Posted 7:30 PM by Howard Bashman

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November 27, 2006

CONGRESSMAN RISES ABOVE IMPEACHMENT
Disgraced Ex-Judge Could Chair House Intelligence Panel

By Lawrence Hurley
Daily Journal Staff Writer

WASHINGTON - Congress could have disqualified U.S. District Court Judge Alcee Hastings from ever holding federal office when he was impeached and removed from the bench in 1989.

But lawmakers didn't go that far, and some now regret it.

Three years later, Hastings won his own seat in Congress, where he remains safely ensconced in a Democratic district in south Florida.

In the shake-up from this month's election, with Majority Leader-elect Nancy Pelosi making committee assignments, Hastings suddenly finds himself a front-runner for a coveted job - chairman of the House Intelligence Committee.

This remarkable comeback by a judge deemed corrupt by legislators who are now his peers can be traced to the quirky evolution of federal impeachment law, which has taken new turns with each use, right up through the proceedings against President Clinton.

Hastings was impeached for his involvement in a bribery scandal that dated back to 1981.

In court, he was acquitted on criminal charges that he conspired to take a $150,000 pay-off to fix a case.

But a federal appellate court conducted its own investigation and recommended that Hastings be impeached.

Congress found Hastings guilty following a trial in 1989, but the Senate - the body that conducts the impeachment trial - did not vote to disqualify him from holding future federal positions.

What is clear, experts say, is that the Senate has the power to do so.

The Constitution states that impeachment can lead to disqualification from "any Office of honor, Trust, or Profit under the United States."

Over the course of American history, seven judges were impeached in the House and convicted in the Senate. But only two have been banned for life from federal office.

They were: Judge West Humphries of Tennessee, who was convicted in 1862 for pledging support to the Confederacy; and Judge Halsted Ritter of Florida, who was convicted in 1936 for bringing the judiciary into disrepute after he was charged with evading taxes, charging exorbitant fees, showing favoritism to litigants and doing legal work on the side.

No Ban for Hastings
In Hastings' case, no lifetime ban was written into the formal articles of impeachment.

There are different theories why.

Charles Geyh, who served as counsel to the House Judiciary Committee soon after Hastings' impeachment, said it might just be an accident of timing.

He noted that Hastings' case followed close on the heels of the impeachment of Harry Claiborne, a federal judge from Nevada.

Claiborne was the first federal official to be impeached in half a century (following Ritter), meaning there were no recent precedents for lawyers investigating his case.

He was eventually convicted and removed from office in 1986 from under-reporting his income in a case that included allegations of bribery.

Because Claiborne was 68 at the time, Geyh said, congressional prosecutors might have ruled out that he would even seek federal office and probably didn't see the need to disqualify him. (Claiborne committed suicide two years ago at his home in Nevada at age 86 while suffering from Alzheimer's disease.)

"They didn't bother because he was an older guy," said Geyh, who now teaches law at Indiana University.

"The word on the street was that they didn't do that with Hastings because they didn't do it with Claiborne."

Geyh further speculated that there may have been pressure in Congress to ensure that Hastings, who is black, was treated the same as Claiborne, who was white.

Republican Rep. Daniel Lungren, who voted to impeach Hastings before leaving Congress in 1989 and who later served as California's attorney general, has a different take on what happened.

He said the failure to include the disqualification language in the articles of Hastings' impeachment was merely an oversight by members of the House.

"For some reason that paragraph wasn't in there," Lungren said in an interview. "I think it was a mistake."

Rep. John Conyers, D-Mich., was chairman of the House subcommittee that carried out the initial investigation into Hastings' impeachment. Conyers, who is now poised to head the House Judiciary Committee, did not respond to a request for comment last week.

FBI Sting
President Carter appointed Hastings to the bench in 1979, making him the first black federal judge in Florida.

Just two years later, the FBI set up a sting operation after receiving a tip that Hastings was willing to take bribes in return for favorable judgments.

Federal agents posing as fixers told an intermediary, lawyer William Border, that they would pay Hastings $150,000 if he would throw out a forfeiture case involving two brothers.

Borders agreed to the deal and Hastings subsequently dismissed the case.

In a criminal trial, Borders was convicted for his role in the bribery sting, but Hastings was acquitted.

A subsequent investigation by the U.S. 11th Circuit Court of Appeal concluded that Hastings' exoneration came in large part because he had lied on the witness stand.

Hastings has always maintained his innocence.

In 1989, both Pelosi and Conyers voted to impeach Hastings, along with 411 other members of the House.

Only three members voted against impeachment.

The Senate then voted 69-26 to remove Hastings from office after deliberating behind closed doors for seven and a half hours.

Hastings appealed his Senate conviction, arguing that he did not receive a fair trial on the grounds that the whole Senate has to hear the evidence first-hand rather than the committee that was given the task.

A District of Columbia federal judge backed his claim. But his fate was sealed when the U.S. Supreme Court held in a related challenge brought by impeached Judge Walter Nixon that the courts do not have jurisdiction over Senate impeachment deliberations. Nixon v. United States, 506 U.S. 224 (1993).

Ban Might be Moot
Some legal scholars believe Hastings couldn't have been prevented from running for Congress even if lawmakers had taken a hard line on his impeachment.

According to this view, the impeachment clause in the Constitution only allows disqualification from appointed or civil service positions and does not include elected positions.

A case in point is the nation's very first impeachment proceedings, brought against U.S. Sen. William Blount of Tennessee, who was accused in 1797 of colluding with the British after the American Revolution.

The Senate ultimately dropped all charges because members believed Blount was not technically an "officer" of the United States, according to University of North Carolina Law School's Michael J. Gerhardt, author of "The Federal Impeachment Process: A Constitutional and Historical Analysis."

"The Senate dismissed it because ... he was not an officer," Gerhardt said.

That didn't stop some senators from at least discussing taking further action against Hastings after he was elected to Congress in 1992, according to Gerhardt.

Some openly questioned whether they had jurisdiction to return to the disqualification issue to prevent him from serving in Congress, but no formal action was taken.

Hastings was 53 when he made his comeback. Voters have re-elected him seven times, including this month, to his district in the area of Fort Lauderdale, Fla.

Although Hastings has now served for 14 years without controversy, the possibility that he will be named chairman of the intelligence committee has once again raised questions about his integrity.

'Culture of Corruption'
He is an obvious target for conservatives, particularly because the "culture of corruption" in Congress is one of the themes that Democrats used against Republicans this election season.

Judicial Watch, the conservative legal watchdog group, was quick to bring up Hastings' impeachment as grounds for Pelosi to pass him over for the chairmanship.

Tom Fitton, the group's president, said in an interview that the impeachment showed Hastings is "untrustworthy as a public servant."

He conceded that Hastings has served in Congress without any whiff of corruption, but he said the stakes are higher now.

"As chair of the intelligence committee he would be a keeper of national secrets," Fitton said. "This ups the ante."

The chairman of the committee is privvy to classified material that is not generally available to those outside of the intelligence community. Even other members of the committee and staffers are kept in the dark.

Hastings is known as an expert on foreign affairs and has served on the intelligence committee since 1999.

"I've earned my stripes," he told the Washington Post earlier this month.

Hastings' office did not respond to repeated phone calls seeking his recollection of the impeachment and how it bears on his current situation.

Hastings appears to have strong support from the Congressional Black Caucus, whose members say the time is ripe for a minority to run the committee, according to media accounts.

Rep. Melvin Watt, D-N.C., chairman of the Congressional Black Caucus, which is lobbying on Hastings' behalf, declined to comment.

Whether Hastings has broader backing in Washington is unclear.

His hometown newspaper, the Sun-Sentinel of Fort Lauderdale, has come out in his favor, saying in an editorial that Hastings has "handled highly sensitive information without a hint of scandal or incompetence."

The paper went on to add that there is no evidence of "recent infractions that would disqualify Hastings" from chairing the committee.

But veteran Washington Post columnist Ruth Marcus, who covered the impeachment trial, doesn't agree.

"I can't get past the facts of the case, which convince me that Hastings did indeed agree to conspire ... to solicit the bribe," she wrote in a recent column.

For his part, Congressman Lungren, who now represents the Sacramento area, calls Hastings a "nice guy" whom he frequently sees in the Capitol parking lot.

But Lungren said that in light of recent scandals involving members of Congress, committee chairmen should be held to a higher standard.

"The question is: Are we mature enough about the job we have here that we put aside friendship for a higher obligation?" he said.

A spokeswoman for Pelosi, Jennifer Crider, said assignments on the intelligence committee will not be made until January.

She refused to comment on Hastings' impeachment.

Posted 11:54 AM by Howard Bashman

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November 10, 2006

DEMOCRATS WILL REVISIT MILITARY HABEAS DEBATE
Likely Chair Leahy Objects to Limits on Detainees' Rights

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - An effort to restore habeas corpus rights for enemy combatants could be the first test of the Democrats' resolve to change course in the Senate Judiciary Committee.

Sen. Patrick Leahy of Vermont, who is expected to become chairman, confirmed Thursday that he is drafting a bill to undo portions of a recently passed law that prevent terrorism detainees from going to federal court to challenge the government's right to hold them indefinitely.

Reversing the Damage
Leahy's goal is to "try and do something to reverse the damage," said his spokeswoman, Tracy Schmaler.

Depending how the legislation is worded, it could set up a partisan showdown and even draw a veto from President Bush, according to experts.

It was just last month that Bush, with strong Republican backing in Congress, signed the law that suspends habeas rights for detainees and sets up a new protocol for trying them before military commissions.

Many Democrats opposed the Military Commissions Act largely because of the language that prevents detainees from challenging their confinement. Some also had concerns about the definition of torture in the law, with critics complaining that certain procedures that could be described as torture were not categorically outlawed.

The act is so controversial that civil rights lawyers filed a constitutional challenge immediately after Bush signed it.

'It Was Crazy'
Multiple cases are currently pending before the U.S. Court of Appeals for the D.C. Circuit.

Leahy, who was among the 32 Democrats who voted against the bill, has been the most outspoken critic of the restrictions on habeas corpus.

"It was crazy," he said during an interview broadcast Wednesday on National Public Radio. "After 200 years of habeas corpus, we threw it out after just a few hours of debate."

He has also voiced concern that the bill allows the White House to determine what kinds of coercive interrogation procedures are off-limits.

As the ranking Democrat on the Judiciary Committee, Leahy is set to replace Sen. Arlen Specter, R-Pa., as chairman. Specter also spoke out against the provisions of the detainee bill that stripped habeas corpus rights, but he ultimately voted in favor of the legislation.

Observers say they aren't surprised that Leahy wants to use his new power to reverse course.

"Obviously that's a sentiment shared by many," said Scott L. Silliman, Director of the Center for Law, Ethics & National Security at Duke University School of Law.

He described the habeas corpus section as "the most controversial part of the act" and characterized the debate over its constitutionality as "a close question."

Leahy's hint that he will take quick action won praise from Bill Goodman, legal director of the Center for Constitutional Rights in New York, which brought one of the pending court challenges.

"The court challenge will proceed unless the members of Congress are able to amend the statute," Goodman said.

At issue in the litigation is whether Congress had the power to declare that habeas corpus restrictions first enshrined in the December 2005 Detainee Treatment Act can be applied retroactively to detainees who were picked up following the Sept. 11, 2001, terrorist attacks.

The U.S. Supreme Court ruled earlier this year that the Detainee Treatment Act was not retroactive. Hamdan v. Rumsfeld, 126 S. Ct. 2749.

The law enacted last month allows detainees a limited right of appeal in federal court, but only after a military tribunal convicts them.

Silliman speculated that Leahy could win broad support in Congress if it is narrowly drafted so as to restore habeas rights only for detainees who already have petitions pending in court, but would shut off that avenue for detainees to file habeas petitions in the future.

"There would be a lot of people in agreement with that," Silliman said.

But he cautioned even with control of both chambers of Congress, Democrats will likely face opposition from Republicans who supported the original bill.

Furthermore, experts point out that Bush could veto any law that Congress passes. Silliman said he doubted whether Democrats would be able to garner enough votes to withstand a veto. To do so, they would need a two-thirds majority in both chambers.

Posted 12:00 PM by Howard Bashman

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November 09, 2006

JUDICIARY PRIORITIES SHIFT LEFT IN CONGRESS
Democratic Chairman Conyers Will Ease Up on Judges and Bear Down on Bush

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - The mid-term election victory for the Democrats Tuesday night drastically alters the landscape in Congress on vital legal issues affecting California.

The House of Representatives, in Democratic hands for the first time in 12 years, will likely play tough with President Bush over terrorism surveillance, but may be more willing than Republicans to reach middle ground on immigration reform, according to political observers.

Republican-led attacks on the judiciary will likely fade into the background, including the threatened impeachment of Los Angeles judge Manuel Real, as will proposals to split the 9th U.S. Court of Appeals into two separate courts.

California may even pick up some new federal judgeships to deal with the state's heavy caseload at both the district and appellate court levels.

But perhaps most significant, with Democrats poised to control the Senate pending a possible recount in a Virginia race, the Bush administration's ability to confirm judicial nominations favored by conservatives is in doubt.

This could be doubly important if there is a Supreme Court vacancy during Bush's last two years in office.

The Democrats are likely to take vastly different positions than Republicans on some other hot-button issues, including tort reform, which they generally oppose; criminal sentencing, on which they may be less strict; and enforcement of antitrust laws, which they are expected to champion.

Lobbyists from the business community in Washington already have voiced concern that a Democratic-controlled Congress could seek to increase plaintiffs' rights.

In both chambers, most of the key legislation affecting the legal community passes through the judiciary committees, meaning the chairmen of those two committees each play a crucial role.

They decide the agenda and wield enormous influence over which pieces of legislation come up for a vote.

In the House, John Conyers of Michigan is in line to be chairman of the committee. The new chairman of the Senate Judiciary Committee - if the Democrats succeed in capturing 51 seats - is likely to be Patrick J. Leahy of Vermont.

Liberal Chairman
Conyers couldn't be more different from the man he is due to replace, hard-line conservative F. James Sensenbrenner Jr., R-Wis.

Known as one of the most liberal members of Congress, Conyers is a strong advocate for civil liberties, abortion rights and other liberal causes.

During his time as the ranking Democrat on the committee, he frequently tangled with Sensenbrenner over what he saw as insufficient oversight of the Bush administration's war on terror.

Conyers and his fellow Democrats held their own hearings and prepared a 270-page report that they claimed showed the manipulation of intelligence information prior to the war in Iraq.

Conyers also sued the president for signing a budget bill that was allegedly different from the measure passed by Congress. Just last week, a Detroit federal judge dismissed the suit.

Conyers initially suggested that there were grounds to impeach Bush, but he has since backed down. He wrote in the Washington Post in May that he would not immediately begin impeachment hearings if he became chairman.

But he promised "comprehensive oversight of these alleged abuses."

Democratic leader Nancy Pelosi of San Francisco, who is poised to become Speaker of the House, said prior to the election that impeachment of Bush was "not on the table" if her party won.

Tabling the 9th Circuit Split
For California lawyers, perhaps the biggest impact of a Democratic-controlled House is that it will once again stall the long debate over splitting the 9th Circuit.

One Washington lobbyist who has followed the issue in recent months said he would be surprised if Conyers even put a 9th Circuit bill on the committee's agenda, even though the Democrats would have the numbers to vote it down.

"It would have to be a mighty big horse trade at the end of a session for Conyers to let this slip through," the lobbyist said.

The federal judiciary could potentially benefit from the change in party control.

Funding for new judgeships has been thwarted in recent years, in part because Sensenbrenner has insisted that a 9th Circuit split must come first.

The U.S. Judicial Conference says California's federal courts need 12 additional judges, including three in the northern district, four in the eastern district, four in the central district, and one in the southern district.

The judiciary also has asked to add seven judges to overburdened 9th Circuit.

Douglas Kmiec, a law professor at Pepperdine University, said he's not so sure Democrats are interested in creating new judgeships for a Republican president to fill.

"President Obama maybe," he said in reference to Sen. Barack Obama, D-Ill., considered a possible contender for the White House in 2008. "But not President Bush."

Inspector General a No-Go
The Republican led-effort to split the 9th Circuit was part of a wider attack on the judiciary by Sensenbrenner and other conservatives, who vowed to rein in wayward judges.

It's a trend that culminated with Real, a district judge in Los Angeles since 1966, facing a formal impeachment investigation earlier this year based on allegations that he improperly tried to help a litigant in his court.

Sensenbrenner also introduced a bill to set up an office of inspector general for the judicial branch, a proposal uniformly opposed by the judicial establishment.

University of Pittsburgh law professor Arthur Hellman, who often testifies before Congress on legal issues, said the inspector general bill will get nowhere in a Democrat-controlled House.

Hellman also predicted the Real investigation would peter out.

Immigration Reform Likely
There may be little for the Bush administration to cheer about with Conyers in charge of the House Judiciary Committee, but there is at least one issue that could lead to bi-partisan agreement: immigration.

The president's much-trumpeted comprehensive immigration reform package stalled in the House under Republican control because the more conservative members, like Sensenbrenner, opposed any attempt to allow illegal immigrants a passage to citizenship.

Democrats are much more amenable to the idea, Kmiec noted.

"That's a place where the president and John Conyers have the beginning of common ground," he said.

President Bush conceded as much Wednesday during his post-election press conference, telling reporters there's now a "good chance" of his legislation passing.

Spotlight on Nominations
Judicial nominations will take center stage in the Senate if the Democrats successfully take control, particularly if there is a vacancy on the Supreme Court in the next two years.

As the ranking Democrat on the Judiciary Committee, Leahy is the odds-on favorite to succeed Republican Arlen Specter of Pennsylvania as chairman.

There is a possibility, though, that Sen. Edward M. Kennedy of Massachusetts, who has seniority over Leahy, could take the role if he chooses to give up the chairmanship of the Health, Education, Labor, and Pensions Committee.

Kennedy and Leahy, who have each served as chairman of the committee before, would adopt a similar approach to nominations, according to experts.

"They would both be tough on Bush nominees," Hellman said.

The White House hasn't had to show much deference to Democratic leaders since the 2002 elections, when the Republicans assumed control, experts note.

The Democratic gains in the Senate also mean all bets are off on the 2005 compromise agreement between 14 moderate senators from both parties that put a halt to Democratic filibusters of the president's nominees.

Pepperdine's Kmiec said he could see "little political incentive for the Democrats to maintain that bargain" now that they - at a minimum - hold 48 seats and can rely on the votes of two independents.

Michael Gephardt, a law professor at the University of North Carolina, suggested that there is likely to be fewer filibusters over judicial nominations, but only after "probing inquiries" of the nominees.

Kmiec said Bush will have to make concessions when picking nominees and he may find that the nomination process slows down considerably.

"I would assume that the committee would be less congenial for the president's nominees, and conservative nominees in particular," he said.

The White House will likely face resistance from Democrats to any nominee they haven't vetted in advance, according to Thomas Mann, a senior scholar at the Washington-based Brookings Institution.

"Bush, like Clinton, would have to reach accommodation on appointments with key members of the other party," he said.

The nominations issue would reach a boiling point if there were a vacancy on the Supreme Court.

Democrats would now have a major role to play, which could force Bush to pick someone with a less conservative record than his two appointees from last year, John G. Roberts Jr. and Samuel A. Alito Jr.

Kmiec said the White House could well turn to a member of the Senate or a state judge because such a nominee would not have a federal judicial record for Democrats to take issue with.

Aside from judicial nominations, a Judiciary Committee under Leahy's control is, like its counterpart in the House, likely to undertake vigorous oversight of some Bush administration actions, including its warrantless wiretapping program.

The American Civil Liberties Union filed suit to halt the program soon after The New York Times revealed its existence in December 2005.

A Detroit federal judge declared the program unconstitutional this summer. The issue is currently before the 6th U.S. Circuit Court of Appeals, which has allowed the White House to continue use of the program while the case is pending.

The Senate, unlike the House, has yet to pass legislation that would endorse the program.

Congress' seal of approval would give the White House extra ammunition with which to defend itself from the ACLU's suit.

Gephardt said if Democrats are in charge, they are much more likely to hold further hearings on the lawfulness of the wiretapping and investigate "what exactly the administration has been doing."

Posted 11:44 AM by Howard Bashman

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October 12, 2006

State's Scheme for Sentencing Perplexes Court
Justices Try to See Regime in Context of Federal Guides

By Brent Kendall
Daily Journal Staff Writer
WASHINGTON - Wednesday's U.S. Supreme Court argument over the constitutionality of California's criminal sentencing system was anything but clear-cut, as the justices seemed unsure of how they should deal with the state's scheme.

In one breath, the court expressed concern that California's system violated earlier high court decisions that barred judges from using their own fact-finding to add extra prison time to criminal sentences.

Three justices from the majority in those earlier cases - John Paul Stevens, Antonin Scalia and David Souter - clearly suggested that California's system violated that rule.

But in the next breath, a number of justices wondered whether the state's regime might be the functional equivalent of the advisory system that now governs federal sentencing, a system the Supreme Court itself created nearly two years ago after it invalidated the mandatory federal sentencing guidelines in U.S. v. Booker, 543 U.S. 220 (2005).

"The thing that concerns me ... is that California's system looks a lot like the federal system after Booker," Chief Justice John G. Roberts Jr. said.

To further complicate matters, the court at times seemed unclear of exactly how the California system functioned.

Justice Stephen G. Breyer expressed this sentiment succinctly while discussing the California Supreme Court's key opinion in People v. Black, 35 Cal.4th 1238 (2005), which upheld the state sentencing system.

"To be honest, I don't know what Black means," Breyer said.

During the head-scratching, hour-long argument, the court waded through the details of California's determinant sentencing law, which gives judges three sentencing choices for most criminal offenses.

Under the system, judges are instructed to sentence a defendant to the middle term of imprisonment unless aggravating or mitigating factors counsel in favor of the longer or shorter term.

San Pablo defendant John E. Cunningham, who in 2003 was given an upper-term sentence of 16 years in prison for continual sexual abuse of a child, challenged the law after Contra Costa County Superior Court Judge Theresa Canepa gave him four extra years based on her own fact-finding.

Among other things, Canepa found that Cunningham was a police officer at the time of the crime and that his criminal acts involved great violence, a vulnerable victim and conduct that was a serious danger to society.

Cunningham attorney Peter Gold argued Wednesday that the sentence violated the bright-line rules set forth in Blakely v. Washington, 542 U.S. 296 (2004), and Apprendi v. New Jersey, 530 U.S. 466 (2000), that judges cannot hand down enhanced sentences based on facts that were not found by a jury beyond a reasonable doubt.

Gold said the middle-term sentence, which in Cunningham's case was 12 years, was "the greatest punishment a judge can impose based solely on the facts reflected in the jury's verdict."

The state Supreme Court, in an opinion by Chief Justice Ronald M. George, took a different reading of state law, saying a jury's verdict authorized a California judge to sentence a defendant to any of the three tiers, provided the sentence was reasonable.

George also said the California system gave judges the same kind of discretion allowed in the federal system after the U.S. Supreme Court decided Booker.

Under questioning from Roberts, Gold said the state Supreme Court "seriously misread" the Booker decision.

The key difference, Gold said, was that the new-look federal system was an advisory one, while the California system was not.

Numerous questions from the court, however, indicated that some justices were concerned that a ruling striking down California's law might impact the federal regime.

Justice Samuel A. Alito Jr., who, like Roberts, seemed to be leaning in California's favor, said he didn't "understand the distinction" between the state system and the federal system. The two, he suggested, functioned equivalently.

Roberts and Alito were not on the high court when it decided the earlier sentencing cases.

State Deputy Attorney General Jeffrey Laurence, who argued California's case, tapped into some of the justices' concerns, arguing that if the court ruled against the state, "you would be basically throwing into doubt the way Booker has reformed the federal system as well."

Laurence was met with stiff resistance from Stevens, Scalia and Souter, who were part of 5-4 majorities in Apprendi, Blakely, and the portion of Booker that struck down the mandatory federal system.

Scalia said the California system was clearly different than the federal advisory scheme. At times, he also expressed doubt that the California system functioned in the manner that Laurence said it did.

Stevens, for his part, said that the impact of Blakely had not been "such a big deal as we thought it might be." Other states that had been forced to change their systems, he said, appear to have adapted well.

"Well, your honor, it would certainly be a big deal to California," Laurence responded.

California courts, Laurence said, would be forced to hold secondary trials to let juries rule on aggravating factors. And prosecutors, he said, would be burdened with having to identify such factors up front.

Laurence said thousands, "possibly tens of thousands," of cases might have to be resentenced.

The two other members of the Blakely and Apprendi majorities were less vocal during Wednesday's argument. Justice Clarence Thomas, as is his custom, was silent.

Justice Ruth Bader Ginsburg, who could prove to be the key vote in the case, did not tip her hand.

Notably, Ginsburg switched camps on the remedial portion of the Booker opinion and joined the four dissenters to save the federal guidelines as an advisory scheme. That position-switch makes her vote something of a wild card.

At one point Wednesday, Ginsburg asked whether the California and federal systems were similar, but she later suggested that the two had significant differences.

It was unclear how the court's two remaining Blakely dissenters, Breyer and Justice Anthony M. Kennedy, would rule in the case. Both sent mixed signals during the argument.

Breyer said he had "no doubt" that the state Supreme Court's Black opinion was "written to try to save the California system."

However, he seemed unclear that Black had actually done so.

The state court, he suggested, had sent mixed signals about how state law actually operated.

"All right," he asked, "so now what do I do?"

Posted 9:20 AM by Howard Bashman

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September 22, 2006

Judge Tells Congress He Did Nothing Wrong
House Panel Will Wait for Findings By 9th Circuit Before Deciding Anything

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - Los Angeles federal judge Manuel L. Real forcefully defended himself before Congress Thursday against a Republican-led investigation that could lead to his impeachment.

The 82-year-old, who has been on the bench for 40 years, insisted he did nothing wrong when he took control of a bankruptcy case involving a woman whose probation he was overseeing.

But even as the House Judiciary Committee opened its investigation, members from both sides of aisle hinted that Congress is unlikely to take further action until after the 9th U.S. Circuit Court of Appeals completes its own investigation into the allegations.

Real opened his remarks by refuting the allegations against him made by Venice-based civil rights attorney, Stephen Yagman, who claimed in his 2003 complaint that the judge "acted inappropriately to benefit an attractive female."

Yagman said he bears no ill will toward Real, but the judge testified to the congressional panel that Yagman has a personal vendetta against him.

"I'm here to tell you: I categorically deny committing any misconduct in that case," Real told the committee.

During his testimony he consulted with his lawyer, Donald C. Smaltz, on several occasions.

At times the hearing resembled a court proceeding, particularly when Smaltz leapt to his feet to object to a question posed by Rep. Lamar Smith, R-Texas, who asked Real whether he should have recused himself from Canter's case.

Smaltz withdrew his objection when Smith re-phrased his query.

Smith presided over the hearing as chairman of the Subcommittee on Courts, the Internet, and Intellectual Property. House Judiciary chairman R. James Sensenbrenner, R-Wis., had ordered Smith's subcommittee to take up the case two months ago as a prelude to a possible impeachment proceeding.

Congress last impeached a judge in 1989.

Sensenbrenner has repeatedly voiced frustration that the 9th Circuit didn't act fast enough to thoroughly investigate claims of misconduct against Real. The 9th Circuit's current inquiry, which is confidential, marks the third time it has reviewed Yagman's complaint.

The central allegation in the case, which dates back to 1999, is that Real had ex parte communications from a woman whose criminal probation he supervised, Deborah Canter, in which she asked for his help while she was facing bankruptcy.

Canter did not attend Thursday's hearing, but her current attorney, Michael Proctor, watched from the audience.

Real has denied ever receiving any letter from Canter. He outlined Thursday why he removed the bankruptcy case from the jurisdiction of a bankruptcy judge.

The judge explained that it came to his attention that a confidential pre-sentence report from Canter's earlier fraud case had been, in his view, wrongly introduced into the record of the bankruptcy case.

Real decided that, rather than asking the bankruptcy judge to deal with it, he would take the case himself, as he is allowed to do so through his authority as a district judge.

"I took the bankruptcy case because I wanted to know if the pre-sentence report had been misused," Real told the committee. "I did not do so to benefit Ms. Canter ... or because I had any personal relationship with her."

Several Republican members of the committee probed Real as to the nature of his relationship with Canter.

Rep. Chris Cannon, R-Utah, bluntly asked: "Was Ms. Canter attractive?"

Real paused before replying.

"She was not attractive to me," he said.

He also stressed that he had met Canter only on five occasions, three in open court and two in his chambers with a probation officer present.

The subcommittee chairman, Smith, asked another witness, Canter's former lawyer, Andrew Smyth, for his views on Real's judicial temperament.

Smyth responded that Real was "autocratic ... arrogant, and rude in the way he talks."

This prompted Cannon to observe that judges need strong personalities, but should be careful of crossing the line.

"On the one hand, we want tough judges," he said. "But we don't want autocratic judges who abuse their position."

Under questioning from lawmakers, Smyth also described Yagman as a "self-promoter," who was sometimes "almost reckless" in the way he pursued cases against the police.

Rep. Maxine Waters, D-Calif., said she was concerned that the complaint Yagman made against Real was motivated by a desire for revenge.

Real fined Yagman $250,000 in 1984 after the attorney said the judge was suffering from a mental disorder.

"Yagman seems to have put a lot of time into going after Judge Real," Waters said.

Yagman, who is under indictment for tax evasion and fraud in an unrelated case, said in an interview Thursday that he does not have a vendetta against Real.

"I don't presently have any beef with him," he said.

Responding to Smyth's comments about him, Yagman said he didn't know how Smyth could have reached his conclusions.

"I don't know him and he doesn't know me," he said.

The 9th Circuit now has a special committee investigating the case.

Chief Judge Mary Schroeder had previously dismissed the case against Real on two occasions, as did the 9th Circuit's judicial council.

A national panel of judges also reviewed the case but concluded it could not reach the merits because Schroeder had not ordered the full investigation.

Earlier this week, a committee headed by Supreme Court Justice Stephen Breyer criticized the 9th Circuit's handling of the complaint in a report on judicial discipline.

Members of Congress from both parties said Thursday that the committee would likely wait until after the special committee makes its findings before taking any further action.

"I hope we can wait for the report," said Cannon. "The problem here is complex."

Rep. Howard Berman, D-Calif., agreed that the committee should back off while the 9th Circuit investigates.

"That's the obvious thing to do," he said after the hearing. "That's what I think will happen."

Two law professors who testified at the hearing also urged the committee to wait. They are Charles Geyh, of the University of Indiana at Bloomington, and Arthur Hellman, of the University of Pittsburgh.

Hellman, speaking afterward, said the recent criticism of the judiciary, led by Sensenbrenner, might have already served its purpose.

The publication of Breyer's report and the vote this week by the U.S. Judicial Council to tighten its regulations on financial disclosures and attendance at privately funded seminars shows that the judiciary has responded to the criticism, he added.

"Sometimes the judiciary needs to be pushed," Hellman said.

Posted 2:33 PM by Howard Bashman

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September 21, 2006

Former Governor Wilson Testifies Against Splitting 9th Circuit

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - California political heavyweight Pete Wilson, the former Republican governor and U.S. senator, has joined the fight against splitting the 9th U.S. Circuit Court of Appeals in two.

He testified at a Wednesday Senate hearing against legislation that would create a new 12th Circuit comprising seven western states and leave California in the 9th Circuit along with Hawaii and the Pacific island territories.

Trying a new tactic in a long-running battle, Wilson challenged the notion that a new circuit would be more philosophically attuned to the area it covers than the California-dominated 9th Circuit is.

He observed that the new court would be bound by 9th Circuit precedent for years while it builds its own case law, meaning little change in the substance of its decisions for some time.

"Nothing Congress does will enable a new 12th Circuit to create precedents anew as if on a blank canvas," Wilson told judiciary committee members. "To the contrary, any new circuit will be bound to all the 9th Circuit's precedents."

Any change, he added, "will be so gradual and time-consuming as to not likely be noticed much in our own lifetime."

Wilson cited the two previous circuit splits to bolster his argument.

The 10th Circuit (created out of the 8th Circuit in 1929) and the 11th Circuit (created out of the 5th Circuit in 1981) each follow precedents set by the original court.

The former governor also warned that, if any future legislation sought to force a new 12th Circuit to follow the precedent of any other circuit apart from the 9th, it "would face the gravest of challenges under the Separation of Powers doctrine and other constitutional mandates."

The current legislation before the Senate does not contain such a provision.

Supporters of a split, including 9th Circuit Judges Diarmuid O'Scannlain and Richard Tallman, also appeared at Wednesday's hearing in Washington, as did Chief Judge Mary Schroeder, who opposes the measure.

It was the latest in a number of hearings on proposals to split the circuit in recent years, with most of the witnesses repeating points they have made before.

O'Scannlain, who is based in Portland, Ore., said in an interview before the hearing that the need for the split is even more pressing now than it was in the fall of 2005, the last time the Senate debated the issue.

That's because the backlog of cases in the 9th Circuit is now 17,000, O'Scannlain said.

"The backlog is increasing," he said. "That's the highest it's ever been."

The bill that would split the 9th Circuit has failed to progress in part because of the staunch opposition of Sen. Dianne Feinstein, D-Calif., who sits on the Judiciary Committee.

Feinstein reaffirmed her position at the hearing, saying in her opening statement that she believes efforts to split the circuit "are part of an assault on the judiciary by those who disagree with some courts' rulings."

Testifying against the split at Wednesday's hearing were Sens. Barbara Boxer, D-Calif., and Sen. Max Baucus, D-Mont.

Testifying in support of the split were Sen. Lisa Murkowski, R-Alaska, and Sen. John Ensign, R-Nev.

Murkowski complimented the court on its use of technology to manage its large caseload, but she said a split is still necessary.

"We are treading water, but I see a tidal wave coming that technology will not help us get around," Murkowski said.

She also stressed that, although the configuration of each circuit "is not set in stone, ... any changes to the 9th Circuit should be guided by concerns of efficiency and administration, not ideology."

Wilson is a long-standing opponent of splitting the court who testified against a similar proposal in 1990, when he was a senator.

On that occasion, he argued that the proposal was "environmental gerrymandering" by those upset with some decisions by California-based judges.

Also testifying against the split at Wednesday was William Neukom, the Seattle-based former general counsel of Microsoft, who argued that the split would be bad for the business community.

The Bush administration, represented by Assistant Attorney General Rachel L. Brand, offered its support of the split legislation.

Brand highlighted the delays in the hearing of cases.

"This inefficiency impacts negatively on both the Department of Justice, as a frequent litigator in the 9th Circuit, and other parties waiting for their cases to be resolved," Brand said.

Under the current proposal in Congress, the new Phoenix-based 12th Circuit would comprise Alaska, Arizona, Idaho, Montana, Nevada, Oregon and Washington.

The new 9th Circuit would comprise California, Guam, Hawaii and the Northern Mariana Islands.

Los Angeles lawyer Harvey Saferstein, who is helping to coordinate the anti-split efforts, said he believes committee members will come to realize what he perceives as the widespread opposition to the split in the legal community.

Wilson's presence helps make the point that it is a bipartisan effort, he added.

"Conservatives and liberals think this is a bad idea," Saferstein said.

Most Congress watchers don't expect the Senate to take any action on the 9th Circuit proposal because of a lack of time.

Only two weeks remain until the Senate is expected to adjourn for election season.

"It's hard to see how they can do anything this year," said University of Pittsburgh law professor Arthur Hellman, an expert on the 9th Circuit.

After the hearing, Wilson said he doesn't anticipate the legislation passing this year.

"There seems to be a substantial amount of opposition," Wilson said.

Posted 9:15 AM by Howard Bashman

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September 20, 2006

Panel Likes Handling of Most Misconduct Cases
But Federal Judiciary Doesn't Do Well With High-Profile Complaints, It Says

By Brent Kendall
Daily Journal Staff Writer
WASHINGTON - A special committee headed by Supreme Court Justice Stephen G. Breyer concluded Tuesday that the federal judiciary has done well in addressing the vast majority of misconduct complaints against judges but has come up short in a number of recent high-profile cases.

Breyer's committee found that, overall, the judiciary appropriately handled between 97 percent and 98 percent of judicial misconduct complaints filed from 2001 to 2003.

However, Breyer's committee also found that the judiciary mishandled five of 17 high-profile misconduct cases that arose between 2001 and 2005, an error rate of 29 percent.

The committee described the misconduct case against U.S. District Judge Manuel L. Real of Los Angeles as one of those five high-profile missteps, though the committee did not identify Real by name in its report.

Also Tuesday, the Judicial Conference of the United States, the policymaking body for the federal courts, announced that it had adopted two new policies designed to ensure that judges comply with their ethical obligations.

The conference voted to require private organizations that sponsor judicial-education seminars to disclose all of their financial supporters. The conference also approved a measure requiring all federal courts to use computer software that flags cases in which a judge has a financial conflict of interest.

Breyer, appearing with Chief Justice John G. Roberts Jr. at a press briefing to discuss the committee report, said the judiciary's error rate for processing high-profile misconduct complaints was "unacceptably high," especially because the public paid attention to those cases.

"The public tends to judge the judiciary based on what they read about," Breyer said.

Breyer also worried that the visible mishandling of complaints might discourage others from filing complaints.

For his part, Roberts focused on the judiciary's overall handing of complaints.

"By and large, the judiciary does an excellent job," Roberts said.

But he added, "Improvement is needed in how those [high-profile] cases are handled."

Breyer's committee offered a dozen recommendations for courts to better handle misconduct charges. Those include:

Urging the Judicial Conference to play a more active role in advising chief judges and judicial councils on how to handle complaints appropriately.

Encouraging courts, in certain circumstances, to consider stepping aside and letting another judicial circuit resolve misconduct charges.

Requiring courts to post easily available information on their Web sites explaining how individuals can file misconduct complaints.

Breyer's committee has been studying the issue since 2004, when Chief Justice William H. Rehnquist formed the special investigative panel in response to complaints from Congress.

Lawmakers, most notably House Judiciary Committee Chairman James Sensenbrenner, R-Wis., have criticized the federal courts for not taking appropriate steps to investigate and discipline judges accused of misconduct.

Earlier this year, Sensenbrenner proposed that Congress create an inspector general to exercise independent oversight of judges' actions, a proposal that has come under fire for raising separation-of-powers concerns.

Tuesday's report appeared to reject Sensenbrenner's criticism on a general level, while at the same time validating the congressman's concerns with respect to certain specific cases.

In addition to the Real complaint, another case the committee singled out was one involving Judge Richard D. Cudahy of the 7th U.S. Circuit Court of Appeals, who in 2000 had leaked sealed grand-jury material related to the Monica Lewinsky scandal to the Associated Press.

Sensenbrenner filed a complaint against Cudahy, but Judge Richard Posner, then the 7th Circuit's chief judge, dismissed it after deciding that no further investigation was necessary.

The Breyer committee said Posner should have appointed a special committee to investigate the incident.

Cudahy apologized for the leak, saying it was inadvertent.

Sensenbrenner and other House Republicans also were critical of U.S. District Judge James M. Rosenbaum of Minnesota, alleging that he issued illegally lenient sentences in drug cases and misled a House Judiciary subcommittee in testimony about his sentencing practices.

Sensenbrenner filed no formal complaint in the case, but the Breyer committee's report said that the 8th Circuit's chief judge, aware of the House criticism, should have initiated his own limited inquiry into Rosenbaum's actions, even if he believed no corrective measures were necessary.

Sensenbrenner said late Tuesday that he had not had an opportunity to fully review the committee's report but was encouraged that "the committee acknowledges there have been problems with the enforcement of the judicial discipline construct in recent years, particularly in high-profile cases."

"Today's report finds the judicial branch bungled all of the matters in which the House Judiciary Committee conducted extensive oversight," he said.

The Breyer report's discussion of specific cases did not identify any judge, court or complaining party by name.

Breyer said the committee was required by law to "maintain maximum anonymity." In each of the cases the committee studied, all names were first redacted out of the complaints, he said.

Breyer stressed that, while the committee found that certain complaints were mishandled, its report did not speak to whether the judges in those cases were guilty of misconduct.

He speculated that the error rate in the handling of prominent misconduct complaints might have been higher because the cases posed more difficult questions.

In undertaking its investigation, Breyer's committee examined a subset of the 2,000 complaints filed from 2001 to 2003, including all complaints filed by attorneys. In all, the committee reviewed 700 cases.

It reviewed the high-profile cases separately, looking back over a five-year time frame.

The overwhelming majority of misconduct complaints are dismissed by the chief judges of the federal judicial circuits. On rare occasions, chief judges appoint special committees to investigate misconduct charges.

On the committee with Breyer were 8th Circuit Senior Judge Pasco M. Bowman, 4th Circuit Judge J. Harvie Wilkinson, U.S. District Judges Sarah Evans Barker of Indiana and D. Brock Hornby of Maine and Sally M. Rider, Rehnquist's longtime administrative assistant.

Breyer said that, while the committee was aware of public concerns related to judges' attendance at private judicial seminars, the issue was outside of the committee's area of study.

The issue, however, was a prime focus of the Judicial Conference's biannual meeting in Washington Tuesday.

Just an hour after the release of the Breyer committee report, the conference announced its new rules related to seminars and to the mandatory use of computer software to detect financial conflicts of interest.

"It's a very strong statement by the Judicial Conference," said Chief District Judge Thomas F. Hogan of Washington, D.C., who chairs the conference's executive committee.

Under the conference's new policy on seminars, a judge cannot accept travel, food, lodging or any reimbursement for a privately sponsored event unless the organization hosting the event has disclosed publicly all its sources of financial support.

"We're going to know who these donors are," Hogan said.

Once judges attend such events, the new policy requires them to file disclosure reports on their trips within 30 days.

Sen. Patrick Leahy, D-Vt., who has pushed legislation that would bar judges from accepting privately funded trips, praised Tuesday's action.

"The conference's new travel policy governing the many private judicial seminars held around the world is another wise reform that provides much-needed transparency that will benefit both the public and judges themselves," Leahy said.

On the issue of software screening, the conference said its new policy would supplement each judge's individual review of his or her recusal obligations related to financial conflicts.

Posted 9:05 AM by Howard Bashman

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September 20, 2006

Breyer's Committee Criticizes Dismissal of Judge Real Ethics Problem

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - A high-powered judicial committee headed by Supreme Court Justice Stephen G. Breyer says the 9th U.S. Circuit Court of Appeals failed to respond properly to an ethics complaint against Los Angeles U.S. District Judge Manuel L. Real.

The committee's report concluded that the 9th Circuit's actions were "inconsistent with our standards," as outlined in federal law governing judicial conduct investigations, in that the circuit twice dismissed the complaint and never brought disciplinary charges against Real.

Dissatisfaction on Capitol Hill with the 9th Circuit's handling of the Real case prompted the House Judiciary Committee to launch its own investigation into whether the federal judge should be impeached.

Real, who was appointed to the federal bench in 1966, is scheduled Thursday to testify before a subcommittee assigned to investigate an incident from seven years ago in which he is accused of personally helping a woman in bankruptcy proceedings after overseeing her probation in an unrelated case.

At a media briefing Tuesday, Breyer declined to comment on whether Congress is acting too hastily.

"That's for others to say," he said.

University of Pittsburgh law professor Arthur Hellman, who is slated to testify at Thursday's hearing, said the commission's report was more blunt regarding the 9th Circuit's handling of the case than most experts anticipated.

"I regard that as a pretty severe criticism," he added. "You expect judges to be somewhat circumspect when they write about other judges, but they don't pull their punches here."

Breyer's report does not name Real or anyone else associated with the complaint against him, but his case is easy to identify in an anecdotal summary of badly handled misconduct cases based on the report's narrative description of what happened.

9th Circuit Chief Judge Mary Schroeder presided over two reviews of the Real complaint, but dismissed it each time. Schroeder eventually ordered a special committee to investigate the case earlier this year. But that was only after a national panel of judges reviewed the case and concluded in a 3-2 decision that they could not evaluate whether or not Real should be sanctioned because the 9th Circuit had not gathered enough information.

The two dissenting judges stated their belief that Schroeder had erred in initially failing to appoint a special committee to investigate Real.

Breyer's committee agreed, faulting Schroeder and the judicial council for dismissing the Real complaint too quickly.

The report released Tuesday points to a letter written to Real by a woman he had supervised while she was on criminal probation, Deborah Canter.

Real always has maintained that he never saw Cantor's letter seeking his assistance while her bankruptcy case was before him.

The judge has said he intervened in the bankruptcy proceeding because he believed it was part of his role as the judge overseeing Canter's probation stemming from an unrelated fraud case.

When Schroeder investigated, she determined that Real had, indeed, not read Cantor's letter.

But Breyer's committee noted that under the Judicial Conduct and Disability Act of 1980, a chief judge should not make findings of fact about any issue that is in dispute.

"Whether there was ex parte communication appears to have been reasonably in dispute," the report says.

The report also quotes at length 9th Circuit Judge Alex Kozinski's dissent to the Judicial Council's September 2005 decision not to pursue sanctions against Real. Kozinski stressed that there were, indeed, a number of facts that were in dispute.

Real has attributed the complaint to misunderstanding and has never acknowledged any misconduct.

Breyer's committee concluded that Real should have been required to "acknowledge and redress the harm," as is required under federal law, an action that could take the form of an apology, a recusal or "pledge to refrain from similar conduct."

Schroeder was traveling Tuesday and could not be reached for comment.

Rep. R. James Sensenbrenner, R-Wis., who has proposed impeaching Real, has publicly criticized the 9th Circuit's handling of the matter.

He said in July that Schroeder "effectively blew off the evidence" when she dismissed the case against Real, adding that the 9th Circuit "disappointingly, if not surprisingly, has refused to discipline him."

The 9th Circuit's special committee is due to report its findings on Real next month.

Posted 8:35 AM by Howard Bashman

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September 19, 2006

Judge Real Is Set to Testify in Washington
Federal Jurist, 81, Faces GOP Calls for Impeachment

By Lawrence Hurley
and Drew Combs
Daily Journal Staff Writers
WASHINGTON - Los Angeles-based federal judge Manuel L. Real has decided to testify at a congressional hearing in Washington this week in response to Republican-led efforts to impeach him.

The 81-year-old jurist will defend his actions in a case seven years ago in which he allegedly helped a woman in bankruptcy proceedings after overseeing her probation in an unrelated case.

Delving Into the Merits
A House Judiciary subcommittee, chaired by Rep. Lamar Smith, R-Texas, is leading the investigation into whether Real should be impeached for assisting Deborah Canter when she faced eviction from her house following her divorce.

Smith's spokeswoman, Beth Frigola, confirmed members of the committee will delve into the merits of the case against Real at Thursday's hearing.

"Our goal at the hearing is two-fold: determine with accuracy what actually occurred when Judge Real presided over the Canter case in 2000 and 2001; and learn more about existing impeachment precedents and whether they have any application to Judge Real's behavior," she said.

The ranking member on that subcommittee, Rep. Howard Berman, D-Calif., who represents parts of Los Angeles, said in an interview that the Republicans are acting too quickly. The 9th U.S. Circuit Court of Appeals is expected to decide soon whether to sanction Real for his conduct, Berman pointed out.

Action Is Unlikely
In any case, Berman predicted that Congress is unlikely to take any action before recessing for the November mid-term elections.

"I'm not convinced at this point that even the Republican majority is going to pursue impeachment," he said. "It seems so reckless."

Real and his attorney, Donald C. Smaltz, did not respond to telephone calls Monday seeking comment.

The 9th Circuit already reviewed the matter twice but Chief Judge Mary M. Schroeder initially decided not to launch a full investigation.

A national federal panel that reviewed the case earlier this year said it could not sufficiently examine the merits of the case because the 9th Circuit had not sufficiently looked at the issue.

The negative publicity led Schroeder to order a full investigation.

For Real to face an impeachment trial, which would be held in the Senate, the House Judiciary Committee and the full House would have to vote on the resolution.

Thursday's hearing has led to a dispute between Deborah Canter's current and former lawyers.

Also scheduled to testify at the hearing is Los Angeles attorney Andrew Smyth, who represented Canter during the bankruptcy proceedings in question.

Watching from the public gallery will be her current lawyer, Michael J. Proctor.

"I don't have any agenda, one way or another, with regards to any testimony before Congress," Proctor said. "My only agenda is to ensure that Ms. Canter's rights and privileges are respected by those investigating this matter."

Proctor said he was attending the hearing in an attempt to ensure Smyth does not divulge any attorney-client confidences.

Smyth said there was no need for Proctor to watch his testimony.

"It's nonsense that [Proctor] is going back there to protect her rights," he said. "They are not after her."

Smyth said he would mostly be repeating testimony he already gave to the 9th Circuit investigation.

"I almost wonder why they are hauling me back there because I have nothing new to say," Smyth said.

But he acknowledged that he had not been subpoenaed, and was testifying out of a sense of duty to the judicial system.

Attorney-client privilege did not apply in this situation, Smyth said, because his testimony will not touch on any confidential communications and because Canter essentially waived the privilege when she disclosed her version earlier in the investigation.

Jeff Lungren, the spokesman for the House Judiciary Committee, said the committee was aware of Proctor's concerns but believed they lacked merit because "Ms. Canter's behavior is not ... at issue here."

Diane Karpman, a Los Angeles lawyer and legal ethics expert, said lawyers testifying before Congress could have little choice but to divulge privileged information if it is pertinent to a committee's investigation.

"A lawyer who evokes attorney-client privilege could be held in contempt," she said. "Congress is a separate branch of government and you can't necessarily apply theories that exist in the judicial branch."

The other witnesses are two law professors who are experts in judicial ethics, Charles Geyh of Indiana University at Bloomington and Arthur Hellman of the University of Pittsburgh.

Their role will be to advise members on previous impeachment cases and whether Real's conduct merits a similar response, according to Frigola.

Stephen Yagman, the attorney who originally filed an ethics complaint against Real, is not scheduled to testify.

It was Rep. R. James Sensenbrenner Jr., R-Wis., the chairman of the House Judiciary Committee, who ordered the subcommittee to investigate Real, the latest of several attacks the congressman has launched on the judiciary.

Sensenbrenner wants to create an office of inspector general for the judiciary that would have the power to investigate ethics complaints.

Smyth said he was dubious of the congressman's intentions. "Sensenbrenner wants someone to oversee the courts and he is trying to make an example of [Real]."

Posted 8:55 PM by Howard Bashman

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August 23, 2006

Judge Denies He Had Financial Interest in Two Cases' Litigants

By Amelia Hansen
Daily Journal Staff Writer
Ninth U.S. Circuit Court of Appeals Judge Harry Pregerson defended himself Tuesday against allegations that he had a financial conflict in two trademark cases he ruled in last year.

Last month, an attorney for M2 Software argued that Pregerson's 2005 rulings against a company called M2 Software -and in favor of Time Warner Inc.-should be thrown out because the judge owned stock in the massive multi-media conglomerate.

But in a written order denying M2 Software's request to vacate the rulings, released Tuesday afternoon, Pregerson took the opportunity to "set the matter straight."

"I had no interest 'however small' in the subject matter in controversy," Pregerson wrote in a concurrence to the court's order.

Earlier this year, The Washington Post published a story about judges whose disclosure statements showed that they had a "financial interest in the litigants in their courtrooms."

Pregerson, The Post pointed out, had shares in Time Inc. and had adjudicated a case with AOL/Time Warner Inc. as a defendant.

Pregerson told The Post he did not realize he had a conflict, perhaps because he bought AOL stock before it merged with Time Inc.

"'I just wasn't paying attention,'" Pregerson, an 82-year-old Carter appointee, was quoted as saying by The Post.

Mark Pettinari was paying attention.

Pettinari represented M2 Software in a pair of suits challenging the alleged infringement of the M2 trademark. M2 Software v. Madacy Entertainment, 03-55957 and M2 Software v. M2 Communications, 03-56602.

One defendant, Madacy Entertainment, is described in court records as a "company that specializes in low-price collections of recorded music," created a new division called "M2 Entertainment." The other defendant, M2 Communications, produces Christian music.

Writing for the same unanimous 9th Circuit panel in both cases, Pregerson affirmed the findings of the District Court, which held there was no likelihood of confusing M2 Software and the other companies.

Pettinari did not immediately return a call for comment Tuesday.

But according to news reports, the San Francisco attorney said the defendants in the lawsuits are tied to Time Warner - that a company called "Gaylord Entertainment" sold its M2 Communications division to Time Warner and that Time Warner is the manufacturer of Madacy's Christian music CDs.

Tracing the link between Time Warner Inc. and the defendants, Pregerson wrote Tuesday that he didn't know the company had an option - which it "never exercised," he pointed out - to purchase shares of Warner Music.

Warner Music, Pregerson wrote, owned Word Entertainment, which had an exclusive distribution contract with M2 Communications.

"Such an indirect interest does not require recusal," he stated.

In a separate concurring opinion, Senior Judge Robert R. Beezer - who joined in both of Pregerson's opinions against M2 Software - wrote that the court's jurisdiction to vacate its own ruling is to be "exercised only in extraordinary circumstances."

"Nothing presented by M2 Software suggests perpetration of fraud, gross misconduct or that enforcement of the judgment would be manifestly unconscionable," Beezer wrote.

Posted 8:25 PM by Howard Bashman

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August 17, 2006

BUSINESSES SIT OUT FIGHT OVER SPLITTING THE 9TH CIRCUIT

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - Environmental activists recently voiced alarm that if Congress splits the 9th U.S. Court of Appeals into two courts, the new 12th Circuit will be more conservative and business-friendly.

If so, the normally outspoken corporate lobby is keeping unusually quiet about it.

A close review of testimony and letters to congressional committees and an informal survey of trade groups reveals that the business community is largely staying on the sidelines while lawmakers spar over the fate of the nation's largest and busiest circuit.

Some business interests actually favor keeping the nine-state 9th Circuit intact, while most have staked out no public position at all.

What little input has come from the business community is far afield from the claim made by liberal activists that the creation of a 12th Circuit, encompassing a swath of western states, will give property rights advocates an upper hand in high-stakes land-use cases involving fishing, mining, timber and other "extraction" issues.

Instead, the most prominent business voice in the current debate is the Seattle-based former general counsel of the Microsoft Corp. and president-elect of the American Bar Association, William Neukom.

He is urging Congress to leave the 9th Circuit as it is.

California and Hawaii would remain in the 9th Circuit if Congress approves a proposed split, while seven other western states would go into the newly formed 12th Circuit.

A split is bad, Neukom wrote last month to senators in a letter co-signed by veteran San Francisco business litigator Michael Traynor, because it "is unlikely to serve the interests of the many businesses and corporations that are so important to the economy of the West Coast."

The two lawyers emphasized a continuing need for the law in western states to be settled and uniform. The possibility of two courts reaching divergent conclusions on common issues means lawyers will have to spend more time keeping abreast of the law, they added.

"A single federal appellate court for the West Coast minimizes the risk that the law of intellectual property, maritime trade, labor relations, banking, or other business matters will be different in San Diego and Seattle," they wrote.

Traynor, a partner with Cooley Godward for 37 years, said in an interview that he sees the proposal purely as a partisan endeavor by Republicans in response to certain high-profile 9th Circuit decisions that angered conservatives.

"I think the primary motivations are partisan," he said. "I don't know what business lobbying there is, if any, on this issue."

Neukom did not respond to requests for comment.

In Washington, D.C., influential trade associations say they are simply not focusing on the split.

The U.S. Chamber of Commerce and the National Association of Manufacturers, heavy hitters on other legal issues, such as tort reform, are both sitting out the fight.

"We are highly critical of the 9th Circuit, but we are not on record or suggesting that the court be split," said a spokesman for the manufacturers' association.

Ditto for trade groups that represent extraction industries that are powerful voices in some of the states that would shift to the 12th Circuit. Among them are the National Mining Association and the National Fisheries Institute.

Spokesmen for both groups said they have no position on the issue and declined to comment further.

"I don't think many folks see it as an issue," said a former Republican staffer on the Senate Judiciary Committee.

As one of Washington, D.C.'s most powerful lobbies, the business community is plenty capable of making itself heard on court-related issues.

A case in point is tort reform. Major industries and groups like the National Association of Manufacturers have bankrolled expensive public relations campaigns in support of legislation to restrict product liability and medical malpractice litigation.

These efforts include setting up Web sites, hiring public relations consultants and lobbyists, and holding high-profile media events on Capitol Hill featuring prominent members of Congress.

By contrast, the 9th Circuit split proposal has remained under the radar, receiving little attention in the mainstream media.

"It makes sense to put their PR and lobbying bucks on issues that directly affect their operations," said Arthur Hellman, a law professor at the University of Pittsburgh who closely tracks 9th Circuit politics. "I would not have thought they would want to use their firepower on splitting the 9th Circuit."

He added that the notion of a new 12th Circuit siding with the business community more than the existing 9th Circuit is "distant and speculative."

The only lobbying firm known to be actively engaged in the split debate was hired by former California State Bar president Harvey I. Saferstein of Mintz Levin who is fighting against the current legislation on behalf of a group of West Coast business lawyers who call themselves "Friends of the 9th Circuit."

The group includes Eric George, a well-connected Beverly Hills Republican lawyer who advises the Bush administration on federal judicial appointments in California.

The lobbying firm hired by Saferstein is Washington, D.C.-based Parry, Romani, DeConcini & Symms.

Among lawmakers, all the main supporters of the split legislation are senators and representatives from the states that would be in the new 12th Circuit. Sen. John Ensign, R-Nev., sponsored the Senate bill, while Rep. Mike Simpson, R-Idaho, introduced the House version. Other vocal supporters include Sen. Jon Kyl, R-Ariz.; Sen. Gordon Smith, R-Or.; Sen. Lisa Murkowski, R-Alaska; and Conrad Burns, R-Mont.

The pro-split chorus outside Congress has been led by academics, court-watchers and some judges on the court, chief among them Judge Diarmuid O'Scannlain, a Reagan appointee who sits in Portland, Ore.

O'Scannlain said in an e-mail that he is unaware of any outside interest groups lobbying of Congress in support of the split.

In public statements, supporters of a split have argued that the 9th Circuit, by far the largest of the nation's 11 regional appellate districts, has grown too big to maintain administrative efficiency.

Critics have accused the split supporters of harboring an ideological agenda - and they point to frequent complaints from conservatives that the 9th Circuit is too liberal.

Ensign, for example, made reference to the now-infamous 2002 9th Circuit ruling striking down the words "under God" from the Pledge of Allegiance in the same press release that announced his court-splitting bill last year.

"Many of the court's rulings reflect a set of values that are at odds with the majority of the people of Nevada," he said in the statement. "I look forward to seeing Nevada's residents served by a new court in a new location with a viewpoint closer to their own."

California's senators, Barbara Boxer and Dianne Feinstein, both Democrats, are on the record opposing a split. And so are some of the state's prominent Republicans, including Gov. Arnold Schwarzenegger and former Gov. Pete Wilson.

With a Senate Judiciary Committee hearing on the proposed split scheduled for next month, some opponents see the absence of corporate lobbying as an indication that the legislation is really just an appeal to conservative grass-roots activists.

Glenn Sugameli is senior legislative counsel for Earthjustice, the environmental advocacy group that last month warned the media that the 12th Circuit would be a gold mine for business interests.

But in an interview this week, Sugameli acknowledged that his usual adversaries from corporate America are nowhere to be seen on the lobbying front.

Posted 3:00 PM by Howard Bashman

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August 14, 2006

Seminar Program Keeps Judges in Dark on Donors; Some See Ethical Issue With Jurists Unaware Of Corporate Litigants' Hand in Free Courses

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - Federal appellate Judge Andrew J. Kleinfeld may be best known for writing a decision that was music to the ears of oil giant ExxonMobil Corp.

That was five years ago, when the 9th U.S. Circuit Court of Appeals ruled that $5 billion in punitive damages amounted to an excessive jury award against Exxon for its role in the huge Alaska oil spill of 1989.

But despite his participation in such a high-profile case, which continues to this day, the Fairbanks, Alaska-based jurist said recently he did not know that Exxon has for years been giving tens of thousands of dollars to a university-affiliated judicial education program where he studied and now sits on an advisory board.

His unawareness is not an accident: The Law and Economics Center based at Virginia's George Mason University has a strict policy of not telling judges where the funding comes from for the all-expense paid seminars that it sponsors at luxury resorts throughout the country.

At a time when Congress is aggressively scrutinizing the conduct of federal judges, some legal ethics experts and even some of Kleinfeld's colleagues say a "don't ask, don't tell" approach to funding disclosure puts judges in a precarious spot.

They believe judges can better equip themselves against complaints about potential conflicts of interest by demanding to know who funds the continuing education programs they attend.

As the nation's oldest and largest privately funded judicial education program, the Law and Economics Center has for 30 years sponsored seminars on free-market economics and other topics, but not without controversy.

While the programs run are popular with judges, who describe them as intellectually demanding, their reliance on corporate funding has fueled criticism from liberal activists and newspaper editorials that they peddle a pro-business agenda.

Kleinfeld maintains his support for the center's silence on its funding sources.

"I don't have the faintest idea who contributes to George Mason, nor do I want to know," the judge said in a phone interview.

The center, which pays travel and accommodation expenses for judicial seminars, says it has 200 underwriters, all of which contribute via the university's foundation, and that none provide more than a fifth of the center's overall budget.

When a Daily Journal reporter told Kleinfeld last month that Exxon has contributed $215,000 to the center since 1998 - information publicized by Exxon on the Internet in annual reports - the judge responded that he would have preferred not to know. Speaking a day later, Kleinfeld clarified his thoughts.

"It's better that we not know who contributed to the Law and Economics Center," he said. "What we should know is that no organization is contributing so much as to dominate."

Kleinfeld added that Exxon's contribution is "small potatoes" for a corporation of its size, and accounts for a minute proportion of the center's budget.

He also defended his right as a judge to attend educational programs wherever he wants.

"I support as much freedom of speech and diversity of opinion as can possibly be obtained," said Kleinfeld, who was appointed to the bench by President George H.W. Bush in 1991.

At present, no one is arguing that judges should be banned from participating in corporate-funded seminars.

But San Francisco U.S. District Chief Judge Vaughn R. Walker, a frequent seminar participant who sits with Kleinfeld on the center's judicial advisory panel, said it may be time for the program to come clean on where its money comes from.

"I don't see a problem with disclosure," he said. "I have no problem with changing the current policy."

Walker, a Ronald Reagan appointee, said there's nothing inherently wrong with shielding the identity of the center's donors from judges. But he said that in the light of what he termed an "unwarranted suspicion" that special interests are guiding the curriculum, some judges may be unwilling to accept invitations to free seminars without knowing who's underwriting them.

Pasadena-based 9th Circuit Judge Raymond C. Fisher, an appointee of President Bill Clinton, voices similar concerns.

Fisher serves on a U.S. Judicial Conference committee that is addressing ethics issues surrounding privately funded seminars. He made it clear that the judges can do more to avoid negative publicity.

"I think judges need to be more sensitive to the appearance of conflict," he said in an interview. "We are obliged to do that."

Addressing the center's non-disclosure policy, Fisher said the identity of donors is "the kind of information that ought to be out there."

Private Programs Are Popular
Taxpayer-funded continuing education is available to all U.S. judges through the Federal Judicial Center.

But hundreds of federal judges nationwide have opted to participate in educational vacations sponsored by private interests.

Many take place in upscale hotels and resorts in places like Santa Fe, N.M., and Hilton Head, S.C.

In California alone, federal district judges took 36 trips between 1992 and 2004 sponsored either by the Law and Economics Center or the next most active group, the Montana-based Foundation for Research on Economics and the Environment, according to data compiled by Community Rights Counsel.

Many judges attend only once or twice, but others are regulars on the seminar circuit. Walker, of San Francisco, has participated in seven, while Judge Manuel Real of Los Angeles, has gone to six.

Real stands out in another way. He was appointed to the bench in 1966 by Democratic President Lyndon B. Johnson. The vast majority of seminar participants have been Republican appointees.

Controversy Over Law and Economics
The Law and Economics Center was founded in 1974 by Henry G. Manne, who was a law professor at the University of Miami. The center has been based at George Mason University since 1986.

Manne was one of the early proponents of law and economics scholarship, which is the interpretation of the law from an economics perspective.

Manne advocates a conservative anti-regulatory, pro-free-market approach to the law, which now has a strong following at mainstream law schools ranging from the University of Chicago to the University of Virginia.

Left-leaning critics say the center Manne founded, along with Montana-based FREE, seek to teach a conservative approach to the law that favors corporate interests.

George Mason University law professor Francis H. Buckley, director of the center, disputed that assertion, saying the curriculum mirrors that of a liberal arts college.

This year, for example, there are programs on English man of letters Samuel Johnson and Renaissance humanism scattered among the more law-related seminars on "economics and tort law" and "international law from an economic perspective."

Kleinfeld's own participation in classes at the center doesn't fit the stereotype of seminars as brainwashing exercises.

His first seminar, in 2003, took him to New Haven, Conn. - not known as a vacation destination - to study the ancient Greek historian Thucydides. The next fall, Kleinfeld traveled from Alaska to La Jolla, near the San Diego coast, to study the writings of 19th century French historian Alexis de Tocqueville.

Like Kleinfeld, Walker praised the high quality of the programs he has attended since the early 1990s.

"It's a little bit like going back to college," he said. "It's certainly not indoctrination. It's not spoon-feeding a philosophical approach to the law."

The center's Buckley emphasized that the programs are designed to avoid perennial hot-button issues, such as asbestos litigation or punitive damages.

But as long as they've been around, private seminars have been unable to escape negative publicity.

In 1999, the Wall Street Journal reported how industrial giant Koch Industries sought to influence judges by funding seminars run by the University of Kansas and rewarding business-friendly judges with favorable scorecard ratings during election season.

More recently, the media has reported on Community Rights Counsel's findings that judges were flown to Montana for FREE seminars on trips paid for by the same businesses that had litigation in those judges' courts.

Last year, three judges on FREE's advisory board resigned their positions after Community Rights Counsel filed ethics complaints against them.

Community Rights Counsel complained that the judges on FREE's board had too close of a relationship with corporate donors that went beyond merely advising on academic matters.

Exxon's Involvement
ExxonMobil Corp. is not shy about touting its contributions to the Law and Economics Center and other judicial education organizations.

"This is one of many grants ExxonMobil makes in support of activities and efforts aimed at promoting the rule of law and improving the quality of the judiciary," spokesman Dave Gardner said of the company's most recent $30,000 contribution to the center.

Other groups Exxon funds include the Institute for Civil Justice, which is sponsored by the Rand Corp. in Santa Monica, and two not-for-profits, the National Judicial College and the National Center for State Courts.

Another beneficiary is FREE.

Exxon donated $210,000 between 1998 and 2004, according to the company's annual reports on corporate giving.

For a company as large as Exxon that is frequently involved in high-stakes litigation, the nation's courts are an important public resource.

A simple cost-benefit analysis suggests that judicial education is a good investment: Of the six judges on the 9th Circuit in addition to Kleinfeld who have participated in seminars through the Law and Economics Center or FREE since the early 1990s, court records show that all have at some point presided over at least one civil case involving Exxon.

For Community Law Counsel executive director Douglas T. Kendall, Exxon's intent in helping to underwrite seminars is obvious.

"Exxon funds these trips to influence the key judicial decision-makers," he said.

Seminar programs are not the only recipients of academic grants from Exxon.

The company was roundly criticized for funding scholarly studies of jury behavior in the mid-1990s that Exxon lawyers then cited to show that the record-setting punitive damages in the Alaska oil spill case were the work of a runaway jury.

The studies by well-known professors were summarized in an appeal brief filed with the 9th Circuit, but the lawyers didn't mention that Exxon helped to pay for them.

One of the critics is Theodore Eisenberg, a law professor at Cornell Law School, who contends that Exxon's No. 1 priority in paying for the research was "to get the $5 billion in punitive damages reduced."

Eisenberg, who helped write an amicus brief against Exxon in the oil spill case, said in an interview that Exxon had a duty to its shareholders to win the oil spill appeal. Part of the company's strategy, he added, may be to influence judges.

As it turns out, one of the prominent scholars who now lectures on tort law at seminars at the center, Yale University law professor George Priest, wrote an introduction to the book containing all the Exxon-funded jury research.

Priest and another LEC lecturer, William Landes of University of Chicago, also sit on the academic advisory board of the American Enterprise Institute, a pro-business think tank in Washington, D.C., whose board of trustees vice-chairman is the retired chief executive of Exxon.

A third distinguished LEC lecturer, Harvard University law professor Steven Shavell, served as a paid consultant to Exxon in the Alaska oil spill litigation.

Eisenberg emphasized that just because Exxon may have an agenda in funding seminar programs doesn't mean that those programs are necessarily slanted with any corporate bias.

The center's Web site explicitly states that none of its financial supporters have any say in the program.

"The curriculum, faculty, invitation list and acceptance policy for LEC programs is determined solely by professors at George Mason University School of Law," it says.

Exxon's spokesman bristled at the notion that Exxon would seek to influence judges in pending litigation by sponsoring seminars.

"Your question is an insult,' Gardner said.

Funding Disclosure Debate
The point of the center's policy not to disclose its funding to judges is to avoid creating any appearance that judges might be beholden to sponsors.

Some states where judges run for office in contested elections take a similar approach, requiring candidates to refrain from learning the identities of contributors who write checks to their campaigns.

But by and large, conflict of interest rules typically are built on the principle that disclosure is the best way to avoid conflicts.

Ethics rules at both the federal and state level presume that judges are aware of any personal or financial interests that might be affected by their court rulings and require them to recuse themselves when they perceive a possible conflict.

The center says its policy follows a U.S. Judicial Conference advisory opinion on ethics first released in 1980 and most recently revised in 2004.

"It would look bad if we disclosed," Buckley, the program director, said. "The sounder policy, we are advised, is one in which the possibility of these conflicts don't arise."

Buckley acknowledged that "reasonable people may differ" about disclosure versus non-disclosure. He stressed, though, that the final decision rests with center's 14-member advisory board.

Corporate support of the center is less than 10 percent of its overall budget, he added.

Some legal scholars say LEC has opened itself to criticism that it's got something to hide.

Charles Geyh, a professor at Indiana University School of Law at Bloomington, said the reluctance of the center to reveal its funding sources has "given the judiciary a black eye." He said he can understand why some lawmakers want tighter ethics guidelines, even though he personally opposes a pending bill that would create an inspector general for the judiciary.

"The public perception is something that needs to be the focus of attention," he said.

Stephen Gillers, an ethics expert at New York University School of Law, pointed to another flaw in the center's policy of silence about its funding. He noted that judges can easily discover information about at least some corporate donors just by logging onto the Internet.

"It's not possible to keep that deep a secret, and the public won't believe them," Gillers said.

Exxon's contributions to LEC, for instance, are listed both on the corporation's own web site and on www.exxonsecrets.org, a web site created by environmental activist group Greenpeace to track "how ExxonMobil funds climate change skeptics."

This spring, an announcement of Exxon's contribution to George Mason University Law School showed up somewhere else - in a press release issued by the university and posted on the Internet.

Gillers contends that corporate sponsors actually want judges to know they are underwriting seminars.

Another supporter of full disclosure is Community Rights Counsel. Kendall, the executive director, argues that Judge Kleinfeld has a special duty to know who funds the center above and beyond the judges who attend the various classes.

"Judges sitting on an advisory board have an obligation to know where the money for that organization is coming from," he said.

Kendall also said Kleinfeld should not allow LEC to pay any of his travel expenses while the Exxon case remains pending before him.

FREE, founded in 1985, says it has always released information about its funding sources upon request from judges and scholars who've participated in its programs.

Its policy is to list all its donors on its Web site, said founder and chairman John A. Baden.

FREE receives about 20 percent of its budget from corporate donors, but that money is not assigned to judicial education programs.

Baden said that the majority of funding comes from foundations that have no role in ongoing court cases.

"That minimizes the possibilities of a conflict," he said.

For his part, Kleinfeld said he sees nothing wrong with LEC's policy or with private seminars in general, which he sees as essential to an independent judiciary.

He said any corporation that thinks judges can be bought off might want to reconsider its decision to fund continuing education.

If "some evil corporation that wanted to pollute the environment" was to fund the Law and Economics Center," Kleinfeld said, "the ethical issue there would not be that we were bought ... but that the directors of the corporation wasted their shareholders' money."