said the clerk of the 9th U.S. Circuit Court of Appeals need not fret over a lawsuit that accuses her of mixing church and state every time she uses office stationery.

Meanwhile, in San Diego, where a battle to preserve a cross on public land has raged for 16 years, those who favor removing the religious symbol from a city park eagerly greeted the high court's pronouncements.

In the 9th Circuit case, a young Bay Area lawyer filed suit in February to have the seal declared unconstitutional on the grounds that its depiction of a lady of justice clutching a tablet marked with 10 tiny squiggles amounts to a government endorsement of religion.

One of Monday's much-anticipated rulings from the nation's high court said framed copies of the Ten Commandments hanging in two Kentucky courthouses went too far because they promoted a religious message.

But in another 5-4 ruling upholding a monument to the Ten Commandments in front of the Texas Capitol, the justices said displays are permissible if they're portrayed neutrally in order to honor the nation's legal history.

The justices specifically said the image of Moses holding the sacred tablets in a decorative frieze in their own Washington, D.C., courtroom doesn't run afoul of the First Amendment's establishment clause.

The century-old 9th Circuit courthouse in San Francisco also boasts a courtroom frieze of the Ten Commandments (showing 10 lines of barely decipherable Hebrew characters) - which historians say is where the circuit's official seal was derived from.

The suit was brought in February by 26-year-old Ryan Donlon of Pleasanton, a graduate of Santa Clara University School of Law who passed the bar in 2003 and said he was offended to see the 9th Circuit seal stamped on the certificate that admitted him to practice in the circuit.

Donlon's cause has not garnered much support, even from people who advocate strict limits on religion's place in public life.

Michael Newdow is the Sacramento pro per who set off a firestorm when he persuaded the 9th Circuit in 2002 to strike the words "under God" from the Pledge of Allegiance. Newdow said in February that he was "not impressed" that Donlon has taken issue with a tiny depiction of a symbol that isn't forcing religion on anyone.

Likewise, a lawyer with Americans United for Separation of Church and State, a Washington, D.C., advocacy group, said Monday that Donlon's case "doesn't seem like it has much merit to it."

"For lots of Ten Commandments displays, today's ruling makes clear their unconstitutionality," said Richard Katskee, assistant legal director. "But in the 9th Circuit context, it's clearly about law and it's pretty insignificant."

Jay Sekulow, chief counsel for the American Center for Law and Justice, a Washington religious advocacy group that supports displays of the Ten Commandments, agreed that Donlon's suit is destined to be dismissed.

"After today's opinion, it will really not be taken seriously," he said.

U.S. District Judge Jeffrey White of San Francisco put Donlon's litigation on hold in April while waiting for high court to rule. Neither Donlon nor the Justice Department lawyer defending the 9th Circuit could be reached Monday.

In the San Diego controversy, City Attorney Mike Aguirre said Monday's ruling in the Kentucky case provides even more legal backing for those who contend the cross must be removed from a city park.

Proponents of leaving the cross where it is, in Soledad Natural Park, expected the Supreme Court to make a ruling that would support their position, but "their hopes have not been realized," Aguirre said.

The history of the cross clearly shows the religious motivation of those who want to keep it in place, Aguirre said.

Philip K. Paulson, a Vietnam veteran and atheist, filed a federal lawsuit in 1989 protesting the location of the cross, which towers 43 feet above Mount Soledad.

A U.S. district judge ordered the city to remove the cross, but the city stalled with sales of the land surrounding the cross to the Mount Soledad War Memorial Association. The 9th Circuit ruled those transactions were illegal efforts to skirt the removal order.

The San Diego City Council last year agreed to move the cross if voters turned down a measure that would allow sale of parkland at the base of the cross. The measure failed. Then Congress passed a bill that would allow the cross to remain if donated to the federal park system.

As the council continued to debate removal this year, fervently religious voters circulated petitions to put a measure on the July 26 ballot, when a special mayoral election will be held. The measure would authorize transfer of the cross and the land beneath it to the federal government.

Supporters aided by conservative talk-show hosts gathered three times the required number of signatures, more than 70,000, almost overnight.

Aguirre urged voters to turn down the measure, saying the cross would be just as unconstitutional on federal land as in the city park.

Joshua Gross, a spokesman for people who want the land donated to the federal government so the cross can remain where it is, interpreted Monday's ruling in the Texas case as a boost because it allowed a religious symbol with secular meaning to stay on government land.

Gross said his group, San Diegans for the Mount Soledad National War Memorial, hopes voters will disregard Aguirre's views and turn out next month to approve the transfer of the cross and a patch of parkland surrounding it.

Posted 1:30 PM by Howard Bashman

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June 22, 2005

JUDGE WONDERS WHEN GENITAL MUTILATION MIGHT BE OK
Judge Asks Whether Genital Mutilation Is Persecution

By Peter Blumberg
Daily Journal Staff Writer
SAN FRANCISCO - The always provocative 9th U.S. Circuit Court of Appeals Judge Alex Kozinski suggested during oral argument Tuesday that the practice of female genital mutilation in some African countries can't be considered persecution if it's "done for the good of the child."

With an 11-judge panel debating the fate of a 9-year-old girl born in the United States whose Ethiopian parents are fighting to stay here, Kozinski stood out by questioning whether it's fair for outsiders to criticize a tradition that is considered "the right thing to do" among the people who practice it.

Just as it's OK in the United States to circumcise boys and pierce the ears of girls, the veteran judge said, female genital mutilation isn't done in Ethiopia with the intention of hurting anyone.

"Brutal maybe, but persecution?" he asked.

A human rights lawyer arguing on behalf of the Ethiopian family pointed out that U.S. and international authorities have long condemned the removal of female genitalia, which she described as "incredibly damaging" physically and psychologically.

Karen Musalo, director of the Center for Gender and Refugee Studies at UC Hastings School of Law, also told Kozinski that burning people at the stake during the Spanish Inquisition was supposedly done for the good of everyone involved.

And that was the end of Kozinski's line of questioning.

The dominant theme of Tuesday's hour-long hearing was whether a particular Ethiopian family qualifies for asylum based on the parents' fear either that their daughter will be mutilated if they are forced to return home or the whole family will be considered social outcasts if she refuses.

The panel appeared to be sharply divided. Some judges said the family's fear is reasonable considering that mutilation practices are widespread in Ethiopia, while other judges questioned whether the mother and father have satisfied the legal burden of proof for asylum.

Although courts already have held that victims of mutilation are entitled to stay in the United States, this case is more complicated because it asks whether a right to asylum extends to the parents of a child born in the United States who would only face possible persecution if she returns to Ethiopia.

An administrative immigration judge and a quasi-judicial review panel denied asylum to the parents, although they focused largely on the father's claim that he would be subject to political persecution in Ethiopia because he was involved with a group opposing the government's ruling party.

Because the girl wasn't yet born when her parents first filed for asylum in 1993, the issues surrounding the prospect of her going through mutilation were not thoroughly presented until the case reached the 9th Circuit.

In August, a split three-judge panel concluded that the immigration judge acted reasonably in finding that the family's fears of persecution were overblown.

In Tuesday's hearing, Circuit Judge Richard Tallman expressed support for the U.S. government's position that the mutilation arguments were raised too late in the process for the court to accept them.

"Why shouldn't we dismiss this for failure to exhaust claims administratively?" he said.

Judge Pamela Rymer said the 9th Circuit shouldn't get ahead of the Board of Immigration Appeals in tackling unprecedented questions about extending asylum rights to relatives of children who face persecution.

But Judges Sidney Thomas and Marsha Berzon appeared to be more sympathetic to the Ethiopian family, saying that the mutilation issues are "fair game" because the Board of Immigration Appeals did review them.

The panelists also sparred over the question of how likely it is that the 9-year-old girl would be pressured into undergoing a mutilation procedure.

Tallman took issue with studies cited in the court record that describe the practice as very common in some ethnic groups and geographical areas of Ethiopia, but less prevalent in urban regions, such as where the parents in Tuesday's case lived.

But the government's attorney, Alison Drucker, seemed to irritate some panelists by refusing to say how likely the prospect of mutilation must be in order make for a legitimate "fear of persecution."

Judge William Fletcher, who participated by telephone, pointedly asked whether a 20 percent or 50 percent likelihood is enough before he suggested that the right answer is 10 percent.

But Drucker refused to be pinned down to a specific number, which drew an exasperated sigh from Chief Judge Mary Schroeder.

The court did not indicate when it will rule in Abebe v. Gonzalez, 02-72390.

Posted 3:04 PM by Howard Bashman

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June 17, 2005

BIG PUNITIVES STILL AVAILABLE AS DETERRENT
State Supreme Court Sets Damage Issue For California Cases

By John Roemer
Daily Journal Staff Writer
SAN FRANCISCO - The U.S. Supreme Court said juries can't go nuts with punitives, but big deterrent awards remain available to discipline corporate wrongdoers, the California Supreme Court held Thursday.

The state high court took an evenhanded approach in companion decisions as it cut the payout in one case and called for more money in another.

The opinions framed the punitives issue for California. The justices interpreted the U.S. Supreme Court's 2003 decree in State Farm Mutual Auto Insurance Co. v. Campbell, 538 U.S. 408, that "grossly excessive or arbitrary" awards are constitutionally prohibited by the 14th Amendment's due process clause.

Even so, the state Supreme Court expressed doubt that a single-digit ratio between compensatory and punitive damages is the inflexible State Farm rule defense lawyers have held it to be.

"To be sure," wrote Associate Justice Kathryn Mickle Werdegar, the author of both opinions, "State Farm requires reasonable proportionality between punitive damages and actual or potential harm to the plaintiff.

"But what ratio is reasonable necessarily depends on the reprehensibility of the conduct, 'the most important indicium of the reasonableness of the award,' ... which in turn is influenced by the frequency and profitability of the defendant's prior or contemporaneous similar conduct." The quote is from State Farm.

A presumption of unconstitutionality applies, Werdegar wrote, only to awards exceeding the single-digit level "to a significant degree," again quoting from State Farm.

Deterrence can require "strong medicine," she added, quoting from another case and seeming to open the door to big punitives in some instances.

The Supreme Court's decisions Thursday backed that view by seeking to raise the award in a product liability case.

Fresno County jurors voted Greg Johnson $10 million in punitives to punish Ford Motor Co. for concealing a used 1997 Taurus' transmission problems, allegedly part of a widespread pattern of corporate deceit.

A 5th District Court of Appeal panel reduced the punitives figure to $53,435 - about three times the compensatory damages.

But that was probably not enough to deter such reprehensible corporate fraud, the Supreme Court held in its 5-2 decision to return the case to the court of appeal panel for a new independent due process review. Johnson v. Ford Motor Co., 2005 DJDAR 7101.

Erwin Chemerinsky, the former University of Southern California law professor who now teaches at Duke University School of Law in Durham, N.C., argued Ford before the Supreme Court for the plaintiff.

"The significance of our win today is that punitives can have a broader basis to achieve the goals of deterrence and retribution," Chemerinsky said. "The justices rejected the court of appeal view that punitive damages are limited to just the harm suffered by a single individual."

Chemerinsky pointed out that State Farm never made single-digit compensatory-to-punitive ratios mandatory.

"Generally," he noted, "punitives will be within single digits, and that's what Werdegar said. But there will be extraordinary cases."

Indeed, at one point in Ford Werdegar noted that State Farm leaves in place states' discretion in the use of punitive damages.

"Nothing the high court has said about due process review requires that California juries and courts ignore evidence of corporate policies and practices and evaluate the defendant's harm to the plaintiff in isolation," she wrote.

Ford's lead lawyer, Theodore J. Boutrous Jr. of Gibson Dunn & Crutcher in Los Angeles, predicted that the court of appeal will come up with the same lowball result when it again studies the case.

He added that it was hugely important to his client that the high court refused to consider corporate profit disgorgement as a remedy.

"That was the big issue for us," Boutrous said. "We're very pleased."

In the second case, a Los Angeles appellate panel three times affirmed a jury award of $5,000 in compensatory damages and $1.7 million in punitives in a real estate fraud case, even after the U.S. Supreme Court twice ordered the panel to rethink the matter in light of State Farm.

The plaintiff, Lionel Simon, contended the punitives should be measured against the $400,000 in profit he would have gained if the defendants had sold him a small downtown office building on South Figueroa Street at the agreed price.

But the state Supreme Court found that the defendant's asserted fraud did not cause so great a harm. Therefore, the gap between the sums makes the punitives award grossly excessive, the justices held Thursday in reducing the punitive damages to $50,000. Simon v. San Paolo U.S. Holding Co. Inc., 2005 DJDAR 7091.

The two cases attracted intense attention from amici for plaintiffs and defendants. Pro-corporate groups such as the Product Liability Advisory Council Inc. and the Pacific Legal Foundation joined Ford. The U.S. Chamber of Commerce entered both cases, siding with Ford and with San Paolo U.S. Holding Co.

The Association of Trial Lawyers of America and United Policyholders were amici for plaintiff Simon. Consumer Attorneys of California were amici for Simon and for the other plaintiff, Johnson.

All sought to sway the California Supreme Court's view on interpreting State Farm and the U.S. Supreme Court's earlier cases discussing punitive damages awards.

In the Simon decision, Werdegar explained for her colleagues that state appellate courts are expected to use a three-factor weighing analysis "looking to the nature and effects of the defendant's tortious conduct and the state's treatment of comparable conduct in other contexts."

The State Farm constitutional guideposts for reviewing punitives include the degree of reprehensibility of the defendant's misconduct; the disparity between the actual or potential harm suffered by the plaintiff and the size of the punitive damages award; and the difference between the size of the punitives and the civil penalties authorized or imposed in comparable state cases, Werdegar wrote.

André E. Jardini of Knapp Petersen & Clarke in Glendale argued for plaintiff Simon. He said that reducing the punitives award in his case will do little to prevent the kind of fraud his opponents committed.

"The conduct was extraordinary and reprehensible, and it's hard to deter that by fining someone $50,000," Jardini said. "Our arguments were unpersuasive, unfortunately."

Lawrence A. Abelson of Los Angeles' Epport Richman & Robbins was on the San Paolo defense team.

"We feel vindicated," he said Thursday. "Our interest here was not only in keeping the ratio low, but in defining the denominator," or the compensatory damage figure the plaintiffs unsuccessfully argued should be set at $400,000.

"The Supreme Court here did not discount using lost benefit harm in some instances, but this was not the case," Abelson said.

Posted 3:00 PM by Howard Bashman

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June 17, 2005

ROLLER COASTER IS COMMON CARRIER, COURT RULES

By Blair Clarkson
Daily Journal Staff Writer
LOS ANGELES - A sharply divided state Supreme Court on Thursday ruled that an operator of a roller coaster or other amusement park ride can be deemed a common carrier of people for reward and thus subject to heightened standard of care rules.

The 4-3 decision allows the family of a 23-year-old woman from Spain killed after suffering a brain injury on a popular Disneyland ride in 2002 to sue Disney.

The family's lawyers contend that the Civil Code section requiring carriers of people for reward to use "utmost care and diligence" and provide safe and fit vehicles.

The published ruling is significant for lawsuits stemming from injuries and fatalities on California amusement park rides because carriers of people are treated differently depending on whether they act gratuitously or get paid for the service.

"A carrier of persons 'without reward' is subject only to 'use ordinary care and diligence for their safe carriage' ... But a carrier of persons for reward is subject to a heightened duty," the opinion states. Gomez v. Superior Court, 2005 DJDAR 7111 (Cal. June 16, 2005).

More important, the ruling means theme parks can no longer blame ride manufacturers for accidents caused by construction defects, according to the family's Beverly Hills attorney Barry Novack.

"A common carrier is responsible for defect in its vehicles," Novack said. "Disney can now be held responsible for defects even though they did not construct or manufacture the ride."

Disney argued that roller coasters serve no transportation function and that the movement along the track was "purely incidental" to the ride's entertainment purpose.

"While we disagree with the decision, it has nothing to do with the safety of our parks," said Rob Doughty, vice president of communications for Disney. "Our commitment to guest safety always has been, and continues to be, unwavering."

J. Clark Robinson, president of the International Association of Amusement Parks and Attractions, blasted the decision, which upheld an appellate-court ruling that overturned a trial court's dismissal of the case.

"Treating amusement park attractions the same as common carriers like buses and airplanes will not make them any safer," Robinson said in a written statement.

"Because of the dedicated partnership of parks, regulators and guests alike, hundreds of millions of people already safely enjoy amusement park attractions every year without such a classification," he said.

Posted 2:44 PM by Howard Bashman

Court Sets Punitives Guidelines

Businesses, plaintiffs both claim win as justices interpret 'State Farm'

The Recorder
By Jeff Chorney
June 17, 2005

Business interests and plaintiff attorneys both claimed victory Thursday in a pair of California Supreme Court decisions testing the limits of punitive damages.

It's the first time the state Supreme Court has interpreted a 2003 landmark U.S. Supreme Court ruling, State Farm Mutual Automobile Insurance v. Campbell, 538 U.S. 408, that curtailed large awards.

Both opinions -- one unanimous, the other 5-2 -- were authored by Justice Kathryn Mickle Werdegar.

In most cases, the high court said in State Farm, punitives should be no more than nine times compensatory damages. But the Supremes left room for exceptions, and plaintiffs and defendants have been sparring over when to go beyond the "single-digit" range.

With Thursday's rulings, the state justices tried to resolve a discrepancy between lower courts' interpretations of State Farm.

The Fifth District Court of Appeal had used State Farm to reduce a $10 million punitive award against Ford Motor Co. to $53,435. The Second District took a broader approach, upholding $1.7 million in punitives in a real estate fraud case in which the trial court determined actual loss to be only $5,000.

State Supreme Court justices "are taking a more narrow, restrictive interpretation on damage awards," said Lawrence Abelson, a partner at Los Angeles' Epport, Richman & Robbins, which represented the defendant on the hook for $1.7 million.

Now, Abelson's client in Simon v. San Paolo U.S. Holding, 05 C.D.O.S. 5207, will likely only have to pay $50,000 in punitives. Although the unanimous ruling leaves plenty of wiggle room in figuring out punitives, the dollar amount is in line with the U.S. Supreme Court's guideposts.

"Obviously, we're thrilled by the decision," Abelson said.

Daniel Smith of Kentfield, who filed an amicus curiae brief on behalf of Consumer Attorneys of California, was also pleased. Some state appeal courts have used State Farm as a springboard to further limit punitives, he said. But now the state Supreme Court "has restored California law to the condition that State Farm dictates," Smith said.

Smith also said the new ruling is a signal to plaintiff lawyers to recast their strategies to avoid Lionel Simon's trouble -- his punitive claims were sunk because he didn't prove a $400,000 loss.

Simon's counsel, André Jardini, a partner at Glendale's Knapp, Petersen & Clarke, wasn't quite as optimistic and read the opinion as a hit on the idea of punitives.

"We've lost sight of the purpose of punitives -- to deter conduct in favor of what is a restricting kind of approach," Jardini said. "You can't have a one-size-fits-all punishment. Courts want flexibility."

In the companion case, Johnson v. Ford Motor, 05 C.D.O.S. 5215, justices rejected a $10 million jury award. But they also weren't satisfied with the Fifth District's reduction to $53,435 and ordered appellate judges to take another look.

More importantly, said Erwin Chemerinsky, the Duke University School of Law professor who argued on behalf of plaintiff Greg Johnson, justices also rejected defendants' arguments that punitives should only be used to punish behavior within the four corners of the case at issue.

Johnson had sued over his purchase of a Ford Taurus with a faulty transmission, and the high punitive award was an attempt to recover profits reaped by Ford in similar sales throughout California.

"California law has long endorsed the use of punitive damages to deter continuation or imitation of a corporation's course of wrongful conduct, and hence allowed consideration of that conduct's scale and profitability," Werdegar wrote. "We do not read the high court's decisions, which specifically acknowledge that states may use punitive damages for punishment and deterrence, as mandating the abandonment of that principle."

Justices Marvin Baxter and Janice Rogers Brown dissented. Although they agreed it's OK to use broad behavior in figuring out punitives, they believe the appeal court had properly considered the issue.

Chemerinsky is confident his client will do better than $53,435 on the remand.

"The California Supreme Court made it clear that punitive damages exist to punish and to deter an overall course of wrongful conduct in the state," Chemerinsky said. "I'm thus very confident that we'll get an increase in punitive damages in the Johnson case."

Gibson, Dunn & Crutcher partner Theodore Boutrous Jr., who argued on behalf of Ford, is likewise certain the redo will go in his client's favor.

"We believe that the court did perform an analysis," Boutrous said. "On remand, it's just really a matter of spelling it out better. All this case was about was this one vehicle."

Copyright 2005 ALM Properties, Inc. All rights reserved.

Posted 10:00 PM by Howard Bashman

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June 10, 2005

CONFIDENTIALITY APPLIES ONLINE, PANEL DECIDES
Data Gathered From Potential Clients Not Subject to Discovery

By Peter Blumberg
Daily Journal Staff Writer
SAN FRANCISCO - Affirming the importance of attorney-client privilege, a federal appeals court Thursday soundly rejected a drug maker's attempt to get ahold of personal medical information solicited through an Internet questionnaire by a plaintiffs law firm recruiting clients for a mass tort case.

A three-judge panel of the 9th U.S. Circuit Court of Appeals said a federal trial judge was wrong to order a Los Angeles firm to share with its adversary responses to an online questionnaire directed at people who experienced bad side effects while taking a popular antidepressant, Paxil.

The lower court judge had found the questionnaire, used to recruit thousands of clients for a class action, to be exempt from attorney-client privilege because it contained a disclaimer waiving confidentiality.

But Thursday's panel ruled that the Internet communications must be kept private because most people who responded to the questionnaire realized the plaintiffs firm was trolling for clients.

Writing for the panel, Circuit Judge Andrew Kleinfeld emphasized the principle that potential clients must be able to tell their lawyers their private business without fear of disclosure.

"There would be no room for confusion had the communication been in the traditional context of a potential client going into a lawyer's office and talking to the lawyer," he wrote. "The changes in law and technology that allow lawyers to solicit clients on the Internet and receive communications from thousands of potential clients cheaply and quickly do not change the applicable principles."

Kleinfeld was joined by Circuit Judges Michael Daly Hawkins and Susan Graber in overturning the discovery order issued by U.S. District Judge Mariana Pfaelzer in February.

Pfaelzer's ruling appeared to be the first of its kind nationwide to allow discovery of a lawyer's preliminary communication on the Internet with a potential client.

In the underlying case, the firm of Baum Hedlund contends Paxil users have suffered dangerous withdrawal symptoms when they have stopped taking the drug. Lawyers for the small firm posted the Internet questionnaire soon after they filed suit in 2001.

Lawyers for the pharmaceutical company that manufactures Paxil, GlaxoSmithKline, argued in court that they were entitled to know what Paxil users said in their responses to Baum Hedlund's online questionnaire.

Because the alleged side effects of Paxil are "subjective and mostly undocumented" in medical records, the defense attorneys contended, the questionnaires were important in evaluating the credibility of individual plaintiffs.

Pfaelzer ruled that by not making any explicit promises about confidentiality, Baum Hedlund's disclaimer amounted to a "disclaimer of confidentiality." She concluded the Paxil patients had no reason to expect their responses to the questionnaires would remain private.

The 9th Circuit, however, said Pfaelzer's reading of the disclaimer was flawed and that California law protects the privacy of communications with lawyers even before a formal attorney-client relationship exists.

A spokesman for the firm representing GlaxoSmithKline, King & Spaulding in Washington, D.C., said he could not comment on Thursday's ruling without his client's permission.

Robert Brava-Partain, who argued the case for Baum Hedlund, praised the 9th Circuit for recognizing "how deeply ingrained the attorney-client privilege is in our legal system."

"The ruling basically says ambiguities are resolved in favor of the client, not in favor of the party opposing the privilege," he said.

The case is Barton v. U.S. District Court, 2005 DJDAR 6720.

Posted 3:15 PM by Howard Bashman

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June 09, 2005

OVERRIDING THE 'LIBERAL' 9TH CIRCUIT
Congress Aims the Real ID Act at So-Called Activist Judges

News Analysis

By Peter Blumberg
Daily Journal Staff Writer
SAN FRANCISCO - Once again, Congress has chastened the "liberal activist judges" of the 9th U.S. Circuit Court of Appeals.

The last time lawmakers engaged in public 9th Circuit bashing, they denounced the 2002 Pledge of Allegiance ruling written by Richard Nixon appointee Alfred Goodwin.

This time, the Republican-controlled Congress has passed a law that overwrites a series of 9th Circuit immigration rulings seen by critics as aiding terrorists.

House Judiciary Chairman James Sensenbrenner, R-Wis., didn't mince words in explaining to his colleagues how his bill would set the 9th Circuit straight.

"Liberal activist judges in the 9th Circuit have been overturning clearly established precedent and are preventing immigration judges from denying bogus asylum applications by aliens who are clearly lying," he said in a House floor speech.

It's no surprise that Stephen Reinhardt is one of the judges whose rulings were specifically targeted in the Real ID Act, which was signed into law in May by President Bush.

Reinhardt, a Jimmy Carter appointee and one of the circuit's leading liberals, has spent two decades skewering federal immigration authorities and finding reasons to grant political asylum to refugees.

But Sensenbrenner didn't draft the Real ID Act just to rein in Reinhardt and two other Carter appointees, Chief Judge Mary Schroeder and Senior Judge Proctor Hug, whom he described as "irresponsible judges [who] have made asylum laws vulnerable to fraud and abuse."

In true bipartisan spirit, Sensenbrenner also took aim at Senior Judge Stephen Trott, a former U.S. attorney in Los Angeles and third-in-command at Ronald Reagan's Justice Department, who not often is mistaken for a liberal or an activist.

Just as Sensenbrenner made no mention of Goodwin's Republican pedigree when he introduced a resolution three years ago declaring the pledge ruling "erroneous," the congressman left the names of specific judges out of his press releases touting the Real ID Act as protection against terrorism.

But a congressional report laying out the legal underpinnings for the Real ID Act made special mention of two 1999 en banc rulings by Trott and characterized them as out of line.

Specifically, Trott found in favor of two Filipino citizens seeking asylum in the United States based on their fear that they would be persecuted at home by a revolutionary communist group violently opposed to the Philippine government.

The facts of the two cases differ, but each asylum applicant testified to having received death threats from the National People's Army on account of pro-government views.

The key legal issue presented by both cases was the same: How much proof must an immigrant provide to show that he or she truly is facing political oppression?

Under federal law, asylum is available only to those who can show they've been singled out for harm because of their race, religion, nationality, membership in a particular social group or political opinion.

In one of Trott's cases, immigration authorities took the position that the real motive behind the guerrilla group's harassment of petitioner Teresita Borja was economic extortion. In the other case, they maintained that petitioner Tomas Briones might have been picked on because he was a government informer, but that really had little to do with his views on politics.

The Real ID Act was crafted to raise the burden of proof for those seeking asylum and, in Sensenbrenner's words, to "end the judge-imposed presumptions that benefit suspected terrorists in order to stop providing a safe haven to some of the worst people on earth."

The written analysis of the Borjas and Briones rulings given to members of Congress said Trott's reasoning "substantially undermined a proper analysis" of cases in which more than one motive may be behind acts that immigrants claim as persecution.

In response, the Real ID Act would require applicants for asylum to show that one of the protected grounds for asylum, political opinion, was a "central reason" for their persecution.

Trott, reached Tuesday at his chambers in Boise, Idaho, said it's fine for Congress to change the rules, but he acknowledged that 9th Circuit name-calling in Congress gets tiresome.

"We have 13,000 cases a year," he said. "Periodically, they single out one or two they don't like, and they say, 'Look at this!' and they make these gigantic leaps in logic."

Trott pointed out it was Congress that "invented" the asylum law and then gave appellate courts the authority to review decisions by the quasi-judicial Board of Immigration Appeals in the Department of Justice.

"I assume that means we're not just supposed to sit up here like turkeys on a log and affirm everything," he said. "They ask us to review cases and tell us what issues to review these petitions for. We're happy to review them. Not a problem."

Immigrant rights advocates have portrayed the Real ID Act as an ill-conceived crackdown that will weaken judicial oversight of the asylum system and make it harder for legitimate victims of torture, rape and other violence to get shelter in the United States.

Jayne Fleming, a San Francisco attorney who has won ground-breaking asylum appeals, is an outspoken critic of the Real ID Act. Fleming said that, instead of attacking 9th Circuit judges, Congress ought to praise them for carefully scrutinizing each asylum case and making sure that applicants are not penalized with overly harsh rules.

"Generally, I believe that asylum issues do cut across ideological lines," she said. "I also think that 9th Circuit judges try very hard to take a careful look at the record and try to understand each refugee's experience."

Trott also rejects the notion that the 9th Circuit was playing politics with immigration law.

"Most judges are calling them as they see them," he said. "Occasionally, in the human experience, ideology plays a role. I'd be crazy to tell you that doesn't happen."

But a spokesman for Sensenbrenner said that, as long as the 9th Circuit issues decisions that are out of step with the rest of the country, its judges will be an easy target on the floor of the House.

"Chairman Sensenbrenner has never said jurists appointed by Republican presidents are infallible in their rulings," Jeff Lungren said. "If you have one standard in the 9th Circuit and another standard everywhere else, that's bad law.

"Unfortunately, it's become a situation where [an asylum applicant's] success may depend more on whether they landed in San Francisco or Los Angeles than the actual merits of the case."

Posted 4:25 PM by Howard Bashman

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June 07, 2005

IF CLIENT WANTS LONG-SHOT APPEAL, LAWYER MUST FILE IT
Panel Says Lawyer Must File Client's Long-Shot Appeal

By Peter Blumberg
Daily Journal Staff Writer
SAN FRANCISCO - A good lawyer may know better than to file a risky appeal challenging a plea bargain, but failing to follow a client's orders is ineffective assistance of counsel, a federal appellate court ruled Monday.

Calling its own conclusion "troubling" but compelled by law, the 9th U.S. Circuit Court of Appeals said a lawyer must abide a defendant's insistence on appealing a negotiated sentence -even when the plea agreement itself bars an appeal.

A three-judge panel ordered a hearing to determine whether a Washington state attorney committed professional error by ignoring a client's demand to file an appeal in a heroin trafficking case.

In another criminal procedure ruling Monday from Washington, a 9th Circuit panel joined other circuits in holding that there's no constitutional right to counsel to file a motion for new trial once the defendant has lost a direct appeal.

In the plea bargain case, defendant Jose Maria Sandoval-Lopez was facing a lengthy prison sentence after he was caught with 15 pounds of heroin hidden inside his pickup truck in Yakima, Wash.

On the advice of his attorney, Sandoval-Lopez agreed to forgo a trial, accept a seven-year sentence and waive his right to appeal.

The sentencing judge, however, told Sandoval-Lopez that he did have a right to appeal within 10 days.

No appeal was filed, and Sandoval-Lopez blamed his lawyer in a pro se habeas corpus petition that he filed more than a year later.

"Counsel failed to submit a notice of appeal," Sandoval-Lopez wrote. "I asked him to but he never did and I did not discover this until the 10-day deadline was up. I do not understand English and had to find someone to interpret for me. By then I had ran out of time to file."

A district judge dismissed the petition, but the 9th Circuit said Sandoval-Lopez deserves a chance in an evidentiary hearing to prove that his lawyer "refused" to file an appeal.

Writing for the panel, Circuit Judge Andrew Kleinfeld said Sandoval-Lopez should probably consider himself lucky that his lawyer did not win him a new trial, because the odds are high he'd be sent to prison for more than seven years. The attorney's name was not provided in the ruling.

But, Kleinfeld wrote, case law is clear that "a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable."

Kleinfeld concluded this is one case where "ineffective assistance" does not equate to incompetence.

"It may be very foolish to risk losing a seven-year plea bargain on an appeal almost sure to go nowhere, in a major heroin case," he wrote. "Nevertheless the client has the constitutional right, under [precedents], to bet on the possibility of winning the appeal and then winning an acquittal, just as a poker player has the right to hold the ten and queen of hearts, discard three aces, and pray that when he draws three cards, he gets a royal flush."

The case is U.S.A. v. Sandoval-Lopez, 03-35594.

In the other Washington case, a man convicted of dealing LSD sought to file a motion for new trial based on newly discovered evidence.

The panel said a defendant who wants to bring such a motion immediately following a trial has a right to a court-appointed attorney.

But the three-judge panel said there's no constitutionally guaranteed right to an attorney after the completion of the direct appeal of a federal conviction. Instead, the panel said, the decision whether to appoint counsel instead rests with the discretion of the district court.

Writing for the court, Chief Judge Mary Schroeder said the ruling aligns the 9th Circuit with other circuits. She also wrote that the evidence now offered by the defendant probably would not be enough to win him an acquittal in a retrial.

The case is U.S. v. Harrington, 03-30413.

Posted 7:40 PM by Howard Bashman

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June 03, 2005

IMMIGRATION DELUGE LOOMS AT 9TH CIRCUIT
New Law Means More Asylum and Deportation Cases

By Peter Blumberg
Daily Journal Staff Writer
SAN FRANCISCO - The immigration overload at the 9th U.S. Circuit Court of Appeals is going from bad to worse.

Federal legislation enacted last month is expected to push even more asylum and deportation cases onto the docket of the nation's largest appellate court, which already has seen a five-fold increase in such cases since 2001.

The San Francisco court is fast approaching the point that it hears as many immigration matters as all other types of civil and criminal cases combined.

The new federal law, called the Real ID Act, includes a little-noticed provision that requires immigrants who appeal administrative orders to bypass federal district judges and go directly to the circuit courts.

1,000 More Cases a Year
That could translate into as many as 1,000 additional cases for the 24 active judges who sit on the 9th Circuit, which comprises nine western states, including two that are especially popular entry points for immigrants, Arizona and California.

The skyrocketing immigration docket in the federal appellate courts is a direct response to a restructuring of the appellate division of the nation's immigration courts by former Attorney General John Ashcroft. Because the quasijudicial Board of Immigration Appeals no longer conducts full-blown reviews of decisions by administrative judges, immigrants have increasingly flocked to the circuit courts with last-ditch pleas to stay in this country.

40 Percent of Total
In the past 12 months the court already has fielded 6,000 appeals from immigrants either seeking legal entry in the United States or trying to avoid being deported. That represents about 40 percent of the 9th Circuit's total of 14,500 cases for that period.

"We know how to deal with volume around here," said Clerk of Court Cathy Catterson, who added that she's trying to hire additional file clerks and staff attorneys. "Hopefully, we will be able to absorb this without too much disruption."

To be sure, the anticipated increase in caseload will be more of a one-time spike than an ongoing deluge. The Real ID Act calls for district courts to immediately transfer hundreds of pending immigration cases and requires all petitions for review from now on to be filed directly with the circuit courts of appeal.

"To some extent this is sort of a transitional problem," Circuit Judge Alex Kozinski said. "These cases being transferred probably would have wound up with us anyway."

The most high-profile provision of the Real ID Act requires applicants for state driver's licenses to prove they are in the United States legally in order to get identification recognized by federal authorities in airports, government offices and other facilities.

But the legislation, signed into law May 11 by President Bush as part of a war spending measure, also makes sweeping changes to immigration laws.

For instance, experts predict the law will make it harder for some refugees seeking to flee persecution in their native countries to qualify for political asylum in the United States. It also will limit the role of federal courts in second-guessing immigration judges who order foreigners deported.

In sponsoring the bill, House Judiciary Chairman James Sensenbrenner, R-Wis., pitched the changes in immigration law as protection against terrorists, including those who might commit fraud to gain entry into the United States.

Critics say the law won't make the United States safer, but it will allow immigration authorities to close the door on more people who have suffered torture, rape and other atrocities.

Some of the law's particularly contentious provisions raise the burden of proof for asylum applicants, requiring them to show more precisely how and why they faced persecution abroad.

Sensenbrenner specifically drafted the bill to overrule a series of 9th Circuit precedents and, in his words in a letter to colleagues, "return asylum law to the way it was before activist judges in the Ninth Circuit had their way with it."

To some immigration lawyers, the part of the Real ID Act that shifts cases from district courts to appellate courts is troubling because it further limits the role of federal courts in reviewing the decisions made by administrative immigration judges within the Department of Justice.

The shift will largely restore the review process that was in place a decade ago, when immigrants were steered directly to appellate courts if they were dissatisfied with rulings by the Board of Immigration Appeals.

In 1996, Congress passed an immigration law that took away any form of court review for aliens facing deportation after they'd been convicted of crimes. But the U.S. Supreme Court decided that was too restrictive and ruled that even criminal aliens have a right to habeas corpus proceedings.

Since then, immigrants have sought relief either in district or appellate courts, depending on the nature of the administrative rulings against them.

"There was a lot of confusion," said Lucas Guttentag, national director of the ACLU's Immigrant Rights Project.

On one level, he said, Sensenbrenner's move to consolidate all these cases in the court system's appellate branch makes sense.

"While there are benefits to having the district courts involved in the first instance, this removes some of the complexity about where immigrants need to go to get review," he said.

But Guttentag said he would be watching closely to make sure the rights of immigrants are not sacrificed in the name of speeding up the court review process. One concern is that under the new law, immigrants will forfeit judicial review if they don't file a petition in the appellate court within 30 days of an administrative ruling.

"The question is going to be whether the government attempts to overreach and tries to curtail judicial review more than is permissible," he said. "I think and I hope Congress has learned its lesson from 1996 and the litigation afterwards."

To Kozinski, who has been a strong voice for judicial review in immigration matters, the Real ID Act does not appear at first glance to threaten the independence of the courts.

"It looks to me like many of the changes bring this area of the law into consistency with the standards we normally use in reviewing the administrative agencies," he said. "It's certainly not a denial of judicial review from what it looks like to me."

But he said it's too early to tell whether the new law will streamline the process or add new delays.

Acknowledging the 9th Circuit's ever-growing immigration docket, Kozinski said, "There's only so much work we can do."

Chief Judge Mary Schroeder, who is based in Phoenix, said the court is doing everything in its power to implement the new law smoothly.

"We have a superlative staff that is already working to identify some of the key issues that are going to be raised under the law so that we can handle them expeditiously," she said.

Posted 8:55 PM by Howard Bashman

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June 02, 2005

TRIAL JUDGES WILL HEAR APPEALS IN SENTENCING
9th Circuit District Court Jurists Will Make Determination

By John Ryan
Daily Journal Staff Writer
LOS ANGELES - The 9th U.S. Circuit Court of Appeals on Wednesday laid out how the circuit's appellate and district court judges should review sentencing appeals that were filed before the U.S. Supreme Court made the federal sentencing guidelines nonbinding on judges.

In its landmark January decision, the nation's high court held the guidelines to be unconstitutional because they had judges impose sentences based on facts not determined by juries. U.S. v. Booker, 125 S.Ct. 378 (2005).

The court's remedy was to make the guidelines advisory rather than mandatory in nature.

Different Conclusions
Since then, circuit courts have come to different conclusions on how to rule on sentencing appeals that were filed before Booker and do not specifically raise Sixth Amendment issues at the core of that decision.

In February, a three-member panel of the 9th Circuit ruled that a trial judge's mandatory reliance on the guidelines constituted "plain error" and that most defendants with pending appeals would require resentencings. U.S. v. Ameline, 400 F.3d 646 (9th Cir. Feb. 9, 2005).

However, a majority of the 9th Circuit judges in March decided to rehear Ameline.

On Wednesday, the circuit decided that district court judges, rather than appellate panels, should determine whether resentencing is necessary in cases in which the record is unclear on whether the pre-Booker sentence constitutes plain error.

'Substantial Rights'
Judge Johnnie B. Rawlinson, who wrote the seven-judge majority decision, noted that, to prove plain error, defendants must show that their pre-Booker sentences affected their "substantial rights."

The only way to determine this, Rawlinson concluded, is to find out whether the trial judge would have handed out a different sentence if he knew the guidelines were not mandatory.

"We conclude that the best way to deal with this unusual situation is to ... ask the person who knows the answer, the sentencing judge," Rawlinson wrote. "[W]e elect to remand to the district court to answer the question whether the sentence would have been different had the court known that the guidelines were advisory."

If the sentence would have been different, the defendant is entitled to resentencing, the ruling explains. If not, the original sentence stands, though defendants can appeal that sentence based on the new "reasonableness" standard provided in the Booker decision.

Rawlinson acknowledged in the 33-page decision that the circuit was following the "limited remand" concept adopted by the 2nd and 7th U.S. Circuit Courts of Appeals, in New York and Chicago.

Alfred Ameline pleaded guilty to drug charges in 2002 but disputed the amount of drugs a Montana judge attributed to him at sentencing.

His lawyer, Steven Hubachek of Federal Defenders of San Diego, said that he was happy the 9th Circuit rejected the harsher approaches adopted by other circuits.

Some circuits, such as the 11th in Atlanta, have ruled that the defendant has the burden of proving to the appellate court that he suffered a prejudicial effect from the original pre-Booker sentence.

"It's more of a middle-ground approach," Hubachek said. "But the problem is that it creates sort of an ad hoc type of process that gives district court judges lots of leeway in reviewing these cases."

Hubachek also said he was concerned that Wednesday's decision did not require that defendants get a chance to address judges or even be present during the remand hearings.

A government lawyer who worked on the Ameline case from the solicitor general's office did not respond to inquiries on the decision.

In a dissent, Judge Kim Wardlaw criticized the limited-remand approach for delegating "to the district courts our discretionary appellate function."

"The resulting wholesale demand of hundreds, possibly thousands, of sentencing appeals elevates our administrative concerns over the law as pronounced by the Supreme Court," Wardlaw wrote.

But Rawlinson disagreed, saying it was more important to get an informed review with help of the trial judges.

"[T]he record [in Ameline] does not provide an inkling of how the district court would have proceeded had it known that the Guidelines were advisory rather than mandatory," Rawlinson wrote.

The majority decision and the dissenters agreed that the trial judge erred in putting the burden on Ameline to disprove the factual information in the presentence report provided to the judge.

Gregory Nicolaysen, an Encino-based federal practitioner who runs an online forum on sentencing issues, said that the impact of Wednesday's decision will be limited because it affects only pending pre-Booker appeals that did not raise 6th Amendment challenges.

The decision does not address the increasing number of appeals being filed after the Booker decision, Nicolaysen said.

He also noted that the 9th Circuit's en banc decision comes well after similar rulings in the other circuits.

"It's a little late in the game," Nicolaysen said.

Hubachek said that Wednesday's ruling would affect a large number of pending appeals, which some legal experts have estimated as in the hundreds.

Posted 4:15 PM by Howard Bashman

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June 01, 2005

JUSTICES LIFT INJUNCTION BARRING TALK ABOUT COCHRAN, LAW FIRM
Court Allows Ex-Client to Talk About Cochran

By Brent Kendall
Daily Journal Staff Writer
WASHINGTON - The U.S. Supreme Court on Tuesday struck down a permanent injunction barring a disgruntled former client of Johnnie L. Cochran Jr. from ever speaking publicly about the celebrity attorney or his law firm.

Though the justices ruled that the case was not moot in light of Cochran's death, the court declined to address the main legal questions surrounding the dispute, deciding only that the injunction was overly broad when evaluated under the change in circumstances that Cochran's death created.

"We need only point out that the injunction, as written, has now lost its underlying rationale," Justice Stephen G. Breyer wrote for the court's majority. Tory v. Cochran, 2005 DJDAR 6227 (U.S. Sct. May 31, 2005).

Ulysses Tory, unhappy with Cochran's legal counsel in his civil rights lawsuit against the city of Los Angeles in the early 1980s, began picketing outside Cochran's office and the Los Angeles Superior Court in the late 1990s.

According to court records, Tory, his wife and others carried placards with messages that included "Johnnie is a crook, a liar, and a Thief" and "Unless You have O.J.'s Millions - You'll be Screwed if you USE J.L. Cochran, Esq."

Tory had indicated he would continue his Cochran protests unless the courts stopped him from doing so or unless Cochran paid him. At one point, he demanded $10 million.

Los Angeles Superior Court Judge Ronald Sohigian found that Tory had defamed Cochran and invaded his privacy.

Sohigian issued a permanent injunction barring Tory "and his employees, agents, representatives, and all persons acting in concert, cooperation or participation with him" from picketing, displaying signs or speaking about Cochran or his law firm.

The 2nd District Court of Appeal affirmed the injunction.

Cochran died March 29, a week after the justices heard oral arguments in the case.

Tory, represented by Duke University law professor Erwin Chemerinsky, argued that the injunction's restraint on all future speech about Cochran and his firm violated basic First Amendment principles.

In a 7-2 opinion, Breyer said that Cochran's death "makes it unnecessary, indeed unwarranted, for us to explore [Tory's] basic claims."

"The grounds for the injunction are much diminished, if they have not disappeared altogether," Breyer wrote. "Consequently the injunction, as written, now amounts to an overly broad prior restraint upon speech, lacking plausible justification. As such, the Constitution forbids it."

Breyer said the case was not moot because the injunction remained in effect.

Cochran attorney Jonathan B. Cole of Nemecek & Cole in Sherman Oaks had filed a supplemental brief with the court after Cochran's death arguing that the injunction, while possibly in need of modification, remained necessary to protect Cochran's firm and his heirs from Tory.

Breyer concluded the court's opinion by saying that any appropriate party was free to ask for such relief.

"We express no view on the constitutional validity of any such new relief, tailored to these changed circumstances, should it be entered," Breyer wrote.

Justice Clarence Thomas filed a dissent joined by Justice Antonin Scalia.

Thomas said the case should have been dismissed as improvidently granted.

Cole agreed, saying that the paramount questions in the case "got washed away" after Cochran's death.

"The opinion didn't do a lot for anybody," Cole said.

When the case returns to the lower court on remand, Cole said, he probably will advise the judge that Cochran's estate will drop the complaint.

If Tory continues his actions, Cole said, Cochran's firm will have to decide what, if any, action to take.

"It's not a road that anyone wants to travel down at this point," he said.

Chemerinsky said he was thrilled to win the case.

"We won narrowly, but we won," he said. "The court made clear that injunctions on speech have to be narrowly tailored."

Another of Tory's attorneys, Jean-Paul Jassy of Sheppard Mullin Richter & Hampton in Los Angeles, said Tory was unavailable to comment on whether he planned to resume picketing. Gary Bostwick of Sheppard Mullin also worked on the case.

Posted 12:30 PM by Howard Bashman

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June 01, 2005

YOU CAN EXPECT PRIVACY IN BED, EVEN IF IT'S NEAR THE FRONT DOOR

By Cheryl Miller
Daily Journal Staff Writer
SAN FRANCISCO - A man's bed does not a threshold make, even if its occupant can open the front door while lying down in it, the 9th U.S. Circuit Court of Appeals ruled Tuesday.

A three-judge panel upheld a district judge's finding that Yakama Nation police should have obtained an arrest warrant for Darrell Quaempts, a sexual assault suspect whose trailer home was so tiny that he was able to open its door to authorities while lying in bed.

The case turned on a 1995 ruling, U.S. v. Vaneaton, 49 F.3d 1423, in which the 9th Circuit said police do not need a warrant to arrest suspects standing on the thresholds of their homes. The opinion held that a structure's threshold is public, not private, space.

At the same time, Chief Judge Mary M. Schroeder wrote, a man's bed is "the sanctuary of the right to privacy." U.S. v. Quaempts, 03-30471.

"By reaching over and opening the door he did not waive the expectation of privacy expressly guaranteed by the Fourth Amendment to all persons to be secure in their houses," Schroeder wrote.

According to court records, police went to Quaempts' trailer on the Yakama Indian Reservation in December 2001 after a woman reported that he had raped her. Officers peeked inside a trailer window and saw Quaempts in bed. A sergeant knocked on the door, identified himself and told Quaempts that he needed to talk with him.

Quaempts opened the door from his bed and was told by the sergeant standing outside that he was under arrest on suspicion of sexual assault. Quaempts told officers, "She came here. I didn't." He then got up, got dressed and was taken to jail in handcuffs.

The circuit panel said Quaempts' post-arrest statement should be suppressed.