How Appealing Extra

How Appealing Extra

Tuesday, February 28, 2006

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February 28, 2006

Acting Head of U.S. Marshals Outlines Plan

By Lawrence Hurley
Daily Journal Staff Writer

WASHINGTON - The nominee to head the U.S. Marshals Service has pledged to make improved security for federal judges one of his top priorities.

John F. Clark, a former San Francisco marshal who is currently acting director of the service, has proposed an around-the-clock national threat analysis center for judges and increased use of high-tech surveillance to keep an eye on them.

The U.S. Department of Justice estimates that around 700 threats are issued to federal judges each year.

Security a Top Priority
Clark's promise comes after complaints from judges last year that the agency is not responsive to their concerns. The new approach has been welcomed by the chairman for the U.S. Judicial Conference's new committee on security, Judge David B. Sentelle of the U.S. Court of Appeals for the District of Columbia Circuit.

Sentelle said Monday that Clark has been "very cooperative" since taking over last summer.

"We are moving the right direction," he said.

Clark's predecessor, Benigno Reyna, resigned in July 2005 in the wake of criticism over failings in judicial security, prompting claims from some judges that the Marshals Service was not communicating effectively with the judiciary.

Violence Against Judges
Judicial security became a hot topic when the mother and husband of Chicago U.S. District Judge Joan Humphrey Lefkow were murdered at her home in February 2005.

Then, 11 days later, a defendant awaiting a hearing at the Fulton County Courthouse in Atlanta grabbed a guard's gun and killed three people, including a judge.

Clark, who joined the Marshals Service's northern California office as a deputy in 1983 and worked his way up through the ranks, outlined his plans at his confirmation hearing in the Senate on Feb. 15.

When Sen. Mike DeWine, R-Ohio, asked Clark to state top priority, Clark immediately responded: "Providing first class, superior protection to members of our judiciary."

Clark acknowledged that the Lefkow killings had made the monitoring of judicial residences a key area of concern and revealed that the agency had ideas on how to improve the current system.

He stated his intent to set up the national threat analysis center for all judges that will operate 24 hours a day, seven days a week "so we can respond to them quickly and thoroughly."

The agency also has set up a working group to investigate how best to use technology to monitor judges, Clark added.

A spokeswoman for the Marshals Service declined Monday to provide further information on the agency's latest plans.

But she confirmed that the agency is hoping to hire more personnel to work on judicial security.

Judge Sentelle, who has only recently assumed his position as chairman of the security committee, declined to comment on the agency's actions under Reyna, but he confirmed that Clark has been in contact.

"I have talked with Clark on a number of occasions," he said. "He met with the committee at the bi-annual meeting in January."

Sentelle was reluctant to comment on specific proposals because of the subject matter's sensitive nature, but he described the threat analysis center as "something that sounds of benefit." He expressed confidence that the agency has the technology and personnel to carry out its mandate of protecting judges.

Congress already has allocated extra resources in the wake of the murders.

The agency was given $11.9 million last year to spend on judicial security, with an emphasis on home security.

Clark acknowledged at the hearing that the service is still in the early stages of setting home alarm systems for judges.

In response to a question from DeWine about expanding the jurisdiction of the Marshals Service to protect tax judges, Clark said the agency would need more funds from Congress.

The Senate has not yet voted on Clark's nomination, but he is not likely to face any opposition from Democrats, none of whom were present during his confirmation hearing.

It was the failure of the Marshals Service to respond to queries from the judicial conference that was at the heart of complaints last year from Judge Jane R. Roth from the 3rd U.S. Circuit Court of Appeals, who was formerly head of the committee on security and facilities.

The committee has now been split into two, with Sentelle heading the panel dedicated solely to security.

Roth, who could not be reached for comment Monday, had highlighted failings revealed in a March 2004 report by the Department of Justice Inspector General Glenn A. Fine.

The report found that although the Marshals Service hired 106 new court security inspectors and improved security within courthouses after September 11, 2001, its ability to analyze threats was not reliable.

Fine told the Senate Judiciary Committee at a May 18, 2005, hearing on the issue that threat assessments "were often untimely and of questionable validity," according to his written testimony.

Wednesday, February 22, 2006

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February 22, 2006

Supreme Court Puts Sentencing In California on Shaky Ground

By Brent Kendall
Daily Journal Staff Writer

Criminal sentencing in California was thrown into a state of uncertainty Tuesday as the U.S. Supreme Court agreed to decide the constitutionality of the state's determinant sentencing law, a move that could ultimately force the state to overhaul its three-tiered sentencing system.

In taking the case, the justices will decide whether the state's sentencing scheme violates a string of recent Supreme Court decisions that juries, not judges, must find virtually all facts that increase a defendant's sentence.

Those rulings forced sweeping changes to sentencing systems around the country but not in California, thanks to a June decision from the state Supreme Court that the state's system remained constitutionally sound.

Veteran criminal defense lawyer Andrew M. Stein in Bellflower said a U.S. Supreme Court decision that invalidates the California system "would be chaotic."

"You'd have to have a completely new and distinct system for how sentencing enhancements are pled, proven and ruled upon," Stein said.

Santa Clara University law professor Gerald Uelmen is one of many legal observers who think the state Supreme Court erred in upholding the state's scheme.

"We will have a big mess to sort out" if the Supreme Court overturns that ruling, Uelmen said.

The justices will not hear arguments in the case until their next term, which begins in October. They are unlikely to issue a decision before December or early 2007.

That timeline leaves a cloud of uncertainty over state sentencing for the rest of the year.

"That's going to be difficult to deal with," Uelmen said. "The California courts will be well advised to proceed with caution."

California's sentencing law gives judges three sentencing choices for most criminal offenses and instructs them to sentence a defendant to the middle term of imprisonment unless aggravating or mitigating factors counsel in favor of the longer or shorter term.

In reviewing that law, the high court will take up the case of San Pablo defendant John Cunningham, sentenced in 2003 to an upper term sentence of 16 years in prison for continual sexual abuse of a child. Cunningham v. California, 05-6551.

A Contra Costa County judge chose the longer sentence over the 12-year middle-term sentence after finding the existence of six aggravating factors.

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

None of those factors was proven to a jury beyond a reasonable doubt.

Cunningham argued on appeal that his sentence violated his Sixth Amendment right to a jury trial, relying on the Supreme Court's landmark 2004 ruling in Blakely v. Washington, 542 U.S. 296, that trial judges could not increase a defendant's sentence based on aggravating factors that were not found by a jury.

A divided 1st District Court of Appeal upheld Cunningham's sentence.

Two months later, the state Supreme Court decided in People v. Black, 35 Cal.4th 1238, that California's sentencing system remained constitutional. The court, in an opinion by California Chief Justice Ronald M. George, said the California scheme "simply authorize[d]" state judges to exercise the type of traditional fact-finding necessary to choose the appropriate sentence within the range of punishment allowed by law.

Only Justice Joyce Kennard dissented, saying that state judges violated Blakely when they issued upper-term sentences based on facts not found by the jury.

The Black case is one of a number of appeals pending before the U.S. Supreme Court challenging the state's sentencing scheme. It was Cunningham, however, that the court chose to review.

Cunningham's attorney Peter Gold of San Francisco said in court filings that his client's case was unencumbered by some of the complexities found in Black.

Gold said Tuesday that he was looking forward to arguing his first Supreme Court case, one that "affects so many criminal defendants."

"The bottom line is, I don't think [the state Supreme Court] applied Blakely in a proper manner," Gold said.

State Deputy Attorney General Jeffrey Laurence said it was not surprising that the court decided to review the state's sentencing system "in the sense that the states were going in different directions under their own sentencing schemes."

Laurence said he was looking forward to the finality a Supreme Court ruling would provide. He added that he was confident that the state Supreme Court's Black decision would stand.

The Attorney General's Office, Laurence said, was not advocating that prosecutors make any changes to the way they approach cases while they wait for a Supreme Court ruling.

Santa Clara's Uelmen said the case would affect at least 3,000 defendants with upper-term sentences who have had appeals pending since Blakely.

The state Supreme Court said in Black that data from the 1980s showed that, in cases involving a single count, California judges imposed the upper-term sentence between 13 percent and 17 percent of the time.

Robert Kalunian, chief deputy public defender for Los Angeles County, noted the vast majority of felony cases reach an agreed upon plea bargain and that those cases are unlikely to be affected.

As for cases that will be going to trial, Kalunian said, "If I was a judge, I would be very cautious in sentencing someone to an increased sentence without a finding of fact by the jury."

"If the California Supreme Court got it right the first time, we wouldn't be in this situation," he said.

Dwight Moore, the supervising deputy district attorney in San Bernardino County, said that in order to avoid revisiting cases if Black gets overturned, district attorneys could go ahead and ask juries to find aggravating factors.

"If it doesn't get overturned, we did some extra work, but if it does, we're covered," Moore said. "That will be decided on a case by case, courtroom by courtroom basis."

Moore said that, unlike their defense counterparts, the vast majority of prosecutors think the state court's Black decision was correct.

"Every DA must be including in their prayers at night, 'Dear Lord, please let the Supreme Court let Black alone,'" Moore said.

San Francisco Public Defender Jeff Adachi said that before Black, courts in his city were operating as if Blakely applied to California's sentencing law.

"We were relying on jury findings. ... Now we'll probably go back to the way we were dealing with it before the California Supreme Court ruling," Adachi said.

Ohio State University law professor Douglas Berman said that while Cunningham would clear up confusion among the states, it also had an added bonus: The dispute would give court watchers a chance to see where Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. stand in the high court's great sentencing debate.

The high court split 5-4 on Blakely and other recent notable sentencing rulings that strengthened defendants' Sixth Amendment rights.

Both Roberts and Alito, however, replaced justices who were in the dissent, meaning that their votes alone could not steer the court in a different direction.

Daily Journal staff writers Leslie Simmons and Tamadhur Al-Aqeel contributed to this story.

Thursday, February 16, 2006

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February 16, 2006


Lawrence Hurley
Daily Journal Staff Writer

WASHINGTON - Torrance-based transactions attorney Milan D. Smith Jr. is the second moderate Republican President George W. Bush has nominated to the 9th U.S. Circuit Court of Appeals in as many weeks.

In stark contrast to stalled 9th Circuit nominee William G. Myers III, who still awaits confirmation despite originally being nominated in May 2003, Smith and last week's nominee, Sandra Segal Ikuta, both look set to win bipartisan support.

Smith, 63, is a confirmed supporter of civil rights who once resigned from the state's Fair Employment and Housing Commission when Gov. Peter Wilson vetoed a plaintiffs-friendly law.

The University of Chicago Law School graduate has spent most of his career in private practice at Torrance-based firm Smith Crane Robinson & Parker.

During that time his most famous adversary was probably New York property tycoon and reality TV star Donald Trump.

Smith, an active member of the Church of Jesus Christ of Latter-day Saints, received his undergraduate degree from Utah's Brigham Young University in 1966.

He is married with seven children.

Although he has strong Republican credentials - his brother is Sen. Gordon H. Smith, R-Ore. - Smith's candidacy is openly supported by Sen. Barbara Boxer, D-Calif., and has not been opposed by Sen. Dianne Feinstein, D-Calif.

Senators traditionally have unofficial veto power over judicial nominees from their home state.

Boxer, in particular, has not been shy about opposing Bush's nominations, while the more moderate Feinstein is a member of the Judiciary Committee that will decide Smith's fate.

Boxer actually sent a letter to Attorney General Alberto R. Gonzales in January 2005 in which she recommended Smith, along with two others, U.S. District Judges David Levi, of California's Eastern District, centered in Sacramento, and Judge Irma Gonzalez, of the Southern District in San Diego.

Of Smith, Boxer wrote that he has "an excellent record of public service" and "is highly respected and widely supported by his peers and colleagues."

A Feinstein spokesman would not say whether the senior senator had been consulted before Smith's nomination. Howard Gantman said the senator will state her position after reviewing all the relevant paperwork.

The other two nominees who hope to fill the rest of the four open spots on the 28-judge 9th Circuit, Myers and Idaho state-court Judge N. Randy Smith, are unlikely to get the same kind of support from Democrats.

Myers, originally nominated in 2004, already has faced one filibuster attempt by Democrats, who accuse the former mining lobbyist of being too pro-business on environmental issues.

Milan Smith was keeping a low-profile Wednesday, the day of his nomination.

"I'm grateful for and humbled by the nomination and look forward to working with the Senate," he said, before declining to comment further.

Among those put forward by the White House to speak on his behalf was long-term friend Douglas M. "Chip" Rawlings, a partner at Quinn Emanuel Urquhart Oliver & Hedges in Los Angeles.

Rawlings, who specializes in business litigation, described Smith as a "brilliant lawyer" whom he calls upon for assistance - sometimes as an expert witness - when dealing with particularly complicated disputes.

On one occasion in the 1990s, Smith was a crucial expert witness in a dispute between two charities that was tried privately because, Rawling said, both parties did not want the conflict to be litigated in the media.

The trial was presided over by two former California Supreme Court justices and a former chief judge of the California Superior Court. Rawlings would not name the judges, citing a court-ordered confidentiality agreement.

But he said, "At the end of his testimony, all three judges stood up, which was unprecedented, and thanked [Smith] for the thought, effort and effectiveness of what he had done. [The case] was resolved wholly in my client's favor."

As for Smith's political leanings, Rawlings stressed that, although his friend is interested in politics, he is "not doctrinaire" and instead is more focused on seeking viable, realistic solutions to legal issues.

"Milan is not a person burdened by an agenda and is, therefore, a consensus maker," Rawlings said.

As Smith's nomination progresses, supporters likely will focus on his work with the Fair Employment and Housing Commission.

Smith served on the panel for four years before quitting in 1991 when Wilson, who appointed him to the post, vetoed a new law that would allow the commission to award damages.

The commission's acting secretary and legal affairs secretary, Ann M. Noel, said Wednesday that Smith supported the legislation and played a role in drafting the bill.

She said he was "sympathetic" to plaintiffs, often poor young women from rural areas who did not have the resources to take sexual-harassment cases to court, the only way they could win damages under previous law.

Smith "felt very strongly" that the commission should be able to award damages to such claimants, Noel added.

Noting that commissioners have a quasi-judicial function to rule on civil rights issues, Noel said Smith would make a good judge because "he will listen to all points of view, ... has a great sense of humor ... and is very collegial."

Politically speaking, Smith "could only be described as fair and probably moderate," she said.

Smith's only other experience in public service is his longtime position as a member of the Los Angeles State Building Authority, which manages major public-sector-funded property developments.

He was president from 1984 to 1992 and since then has been general counsel, helping to oversee major projects, like the redevelopment of the historic Broadway department store in downtown Los Angeles.

Smith has spent nearly all his career in private practice, first as an associate with O'Melveny & Myers from 1969 to 1972 and then at the firm he helped found, Smith Crane Robinson & Parker.

Among his clients is the Palos Verdes Peninsula Unified School District.

It was while representing the school district that he came up against The Donald, as Trump is sometimes known.

Trump sued the school board in 2003 following a dispute over his Ocean Trails Golf Course in Rancho Palos Verdes.

The board, which owns the land on which the course sits, had sought to increase the rent, much to Trump's annoyance.

A City News Service report from 2003 quoted Smith saying that his client would "undoubtedly be disappointed that Mr. Trump has chosen to litigate with a small school district."

He quipped that the amount of money concerned was "Trump-change" to the developer, according to the report.

Stephen G. Larson, whom Bush nominated as a U.S. district judge for the Central District, was in Washington Tuesday for his hearing before the Judiciary Committee.

Larson, who currently sits as a U.S. magistrate judge in Riverside, has bipartisan support and had little trouble during the hearing, at which only two of the committee's 18 members, Feinstein and Sen. Mike DeWine, R-Ohio, were present.

Feinstein said in a statement that Larson was a product of the bipartisan committee in California that recommends nominations for federal district courts.

"Judge Larson's nomination through this process gives me confidence that he comes to the bench without an ideological agenda and is prepared to serve all the people of California," she said.

Friday, February 10, 2006

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February 10, 2006

Low-Profile, GOP Moderate Has No Bench Experience

By Lawrence Hurley
Daily Journal Staff Writer

WASHINGTON - President George W. Bush's latest pick for the 9th U.S. Circuit Court of Appeals is a low-profile, moderate Republican with no bench experience who supporters confidently predict is unlikely to face many hurdles on her way to confirmation.

Sandra Segal Ikuta, 51, general counsel at the California Resources Agency since 2004, certainly has some conservative credentials: She once clerked for the 9th Circuit's most prominent conservative voice, Judge Alex Kozinski.

She also clerked for the Supreme Court's most famous moderate conservative, the recently retired Justice Sandra Day O'Connor.

Moving Quickly
With Ikuta's nomination coming just two months after Idaho state-court judge and former Republican party leader N. Randy Smith was nominated to the same circuit, the White House now is moving quickly to fill the four vacancies on the 28-judge court in what court watchers believe is an effort to tilt the notoriously liberal circuit in a more conservative direction.

Bush already has had four of his 9th Circuit nominees confirmed to the bench.

Another nomination is stalled. William G. Myers III is opposed by Democrats and has not yet had a hearing in the Senate.

Failed Effort
Smith and Ikuta both have been nominated in the aftermath of a failed Republican effort in Congress to split the court in two in an attempt to create a new conservative-dominated circuit.

Although Ikuta is a Republican, those who know her say she has played no active role in politics, preferring instead to focus on the practice of law.

Gov. Arnold Schwarzenegger, a Republican known for making picks from across the political spectrum, appointed her to her current position.

Kozinski said Thursday he welcomed the nomination, although he declined to comment on whether he had any role in recommending her.

"That's something that I'd rather keep quiet," he said. "I certainly support her."

Asked about Ikuta's political leanings, Kozinski said he believed her to be "quite moderate," and, like other former colleagues contacted Thursday, he claimed not to know her political affiliation.

"I'm very confident she will be confirmed," he added. "I can't imagine there's anything at all about her life or work that would be controversial."

Warren Christopher, a senior partner at O'Melveny & Myers, where Ikuta was a partner before joining state government, said he did not believe his former colleague was involved in any political activities when she worked at the firm.

Christopher, who was secretary of State under President Clinton, described Ikuta as a "superb lawyer, ... a listener and a leader" who was effective at reaching solutions through negotiations with federal and state officials and her clients.

"She would make an excellent judge, and I hope the Senate will see it that way too," he added.

Ikuta, who is married with one child, was an environmental attorney at O'Melveny & Myers in Los Angeles for 14 years, including five as partner.

She received her law degree from the University of California, Los Angeles, in 1988, 10 years after she studied at Columbia University's well-respected journalism school.

Ikuta began her undergraduate studies at Stanford but switched to the University of California, Berkeley, after two years.

She is a registered Republican, according to the press release announcing her appointment to the California Resources Agency in 2004.

If confirmed, she will occupy the seat vacated by Judge James R. Browning, a Kennedy appointee who took senior status in 2000.

Randolph C. Visser, an environmental lawyer at Morgan, Lewis & Bockius in Los Angeles, has known Ikuta for years, mainly through their joint involvement in the Los Angeles County Bar Association's environmental law section.

He described her as a "very smart, very even-tempered" lawyer who is known for her ability to "bring people to a consensus" over tricky environmental issues.

When she worked at O'Melveny & Myers, Ikuta would rarely be seen in a courtroom, according to Visser.

She dealt mainly in real estate transactions where her job was to identify her clients' risks and liabilities concerning environmental matters and advise them on what action they may have to take, such as clean-ups, he said.

At the resources agency, Ikuta is the top lawyer, responsible for coordinating teams of attorneys working across several different departments. The agency oversees the state's natural resources and has responsibility for such issues as fishing, parks and recreations, and waterways.

Spokesman Sandy Cooney said he did not believe anyone in state government was aware of the pending nomination, including the governor's office.

"Everyone is completely surprised," he added.

Ikuta herself could not be reached for comment Thursday.

The fate of her nomination may be helped by the fact that she does not have much of a paper trail, according to University of California, Los Angeles, law professor Eugene Volokh.

Because Ikuta spent most of her career in private practice, her public writings primarily comprise some relatively dry law articles written for various publications, including the Daily Journal.

In a column she wrote for the Daily Journal in 1993, Ikuta warned that a series of state appellate-court rulings on landowner liability for environmental contamination could expose former property owners to litigation.

In the same year, she wrote an article for LA Lawyer, the magazine of the Los Angeles County Bar Association, about a then-new state law regulating hazardous waste treatment.

Volokh noted "it's hard to predict these days" whether a judicial candidate will be confirmed, but he suggested that Ikuta is well-equipped to survive the scrutiny of senators.

"She is not flashy. She is not flamboyant," he said. "But she is very smart and very thoughtful and experienced."

Mary Nicholls, a Democrat who was secretary of the California Resources Agency from 1979 to 2003 and now teaches environmental law at the University of California, Los Angeles, praised the nomination.

She said Ikuta, whose career she has followed, is "very nonpartisan" and "fair-minded" in the way she has conducted herself at the agency.

"Based on what I know and what I hear, I think she would be the type of Republican nominee that would get Democrat support," she added.

Howard Gantman, a spokesman for Sen. Dianne Feinstein, D-Calif., who sits on the Judiciary Committee, declined to comment on whether the senator had been consulted over the nomination.

"Senator Feinstein will announce her position after the Judiciary Committee hearing and after having an opportunity to carefully review Sandra Ikuta's record," he said in an e-mail.

President Bush has been widely expected to nominate Milan D. Smith Jr., a Los Angeles-based transactional attorney, to fill one of the vacancies, but Ikuta's nomination may put that in doubt, according to Arthur Hellman, a law professor at the University of Pittsburgh.

Hellman, an expert on the 9th Circuit, said it's unusual for a nominee's name not to come out in the media before the official nomination.

Smith, who could not be reached for comment Thursday, had confirmed to the press in the fall that he had been interviewed. In contrast, nothing emerged about Ikuta's nomination until the White House released a statement Wednesday evening.

"It came out of the blue," Hellman said.

He suggested that this could mean Smith's nomination has hit a snag.

Ikuta's nomination may not prove to be controversial, but the same probably cannot be said for the Mississippi lawyer nominated to the 5th Circuit on the same day.

Michael B. Wallace, the general counsel of the Republican Party in that state, is a former clerk to Chief Justice William H. Rehnquist and chief counsel to Sen. Trent Lott, R-Miss., when Lott was a member of Congress.

Wallace is best-known for successfully arguing for Greenville, S.C.-based Bob Jones University to win tax-exempt status in the 1980s, despite its ban on interracial dating.

Monday, February 06, 2006

© 2006 The Daily Journal Corporation.
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February 06, 2006

Theodore B. Olson's Removal Benefits His Firm's Other Clients

By Lawrence Hurley
Daily Journal Staff Writer

WASHINGTON - Trial lawyers and the business community are facing off in a high-stakes battle over a proposal to phase out decades of asbestos litigation by paying out personal injury claims from a nationwide trust fund.

But one prominent voice in the showdown will be conspicuously absent as the Senate takes up debate today.

Former U.S. Solicitor General Theodore B. Olson started out as an opponent of the bill, enlisted by an existing group of asbestos trusts that want no part of the reform legislation now pending in Congress.

Off the Job
But Olson was quietly taken off the job because his Los Angeles-based firm, Gibson Dunn & Crutcher, represents a number of corporations that support the bill as a way to limit their liability in the thousands of asbestos lawsuits filed since the 1970s.

"The firm determined that conflict of interest considerations warranted that determination," Olson said last week in a brief e-mail, confirming that he no longer represents the trusts.

Olson, the Solicitor General during President Bush's first term and one of the nation's pre-eminent Supreme Court litigators, is just about as powerful a lawyer as anyone can hire to do business in Washington, D.C.

Powerful Corporations
But in this case, Olson put himself at odds with the Dow Chemical Company, Ford Motor Company, and General Electric Company, among other corporate America household names who are clients of Olson's firm.

Prominent asbestos plaintiffs' attorney Steven Kazan of Oakland, who is familiar with Olson's involvement and has lobbied against the asbestos bill in Washington, said he believes Gibson Dunn was put under pressure to sideline Olson by some of the firm's other clients.

"These guys play hardball," Kazan said, referring to Fortune 500 companies that support the asbestos litigation reform proposal.

The bill, which would set up a $140 billion trust funded by businesses to pay all asbestos-related claims, already has passed the Senate Judiciary Committee, but the Fairness in Asbestos Injury Resolution (FAIR) Act faces an uphill battle both on the Senate floor and in the House.

Olson was hired last year by a group of trusts that call themselves the Common Interest Group. The organization's primary aim is to secure an amendment to the bill that would exempt the trusts from the act.

Olson outlined in a letter to senators last April why the trusts should be exempt from the FAIR Act.

He also was ready to file a constitutional challenge to the bill if it were enacted. Olson planned to argue in court that the FAIR Act would violate the takings clause of the Fifth Amendment by forcing the existing trusts to pay into the nationwide fund.

Sen. Arlen Specter, R-Pa., chairman of the Judiciary Committee, referred to Olson's advocacy efforts in his final report on the bill, published June 30, 2005.

Specter stated that creating a national fund depended on a contribution of $7.4 billion from the major existing asbestos trusts - the ones represented by Olson.

"Mr. Olson indicated that his firm represents such trusts and plans to file suit to protect their assets if the bill continues to allow for the confiscation of those trusts," Specter wrote.

But now, as the push to pass the legislation reaches its crucial period, Olson is out of the picture.

Stephen M. Snyder, managing trustee of the Western Settlement Asbestos Trust, one of the members of the Common Interest Group, declined to comment on why Olson no longer represents him.

"You'll have to ask them," he said, referring to Gibson Dunn.

Aleisha Gravit, Gibson Dunn's marketing director, also declined to comment, saying only Olson could speak on the matter. The firm's managing partner, Kenneth M. Doran, did not respond to attempts to reach him.

Gibson Dunn clients that have the most to gain with Olson absent from the asbestos debate aren't talking.

Scott Wheeler, a spokesman for Dow, confirmed in an e-mail that Gibson Dunn "does some representation of Dow," but did not elaborate further on the company's ties with the law firm.

Kathleen Vokes, a spokeswoman for Ford, stressed that the company had no involvement in Gibson Dunn's decision.

"Ford did not have anything to do with that," she said.

General Electric did not respond by press time Friday.

Olson's withdrawal from the field of play was so low-key that a spokesman for the Asbestos Alliance, a group formed by the various companies that are lobbying for the bill, was not even aware of the development when contacted Friday afternoon.

Having lost Olson, the Common Interest Group has instead hired Charles J. Cooper and Michael W. Kirk, two principles at a respected Washington boutique firm, Cooper & Kirk.

"They have great credentials," said Snyder, who is based in San Francisco.

Snyder explained that the trusts joined together because they believe their claimants could lose out if the act passes Congress.

The trust Snyder administers deals mostly with claims filed in the Bay Area. It was set up by court order to manage the asbestos payments of the MacArthur Company, Western Asbestos Company, and Western MacArthur Company.

Under the provisions of the FAIR Act, the Western Settlement Asbestos Trust would have to hand all its assets to the national fund.

Snyder said his trust's $2 billion would immediately be placed into the national pot.

Critics of the pending bill in Congress fear that a $140 billion national fund will eventually go bankrupt, causing some potential beneficiaries of the Bay Area trust to lose out on payments for their claims.

Consulting firm Bates White has speculated that the fund will need at least $300 billion, perhaps even as much as $695 billion.

The main sponsors of the legislation, Sen. Specter and Sen. Patrick J. Leahy, D-Vt., are preparing for what could be a tough fight to save the bill.

The bill passed the Judiciary Committee 13-5 last year, but several conservative Republicans who voted for it then made it clear they still had concerns. With left-wing Democrats also opposed to the bill, Specter and Leahy face the challenge of trying to overcome bipartisan opposition.

Sen. Dianne Feinstein, D-Calif., who sits on the Judiciary Committee, voted for the bill.

Specter made it clear at a press conference Thursday that he expected senators to table a number of amendments once the floor debate starts. He conceded that changes might be necessary for it to pass.

"We face very obvious hurdles," he said.

But Leahy stressed that the bill is the closest Congress has ever come to passing asbestos litigation reform and said he hoped his colleagues would recognize the need for compromise.

"We have struck a balance," he added. "The bill ... is our best chance and may well be our last chance."

Wednesday, February 01, 2006

© 2006 The Daily Journal Corporation.
All rights reserved.

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February 1, 2006

Court May Hear Sentencing Ruling

By Brent Kendall
Daily Journal Staff Writer

WASHINGTON - Seven months ago, the state Supreme Court pronounced the state's criminal sentencing system constitutionally healthy even after a series of U.S. Supreme Court rulings emphatically shifted decision-making power from trial judges to juries.

There are no shortage of critics who think the California justices got it wrong.

Later this month, the U.S. Supreme Court could decide whether it, too, wants to have a say in the matter.

When the justices meet for their next conference Feb. 17, they are scheduled to consider four appeals requesting high-court review of the California decision. They also are scheduled to consider an appeal from Tennessee on a similar ruling there.

Ohio State University law professor Douglas Berman is among those who are predicting that the Supreme Court will agree to review one or more of the cases.

"And my money is that they will blow up these state systems," Berman said.

"Sometimes I think they couldn't do anything but grant cert - it seems like such an obvious case for it," said Jonathan Soglin of the First District Appellate Project in San Francisco, who has drafted sample briefs to guide attorneys who are filing petitions seeking Supreme Court review of the California scheme.

In the Supreme Court's landmark 2004 decision in Blakely v. Washington, 542 U.S. 296, a 5-4 majority invalidated Washington state's sentencing system, holding that juries, not judges, must find virtually all facts that increase a defendant's sentence.

Six months later in U.S. v. Booker, 543 U.S. 220, the same five-justice majority invalidated the federal sentencing guidelines as a mandatory scheme because of their reliance on judicial fact-finding.

The rulings forced sweeping changes to the federal sentencing regime and to state sentencing systems around the country.

Changes, however, have not come to California, thanks to the state Supreme Court's June ruling in People v. Black, 35 Cal.4th 1238, that California's determinant sentencing law remains constitutional.

California's law gives judges three sentencing choices for most criminal offenses and instructs them to sentence a defendant to the middle term of imprisonment unless aggravating or mitigating factors counsel in favor of the longer or shorter term.

State judges are free to rely on whatever aggravating factors they deem significant, and they can sentence defendants to upper-term sentences based on factors not proved to a jury.

In the Black case, Tulare County Superior Court Judge William Silveira Jr. sentenced Kevin Michael Black to an aggravated term of 16 years for continuous sexual abuse of his stepdaughter.

Silveira found that the victim's vulnerability and her emotional and physical injuries, combined with Black's abuse of a position of trust, merited an upper-term sentence.

Black's attorney, Eileen Kotler of Balin & Kotler in Pacifica, argued that Silveira's fact-finding and sentence violated Black's Sixth Amendment rights under Blakely to have a jury find all facts that increased his sentence.

But in an opinion by California Chief Justice Ronald M. George, the state high court ruled that the state's sentencing law did not violate Blakely, Booker or the court's earlier landmark sentencing ruling in Apprendi v. New Jersey, 530 U.S. 466 (2000).

George said the California scheme "simply authorize[d]" state judges to exercise the type of traditional fact-finding necessary to choose the appropriate sentence within the range of punishment allowed by law.

A jury's guilty verdict, George said, authorized a judge to sentence a defendant to any of the three terms specified by the statute for the offense.

Only Justice Joyce Kennard dissented, saying that state judges violated Blakely when they issued upper-term sentences based on facts not found by the jury.

California's appellate courts had been sharply divided on the Blakely question.

Those divisions also extend between states.

The New Jersey Supreme Court, for instance, explicitly rejected the California Supreme Court's approach "because it appears to be in direct conflict with Blakely."

In Black's U.S. Supreme Court petition for review, Kotler said the state Supreme Court's decision "authorizes California courts to continue to administer a scheme that this court has determined is unconstitutional." Black v. California, 05-6793.

In response, state Attorney General Bill Lockyer's office said the state Supreme Court interpreted California's sentencing law in a way that complied with Blakely and the U.S. Supreme Court's other sentencing rulings.

Berman said most observers think the California Supreme Court's decision was based on questionable logic that ignored Blakely's basic holding that judges cannot impose sentences greater than those authorized by a jury's findings.

"If the Blakely five really feel that strongly about these issues, and their opinion indicates that they do, then they need to make sure that the biggest state in the union doesn't disregard the core principles of the ruling," Berman said.

Villanova University law professor Steven Chanenson, another critic of the California ruling, said the state Supreme Court "made some very intentional choices" to emphasize parts of Blakely and Booker that it liked, while ignoring parts that it didn't.

"If I'm right and the California Supreme Court is wrong, what is so troubling about the California case is that the shock waves are going to be dramatic," Chanenson said.

If the high court reviews the California ruling and reverses it, the state would have to revisit an untold number of cases that were not final at the time of the Blakely ruling, Chanenson said.

The state Supreme Court said in Black that data from the 1980s showed that, in cases involving a single count, California judges imposed the upper-term sentence between 13 percent and 17 percent of the time.

Soglin said that a ruling invalidating the California system would require an overhaul of the state's scheme.

However, he added that such a decision "would not be as explosive as Booker was" to the federal sentencing system.

Soglin said that, in a number of cases that would be affected theoretically, the difference between a middle-term and upper-term sentence may only be a year - a year that the defendant already has served.

Despite the speculation that the Supreme Court may decide to take up the California appeals, there remains a good chance that the justices won't get involved, given how few cases they agree to review each year.

In October, the court denied review in Abeyta v. California, 05-5747, an early appeal challenging the Black ruling.

The justices did not ask Lockyer's office to respond to the Abeyta appeal but did request responses for the appeals scheduled to be considered this month.

Soglin said it's possible that the high court does not have the appetite for another sentencing case right now. The justices also might want to let the issue percolate in the lower courts, he said.

However, even if the justices deny review, Soglin said, the issue will return to the high court again because the lower federal courts are beginning to examine California's sentencing scheme on habeas review.

"That will just take much longer," Soglin said.

In addition to Black, the other California appeals scheduled for consideration on Feb. 17 are Diaz v. California, 05-6549; Cunningham v. California, 05-6551; and Bradford v. California, 05-6698.