Posted 2:44 PM by Howard Bashman

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July 27, 2006

L.A. DEMOCRAT RELUCTANTLY DRAWN INTO PROBE
Sensenbrenner Orders Panel to Investigate Conduct of U.S. Judge Real

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - The powerful chairman of the House Judiciary Committee took his frustration out on a Democratic congressman from Los Angeles on Wednesday for opposing his plans to investigate the possible impeachment of U.S. District Judge Manuel L. Real.

After raising an objection, Rep. Howard Berman suddenly found himself assigned with helping to investigate Los Angeles-based Real's conduct.

Berman, of Van Nuys, had complained that congressional involvement is premature until the 9th U.S. Circuit Court of Appeals completes its own study of the Real case, which is ongoing.

Sensenbrenner, a Wisconsin Republican, appeared angry at that point during Wednesday's hearing. He responded by withdrawing his initial plan and ordering a subcommittee on which Berman serves to investigate the matter instead.

But Berman, as a minority party member, may not get to set the pace on how to proceed. The chair of the subcommittee is one of Sensenbrenner's staunch allies, a conservative Republican from Texas, Lamar Smith, known for vocal criticism of judicial misconduct.

Sensenbrenner requested that the subcommittee on courts, the Internet and intellectual property start its work immediately, make the Real investigation a "top priority during the August recess," and report back to the full committee by November.

Wednesday's Judiciary Committee meeting was the first time that lawmakers have discussed Sensenbrenner's recent proposal to establish a task force to investigate Real's case, which dates back to 1999.

Real, who is now 81, allegedly took it upon himself to help a woman in bankruptcy proceedings after overseeing her probation in an unrelated criminal case. Among the allegations are suggestions that he participated in ex parte communications with the woman. Real's attorney has asserted he committed no criminal wrongdoing and said there's no basis for any investigation.

Speaking Wednesday afternoon after his confrontation with Sensenbrenner, Berman said in an interview that he is somewhat confused about what's supposed to happen next. Berman stressed that subcommittee is under no obligation to carry out the chairman's request to start its inquiries straight away.

"This was not a court order," he said of Sensenbrenner's statement. "My position is that the proper way to proceed is to wait for the 9th Circuit."

Berman, who has met Real several times as part of his regular interaction with federal judges in his district, added that the allegations are "quite serious."

Sensenbrenner made it clear he is frustrated at the federal judiciary's failure to fully investigate Real's alleged misconduct.

"I believe that Judge Real's conduct ... may constitute an impeachable offense," he said.

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

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

Schroeder has since convened a special committee to do exactly that.

The panel is expected to hold hearings next month and report its conclusions in the fall.

Sensenbrenner, an outspoken critic of the 9th Circuit, said Wednesday that Schroeder "effectively blew off the evidence" of misconduct when she reviewed the issue on the first two occasions.

He added that the 9th Circuit "disappointingly, if not surprisingly, has refused to discipline him," referring to Real.

The task force measure was just one item on a crowded agenda that fell victim to partisan bickering between the parties.

As Berman noted, the committee never actually voted on it.

Several Democrats had suggested that it was premature to investigate impeachment when the 9th Circuit's special committee is still looking into the matter.

"I'm shocked that we are taking up the preliminary impeachment process," said Rep. John Conyers, D-Mich., the ranking minority member. "It's not clear to me that the committee needs to intervene."

The subcommittee chairman, Lamar Smith, hails from the home state of President Lyndon B. Johnson, the Democrat who appointed Real to the bench in 1966.

Smith supports Sensenbrenner's controversial proposal to create an office of inspector general for the judiciary and is seen as a contender to become Judiciary Committee chairman when Sensenbrenner steps down.

Beth Frigola, Smith's spokeswoman, said the investigation would, as Sensenbrenner had requested be a "top priority," but she added that "no certain plans have been made" as to when it would start.

Berman said he had not yet been able to speak to his Republican colleague about scheduling, but he pointed out that the subcommittee has several other issues before it.

The full Judiciary Committee is also expected to hold hearings during the August recess on the immigration bill currently the subject of intense negotiation between the House and Senate, leaving less time for members to work on other matters.

With elections approaching in November, the 9th Circuit's panel could therefore reach its decision on Real before Congress takes any further action.

Posted 12:00 PM by Howard Bashman

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July 25, 2006

High Court Gives and Takes in Cases on Proposition 64

By Itir Yakar
Daily Journal Staff Writer
Deciding the fate of lawsuits filed before the state's voters reined in the Unfair Competition Law two years ago, the California Supreme Court gave businesses a victory Monday, only to take it back.

In the first of two rulings, the high court held that courts can retroactively apply the 2004 voter initiative, Proposition 64, to dismiss cases that were in the works before Californians passed the measure.

Tort Reform
But in a second related case, the justices held that plaintiffs should be allowed to amend their complaints to satisfy the new requirements of Proposition 64.

The tort-reform measure amended the Unfair Competition Law, Business and Professions Code Section 17200 so that only public prosecutors and plaintiffs who can prove they suffered actual damages can bring lawsuits. The language of the initiative did not specify whether the new requirements were meant to apply to cases pending at the time it was passed.

Hundreds Affected
The two cases arrived at the Supreme Court after state appellate courts reached conflicting conclusions last year about the retroactivity of the ballot measure.

Experts said hundreds of pending unfair-competition cases will be affected by Monday's rulings.

The decisions come a week after a state appellate court further limited Section 17200 litigation. The 2nd District Court of Appeal in Los Angeles held that all members of a class action brought under the unfair business practices statute must have suffered actual damages. Pfizer Inc. v. Superior Court, B188106.

In Monday's first case, the state's top court concluded that, in order for plaintiffs to preserve their cases after Proposition 64, they must show injury.

"For a lawsuit properly to be allowed to continue, standing must exist at all times until judgment is entered and not just on the date the complaint is filed," Justice Kathryn Mickle Werdegar wrote in the first case for the unanimous court. Californians for Disability Rights v. Mervyn's LLC, S131798.

In that case, a nonprofit disability rights advocacy group sued Mervyn's department stores in 2002, claiming that the chain discriminated against disabled people by not providing adequate pathway space in its stores.

Alameda County Superior Court Judge Henry E. Needham Jr. ruled in favor of Mervyn's in 2004, and the case was pending on appeal when the state's voters passed Proposition 64.

Mervyn's asked the 1st District Court of Appeal to dismiss the appeal, arguing that the rights group no longer had standing in light of the new law.

But a unanimous three-judge appellate panel concluded that the new standing rules could not be applied retroactively and allowed the case to move forward.

Monday's Supreme Court ruling reversed that decision.

But in their second ruling, the high court's justices then said they will allow plaintiffs to amend their complaints to comply with Proposition 64's requirements and substitute in a plaintiff who suffered damages. Branick v. Downey Savings and Loan Association, S132433.

"The policy objectives underlying Proposition 64 are fully achieved by applying the measure to pending cases, as we have concluded it must be applied," Werdegar wrote in her second ruling. "An additional rule barring amendments to comply with Proposition 64 does not rationally further any goal the voters articulated."

But in the Branick case, Los Angeles County Superior Court Judge Wendell Mortimer Jr. has discretion to decide whether an amendment is appropriate, the court held.

That case comes to the high court from a 2nd District panel that unanimously held that the ballot initiative applies retroactively. But the panel concluded that the plaintiffs may amend their complaint to comply with the new rules.

The suit was brought by Thomas Branick and Arda Campbell in 2003, accusing the savings and loan association of breaching contractual terms and making misrepresentations in its real estate services.

James C. Sturdevant of the Sturdevant Law Firm in San Francisco, who represented Californians for Disability Rights, said he is planning to move forward with his case despite the court's ruling in favor of Mervyn's.

In light of the Branick ruling, he said he will request to substitute in new plaintiffs, pulling some from a group of 16 disabled people who he said testified at trial about how they were discriminated against by Mervyn's practices.

"All this will do is add a new wrinkle in the mix," Sturdevant said.

He said the combined effect of the two rulings simply will mean that attorneys will file motions to amend their complaints.

"I don't think [the rulings] will have a big impact," he said. "I think most courts will grant motions to amend and substitute."

Michael Spencer, the Milberg Weiss Bershad & Schulman attorney in New York who represented Branick, said most of the cases affected by the ruling "will find a way to proceed" at the trial court's discretion.

"While our clients are disappointed that the Supreme Court interpreted Proposition 64 to apply to pending cases," Spencer said, "the court's reasoning should allow these cases to continue unimpaired once the complaints are amended to bring in plaintiffs who have suffered injury, and we intend to proceed on that basis."

But Michael Mallow, a partner at Loeb & Loeb in Los Angeles who specializes in defending unfair-competition cases, disagreed.

He said attorneys will have a hard time replacing uninjured plaintiffs with those who have suffered actual injury because "a lot of the injury is speculative, imaginary, potential."

"There are a lot of businesses that will be positively impacted with the Mervyn's decision," he added, "because they'll have a reduction in cases with uninjured-plaintiff cases."

David F. McDowell, the Morrison & Foerster partner in Los Angeles who represented Mervyn's, disagreed.

"I'm very pleased with the ruling in the Mervyn's case," he said in a phone interview Monday, adding that an amendment is not likely to be allowed in the Mervyn's case.

"California has thankfully brought itself into the mainstream by requiring that plaintiffs suffer an actual injury before suing and requiring the protections of class actions before entering broad relief," he said in a statement released earlier in the day.

J. Kevin Snyder, an attorney at Dykema Gossett in Los Angeles who also litigates for defendants, agreed with Mallow that the retroactive application of the initiative "will be pretty widely felt."

He added that the Branick ruling is "not a surprise" nor controversial.

More than two dozen interest groups have filed amicus briefs in the closely watched cases, including the American Association of Retired Persons, Cingular Wireless, the California Chamber of Commerce, the Civil Justice Association of California, the Center for Biological Diversity, the Pacific Legal Foundation and Aetna Life Insurance Co.

Posted 4:55 PM by Howard Bashman

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July 19, 2006

Congressman's Gambit Puts Judge on Path to Impeachment

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - Los Angeles-based federal Judge Manuel L. Real is now officially public enemy No. 1 in Congress' ongoing war against the judiciary.

Powerful Republican Rep. F. James Sensenbrenner Jr. of Wisconsin took his long-running campaign against the third branch to a new level Monday night when he formally launched an inquiry that could lead to the impeachment the 81-year-old jurist.

In the unlikely event that Real is convicted, he would be only the eighth judge to be removed from office in United States history, and the first from California.

Sensenbrenner's decision to table a resolution calling for possible impeachment triggers an inquiry that will be conducted by the House Judiciary Committee, which he chairs.

This is the latest in a long line of potshots Sensenbrenner has taken at the judiciary in recent years over what he sees as its failure to police itself.

He is also pushing a bill that would set up an office of inspector general for the judiciary.

"Exhibit A" in that effort is the 9th U.S. Circuit Court of Appeals' failure to discipline Real when the ethics complaint in question first reached its judicial council.

Sensenbrenner's decision to act now indicates a clear lack of confidence in the 9th Circuit's latest investigation, which is ongoing.

"They have already handled it twice," Sensenbrenner's spokesman Jeff Lungren said Tuesday. "If the issue continues to be kicked around and not dealt with, Congress is forced to open an inquiry."

But he added that no timeline has been set for the investigation, which would be conducted by a bipartisan impeachment inquiry team that would then report back to the full committee.

The House would have to vote in favor of impeachment in order for the case to proceed, and the Senate would then conduct a full trial.

With the summer recess and November elections approaching, it's unclear whether Sensenbrenner will find time to go ahead with the investigation even if he wins support from colleagues.

A spokesman for Rep. John Conyers, D-Mich., the ranking minority member on the Judiciary Committee, said the Democrats had no formal response yet.

One Democrat who did have a response was Judiciary Committee member Rep. Howard L. Berman, whose district includes parts of Los Angeles and surrounding cities.

"There is a procedure in place for when matters such as these need to be addressed - and that process has begun," he said in a statement. "It would be premature for Congress to intervene at this point."

Sen. Dianne Feinstein, D-Calif., who sits on the Senate Judiciary Committee, had not issued a formal response at press time.

Real would not comment, and his office referred media inquiries to his personal lawyer, Donald C. Smaltz.

Smaltz called the resolution "regrettable" and "an obvious rush to judgment."

Real, he said, received no advance notice of the resolution and no chance to dispute the facts on which it was based.

Nevertheless, Smaltz said he and his client was looking forward to the proceedings.

"We are confident and will demonstrate overwhelmingly that Judge Real has committed no criminal violations and that there is no basis whatsoever for this inquiry," he said.

Real's accusers say he improperly favored a plaintiff, Deborah M. Canter, by withdrawing her case from bankruptcy court and preventing the state from evicting her from her home.

Although the 9th Circuit reversed Real's 1999 decision over the eviction, Venice-based civil rights lawyer Stephen Yagman subsequently filed a citizen's complaint against the judge in 2003, alleging that the jurist had "acted inappropriately to benefit an attractive female."

The 9th Circuit's chief judge, Mary M. Schroeder, initially concluded that no disciplinary action was necessary, but when Yagman appealed again, the 9th Circuit's judicial council agreed that further investigation of alleged ex parte communications involving Real and Canter was necessary.

Schroeder disagreed and again dismissed the claim.

Earlier this year, a national federal panel reviewed the case but did not reach the merits, with the majority ruling that it did not have jurisdiction because Schroeder had not instigated a full investigation.

That investigation is now under way, led by 9th Circuit Judge Susan P. Graber of Portland and with Judith Droz Keyes, a San Francisco attorney with Davis Wright Tremaine, acting as outside counsel.

A spokesman for the 9th Circuit said Schroeder could not comment on the issue because the inquiry is ongoing.

Experts on judicial ethics say that despite the protracted history of the case, it's too early for Congress to get involved, particularly because Real's alleged misconduct does not appear to warrant such drastic action.

Arthur Hellman, a law professor at the University of Pittsburgh, said Real's alleged actions were possibly an abuse of power but were not intended for personal gain.

"It seems premature," he said of Sensenbrenner's measure.

Previous impeachment proceedings against judges have usually been for serious instances of corruption, Hellman added.

Only 13 federal judges have ever been impeached, and just seven of those were convicted.

The last two were both in 1989.

Walter L. Nixon of the Southern District of Mississippi was charged with committing perjury before a grand jury, while Alcee L. Hastings, of the Southern District of Florida, was charged with perjury and conspiring to solicit a bribe.

Both were removed from office.

Harold Louderback of the Northern District of California is the only judge from the Golden State to have been hauled before the Senate for impeachment proceedings.

He was eventually acquitted in 1933 on charges of favoritism and conspiracy in the appointment of bankruptcy receivers.

More recently, some conservative activists called for the impeachment of Judge Thelton Henderson of the Northern District of California after he struck down California's anti-affirmative action statute in 1997, but no formal charges were filed.

Back in 1933, Louderback's trial took place at a time when Congress was in the midst of debating reams of New Deal legislation, leading to complaints from Democrats that the Republicans were using the impeachment as a way to delay more important business.

Witnesses included "a faith healer who had to be brought into the chamber on a stretcher," according to the official Senate history of the proceedings.

Observers today suggest that Sensenbrenner is likewise using the threat of impeachment for political ends.

"What he is doing is communicating to the conservative wing of the [Republican] party that when it comes to judges who misbehave ... he will take it into his own hands," said Charles Geyh, a professor at Indiana University School of Law at Bloomington.

Sensenbrenner's proposal to set up an office of inspector general is part of that strategy, he added.

"This is a guy who's looking for ways to make judges more accountable," Geyh said.

As for Real, legal scholars say he could defuse the situation if he chose to take senior status or quit the bench, exactly 40 years after President Lyndon Johnson nominated him.

The longest-serving judge on the Los Angeles federal bench, the San Pedro native is a former U.S. attorney for the then-Southern District of California.

He is a 1951 graduate of Loyola Law School.

Although known off the bench as gracious and convivial, he is widely considered by federal court practitioners as being a fearsome and intimidating presence once he dons his robes. In well-publicized incidents, he has jailed or levied hefty sanctions against lawyers - including Yagman - who crossed him in court, but the 9th Circuit later overturned some of those sanctions.

He may be best known for presiding over contempt proceedings against Hustler magazine publisher Larry Flynt. During the hearing - immortalized in the film "The People vs. Larry Flynt" - Flynt spat at and cursed the judge.

Real responded by handing him a 15-month sentence.

The 9th Circuit has also taken Real to task in a number of civil cases over the past 20 years.

After reversing his rulings, the appellate court took the unusual step of removing Real from the cases and assigning them to other judges.

Despite his reputation, Real is also known as a jurist willing to cut a break to the occasional criminal defendant and order intensive probation and community service in lieu of jail time.

His colleagues on the Central District bench rallied to his support Tuesday, slamming Sensenbrenner's resolution.

"It's just another intrusion on the judiciary by the legislative branch of government," said Senior U.S. District Judge Dickran Tevrizian.

Tevrizian said the inquiry smacked of the so-called Feeney Amendment, a law enacted by Congress ordering reports on federal judges' sentencing decisions.

The law was widely seen as an effort to intimidate federal judges from giving lighter sentences than called for by the sentencing guidelines.

Tevrizian said the 9th Circuit's disciplinary process is sufficient to deal with allegations not rising to the level of impeachment.

Those seeking additional actions by other branches of government were simply dissatisfied with the results of the inquiry, he said.

"The judiciary can take care of itself," he said.

Like Tevrizian, U.S. District Judge Florence-Marie Cooper said she doesn't think Real's conduct - even if substantiated - is serious enough to be an impeachable offense.

Cooper called Sensenbrenner's resolution "astonishing" and "inappropriate" and said it would result in a chilling effect on the federal judiciary.

"The political aroma makes us all nervous," she said.

Chief U.S. District Judge Alicemarie Stotler could not be reached for comment.

Some experts, while not defending his actions, said they believe Real's new position as the poster-child for judicial misconduct is a case of him being in the headlines at the wrong time.

That's because his is one of the few cases nationwide to have received media attention, according to Geyh.

Many cases of judicial misconduct are resolved privately or, at least, without media attention, he noted.

"It's hard to find a cause celebre in this field," Geyh said. "You play the ball where it lies."

As for the man who got the ball rolling, civil rights attorney Yagman said he had no feeling one way or another about Sensenbrenner's resolution.

Any probe should be devoid of political considerations, he said.

"I expect and hope any inquiry would be done in a fair and impartial way," Yagman said. "I hope it's not a partisan political thing."

Daily Journal staff writers John Hanusz and Amelia Hansen contributed to this story

Posted 6:50 AM by Howard Bashman

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July 18, 2006

Republicans Will Attempt to Strip 'Pledge' Cases from Courts

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - The court conservatives love to hate will take center stage in Congress later this week.

If the 9th U.S Circuit Court of Appeals wasn't facing enough political heat this summer, with a revived push to split the circuit in two, there is still more to come.

Partisan wrangling over judicial independence will be the order of the day Wednesday on the floor of the House as Republicans take up a measure to strip federal courts from hearing cases challenging the constitutionality of the Pledge of Allegiance.

The Pledge of Allegiance legislation, which has passed the House once before, is a reaction to the infamous 9th Circuit decision in 2002, Newdow v. U.S. Congress et al., 313 F.3d 500, which conservatives saw as liberal judicial activism at its worst.

The court ruled that the phrase "under God" in the Pledge of Allegiance was an unconstitutional establishment of religion.

Sacramento-based U.S. District Judge Lawrence Karlton revived the issue last October when he applied the 9th Circuit's decision to local schools. Now, Karlton's ruling is on appeal.

The Republican leadership in Congress is pushing the pledge measure as part of its election year "American Values Agenda," which includes bills banning same-sex marriage and human cloning, among others.

The intent, political experts say, is to rally the conservative base for the forthcoming elections.

Rep. Todd Akin, R-Mo., sponsored the bill that would deny federal courts the jurisdiction to hear any cases relating to the Pledge of Allegiance.

Akin's spokesman, Steve Taylor, confirmed Monday that the congressman's proposal was a direct response to the 9th Circuit decision.

"He believes the court has acted in an activist fashion," Taylor said. "It's within the authority of Congress to establish federal courts and their jurisdiction."

The House is expected to pass the bill, as it did in 2004, but the Senate isn't likely to take it up.

The Senate bill, sponsored by Sen. John Kyl, R-Ariz., has failed to make progress, which was the same fate similar legislation suffered two years ago.

Oddly, the House legislation didn't even pass the Judiciary Committee when it came up for a vote at the end of June.

South Carolina Republican Rep. Bob Inglis broke ranks with his party colleagues, setting up a 15-15 tie.

He said he was worried that Pledge of Allegiance cases might end up at the mercy of liberal judges in state courts if the legislation passed.

Arthur Hellman, a law professor at the University of Pittsburgh, said Inglis has a point.

Hellman noted that, as drafted, the bill would take away the Supreme Court's jurisdiction in addition to the lower federal courts.

That could lead to "the bizarre situation," as Hellman put it, of a liberal state appeals court having the final say over whether the pledge is unconstitutional under federal law.

"If you want to protect the pledge, that part of the bill makes no sense," Hellman added.

The re-appearance of the pledge bill coincides with a renewed effort from conservatives to split the 9th Circuit into two courts.

Legislation is on the Senate Judiciary Committee's agenda, although Sen. Dianne Feinstein, D-Calif., said she has been promised there will be a full hearing before a vote is scheduled.

Carl Tobias, a law professor at the University of Richmond, said he believes the Pledge of Allegiance debate could help jog the memories of some conservatives.

"It reminds people that it was the 9th Circuit that issued that decision," he said. "You can't divorce it from the 9th Circuit split effort."

Hellman disagreed, saying there was "only marginal" overlap.

That's because the supporters of the split, mainly western Republicans, are basing their arguments on judicial caseloads and other administrative issues.

They could potentially undermine their position if they started criticizing specific 9th Circuit decisions, Hellman said.

"They open themselves up to the accusation that they are in fact promoting the split as a way of retaliating for decisions like the pledge decision," he added.

The pledge case, brought by atheist lawyer Michael Newdow, reached the Supreme Court in 2004.

The court dismissed Newdow's claim on procedural grounds, thereby leaving the underlying issue unresolved.

Newdow promptly filed suit again, leading to Karlton's ruling and setting the stage for the 9th Circuit to rule on the issue yet again.

Posted 11:25 AM by Howard Bashman

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July 14, 2006

Will 'Hamdan' Join 'Kelo' on Congress' Dusty To-Do List?

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - Almost exactly a year ago, after the Supreme Court's decision to endorse the right of governments to seize property purely for economic benefit, Congress was in an uproar.

Yet legislation that would limit the scope of the ruling remains in limbo in the Senate.

The inaction comes in an election year when critics on the sidelines, primarily Democrats, are decrying the Republican-led Congress for dithering over key pieces of legislation.

The question now is whether Congress can act more quickly in response to some of this year's Supreme Court blockbuster decisions, the most important and timely being Hamdan v. Rumsfeld, which concerns how the government should prosecute enemy combatants in the war on terror.

Other issues on Congress' agenda that were the subjects of recent Supreme Court decisions include patent law reform and voting rights.

Although the Republican leadership clearly sees both the reauthorization of the Voting Rights Act and passage of an enemy combatant bill as priorities, the latter is probably more important for the party's electoral prospects, according to Thomas Mann, a senior fellow at the Brookings Institution, a Washington, D.C., think tank.

"If they fail to do so, it will reinforce the Democratic critique of the 'Do Nothing Congress'," he said.

Some fear time is already running out on the enemy combatant measure, as Sen. Majority Leader Bill Frist, R-Tenn., has put off any leadership action until after the August recess, meaning there would effectively be only a month left before members hit the campaign trail.

Patent reform appears to have fallen off the radar completely, although the future of the Voting Rights Act reauthorization looks brighter after the House passed the bill Thursday afternoon.

Mann warned that despite the apparent progress, reauthorization could still fall by the wayside.

"It could clear Congress before the August recess or be another casualty of this Congress," he said.

The reaction of Congress to the eminent domain case is perhaps a cautionary tale.

When the Supreme Court issued its decision last June in Kelo v. City of New London, 2005 DJDAR 7475, many lawmakers voiced concern that the court had tilted the balance too far in favor of the government.

But Congress has nothing to show for all the rhetoric.

Since then, the House has passed two pieces of Kelo-related legislation that would restrict federal funding for projects that use eminent domain for private commercial development.

Similar language has also been inserted in an appropriations bill.

The Senate has not taken any action, although President Bush did issue an executive order in June ordering federal agencies to seize property only for public uses.

A year after the decision, Dana Berliner, an attorney with the Institute for Justice, a property rights advocacy group in Washington, D.C., expressed frustration.

"It's completely stalled in the Senate," she said. "The Senate should go and pass this law."

With more urgency around national security than eminent domain, lawmakers have responded quickly to the Supreme Court's call for legislation clarifying how to put enemy combatants on trial.

In Hamdan v. Rumsfeld, 2006 DJDAR 8443, the court ruled that the Bush administration had exceeded its authority in setting up military commissions to try enemy combatants and suggested that Congress step in.

"It's absolutely imperative that we enact this legislation before we complete this Congress, whenever that may be," Sen. John Warner, R-Va., chairman of the Armed Services Committee, said at a hearing on the issue Thursday, one of three held this week.

Military law expert Eugene R. Fidell said Thursday that it's realistic for Congress to pass a bill before the elections, but only if lawmakers put in the necessary work.

"It's important," he added. "We've got these people [enemy combatants] in a failed judicial system and years have gone by."

But with time running out, Major General Thomas Romig, a retired Army Judge Advocate General, echoing Fidell, warned that members of Congress should not pass a law without debating the matter in full.

"I would strongly warn against a rush to judgment," he said at Thursday's hearing. "I urge you to take the long view."

There's no danger of Congress rushing to enact patent reform, an issue that's been percolating for years.

Experts are predicting that nothing will pass this Congress.

Two bills are pending in the House and, if anything, the major Supreme Court decision in May has actually made lawmakers' jobs easier.

That's because the ruling in favor of San Jose-based eBay Inc. two months ago in eBay v. MercExchange, 2006 DJDAR 5756, resolved one of the three contentious obstacles to reform.

The court overturned a long-standing legal precedent that almost always allows plaintiffs to win permanent injunctions against patent infringers.

"That's taken one divisive issue off the table," said one Washington-based patent expert with ties on Capitol Hill.

The legislation that remains would resolve delays in approving patents and improve the quality of patents.

But with the elections approaching, and Rep. F. James Sensenbrenner, R-Wis., reaching the end of his tenure as House Judiciary Committee chairman, members jockeying for his position don't want to "upset each other," the lawyer said.

With the Voting Rights Act reauthorization, the case before the Supreme Court, concerning the legality of a redistricting scheme in Texas, did not directly affect the debate over the legislation. But the ruling has become fodder for lawmakers of both parties.

Republicans who oppose reauthorizing sections of the act had argued in part that Congress should wait for the Texas case to be decided before taking any action on the legislation.

Democrats accused them of using the wait for the court's decision as a delaying tactic.

In the two weeks since the high court ruled in League of United Latin American Citizens v. Perry, 2006 DJDAR 8281, Democrats have seized upon the court's holding that the Texas Legislature violated the Voting Rights Act as a sign of the need for reauthorization.

The court took issue with the Legislature's removal of a sizable Hispanic population from one district when it was about to become the dominant political force.

Sen. Edward M. Kennedy, D-Mass., one of the main proponents of the reauthorization bill, held a hearing on the Supreme Court's decision Thursday in order to further highlight the issue.

"The decision is a vindication of minority voting rights," he said.

Sen. John Cornyn, R-Texas, takes a contrary view, saying the Supreme Court decision concerned him because it showed that the act has become "a vehicle for partisan maneuvering."

Nevertheless, the House vote Thursday indicates that Republicans are willing to support reauthorization, despite their concerns.

The Senate Judiciary Committee is due to vote on its version of the bill before the August recess.

Posted 1:24 PM by Howard Bashman

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July 11, 2006

Kennedy Calls Pressure for Stronger Sentences 'Sick'

By Amelia Hansen
Daily Journal Staff Writer
HUNTINGTON BEACH - In a free-form speech, U.S. Supreme Court Justice Anthony M. Kennedy waxed nostalgic Monday about his California roots as he addressed hundreds of western federal judges gathered for their annual conference.

As the new Supreme Court liaison to the 9th U.S. Circuit Court of Appeals - a post he assumed after Justice Sandra Day O'Connor retired early this year - it was Kennedy's first delivery of opening remarks at the circuit's annual judicial conference, being held this week in Huntington Beach.

Quoting from the literary works of Wallace Stegner as well as landmark Supreme Court opinions, the California native and former 9th Circuit judge revealed an abiding passion for the West - and his ambivalence toward his post-O'Connor designation as the high court's new swing vote.

"Sandra detested that term," Kennedy, a moderate conservative, said of O'Connor. "I think it sounded to her like 'inconsistency.'"

Asked how he feels about having his colleagues come to him to tip the scales in a 4-4 case, he answered shortly: "It's their jurisprudence, their problem."

Born in Sacramento in 1936, Kennedy received his bachelor's degree from Stanford University and his LL.B. from Harvard Law School. He also studied at the London School of Economics.

A practicing attorney in San Francisco and Sacramento from 1961 to 1975, Kennedy was appointed to the 9th Circuit by President Ford in 1975.

President Reagan elevated him to the U.S. Supreme Court in 1988.

Most legal scholars agree that Kennedy has moved to the center of the court over the past 18 years. Since O'Connor's retirement, he has, indeed, tipped the scales - to the left and then the right - in several groundbreaking court decisions.

Most recently, he supported the court's four-member liberal wing, striking down President Bush's planned military tribunals for terrorism suspects at the U.S. Naval Base at Guantanamo Bay, Cuba. Hamdan v. Rumsfeld, 2006 DJDAR 8443.

On the conservative side, Kennedy wrote a complicated opinion upholding most of the mid-decade congressional redistricting in Texas, where state Republicans, pushed by former House Majority Leader Tom DeLay, redrew the state map to increase GOP ranks in Congress. League of United Latin American Citizens v. Perry, 2006 DJDAR 8281.

But Kennedy's independent nature has not made him popular with some conservative Republicans - including DeLay.

According to news reports, DeLay termed as "outrageous" Kennedy's willingness to consider tenets of international law in U.S. cases. Conservatives also have blasted Kennedy for his views on criminal sentencing.

During a 2003 hearing on the Supreme Court's budget, Kennedy told Congress that "too many people are behind bars in America, and prison sentences are often too long."

He delivered the same message at the American Bar Association's annual meeting in San Francisco that year.

"It is no defense if our current prison system is more the product of neglect than of purpose," Kennedy said. "Out of sight, out of mind is an unacceptable excuse for a prison system that incarcerates over 2 million human beings in the United States."

Shortly thereafter, a writer in The Washington Times called Kennedy one of the "self-crowned sentencing wizards ... who have assailed the act for its tacit reproach to their claimed wizardry in curbing crime and rehabilitating criminals."

On Monday, he reiterated his views to the 9th Circuit delegates.

Reciting statistics he used during the ABA speech, Kennedy said that sentences in the United States are eight times more severe than comparable sentences in Western European countries.

The pressure for stronger sentences "is sick," Kennedy said, drawing applause from the audience.

Despite holding strong opinions, Kennedy said he continues to evolve as a judge.

Consuelo M. Callahan, a 9th Circuit Judge from Sacramento, asked the justice whether he believes he has changed during his years on the bench.

Kennedy said when he reached the Supreme Court, he thought his first day would be just like another day of work at the 9th Circuit.

He quickly learned that wasn't the case.

Referring to a case he once voted to rehear, Kennedy said he was very surprised when shock waves rippled through the civil rights and employment law communities after his decision.

"I learned this system to be much more sensitive to any signal the court would send," he said.

Posted 11:00 AM by Howard Bashman

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July 3, 2006

Ninth Takes Its Lumps From Supreme Court

By Brent Kendall
Daily Journal Staff Writer
WASHINGTON - The San Francisco-based 9th U.S. Circuit Court of Appeals had another rocky year at the U.S. Supreme Court, as the justices reversed the nation's largest and most liberal circuit 83 percent of the time, with the overwhelming majority of those reversals coming in unanimous high court decisions.

After an unusual 2004-05 term where the 9th Circuit proved to be more conservative than the Supremes in a number of notable cases, the high court's 9th Circuit reversals in 2005-06 returned somewhat to the more traditional pattern of reining in the appeals court.

The justices considered 18 rulings out of the 9th Circuit this term, which ended Thursday, and reversed or vacated 15 of those decisions.

Twelve of those reversals were unanimous, and in four cases, the court found the 9th Circuit's errors clear enough to issue summary reversals without the need for full briefing and oral argument.

Thomas C. Goldstein of Akin Gump Strauss Hauer & Feld said the 9th Circuit's reversal rate wasn't that far out of line with other federal appellate circuits, but said it was clear that the Supreme Court was paying particular attention to the West Coast court.

"The Supreme Court is trying to send a signal to some judges of the 9th Circuit it has particular concerns with that they really aren't following the law," Goldstein said.

On the bright side for the 9th Circuit, it was affirmed in one of the biggest cases of the Supreme Court's term: the dispute over Oregon's assisted suicide law.

The justices, by a 6-3 vote, agreed with the 9th Circuit that then-Attorney General John Ashcroft did not have the authority to block Oregon's law, which allows doctors to prescribe lethal drug doses to terminally ill patients. Gonzales v. Oregon, 2006 DJDAR 608.

Judge Richard Tallman wrote the 9th Circuit's 2-1 opinion in the case.

"That was the single most important case" from the circuit, said University of Pittsburgh law professor Arthur Hellman, who follows the 9th Circuit closely.

Perhaps the 9th Circuit's most visible reversal came in Garcetti v. Ceballos, 2006 DJDAR 6495, where a deeply divided Supreme Court ruled that the First Amendment did not protect a Los Angeles County prosecutor who alleged that his superiors retaliated against him for reporting suspicions of police misconduct.

The 9th Circuit, in a 2-1 opinion by Judge Stephen Reinhardt, said the prosecutor's speech was protected because he was speaking on matters of public concern.

However, the high court, in an opinion by Justice Anthony Kennedy, said the First Amendment did not protect public employees when their speech was made pursuant to their official job duties.

The government, Kennedy said, needed to be able to control the words and actions of its workers.

The court appeared deadlocked on the case, and ordered it re-argued for the benefit of Justice Samuel A. Alito Jr. after Sandra Day O'Connor retired. Had O'Connor remained, it's possible the decision would have come out the other way.

Many of the other 9th Circuit cases at the Supreme Court were not high-profile disputes.

Once again, the justices sent signals that the 9th Circuit was out of step on habeas issues by second-guessing final judgments by state courts.

In a case from Arizona, the justices said the 9th Circuit "exceeded its limited authority on habeas review" by ordering the state to conduct a jury trial to resolve a death-row inmate's claim of mental retardation. Schriro v. Smith, 2005 DJDAR 12365.

The court also said the 9th Circuit was wrong when it granted habeas relief to a state inmate who was denied access to a law library before he represented himself in court. Kane v. Espitia, 2005 DJDAR 12851.

In a third case, the justices said the appeals court overreached by siding with a black California inmate who charged that the Los Angeles prosecutor in his case improperly dismissed a black juror because of her race.

Kennedy said the 9th Circuit did not show enough deference to the state courts, which upheld the jury strike. Rice v. Collins, 2006 DJDAR 675.

"We already know that next term is going to be more of the same," said Kent Scheidegger of the Sacramento-based Criminal Justice Legal Foundation, pointing to two 9th Circuit habeas cases on the Supreme Court's 2006 docket that seem likely candidates for reversal.

Hellman said the 9th Circuit received a "fairly severe reprimand" in Gonzales v. Thomas, 2006 DJDAR 4483, an asylum case involving a white South African family living in Los Angeles, where the Supreme Court summarily reversed an en banc ruling from the appeals court.

The 9th Circuit, in an opinion by Judge Kim McLane Wardlaw, held that the family could seek refugee protection to avoid the threat of violence from black workers who were abused by one of the family's racist relatives.

The Supreme Court said the 9th Circuit had no business deciding that the family constituted a "particular social group," a label that made the family eligible for refugee protection.

Instead, the justices said, the appeals court should have remanded the case for the Board of Immigration Appeals to decide the question.

The business community was pleased by Supreme Court reversals of 9th Circuit decisions on antitrust and discrimination issues. In Texaco v. Dagher, 2006 DJDAR 2329, the Supreme Court ruled that a joint venture formed by Shell Oil and Texaco was not per se illegal under antitrust law just because the companies fixed their prices for gasoline.

The decision reversed a 9th Circuit ruling by Reinhardt that sided with a group of 23,000 service station owners who wanted to sue the oil giants.

In a discrimination case, the justices ruled that a Las Vegas plaintiff could not sue Domino's Pizza under a civil rights statute that forbids discrimination in making and enforcing contracts.

The plaintiff, who had a contract to build stores for Domino's, sued the pizza chain in his individual capacity, not on behalf of his company, which was party to the contract.

The high court said the 9th Circuit erred in ruling that the plaintiff had standing to sue. Domino's Pizza v. McDonald, 2006 DJDAR 2064.

The overall reversal rate for all Supreme Court decisions in 2005-06 was 72 percent. Comparing the 9th Circuit's performance with that of other individual circuits is difficult because the Supreme Court hears so many more 9th Circuit cases.

Indeed, 9th Circuit rulings comprised one-fifth of the court's 2005 docket.

That's understandable, said Hellman, given the size of the circuit, which decides one-sixth of all federal appeals even though there are 13 appellate circuits.

Even if the 9th Circuit's reversal rate stands out, the court "seems to be a little closer to the mainstream than it was for a while," Hellman said.

The second most reviewed appeals courts this year were the New York-based 2nd Circuit and the Cincinnati-based 6th Circuit, each with seven cases.

The 2nd Circuit's reversal rate, 86 percent, was higher than the 9th Circuit's.

In addition to the assisted suicide case, the 9th Circuit was affirmed in two other decisions. One centered on the withholding of Social Security benefits to collect on long-delinquent student loan debts.

In the other, the justices agreed with the 9th Circuit that workers at a meat processing plant should get paid for the time they spend walking between their work stations and an area where they change their protective work clothing. IBP Inc. v. Alvarez, 2005 DJDAR 13153.

Other 9th Circuit reversals included the Supreme Court's decision to revive Anna Nicole Smith's federal court lawsuit seeking millions from the estate of her rich late husband, a Texas oil baron.

And in a technical death penalty opinion by Justice Antonin Scalia, a 5-4 court said there were no constitutional problems in a California jury's death sentence, even though the jury considered two invalid special circumstances when it condemned a Kern County man. Brown v. Sanders, 2006 DJDAR 383.

The 9th Circuit had ordered that the defendant receive a lesser sentence or a new penalty trial.