Posted 11:25 PM by Howard Bashman

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December 16, 2008

Supreme Court Ruling Bucks Pre-emption Trend; Despite FTC, Makers of Light Cigarettes Can Face State Deceptive Practices Claims

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - In its first major decision of the term, the U.S. Supreme Court ruled Monday that federal law does not prevent plaintiffs from filing state deceptive practices claims against light cigarette manufacturers.

The 5-4 ruling saw the liberal members of the court prevail, with Justice John Paul Stevens authoring the majority opinion. Altria v. Good, 2008 DJDAR 18257.

The decision marks a departure from the recent trend of the court finding pre-emption language in congressional statutes. The most prominent example of this was an important medical device case from last term that was referred to repeatedly during oral argument in October. Riegel v. Medtronic, 128 S.Ct. 999 (2008).

The question before the justices was whether federal law pre-empts state law claims concerning the false advertising of low tar cigarettes. The close nature of the outcome is perhaps no surprise, as the last time the court addressed the scope of the Federal Cigarette Labeling and Advertising Act - the statute in question - it was badly split. Cipollone v. Liggett Group Inc., 505 U.S. 504 (1992).

On that occasion, a plurality of four, including the court's current swing vote, Justice Anthony Kennedy, agreed that the act pre-empted some state law claims but not others.

"It's important that the court reaffirmed Cipollone," said David Frederick of Washington-based Kellogg, Huber, Hansen, Todd, Evans & Figel, who represented the plaintiffs. The case represents "one step on a multi-step journey" to evaluate when federal pre-emption applies, he added.

Altria Group Inc., the parent company of Philip Morris, argued there was a so-called "express pre-emption" provision in the labeling statute that explicitly mandated that federal law prevented plaintiffs from making state law claims.

If that was the case, it would have prevented a group of Maine residents from pursuing a state law claim that the cigarette manufacturer violated the Maine Unfair Trade Practices Act by labeling some cigarettes as "light," even though it has been proven that low tar cigarettes are not any less harmful than normal cigarettes.

After plaintiffs filed a class action lawsuit in federal court in 2005, Altria stressed that it had no control over the labeling concerning tar and nicotine content, which is regulated by the Federal Trade Commission.

The lower court in Maine bought the argument and granted Altria's motion for summary judgment in 2006. But, the 1st U.S. Circuit Court of Appeals reversed a year later.

In affirming the appeals court, Stevens was joined by Justices David H. Souter, Ruth Bader Ginsburg, Stephen Breyer, and, crucially, Kennedy.

The justices remanded the case back to the district court in Maine, where the merits of the plaintiffs' claim will be addressed.

Stevens conceded that there are express pre-emption provisions in the labeling act but concluded that they do not apply to deceptive practices claims.

The law simply regulates what health warning language should be included on packaging and prevents states from adapting it, he wrote.

"Although both of the act's purposes are furthered by prohibiting states from supplementing the federal prescribed warning, neither would be served by limiting the states' authority to prohibit deceptive statements in cigarette advertising," Stevens added.

Justice Clarence Thomas wrote a dissenting opinion in which he was joined by Chief Justice John G. Roberts Jr., Antonin Scalia, and Samuel A. Alito Jr.

Thomas criticized the majority for relying on the plurality decision in Cipollone.

"The court's fidelity to Cipollone is unwise and unnecessary," he wrote.

Lower courts need a "clear test" in order to correctly interpret Congress' intent to expressly pre-empt state claims, Thomas added.

In his view, based on Scalia's dissent in Cipollone, a close reading of the labeling statute leads to only one conclusion: any lawsuit alleging injury relating to use of cigarettes is pre-empted.

Altria also had a secondary "implied pre-emption" argument, in which the company claimed that even if express pre-emption was not in the statute, there was enough evidence to suggest that Congress implied that state law was pre-empted.

But even Roberts and Scalia hinted strongly at the oral argument that such an argument was a waste of time.

Altria's lawyer, Gibson Dunn & Crutcher's Theodore B. Olson, barely addressed it and Thomas did not reach the issue in his dissent.

David Vladeck, a professor at Georgetown Law Center who filed a brief in support of the plaintiffs, said he was not surprised at the outcome.

Olson was relying on Kennedy reversing his vote against pre-emption in Cipollone, he said.

The decision shows that "the battle lines are pretty clearly drawn" when it comes to pre-emption, Vladeck added.

It's unclear whether the decision has any bearing on the other major pre-emption case on the docket, which focuses on whether federal law prevents plaintiffs from filing state lawsuits on drug liability claims. Wyeth v. Levine, 06-1249.

That case is distinct from Good because it focuses solely on implied pre-emption arguments and involves a different statute.

In a statement on Monday's decision, Philip Morris declared that it would continue to fight the dozens of state lawsuits it faces over its light cigarettes.

"We continue to view these cases as manageable, and the company will assert many of the strong defenses used successfully in the past to defend against this very type of case," said Murray Garnick, the firm's senior vice president and associate general counsel.

Posted 11:20 PM by Howard Bashman

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December 16, 2008

High Court Lets 9th Circuit Sentencing Decision Stand

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - Hundreds of convicted prisoners in California could have the chance to seek new sentences after the U.S. Supreme Court declined Monday to revisit the state's sentencing laws.

A leading sentencing expert suggested, however, that the impact may not be as great as prosecutors contend.

At issue was whether the Supreme Court's decision in 2007 - holding that California's upper-term sentencing procedure was unconstitutional - could be applied retroactively. Cunningham v. California, 127 S. Ct. 856.

Earlier this year, the 9th U.S. Circuit Court of Appeals held that it could because Cunningham was simply a direct application of the Supreme Court's 2004 holding that also limited judges' ability to hand down enhanced sentenced on facts not found by a jury. Blakely v. Washington, 542 U.S. 296.

The defendant in the 9th Circuit case, Frank Butler, was eligible for re-sentencing because, although he was sentenced before Cunningham was decided, it was after Blakely came down, the appellate court ruled. Curry v. Butler, 08-517.

The Supreme Court's refusal to intervene Monday means that the 9th Circuit's decision is left to stand.

In the state's brief, Deputy Attorney General Lawrence M. Daniels said the 9th Circuit's decision "is forcing re-litigation in federal court of hundreds of additional upper-term sentences, which will result in many additional re-sentencings in state court."

Davina Chen, the deputy public defender who represents Butler, said Monday she wasn't sure exactly how many cases will be affected.

She added that even if defendants do win a re-sentencing hearing, that doesn't necessarily mean their sentences will be reduced.

That's because in the aftermath of the recent Supreme Court decisions, the California Legislature passed new sentencing laws that give judges the discretion to impose the same high sentences as long as they do not contravene Blakely.

"It's a victory because they can get another sentence," Chen said. "But when they go back to California [courts] they may or may not get a lower sentences."

Her hope is that state court judges "follow the spirit and not just the letter" of the recent re-appraisals of sentencing law when they impose new sentences, she added.

Sentencing expert Douglas Berman, a professor at the Moritz College of Law at Ohio State University, was skeptical of the state's assertion as to the amount of extra work the 9th Circuit's decision creates.

It's questionable whether the application of Cunningham will have "profound ripple effects the system can't deal with," he said.

Posted 10:45 PM by Howard Bashman

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December 1, 2008

Power Station Case Generating Heat In Monterey Bay

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - The delicate issue of how the government should weigh environmental interests against those of big business comes before the U.S. Supreme Court this week.

The justices will consider what kind of economic analysis the federal government can undertake when deciding how much energy companies have to spend to update water intake mechanisms for power plants so they meet environmental standards, Entergy v. Riverkeeper, 07-588, PSEG Fossil v. Riverkeeper, 07-589, and Utility Water Act Group v. Riverkeeper, 07-597.

Although the consolidated case, scheduled for argument Tuesday, comes out of the New York-based 2nd U.S. Circuit Court of Appeals, it could have a dramatic impact on the opposite side of the country.

Or - to be more specific - in Monterey Bay.

That's where the Moss Landing power station has been operating for the last half-century.

The owners of the plant are currently locked in a similar dispute that is heading to the state Supreme Court, Voices of the Wetlands v. California State Water Resources Control Board, 2007 DJDAR 18432.

The relevance of Riverkeeper to the Moss Landing case is shown by the fact that the California court, which has already accepted the case, has deferred action until the U.S. Supreme Court issues its decision.

At issue is whether the Clean Water Act allows the U.S. Environmental Protection Agency to use a cost-benefit analysis when ordering energy companies to retrofit water intake mechanisms.

"It's important as a matter of deciding the role dollars and cost consideration should play in charting environmental policy," said Richard Frank, executive director of the California Center for Environmental Law and Policy at UC Berkeley School of Law.

The debate over the use of cost-benefit analysis in environmental regulatory decisions has raged for years. In essence, it attempts to calculate the value of environmental interests into a dollar figure that can then be balanced against the cost to the industry of a particular regulation.

The EPA has successfully used cost-benefit analysis to enforce other sections of the Clean Water Act, much to the frustration of environmentalists, who believe it does not give sufficient weight to environmental interests.

The dispute in Riverkeeper arose when various environmental groups, including New York-based Riverkeeper Inc., challenged the EPA's implementation in 2004 of a new rule that requires existing power stations to retrofit their water intake mechanisms.

In its January 2007 decision, the 2nd Circuit, in a blow to the energy industry, held that a cost-benefit analysis was not the appropriate way of calculating environmental interests.

Riverkeeper focuses on Section 316(b) of the Clean Water Act, which regulates the mechanisms power plants use to siphon off water for use in cooling systems.

Since the EPA promulgated rules to enforce the regulation in 1976, it has allowed officials to make cost-benefit analyses on a case-by-case basis.

That means that energy companies can argue in certain circumstances that the cost of adopting the latest technology is prohibitive.

The 2nd Circuit concluded that the Clean Water Act does not allow the EPA to make cost-benefit analyses when it comes to the intake structures.

Rather, the agency is required to make a "cost effectiveness" analysis.

The court defined this as a cost that can be "reasonably borne" by the industry but is limited to "less expensive technology that achieves essentially the same results" as the most expensive technology available.

Under this definition, the EPA would not have the discretion to rule that the costs are too high to make any changes.

The Bush administration has sided with the energy companies, arguing that there is nothing in the Clean Water Act to suggest that the EPA cannot use a cost-benefit analysis.

"The court of appeals erred by attempting to micro-manage the agency's exercise of its broad statutory discretion," Solicitor General Gregory Garre wrote in his brief.

The government maintains that it's up to the EPA to decide what analysis it uses.

Entergy's lead counsel, Elise N. Zoli, wrote in her brief that the 2004 rule and 2nd Circuit decision combined create "a regime under which the nation's existing electricity supply may be forced to shut down during lengthy retrofits."

Opposing the energy companies and the federal government are Riverkeeper, other environmental groups and several states that were involved in the litigation before the 2nd Circuit, including New York, Massachusetts, and Rhode Island.

The Moss Landing case, in state court because the State Water Resources Control Board has the delegated authority from the EPA to issue Clean Water Act permits for power plants, touches upon largely the same arguments.

As Berkeley's Frank put it, the board is "directly confronting the same cost-benefit issue involved in the Entergy case."

The California dispute centers on the attempt by the owners of Moss Landing to seek a new Clean Water Act permit.

From 1998 to 2006 the plant was owned by Charlotte, N.C.-based Duke Energy Corp.; it is now owned by Houston, Texas-based Dynegy, Inc.

The water resources board used a cost-benefit analysis, concluding that a new intake system would add $12 million to $13 million to retrofit the water intake system.

But, the board calculated that the environmental benefit of the updated system would be worth between $4.68 million and $9.75 million and concluded that the cost was "wholly disproportionate" to the environmental benefit and allowed the plant owners to use older equipment instead.

In December 2007, the 6th District Court of Appeal upheld the water resources board's decision. The importance of Riverkeeper to the California case is underlined in various amicus briefs filed in the U.S. Supreme Court case.

Voices of the Wetlands, the environmental group that is the plaintiff in the California case, filed one, authored by Stanford Law School Professor Deborah A. Sivas.

She said in an interview that the importance of the case in California goes way beyond Moss Landing. Owners of the other 18 active coastal plants in the state will also be watching closely. Many of those plants are aging and need to be refurbished, if not rebuilt altogether, Sivas added.

There have been signs that some of the plant owners have been willing to incorporate the latest, more expensive technology for their intake systems, but if the Supreme Court endorses cost-benefit analysis, "it will open the door to all the California coastal plants to do that," she said.

Also weighing in on Riverkeeper is the California Council for Environmental and Economic Balance, an industry group that includes owners of California plants among its members.

San Francisco-based Pillsbury Winthrop Shaw Pittman partner Kevin M. Fong, the group's attorney, argues that in California in particular, with its history of energy shortages, "a site-by-site cost-benefit analysis is essential" because the state's coastal plants generate nearly half of the energy produced in the state.

Adopting a different type of analysis could be disastrous, Fong maintains.

"Enormous costs would be imposed on individual plants, leading to a likely loss of generating capacity and widespread economic disruption resulting from an energy deficit," he wrote in his brief.

Pro-industry lawyers point hopefully to the court's decision last month to uphold the U.S. Navy's right to conduct operations off the coast of California despite the threat to marine mammals. Winter v. Natural Resources Defense Council, 2008 DJDAR 16797.

Steven G. Giesler, an attorney with the Sacramento-based Pacific Legal Foundation, a conservative public interest law firm that filed an amicus brief in support of the energy companies, believes the ruling showed the court's willingness to consider environmental interests in the same way as it would any other party.

To that end, it could be "a hopeful harbinger of what the court will decide" in Riverkeeper, Giesler said.

Sivas, meanwhile, doesn't appear too hopeful her side will prevail.

"It will probably be a close call," she said.

Posted 4:35 PM by Howard Bashman

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November 20, 2008

Will Obama Have an Awkward Inaugural Moment?

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - It could be a little awkward when President-elect Barack Obama faces Chief Justice John G. Roberts Jr. to take the oath of office on Inauguration Day.

That's because Obama will be the first-ever president to be sworn in by a chief justice whose confirmation he voted against. The U.S. Senate Historical Office, and several experts on Supreme Court history, verified that fact Wednesday.

Only 15 senators have ever become president and many of them did not vote to confirm any chief justices to the Supreme Court. The last sitting senator to be elected president was John F. Kennedy in 1960, well before the recent trend for contentious Supreme Court confirmation proceedings began.

There are also a few presidents who, for reasons beyond their control, couldn't wait for the chief justice to swear them in. Lyndon Johnson, who was sworn in by a federal district court judge after Kennedy's assassination in 1963, is the most famous example.

Dennis J. Hutchinson, a law professor at the University of Chicago, agreed with the Senate Historical Office's conclusion with one caveat.

He noted that, in 1836, the Senate confirmed Roger B. Taney as chief justice, but the vote was "in an executive session in which no records were kept."

At the time, future president James Buchanan was a Democratic senator from Pennsylvania and, in theory, could have voted against the nomination.

It's unlikely, "to put it mildly," Hutchinson conceded, because Buchanan was from the same party as the president who nominated Taney, Andrew Jackson.

Despite Obama's vote, it's unlikely to sour the occasion for either man, according to David J. Garrow, an expert on Supreme Court history who teaches at the University of Cambridge.

"We've got two gentlemen who are both smoother than silk in their style of personal interaction," he said. "I don't think it's going to loom large in any way."

Obama has already admitted that, prior to the September 2005 vote, his initial instinct was to vote for Roberts' confirmation because he admired his fellow Harvard Law School graduate's intellect.

According to the Washington Post, he was also wary of voting on ideological grounds because, even then, he was worried opponents could use it to justify voting against his own nominees if he ever became president. Obama was eventually persuaded by a senior aide that it was more important for his short-term political goals to vote 'nay,' according to the newspaper's account.

For the record, Obama's rival for the Democratic nomination, Sen. Hillary Clinton, D-New York, also voted against confirming Roberts. Not surprisingly, Sen. John McCain, R-Ariz., who lost the general election to Obama, voted for confirmation.

Whatever happens at the Jan. 20 inauguration, Supreme Court historian Lucas A. "Scot" Powe, a law professor at the University of Texas at Austin, is confident "this won't be the most awkward swearing-in."

That distinction, he suggested, should go to the 1801 swearing in of Thomas Jefferson by Chief Justice John Marshall.

They "detested each other," Powe said.

Posted 11:05 AM by Howard Bashman

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November 13, 2008

SUPREME COURT STRIKES BAN ON NAVY'S USE OF SONAR IN THE PACIFIC

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - A split Supreme Court Wednesday ruled in favor of the U.S. Navy in a dispute over the environmental damage caused by the use of sonar off the coast of California.

In a decision that will have implications for future environmental challenges, the court vacated two provisions of a preliminary injunction issued by a Los Angeles federal judge that placed limits on the Navy's exercises.

Environmentalists claimed the Navy's use of high-frequency sonar could injure or even lead to the death of whales and other marine mammals.

In its first ruling of the term, the court held 7-2 that the injunction should be vacated, with Justices Ruth Bader Ginsburg and David H. Souter dissenting.

In what environmentalists described as a narrow ruling, the court left in place four other restrictions imposed by U.S. District Judge Florence-Marie Cooper that were not challenged by the Navy.

The impact the decision could have remains an open question.

On the one hand, the plaintiffs - the National Environmental Defense Council - say the Navy is now taking environmental issues more seriously.

But, less to their liking is the fact that the court's majority opinion made it clear that Cooper should have given more deference to the Navy.

As for the exercises in California, they are due to finish in January 2009 in any case, so the effect will be minimal.

In response to the ruling, the Navy promised to act in a way that "protects our nation's security and the precious maritime environment," Chief of Naval Operations Admiral Gary Roughead said in a statement.

Writing for the majority, Chief Justice John G. Roberts Jr. concluded that Cooper failed to balance the Navy's interests against those of the whales before imposing a preliminary injunction over the use of high-frequency sonar. Winter v. Natural Resources, 07-1239.

Upon weighing the interests of the Navy and the plaintiffs, the majority found that it was not "a close question," Roberts wrote. "We conclude that the balance of equities and consideration of the overall public interest in this case tip strongly in favor of the Navy."

Cooper wrote in her August 2007 injunction that there was "near certainty" of severe damage to the environment. The 9th U.S. Circuit Court of Appeals upheld the injunction, with some modifications.

In January, Cooper modified her injunction by allowing the Navy to use sonar as long as it complied with the six restrictions.

The Navy subsequently appealed two of those: a requirement that it shut down sonar when within 2,200 yards of a marine mammal and another ordering it to power down the sonar by six decibels during certain weather conditions.

In March, the 9th Circuit upheld the new restrictions.

In Wednesday's opinion, the majority stressed that its decision did not reach the underlying merits of the National Environmental Defense Council's argument, namely that the Navy had failed to comply with the National Environmental Policy Act. To do so, it was required to prepare an environmental impact report.

Roberts did, however, hint strongly in his opinion where he stood by noting that "even if plaintiffs have shown irreparable injury from the Navy's training exercises, any such injury is outweighed by the public interest."

As for Cooper's injunction, Roberts took issue with the standard of review, which was also adopted by the 9th Circuit. Both courts believed that an injunction was warranted if there was the "possibility" of irreparable injury. But, Roberts wrote, plaintiffs have to establish that they are "likely" to suffer irreparable injury.

Justice Stephen Breyer wrote a separate opinion in which he dissented in part on the issue of whether the 9th Circuit's modified injunction should remain in place until the Navy's exercises conclude in January.

That's because the Navy has yet to complete its environmental impact report required under NEPA. But he and Justice John Paul Stevens, who joined in the concurring section of Breyer's opinion, both agreed that the injunction should be vacated.

In her dissenting opinion, Ginsburg focused on the underlying merits of the environmentalists' case. In noting that the Navy had failed to complete its environmental impact report before beginning the exercises, Cooper had "conscientiously balanced the equities," she wrote.

Although Wednesday's decision will have little impact on the exercises currently taking place, it is likely to affect future environmental challenges within the 9th Circuit's jurisdiction.

Joel Reynolds, an attorney for the National Resources Defense Council, conceded that lower court judges need to carefully marshal their facts before issuing preliminary injunctions going forward.

"In future cases, it would be important for the lower courts to carefully articulate the factual basis for issuing an injunction," he said.

Reynolds noted that the court clearly "wasn't satisfied" with Cooper's reasoning.

The 9th Circuit's willingness to uphold preliminary injunctions in environmental cases has already raised the ire of business groups.

The California Forestry Association and others highlighted their concerns in an amicus brief they filed in the case.

Paul S. Weiland, who heads the land use and environmental resources group at Nossaman, said that in future environmental groups will have a higher hurdle to reach before they can get a preliminary injunction.

But, he stressed, that doesn't mean environmentalists won't be able to win cases on the merits once they are fully litigated.

"The case can proceed, but what the environmental groups expect will change," Weiland said. "There's a better shot now than there was yesterday that the federal government can push back on what's required of them."

Posted 11:45 AM by Howard Bashman

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November 10, 2008

Court Takes Up Whether Lab Technicians Are Required to Testify

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - The U.S. Supreme Court will hear arguments today in a case that could dramatically affect the right of defendants to cross-examine laboratory technicians whose reports are introduced into evidence at trial.

Jeffrey Fisher of Stanford University's Supreme Court Litigation Clinic will be arguing that technicians who prepare forensic reports should be physically present in the courtroom to give testimony in order to meet defendants' Sixth Amendment rights to confront their accusers, Melendez-Diaz v. Massachusetts, 07-591.

In California, the current practice - endorsed by the California Supreme Court in 2007 - is for supervisors to testify on behalf of the technicians who prepared the report, but even that could be under threat, depending on what the Supreme Court rules.

Fisher's client, Luis Melendez-Diaz, was convicted in Massachusetts of cocaine trafficking based in part on a laboratory report that analyzed a substance taken from another man.

He failed to convince the state appellate court in Massachusetts that the laboratory report was testimonial, which would have allowed the defense to cross-examine the technician who prepared it.

The case hinges on whether a major Sixth Amendment ruling from 2004, in which the justices agreed unanimously that any out-of-court statement that is testimonial in nature cannot be used unless the defendant has a right to cross-examine, applies to laboratory reports prepared for use in prosecutions. Crawford v. Washington, 541 U.S. 36. In Crawford, the court didn't address what kind of out-of court statements count as testimonial.

State and federal courts are split on the issue.

Although the case has not attracted much attention as others on the docket this term, Erwin Chemerinsky, dean of the new law school at UC Irvine, has earmarked it as potentially the most important case yet granted in terms of its impact on the legal community. It's a case that judges around the nation he has talked to are following closely, he added.

"I think there's a huge benefit to the defense for being able to cross-examine," Chemerinsky said. "On the other hand, there's an enormous practical problem of requiring a live witness."

Unlike many other states, including Massachusetts, California does not have a statute that allows laboratory reports to be admitted as "public records," which allows them to be exempted from the hearsay rule.

That means that a representative from the laboratory, if required to by the defense lawyer, has to testify about a report at trial.

In 2007, the California Supreme Court found no constitutional problem with the introduction of a DNA analysis report without the live testimony of the examiner who prepared it. People v. Geier, 161 P.3d 104 (Cal. 2007).

The court held that the defendant's Sixth Amendment rights were not violated by the laboratory supervisor providing the testimony instead.

The case has been appealed to the U.S. Supreme Court on the hope that the justices will resolve that question but it will likely be held until the Massachusetts dispute is resolved.

That's because Melendez-Diaz could have an impact on Geier.

"It's up in the air," said California Deputy Attorney General Andrew Mestman, who represents the state in Geier. "It depends how broad or narrow the ruling is."

It would have to be a broad ruling to even reach the question in Geier.

If the court merely says that technicians are required to testify but doesn't specify whether supervisors can, then Geier would still be unresolved.

Jennifer L. Mnookin, a law professor at the University of California at Los Angeles, said that question presented in Geier - whether a surrogate for the technician can testify about the laboratory report - is "not explicitly at issue in Melendez-Diaz, though it certainly is an issue at the edges of the case."

As for Fisher, he said in an interview that Melendez-Diaz "would not have a significant impact" in California although he concedes there may be "cases on the on the margins" that could be affected.

Prosecutors are united in opposing the idea that the Sixth Amendment right to confrontation should extend to laboratory technicians.

Mestman stressed that if technicians - rather than supervisors - had to testify, it would put a strain on resources in California's 14 laboratories.

"There's already significant backlogs and it would be a further burden," he said.

In the federal government's brief, Solicitor General Gregory G. Garre stresses that requiring forensic examiners to testify in person "consumes scarce criminal justice resources, with little or no countervailing benefit to the truth-seeking process."

Attorneys general from 35 states use even stronger language in their joint brief.

Corey L. Maze, the solicitor general of Alabama, wrote that there would be "systematical gridlock in state courts and laboratories," if the court found for Melendez-Diaz.

Maze also warns of the dangers of laboratory technicians failing to appear at trial due to increased demands on their time.

She cited a recent Yale Law Journal article in which Arizona prosecutor Andrew P. Thomas wrote about the increasing importance jurors place on forensic evidence, based in part on the viewing of high-tech forensics TV shows like "CSI."

"Defendants know this, and if petitioner prevails here, it is knowledge they will use against the states," she wrote.

Although stressing that laboratory reports should be considered testimonial, Fisher and some other law professors downplay the practical impact a ruling in Melendez-Diaz's favor would have.

"I don't think it would be a big deal in terms of administrability," Fisher said.

UCLA's Mnookin, who contributed to an amicus brief in support of Melendez-Diaz, believes that the change in the law would only affect a small number of cases.

That's because few criminal prosecutions go to trial, with 95 percent of all state convictions obtained through a guilty plea.

Even when cases do go to trial, there may be no need to confront the forensic examiners because the parties may agree to stipulate to certain facts.

In many trials, "it's not clear if it's to the defense's practical advantage" to call such a witness, Mnookin added.

As for which way the court will go, Chemerinsky noted that the court hinted at its willingness to "strictly enforce" Crawford in a case last year.

The justices held 6-3 that a defendant's Sixth Amendment rights were violated because he couldn't cross-examine the victim he was accused of killing about prior statements she made to police. Giles v. California, 128 S.Ct. 2678.

"That would indicate a court that would be inclined to extend Crawford to this," Chemerinsky said.

Posted 12:55 PM by Howard Bashman

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November 07, 2008

Porn Prosecutors Seek Recusal of Entire 9th Circuit

By John Roemer
Daily Journal Staff Writer
SAN FRANCISCO - Federal prosecutors have written to all 50 judges on the 9th U.S. Circuit Court of Appeals, asking them to consider recusing themselves from hearing accused pornographer Ira Isaacs' appeal.

The rare move is further fallout from the disclosure in June that Chief Judge Alex Kozinski's Web site contained sexually explicit images.

That revelation led to a judicial misconduct probe of Kozinski and to additional complaints from Beverly Hills lawyer Cyrus Sanai against Kozinski and other circuit judges for allegedly mishandling Sanai's federal appeals.

The misconduct probe, the Sanai complaints and the federal call for possible recusal of the entire court have knotted the 9th Circuit in a judicial discipline and procedural tangle.

Laurie L. Levenson, a professor of law at Loyola Law School, said the confluence of a high-profile pornography prosecution and the discovery of questionable content on Kozinski's Web site amounts to trouble for the 9th Circuit.

"It's a can of worms. It's uncomfortable. It's an embarrassment for the court," she said.

"The realities are that the judges have to look in the mirror when they are confronted with the prospect of recusal. They must ask, 'Can we decide a case and expect public confidence when it involves our chief judge and when it involves a case on the front pages of the newspapers?'"

Kozinski's now-defunct site, alex.kozinski.com, included a photo of naked women on all fours painted to look like cows and images of masturbation, public sex, defecation and urination.

A U.S. Department of Justice Obscenity Prosecution Task Force accused self-described "shock artist" Isaacs of distributing movies featuring scatology and bestiality.

The Kozinski Web site photos, the federal prosecutors wrote the judges Oct. 29, "were at least thematically similar to some of the materials in the videos that were the subject of the criminal charges against Isaacs." The prosecutors cited the Los Angeles Times article that described Kozinski's site and noted its content's relationship to the Isaacs images.

Kozinski, who was presiding over Isaacs' Los Angeles trial by designation, recused himself from the Isaacs proceedings after his Web site made the news. He declared a mistrial and called for an investigation into his own conduct.

After the mistrial, Isaacs argued that the Constitution's double jeopardy clause barred his reprosecution, but a new trial judge ruled against him. He appealed to the 9th Circuit. U.S. v. Isaacs, 08-50423.

Kozinski and his defense attorney, Mark Holscher of Kirkland & Ellis in Los Angeles, did not respond to a request for comment on the circuit-wide recusal issue. The 9th Circuit's clerk, Molly A. Dwyer, did not return a call for comment on the procedures the court follows in such cases.

Roger Jon Diamond, the Santa Monica criminal defense lawyer representing Isaacs, opposed circuit-wide recusal.

"It is obvious that what is motivating the Obscenity Prosecution Task Force is its desire to embarrass the 9th Circuit," Diamond wrote in court papers, suggesting that recusal of the entire court would discredit its reputation and hand ammunition to its critics. "It is a matter of common knowledge that political conservatives in Washington, D.C., have been trying to split the 9th Circuit for years."

In a phone interview Diamond added that he wished the trial had gone forward before Kozinski. "He's smart, he's relaxed, he's nice even though he's a Reagan appointee," he said. "And I say that as a criminal defense attorney. He's a libertarian."

The revelations about Kozinski's Web site should not have forced the ending of the trial, Diamond said. "Judges should have more freedom in their personal lives. We don't want to have pro-liberty judges like Kozinski disqualifying themselves."

The 9th Circuit's rulemaking and disciplinary group, the Judicial Council, voted to recuse itself from the Kozinski misconduct investigation, citing the "extraordinary circumstance" that the chief judge's conduct was in question. It sent the matter to the Philadelphia-based 3rd Circuit for a decision on whether Kozinski had violated the federal judiciary's conduct code. That inquiry is ongoing.

In effect, the federal prosecutors asked the 9th Circuit's senior and active judges, shouldn't judges from another circuit also hear a criminal appeal in a case involving some of the same issues?

Lending weight to the government's question was the rank of the Washington, D.C., prosecutors who asked it. They included Matthew W. Friedrich, the acting assistant attorney general for the criminal division and Michael A. Rotker, a criminal division appellate specialist.

They styled their pleading not as a demand but as a "Notice of potential need for recusal" based on Kozinski's actions in declaring a mistrial in the Isaacs case and on the misconduct claims against him.

Arthur Hellman, a professor of law at the University of Pittsburgh School of Law, closely monitors the 9th Circuit.

"The government's notice raises some very difficult issues for the court," Hellman said.

"The number of complications is mind-boggling. How do they handle this? Do they wait for each judge to send a response? Do they poll the judges and decide by a majority vote? Is it an institutional decision or a set of individual decisions? Or can the judges simply decide that because the government filed a 'notice' and not a 'motion,' they don't have to do anything. We're very much in uncharted waters."

Hellman saw a parallel in a 9th Circuit case currently pending en banc review. As with Kozinski hearing the Isaacs case it involved a circuit judge sitting on a criminal trial.

"That appeal calls into question the rulings of Circuit Judge Richard Tallman, who was sitting by designation on a criminal case in the District of Idaho involving a plot to murder an Idaho federal judge," Hellman said. The case is U.S. v. Hinkson, 526 F.3rd 1262 (2008).

"It would have been helpful to make explicit that [the prosecution is] not suggesting that circuit-wide recusal be considered simply because the appeal challenges a ruling by a circuit judge sitting by designation on a district court."

Prosecutors pointed out that there is precedent for an entire circuit's recusal. They cited an instance when the 11th Circuit took that step to avoid hearing appeals of a man convicted of murdering a colleague, Circuit Judge Robert S. Vance. U.S. v. Moody, 977 F.2nd 1420 (11th Circuit, 1992).

That argument surprised John C. Eastman, dean of Chapman University School of Law in Orange.

"So a fairly silly issue over Judge Kozinski is now being equated with the killing of a member of the federal bench?" Eastman said. "I really don't think the kind of emotion associated with that murder exists in this little dispute over Alex Kozinski's sitting as a trial judge."

Posted 8:30 PM by Howard Bashman

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Nov. 03, 2008

Former L.A. District Attorney Goes to High Court to Protect Immunity for Supervisors

By Lawrence Hurley
Daily Journal Staff Writer

WASHINGTON - When Thomas L. Goldstein went to prison for a murder he maintains he didn't commit, he was put there by a jailhouse snitch called Fink.

True to his name, Edward Fink was a long-time informer for the Long Beach Police Department in the late 1970s. At Goldstein's 1980 trial for the murder of John McGinest, Fink testified that the defendant had confessed the murder to him when they shared a cell in Long Beach's jail. He also testified that he was not receiving any benefits from the Los Angeles County district attorney's office for cooperating.

Fink was lying.

Twenty-four years later, after finding out that Fink had in fact benefited from his testimony by negotiating a favorable plea bargain in another case, Goldstein was released from prison, his conviction vacated.

The district attorney's office sought to prosecute him again but then dropped the charges.

Goldstein filed a civil rights suit in 2005, not just against the law enforcement agencies, but also individually against the men in charge of the district attorneys' office in 1980 who, he says, were to blame for the failure to disclose Fink's history.

His main target was John Van de Kamp, the district attorney at the time, later California's attorney general, and now of counsel at Dewey & LeBoeuf in Los Angeles. Also named in the suit was his deputy, Curt Livesay, who is in private practice in Long Beach.

Both were at the district attorney's office at a time when the use of informants was rife, which came to light in 1990 following a major grand jury investigation.

As far as Goldstein is concerned, Van De Kamp and Livesay were responsible for the failure to keep records that would have allowed line prosecutors to know which informers were receiving benefits they could disclose it to defense attorneys.

Now his case is before the U.S. Supreme Court, with oral arguments scheduled for Wednesday.

At issue is whether supervising prosecutors should receive the same absolute immunity that is granted to line prosecutors in such disputes. Van de Kamp v. Goldstein, 07-854.

Judge A. Howard Matz of the Central District of California and, on appeal, the 9th U.S. Circuit Court of Appeals both agreed with Goldstein that the former supervising prosecutors did not have absolute immunity on the grounds that that the complaint was based on an administrative error rather than a prosecutorial one.

In his civil rights suit, in which he cited the damning 1990 grand jury report, Goldstein alleged that Van De Kamp and Livesay "failed to create any system for the deputy district attorneys handling criminal cases to access information pertaining to the benefits provided to jailhouse informants."

This was in direct violation of Supreme Court precedent, Goldstein alleged.

There are two cases, one from 1963 and the other from 1972, that lay out what information prosecutors have to disclose and what procedures they should have in place. Brady v. Maryland, 373 U.S. 83 and Giglio v. United States, 405 U.S. 150.

Van De Kamp and Livesay's lawyer, Timothy T. Coates, of Greines Martin Stein & Richland in Los Angeles, notes in his brief that the 9th Circuit ruling is at odds with Supreme Court precedent.

A key 1976 decision allowed prosecutors absolute immunity for all actions "closely related to the judicial process and taken squarely as a result of their responsibility as prosecutors." Imbler v. Pachtman, 424 U.S. 409.

Federal circuits are split on whether supervising attorneys receive absolute immunity for their administrative roles.

Coates' clients "vigorously dispute both the factual and legal basis" of Goldstein's case, he adds.

Van de Kamp declined in an interview to touch upon the facts surrounding Goldstein's prosecution. But he noted that at the time of the trial he was unaware of the case, in part because his office's Long Beach staff handled it.

"I had no hand in this case whatsoever," Van de Kamp said.

Both he stressed that the Goldstein's innocence has not been proven.

Chilling Effect

At a practical level, the case would likely have a minimal impact on Van de Kamp and Livesay, as the district attorneys' office would pay any damages on their behalf.

But, Steve Cooley, the current district attorney in Los Angeles, believes it would have a dramatic chilling effect on the ability of senior prosecutors to do their jobs.

"When the 9th Circuit ruled they way they did, it occurred to me that in 20 years from now I could be in the same unfortunate circumstance where Mr. Van de Kamp is," he said in an interview.

If the 9th Circuit's decision was to be upheld, it would affect "the scope and quality of the authority the prosecutor in making these decisions without fear," Cooley added.

It's a contention that Goldstein's lawyers dismiss.

"I think this is a very narrow case," said Ronald O. Kaye, of Pasadena-based Kaye, McLane & Bednarski. "I don't think it's going to open up the potential for lawsuits."

That's largely because a defendant has to have his sentence vacated before even attempting to make a federal claim under Section 1983 of the Civil Rights Act, he added.

Wide Interest

The case has attracted widespread interest among criminal law practitioners, with a number of interested groups, the federal government and 49 state attorneys general, filing amicus briefs on behalf of the former prosecutors.

Various civil liberties groups, including the American Civil Liberties Union, have filed briefs in support of Goldstein.

In a brief filed by Stephen N. Six, the attorney general of Kansas, the state attorneys general, including Edmund G. Brown Jr. of California, argue that the 9th Circuit was wrong to draw a distinction between prosecutorial and administrative duties.

The attorneys general warn of an adverse affect on the criminal justice system if the Supreme Court was to adopt the 9th Circuit's rule because supervising attorneys would then have less immunity than trial prosecutors, whose absolute immunity would not be affected.

"The appropriate rule in this context is to accord the supervising prosecutor at least the same level of immunity as the trial prosecutor," Six wrote.

Goldstein's case may be a narrow legal issue, but it also touches upon wider questions about criminal justice policy, according to his supporters.

Alexandra Natapoff, a professor at Loyola Law School in Los Angeles, sees Goldstein's case as just one example of the over-reliance on informants like Fink.

A former federal public defender who contributed to the ACLU's brief in the case, Natapoff is an expert on informant culture. She maintains that prosecutors have too much discretion when handling dozens, or even hundreds, of informants used in various cases.

That those same prosecutors then have immunity as well tilts the deck even further in their favor, she argues.

"It's the deal we have cut," Natapoff said.

Goldstein's experience was "just one rich example of the potential cost of that deal."

Although the Los Angeles County district attorney's office is now much better regulated, due in part to the 1990 grand jury report, civil rights groups claim that does not mean that others around the country have followed the same path.

Santa Cruz-based ACLU attorney M. Allen Hopper, who wrote the group's amicus brief, believes that although the court made it clear in Brady and Giglio that prosecutors must disclose any deals made with informants, there's no evidence that they consistently follow those rules.

In that sense, if the Supreme Court was to uphold the 9th Circuit the case could have wider implications, he added.

"A ruling in Goldstein's case would send a clear message to prosecutors around the country," Hopper said.

It's a message that Van de Kamp doesn't think needs to be sent.

"If this case gets upheld, I don't know why anyone would want to be a DA," he said.

Posted 5:00 PM by Howard Bashman

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October 3, 2008

Pre-emption Tops Justices' Fall Docket
Roberts' Impact on The High Court Is Still Being Debated

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - The increasingly high-profile debate over the extent to which federal law trumps state law takes center stage Monday when the U.S. Supreme Court opens its 2008 term.

After hearing six cases on federal pre-emption last term, the court already has another two on its docket, including one that is the first case to be argued this fall.

It concerns whether federal law pre-empts state law on the issue of how tobacco companies can market low tar cigarettes. Altria v. Good, 07-562.

Revisiting Last Term

Last term, the court found in favor of pre-emption in a series of cases, including a drug device case in which the court ruled in an 8-1 decision that federal law pre-empts state law when it comes to regulating certain types of devices. Riegel v. Medtronic, 128 S.Ct. 999 (2008).

The justices are hearing the second, and possibly even more important, pre-emption case in November.

That is a case about whether plaintiffs can file suit against drug companies in state court over pharmaceutical products if the Federal Drug Administration has already approved the drug. Wyeth v. Levine, 06-1249.

Devastating for Trial Lawyers?

If the pharmaceutical companies win in Levine, it could be devastating for trial lawyers, who could be denied the opportunity to file drug liability cases in state court, depending on how broad the ruling is.

Pre-emption is a suitable note on which to open the 2008-2009 term. In the absence of any sure-fire blockbuster cases this fall, it is set to be one of the dominant issues.

Levine and Altria "are really the two very important cases the court will decide in the business area this year," according to Paul Clement, who recently stepped down as solicitor general.

The business community - and the Bush administration - is keen to push pre-emption as a way to prevent state court juries from awarding multi-million dollar verdicts to plaintiffs.

Georgetown Law Center's David Vladeck, who previously headed consumer advocacy group Public Citizen's litigation team, describes the expanded role of pre-emption as the "get-out-of-jail-free defense" for corporate defendants.

Furthermore, as Erwin Chemerinsky, dean of the new law school at University of California at Irvine, points out, the court under Chief Justice John G. Roberts Jr. has "found pre-emption in every cases where there's been a business challenge to a state or local regulation."

But, as court-watchers note, there is a significant difference between Altria and Levine that could have a major impact on how they come out. Altria, rests on whether Congress explicitly stated that federal law pre-empted state law.

This "express pre-emption" argument, based on finding specific statutory language that makes it clear Congress intended for state law to be pre-empted, was successful in Riegel.

But in Wyeth, the issue is whether pre-emption occurs through implication, not express statutory authorization, in what as known as "implied pre-emption".

Gibson Dunn & Crutcher partner Theodore B. Olson is arguing Altria for the cigarette manufacturer in what will be his 50th appearance before the court, but - having successfully argued Riegel last term - he is also keeping a close eye on Levine.

He said in an interview that the case will clearly be a "topic of conversation" in Levine, but he conceded that the emphasis on implied rather than express preemption could affect the outcome.

"It's not clear how it's going to come out, but the Riegel case is a precedent that will be on the minds of the justices," Olson said. "Do you want juries across the country deciding or do you want these standards set centrally by experts?"

It isn't easy to predict a winner in Levine, in part because, as Vladeck notes, several of the more conservative justices, including Clarence Thomas, have concerns about finding pre-emption when it isn't explicitly authorized in congressional legislation.

"Some of the die-hard conservatives have great skepticism about the courts ability to wipe away causes of action without guidance from Congress," he said.

Thomas, in fact, was the sole dissenter in one of the pre-emption cases last term in which the court held that the Federal Arbitration Act trumps state law in a dispute involving TV's "Judge" Alex Ferrer. Preston v. Ferrer, 128 S. Ct. 978 (2008).

That was one of six preemption cases last term. The court ruled in favor of pre-emption four times, with one 4-4 tie in another case involving pharmaceutical companies, in which Roberts recused himself. Warner-Lambert v. Kent, 128 S. Ct. 1168 (2008).

In the remaining case, in which the court did not find preemption, it was a secondary issue in the dispute involving the punitive damages oil giant ExxonMobil is required to pay for the Exxon Valdez oil spill. Exxon v. Baker, 128 S.Ct. 2605 (2008).

The fact that the court is taking preemption cases is nothing new, said Rebecca K. Wood, a partner in the Washington office of Sidley Austin.

It is just getting more attention now because the court is finding for preemption more often, she added.

But Wood stressed that, of the six cases last term, five involved express preemption. Kent was the only one that didn't. "One term does not a trend make," she said, but "the court did appear to find in favor of preemption more than it normally does."

9th Circuit Cases

Although pre-emption is a dominant theme so far, there are a number of other potentially important cases among the 41 already scheduled for argument.

Several emanate from the 9th U.S. Circuit Court of Appeals, often characterized - not always accurately - as the Supreme Court's punching bag.

One is a challenge to the Navy's use of sonar devices off the coast of California, which environmentalists say is harmful to whales. Winter v. Natural Resources, 07-1239.

The oral argument is Wednesday. Winter is one of three 9th Circuit rulings on environmental issues up for review this fall.

Another 9th Circuit case, scheduled for oral argument in November, addresses whether prosecutors in a long-ago Los Angeles County murder case should receive absolute immunity after the man convicted of the crime, Thomas Goldstein, was found to be innocent after spending 20 years in prison. Van de Kamp v. Goldstein, 07-854.

The case that is likely to attract the most headlines this fall, however, comes out of the 2nd U.S. Circuit Court of Appeals.

It revolves around the question of whether TV networks should be fined when someone swears on live TV.

At issue is the Federal Communications Commission's decision to change its long-standing policy and fine networks for so-called "flying expletives," a move the 2nd Circuit struck down as "arbitrary and capricious." FCC v. Fox, 07-582.

Although characterized by many as a censorship case, Marty Lederman, of Georgetown Law Center, notes that the case - which will be argued on Election Day - actually rests on the Administrative Procedures Act, which the networks are relying on.

"But, looming over the case, is the First Amendment question," he conceded.

Likely to be less prominent in the public eye are a number of employment cases, including one focusing on whether employees are bound by mandatory arbitration when their contract is negotiated by a union. 14 Penn Plaza v. Pyett, 07-581.

Gibson Dunn partner Eugene Scalia, son of Justice Antonin Scalia and an expert on employment law, described it as "potentially one of the most interesting and significant labor and employment cases" of the term.

As for criminal law, there are several Fourth Amendment cases scheduled for argument.

In one being argued Tuesday, the court will decide whether evidence seized during an arrest should be excluded because the arresting officer was incorrectly advised by an another law enforcement agency that there was a warrant for the defendant's arrest. Herring v. United States, 07-513.

Roberts' Impact

The term is likely to provide further guidance as to how Roberts is shaping the court as chief justice in what will be his fourth one in charge.

Sidley Austin's Wood points, for example, to the "lopsided" majorities in the recent preemption cases as a sign of the court moving "towards consensus and narrower rulings" that Roberts is said to favor.

That could foreshadow a narrow ruling in favor of the drug companies in Levine that would bring an end to some state lawsuits but not others, Irvine's Chemerinsky suggested.

Such a conclusion could be reached, he said, by drawing a distinction between potentially dangerous drug risks that have been known about for a long time, as in Levine, and products that have gone to market more recently.

Whatever Roberts' influence, Olson - who knows better than to offer anything less than fulsome praise to the court when he has a case pending - pronounced himself pleased with the chief justice's impact so far.

"Roberts has demonstrated in a short time that he is and will be an outstanding chief justice," he said. "He is a leader, but is also a team player."

Posted 11:40 AM by Howard Bashman

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June 23, 2008

CHIEF KOZINSKI LAWYERS UP AS PROBE HEATS UP
Defense Lawyer Mark Holscher Will Represent Judge

By John Roemer
Daily Journal Staff Writer
SAN FRANCISCO - Chief Judge Alex Kozinski has hired prominent criminal defense lawyer Mark C. Holscher, the Daily Journal has learned.

The development Friday came as the 9th U.S. Circuit Court of Appeals' chief was in hot water for keeping sexually explicit photos on a Web site, alex.kozinski.com, that he said was intended to be private.

Kozinski did not follow his customary practice of returning a reporter's e-mail query. Instead, Holscher phoned but declined to discuss his work for the judge.

Disclosure of the photos forced Kozinski on June 13 to recuse himself from an obscenity trial he was overseeing in Los Angeles federal court.

That situation led Kozinski to call for a judicial misconduct investigation of himself.

Chief Justice John G. Roberts last week transferred the matter to the 3rd Circuit, based in Philadelphia, where a five-judge panel was convened to evaluate Kozinski's behavior.

Holscher, a partner at Kirkland & Ellis' San Francisco and Los Angeles offices, flew to Los Angeles Friday. Kozinski keeps chambers at the circuit's Pasadena courthouse.

Former Federal Prosecutor
The lawyer is a member of the firm's commercial litigation and white-collar criminal defense groups, according to the Kirkland & Ellis Web site. In an earlier position at O'Melveny & Myers, in Los Angeles, Holscher represented former Rep. Randall "Duke" Cunningham, R-Calif., who is currently serving an eight-year prison sentence for bribery, mail fraud and tax evasion. Holscher is a former assistant U.S. attorney in Los Angeles.

As a federal prosecutor, Holscher appeared in 1995 before a 9th Circuit three-judge appellate panel led by Kozinski to defend the conviction of a defendant in a complex loan fraud scheme. Kozinski and the other panelists affirmed the conviction. U.S. v. Turman, 122 F.3d 1167.

Holscher was on a short list to be U.S. attorney for California's Central District in 2002.

Posted 9:18 AM by Howard Bashman

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May 15, 2008

FDA PRE-EMPTION UNDER SCRUTINY
Democrats Probe Uptick in Federal Clampdown on Liability Suits

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - The Bush administration's expanded use of federal pre-emption when it comes to oversight of drugs and medical devices is now coming under the microscope in Congress.

At a House of Representatives Oversight and Government Reform Committee hearing Wednesday, Los Angeles Democrat Rep. Henry Waxman led the inquisition over the Federal and Drug Administration's increased use of the pre-emption doctrine since 2002.

Waxman, who chairs the committee, and other Democrats claim the FDA is increasingly taking the position that drugs or medical devices that have been approved by the agency are not subject to product liability litigation in state courts. The FDA maintains it is merely trying to ensure there are uniform federal standards.

Democrats have labeled the administration's stance as a form of back-door tort reform.

Hollywood actor Dennis Quaid, testifying about the overdose of the drug-thinner Heparin his twin babies received last year due to a labeling problem - provided a celebrity gloss to an otherwise dry occasion.

The relationship between the FDA's authority and state law is an issue that the Supreme Court is also wrestling with this year.

Testifying on behalf of the FDA, Dr. Randall Lutter, deputy commissioner for policy, maintained Wednesday that pre-emption is a legitimate tool for preventing inconsistent state laws from muddying the legal waters as the agency seeks to create uniform rules around the nation.

He also denied the agency has drastically changed the approach that previous administrations have taken, testifying that the policy "goes back a couple of decades."

Waxman didn't buy that explanation.

He noted that the agency expanded the scope of definition "in a rather tricky way" by adding language "at the last minute" to the preamble of a new regulation on drug labeling in 2006.

"I'm offended by that," Waxman said. "There is a branch of government under the Constitution that's supposed to make laws, and Congress was never asked to change the law."

Lutter said the FDA has authority under the Supremacy Clause of the Constitution to be the primary arbiter of whether a drug or medical device is safe.

As such, the FDA's decision should not be "second guessed" by state courts, which lack the expertise of government scientists and doctors, he added.

Rep. Christopher Shays, R-Conn., attempted to defend the agency, saying he wasn't convinced that the FDA hasn't always had the authority to pre-empt state law.

"I think some of the power has been implicit for a long period of time," he said.

Shays suggested that the FDA's lawyers should provide more details about the history of the agency's use of pre-emption.

But a series of expert panelists - albeit ones picked to testify by Democrats - agreed with Waxman that the Bush administration has taken a different approach to previous administrations.

David A. Kessler, the FDA administrator under Presidents George H.W. Bush and Bill Clinton, testified that the state tort system and the FDA have always worked in tandem to provide consumer protection.

Kessler, trained as both a lawyer and a physician, is a professor at University of California, San Francisco, the university system's medical school.

Acting alone, he explained, the FDA does not have the resources to continue oversight of products once they have been approved.

It's the threat of lawsuits that acts as an incentive for manufacturers to be forthcoming about possible defects, Kessler added.

"The tort system has historically provided a critical incentive to drug and device companies to disclose important information to physicians, patients and the FDA about newly emerging risks," he said.

Putting a human face on the issue was actor Quaid, whose twins nearly died as a result of the Heparin overdose last year at Cedars-Sinai Medical Center in Los Angeles.

A nurse incorrectly gave the babies 1,000 times the amount of blood thinner they needed, in large part because the label on the bottle was very similar to the one that contained the smaller dose.

Quaid has since filed suit against the manufacturer, Baxter Healthcare Corp., which has now invoked the pre-emption argument in a bid to get the case dismissed, he testified.

The FDA has effectively given Baxter "the government's seal of approval, a get-out-of-jail-free card that denies us the right to hold the company accountable," he told lawmakers.

Although the focus of the hearing was on the Bush administration, it is the Supreme Court that has really set alarm bells ringing as far as Democrats are concerned.

By the end of this year it will have heard three cases on pre-emption within months.

In February, the court ruled that plaintiffs cannot file state suits against medical device manufacturers that require pre-market approval from the FDA. Riegel v. Medtronic Inc., 128 S. Ct. 999 (2008).

A month later, the court was deadlocked 4-4 in a case addressing whether state claims that an FDA drug approval was obtained by fraud are also pre-empted. Warner-Lambert Co. v. Kent, 06-1498.

This fall, the court will wade into the issue again when the court decides whether drug lawsuits should be pre-empted. Wyeth v. Levine, 06-1249.

Waxman is already planning to introduce legislation that would make it clear that FDA approval does not pre-empt state law claims, in large part as a reaction to Riegel.

Posted 12:25 PM by Howard Bashman

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May 12, 2008

Getting on Scalia's Good Side

By Brent Kendall
Daily Journal Staff Writer

WASHINGTON - Vocal and persistent, Justice Antonin Scalia can be a source of deep anxiety for counsel during Supreme Court oral arguments, but he's an attorney's best friend in a new book aimed at making lawyers better advocates.

Along with author Bryan Garner, Scalia has penned "Making Your Case: The Art of Persuading Judges," a lightly written and often entertaining book that offers a panoply of tips on how to truly influence the men and women behind the bench - or at least how not to annoy them.

The slim 200-page book is broken into 115 sections of straightforward advice for briefing and oral argument that can improve any lawyer's chances of courtroom success. The tips at times may sound simple, but they can be tough to master: Never overstate your case. Face up to bad facts and don't duck tough questions. Be civil, likable and trustworthy. Skip the legal jargon in your writing, and make it interesting, organized and clear.

Scalia, sitting down with the Daily Journal in his chambers last week, said the biggest lesson lawyers should take from the book is the need to keep a clear focus on the principal job of an advocate.

"Your job is to help the judge, to make it as easy as possible for the judge to understand the case and to come out your way," Scalia said. "And anything that stands in the way of that is to be avoided."

"In a way, I'm feathering my own nest," Scalia said of the book. "To the extent you can get the lawyers to do a better job, the judge's job is easier."

Scalia and Garner spent 18 months on the book, and after a few preliminary meetings to sketch out their plan, the authors each took a crack at the first draft before melding their work together.

"It was genuinely a co-authored book," said Garner, editor in chief of Black's Law Dictionary and founder of LawProse, a company that provides seminars on legal writing and editing. "We were working on the same sections simultaneously, not knowing what the other would say."

Along the way, they received input from 47 judges and lawyers who offered eye-opening insight that made its way into the book, Scalia said.

Scalia, for example, said he learned that many judges prepare for cases by "retro-reading," reading legal briefs in reverse order, the reply brief first, then the responding brief and the opening brief last - just the opposite, of course, of what a lawyer would expect.

"I knew one judge who did that and I thought it was sort of weird," he said. "But it turns out, as we learned from consulting with these other people, that there are a lot of judges who do that. I think it's a dirty thing to do to counsel, but there's no doubt that it tells you right at the outset what the case is about."

A key piece of advice that the authors emphasize throughout the book is the need for lawyers to be as succinct as possible.

The best lawyers, they say, focus tightly on their strongest arguments, say what they need to say and then stop, even if they're well short of their word limit. Attorneys with a reputation for brevity, they say, will discover that judges read their briefs more closely.

"You can learn to do that right away," Scalia said. "Just squeeze all of the water out of each page. My law clerks, if there's one big message they learn here, it's that."

Other advice may take longer to learn.

Scalia and Garner write that a lawyer's only tool of persuasion is language, so he must develop an appealing style of writing and acquire a broad vocabulary - attributes that won't be developed from reading a steady diet of judicial opinions, "which are widely read not, heaven knows, because they are well written but because they are authoritative."

Lawyers, they say, can learn to write by reading good prose. The authors quote 7th U.S. Circuit Court of Appeals Judge Frank Easterbrook: "See if you can write your document like a good article in The Atlantic, addressing a generalist audience."

"That's easy advice to give, hard advice to take," Scalia said with a smile. "How do you make an ERISA case interesting? Well, you do your best. You at least make it clear, and not try to obfuscate it by using a lot of legal mumbo-jumbo."

While Garner says the level of advocacy in America "is not what it ought to be, generally speaking," Scalia says the book should not be read as an indictment of lawyers.

"I didn't mean it to be that," Scalia said. "I can't recall anything I wrote where I had a particular lawyer in mind. But they are all inadequacies that over the years I've seen in various counsel."

He said that in his own personal experience, "I've always thought, by and large, the lawyers do a good job."

Perhaps one of the most striking things about the book is Scalia's insistence that oral argument matters a great deal, a view that runs contrary to the belief among some court watchers that argument sessions are more show than substance.

"Oh yeah, I'm a big fan," said a laughing Scalia, who has a well-deserved reputation as the liveliest and most colorful justice on the bench.

"It rarely changes your mind, but often your mind is not made up when you go in," he said. "And in close cases, oral argument can very often make the difference."

When asked to name a rule from the book that lawyers break most often, Scalia doesn't hesitate.

"The refusal to answer questions," he said. "The thinking that you've scored a point or gotten away with something if you dance around the question and don't really answer it. That is never a success and it's always a failure. It is so often that a judge has to ask, 'Is that a yes or a no?'"

Despite its focus on core principles, "Making Your Case" offers many small nuggets of advice as well, and they're often entertaining.

For example, there's this tip on avoiding Latin phrases: "Judges are permitted to show off in this fashion, but lawyers are not."

And this tip on forgoing judicial flattery: "Never - never - patronize a judge by volunteering 'That's a good question.' Of course it is! All judges' questions are ex officio brilliant."

The authors also are not above suggesting that you try to change your personality, if need be: "All of us are more apt to be persuaded by someone we admire than someone we detest. ... Some people, it must be said, are inherently likable. If you're not, work on it. (It may even improve your social life.)"

Scalia and Garner both say they greatly enjoyed working together, but the men did have their differences, and they decided to air them in the book.

Among the biggest? A fight over the use of contractions - can't, won't, hasn't, didn't - in legal writing. Garner thinks it's fine, and even preferable, to use them (they're used in the book), while Scalia does not, arguing that some judges view them as an affront to the dignity of the court.

"I was afraid for a time that contractions would get in the way of our ability to finish the book," Garner said. "I wanted the contractions and he was un-contracting all of my stuff and I was putting contractions into all of his stuff. Finally, he deferred on that point. But he ended up writing a funny note on it."

In the book, Scalia chafed when Garner noted that some leading appellate judges, including 9th Circuit Chief Judge Alex Kozinski, use contractions themselves.

"Life tenure is a wonderful thing," Scalia wrote in response. "Neither they nor any client of theirs pays a price for their contractions. (Kozinski, for Pete's sake, has been known to write an opinion with 200 movie titles embedded within it.)"

Scalia, widely considered to be the best writer on the current Supreme Court, often has said that he likes having written, but not necessarily the writing process itself.

Working on the book, however, was different.

"This has been less painful than most writing," Scalia said. "Maybe because I had a co-author and we incited each other. Maybe also because what I was writing about was not hyper technical. But even so, if you think I didn't sweat over it, you're just wrong."

High Court's Outspoken Justice Weighs In on Several Topics

During an interview with the Daily Journal to discuss his new book, "Making Your Case: The Art of Persuading Judges," Justice Antonin Scalia shared a variety of thoughts on advocacy at the Supreme Court. Here are some of his remarks.

On the quality of Supreme Court advocacy:
"[Former Chief Justice Warren] Burger used to speak often about the inadequate level, especially of oral argument. That's never been my reaction. In fact, quite the contrary. I'm often amazed at how good some of these people from nowhere are - court appointed counsel from Podunk. Some of these people are very good. My reaction is, my God, we're devoting too many of our best minds to this enterprise of the law. This person should be inventing the gasoline-free automobile or doing something else."

On the trend of experienced Supreme Court lawyers landing more cases, at the expense of newcomers to the high court:
"For my own interest and amusement, I guess it's interesting to see different people. But as far as the quality of argument is concerned, people pay a whole lot for these frequent flyers simply because they're worth a whole lot. They are a lot better. Which is not to say that there aren't others who only appear rarely who are just as good. But, the specialists generally are better."

On how a bad oral argument affects the court:
"It always makes the case harder when the side that you think is probably the right side has not been presented well. Sometimes you wish you could give two grades: who wins on the law and who wins on presenting the law. ... It's only when you become a judge and sit on a bench that you realize how appropriate it is for lawyers to be referred to as officers of the court. They really are invaluable. You have bad lawyers, you're more likely to have a bad decision. They are the principal sources of information on both the facts and the law."

On which is more important, brief writing or oral presentation:
"Probably brief writing. Because, as I say, oral argument often makes the difference but the brief - you start off on the wrong foot, that's the first impression you get of the case. It's hard to rehabilitate a case at oral argument that has been badly presented in the brief."

On whether legal briefs should read like a good magazine article:
"I think they should. ... I try to follow my own advice. And what's said about briefs is probably true about judicial opinions. They also should be brief, and anything that is besides the point should just be scratched."

On whether judicial opinions are less eloquent than they were 50 years ago:
"Undoubtedly judges now have more cases in front of them and therefore have more assistants, known as law clerks. And so the product is increasingly a committee product. ... Most of my opinions I let the law clerk do the first draft. The principal part of my job is to delete, to cut it down to the muscle. And generally speaking, the longer the opinion, the less time the judge has spent on it, at least if the judge has law clerks."

On whether other judges would agree with the advice his book offers to lawyers:
"I hope so, and I hope that those that don't will let me know. Someday down the road we may do another edition. ... I'm sure there's stuff we haven't said that some judges think probably should have been said. I would hope to get that kind of feedback from the bench, or for that matter, from the bar. I'm sure there are some practicing lawyers who might read it and say, 'I have another gimmick that I have found very effective.'"

Posted 11:50 PM by Howard Bashman

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April 25, 2008

Stock Holdings May Force Justices to Sit Out Apartheid Case

By Brent Kendall
Daily Journal Staff Writer
WASHINGTON - When the U.S. Supreme Court meets today in a private conference, it could face the mother of all recusal problems for justices who own stocks.

The court is scheduled to discuss whether to take up an appeal by 34 companies facing lawsuits for doing business in South Africa during that country's apartheid regime from 1948 to 1994. The plaintiffs allege those companies are liable under the Alien Tort Statute for aiding and abetting human rights violations by the South African government. American Isuzu Motors v. Ntsebeza, 07-919.

A trial judge dismissed the lawsuits but the 2nd U.S. Circuit Court of Appeals in New York revived them, giving the plaintiffs a renewed chance to proceed.

The companies, along with the Bush administration, urged the high court to hear the case, saying the 2nd Circuit's decision was profoundly important and would interfere substantially with foreign trade and U.S. foreign policy.

The case could affect other pending lawsuits against companies that do business in nations with troubling human rights records.

But according to their latest financial disclosure forms, three justices - Chief Justice John Roberts and Justices Stephen Breyer and Samuel Alito - own stock in some of the defendants, a fact that would require their recusal.

A fourth justice, Anthony Kennedy, also may have to sit out. Kennedy has a son who works for one of the defendants, the financial firm Credit Suisse, and he has recused himself in past cases involving the company.

If Kennedy recuses himself and the other justices still own their shares, the court would be left with just five active justices, one short of the six needed for a quorum.

Without six members, the court could not hear the case and, by law, the appeals court ruling would be affirmed.

"If the court loses a quorum because of stock ownership, it reinforces the point that justices should not own stock in parties likely to come before the court," said University of Pittsburgh law professor Arthur Hellman, who follows the issue of judicial recusals closely.

"It's much more than a PR problem" for the court, Hellman said. "This is obviously a case of huge significance."

A justice could save a court quorum by selling his stock holdings to "unrecuse" himself. In fact, a new law makes it easier for federal judges to do so by removing certain tax disadvantages.

To date, Roberts is the only justice who appears to have taken advantage of the law.

The chief justice has "unrecused" himself in two cases in which he owned stock, though in another case he did not sell the pharmaceutical shares that forced him to sit out.

In his absence, the court split 4-4 over whether patients could bring a product liability lawsuit involving a diabetes drug that has since been taken off the market. Warner-Lambert v. Kent, 06-1498.

Given his track record and concern about public perceptions of the court, Roberts would seem the most likely candidate to sell stock to "unrecuse" in the apartheid case.

"That would be a quite plausible scenario," Hellman said. "It's also possible he's already done it."

The chief justice owns between $15,000 and $50,000 in defendant Hewlett-Packard, according to his disclosure report.

Breyer owns shares in defendants Bank of America, Colgate-Palmolive, IBM, and Nestle and Alito owns shares in defendants ExxonMobil and Bristol-Myers Squibb, according to their disclosure reports.

Alito did not sell his Exxon shares to take part this year in the closely watched punitive damages case involving the 1989 Exxon Valdez oil spill.

The court could issue an order in the apartheid case as early as Monday, though it's possible they would postpone action if one of the justices requests a delay.

The lead lawyer for the companies, New York attorney Francis Barron of Cravath, Swaine & Moore, declined to comment. Kenneth Geller of Mayer Brown, another member of the legal team, said he had not given thought to the recusal issue. "I'm sure the court will do the right thing," he said.

Paul Hoffman of Schonbrun DeSimone Seplow Harris & Hoffman in Venice, the plaintiffs' lead attorney who urged the court not to take the case, said that, recusals aside, the court should pass on the case because the lower court ruling was narrow and the litigation is still in its early stages.

Stock-based recusals have been a prominent issue on the California Supreme Court.

The state court abandoned a multimillion dollar toxic-tort case last November because four of the court's seven members owned stock in the oil-company defendants.

Posted 12:10 PM by Howard Bashman

DAILY JOURNAL NEWSWIRE ARTICLE
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All rights reserved.

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April 22, 2008

Supreme Court - The Hottest Docket in Town
Firms Clamor to Be Among the Few To Go Before the Nation's Final Arbiter

By Brent Kendall
Daily Journal Staff Writer
WASHINGTON - Against very long odds and without a lawyer, Texas prisoner Carlos Jimenez hit the jackpot last month, successfully petitioning the U.S. Supreme Court to hear his little-noticed case, a procedural dispute about his habeas challenge to a 1991 burglary conviction.

The inmate's surprising accomplishment, however, did not go unnoticed in the Supreme Court bar: Jimenez suddenly had a coveted spot on the court's calendar, and he did not have an attorney to argue for him.

Thomas Goldstein of Akin Gump Strauss Hauer & Feld in Washington, D.C., working with Stanford University's Supreme Court Litigation Clinic, sent Jimenez a letter immediately, offering to represent him for free. But anticipating that Jimenez would receive many other overtures, the group decided its letter wasn't enough.

Goldstein, who has argued 18 Supreme Court cases, called Akin's Dallas office, which sent a partner and an associate on a 2½-hour drive across East Texas to visit Jimenez in prison. The house call worked: Akin and Stanford got the case. Goldstein himself made a trip to the prison shortly thereafter.

"There are so few cases and such competition for them that you have to go the extra mile," Goldstein said. "The number of opportunities is vanishingly small."

Call it the perfect storm. The Supreme Court has been accepting fewer cases for review each year, while the number of lawyers seeking a piece of the action has multiplied rapidly. Seven Supreme Court litigation clinics have sprung up on law school campuses, and they want work too. The result: A heated competition for Supreme Court cases like no one has ever seen.

"It's obvious - you've got more and more of these firms out there, and they're hungry for cases," said Georgetown University law professor Richard Lazarus, who closely follows trends in the Supreme Court bar.

The justices are hearing just 70 cases this term, a new low in the modern era, and many litigants have retained experienced Supreme Court counsel by the time they're planning a high court appeal.

So, when a lawyer with little or no Supreme Court experience gets a case accepted, his or her telephone starts ringing with people offering to help - or to take over the case entirely, Lazarus said. Sometimes the offers start even earlier, he said, if the case is a particularly good prospect for Supreme Court review.

One out-of-town lawyer with a case headed to the Supreme Court saw the phenomenon firsthand in recent months and called the experience an eye-opener.

"There were a lot of offers and they came very quickly - lightning speed," said the lawyer, who asked not to be named, in order to speak frankly. "There must be an entire industry that searches and waits [for cases] and then they pounce. I was amazed by it, without a doubt."

By his count, Goldstein said there are roughly 25 firms looking for Supreme Court work these days, a trend he attributes to "national law firms deciding that, in order to have highly credible litigation practices, they need to be able to say that they operate at the court."

There are also the law school clinics, designed to give students hands-on experience with Supreme Court cases - a trend that Goldstein and Stanford law professor Pamela Karlan started when they launched Stanford's Supreme Court Litigation Clinic in 2004.

In all, Goldstein said there are five times as many players now as when he began searching for clients to build his Supreme Court practice in the late 1990s, "and they're five times as aggressive."

Why the intense battle for high court cases, even ones that don't pay a dime?

Building your Supreme Court resume with a huge volume of cases, even pro bono cases, Goldstein said, is a huge help when trying to compete against the nation's most prominent lawyers for paying clients: "It's hard to position yourself."

Other Supreme Court regulars say the increasingly competitive climate hasn't much altered the way they do business.

Roy Englert of Robbins, Russell, Englert, Orseck, Untereiner & Sauber said more people may be searching for cases, but veteran Supreme Court advocates are getting an increasingly bigger piece of the pie as clients seek out lawyers with significant high court experience.

"I've been a beneficiary of this increasing sense among clients that they need a repeat player," said Englert, who last week successfully defended Kentucky's lethal injection procedures from a constitutional challenge. "I tend to be more responsive to incoming phone calls than making the phone calls trying to get cases."

The tooth-and-nail competition to work for free at the Supreme Court is "an almost comical situation," he said.

While the competition for pro bono work is more aggressive than ever, the playing field for paying work hasn't necessarily been altered by the influx of aspiring lawyers, said Carter Phillips of Sidley Austin, one of the nation's leading Supreme Court advocates.

"There are a few more people, I suppose, who compete in that [paying] market, but the numbers on that score haven't changed much," Phillips said.

Charles Rothfeld of Mayer Brown agreed, saying the leading law firms still dominate the high-stakes cases with big-money clients.

"If you're general counsel of a big corporation and you've got a securities case at the Supreme Court, that's an entirely different plane of activity," Rothfeld said. "When the dollar amounts involved are substantial, I don't think anybody is going to say, 'Gee I'm going with this unknown person to handle my case at the Supreme Court.'"

On the pro bono front, it's true that the big appellate firms are trying to get high court experience for their younger lawyers and are willing to take on free work to do it, Rothfeld said. "But I'm not sure that's a change from the way things were."

Georgetown's Lazarus, however, said even the big-name Supreme Court firms are finding new ways to score more cases, namely through their work with the law school litigation clinics.

"The clinics provide a benign and attractive filter" for the law firms, Lazarus said. "Almost everybody has a proxy now."

Each of the seven law school clinics is affiliated with a law firm that has an active presence at the court. For example, Northwestern University works with Phillips and Sidley Austin, Yale Law School with Mayer Brown, and Stanford Law School with Goldstein and Akin Gump. The lawyers come to campus and help guide the students' work. The other clinics are on the campuses of Harvard University, New York University, the University of Texas and the University of Virginia.

The Stanford clinic is counsel or co-counsel in seven cases this term, including a high-profile death penalty case examining whether Louisiana can execute an inmate for the crime of child rape. In all, law school clinics are involved in 15 Supreme Court cases this term.

Lazarus said when established Supreme Court law firms call out-of-town attorneys with offers of assistance, those offers are more warmly received when they're made on behalf of a law school.

"It's a much easier call to make," he said. "It's not a law firm calling, it's a fabulous law school. At that point you've added prestige to it."

"I don't say this in a negative way," Lazarus added. "I think it's a positive. Whatever helps make the advocacy before this court better is a positive."

Phillips of Sidley Austin said he expects the Supreme Court's docket to increase in the coming years by at least a few cases, which would mean more opportunities for work.

He also expects the real aggressive chase for cases, particularly pro bono ones, to continue.

"Both the law firms and the law schools will have to decide if this effort is worth what they're trying to get out of it," he said.