How Appealing Extra

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November 30, 2009

Justice Breyer Reflects on Great Britain's Constitutional Evolution

By Lawrence Hurley

Daily Journal Staff Writer
WASHINGTON - Last month, Justice Stephen G. Breyer and two of his colleagues on the U.S. Supreme Court were present when a major shift in constitutional law took place.

But the action took place in London, not Washington, D.C.

Breyer, Chief Justice John G. Roberts Jr., and Justice Antonin Scalia were in Great Britain to mark the official opening of its Supreme Court.

This important constitutional reform saw Britain's highest court of appeal formally remove itself from the legislative branch for the first time in history. The court had previously existed as a committee of the House of Lords, the upper chamber of the Houses of Parliament.

After the brief trip, Breyer agreed to speak to the Daily Journal's Supreme Court reporter, Lawrence Hurley, who is British, about his experiences in London and his views on the reforms taking place across the Atlantic.

DJ: Let's start with the symbolism of moving the judiciary out of the legislative branch, which saw the highest judges in the land - all of whom previously sat as the Appellate Committee of the House of Lords - become justices of the Supreme Court and switch to a new court building instead of being seated in the Houses of Parliament. How important is that?

Breyer: My impression is that there was great uncertainty among people who know a lot about government in Britain just what the [Appellate] Committee of the House of Lords was. Some people thought it was lords who had been made judges. In fact it wasn't. It was judges who were made lords. They were given the title so they could sit on what was really a Supreme Court. By moving to a new building and changing the title, they have clarified that arrangement.

DJ: So it's more of a visibility issue.

Breyer: They wanted it to be clear.

DJ: Speaking as someone who grew up in Britain, judges really are unknown there compared with here in the United States. No one in Britain really knows anything about the judiciary, including how judges are appointed, who they are, how they get the job. That's quite different to here in the U.S.

Breyer: We are often much better known in legal circles than we are by the public generally. I don't think many people know my name. I would be surprised if one-half of 1 percent of the public knew my name, probably less. Judges are fairly anonymous here. The Supreme Court is written about, but usually in the context of decisions that have social or political content. For example, not many people know that 40 percent of the time, we are unanimous. They don't know that. It comes as a surprise. I say the 5-4 decisions are often in quite difficult cases where the language of the Constitution isn't clear.

DJ: I don't get the impression that there's much outreach to the public by the judiciary in the U.K.

Breyer: I think people probably would have been less interested. I don't know. A major change in their structure substantively came along when they passed a law [the 1998 Human Rights Act] that said the European Charter of Human Rights would be enforceable in British courts. That means British courts can find a statute passed by parliament incompatible with the charter. That isn't the same authority we have to hold unconstitutional an act of the legislature but it moves in that direction.

DJ: So you think this change will make the courts more visible because it makes people more aware of the power of judges?

Breyer: I think it might. They have given the court additional power. And also, they [judges] enforce the European treaties, and that might make a difference.

DJ: American judges can strike down statutes. Is that the main reason the judiciary is more high profile here?

Breyer: I suspect that has something to do with it. We are also a much more diverse country, or we have been in the past. Therefore people disagree about all kinds of things and have decided to resolve many of those differences under law, which means they are in court.

DJ: What about your actual experiences at the U.K. Supreme Court opening ceremonies?

Breyer: There were judges from many, many different countries. I think it was good that we were there.

DJ: Did you hit it off with any judges from other countries?

Breyer: Judges get along perfectly well.

DJ: The prime minister [Gordon Brown] was there, and Queen Elizabeth II. Did you talk to the queen?

Breyer: Yes, for a second; she shook hands with everyone. Very nice.

DJ: One person there with whom you wouldn't get at an equivalent introduction here due to the separation of church and state was the Archbishop of Canterbury.

Breyer: That's true. I shook hands with him too. He was fine. The speeches were very well done. They were very short and to the point. Earlier they had a kind of moot court with some students from the area. It was a very nice ceremony. It couldn't have been nicer.

DJ: Did the British justices have their ceremonial robes on?

Breyer: They were wearing ceremonial robes.

DJ: How did you like the robes they have? They are considerably more ornate than yours.

Breyer: Well they have gold in them. We have plain black robes. We were not wearing robes. Most of the other countries have elaborate robes. We did not wear robes at all. We normally don't wear robes when we're not in court.

DJ: Did you get any fashion tips? No ermine or anything?

Breyer: None we are going to adopt. I think I said to someone - he said: "Why don't you have robes?" I said: "We fought a revolution against that." And he said: "Well, that was rather bad luck for you."

DJ: The U.K. justices are not wearing wigs any more though.

Breyer: I guess they are not. We have never worn wigs. Perhaps that would be a benefit to me as I don't have much hair.

DJ: One thing they are doing in Britain, which has got some attention here in the U.S., is that they are televising proceedings. Sen. Arlen Specter, D-Pa. has already seized on it as further reason why the U.S. Supreme Court should televise proceedings.

Breyer: Some countries do have them televised. Some countries have had it work perfectly well and some do not.

DJ: Is it heading in that direction here?

Breyer: I don't know. That would be up to others to decide. We haven't had that issue right in front of us, so I have tended not to discuss it at length. Am I anxious to comment on this subject when there is legislation in the Senate? No, I'm not anxious to comment, so I won't.

DJ: Let's move on to the appointment process. In Britain, where an independent commission appoints judges, they obviously have no equivalent to the confirmation process that's so public here. Do you think the confirmation process is a positive thing?

Breyer: I was the person confirmed. I wasn't the person who did the confirming. I wasn't the person who did the appointment. So what I say in respect to that question often is that is that it's like asking for the recipe for chicken a la king from the point of view of the chicken. I haven't taken views publicly on whether it's good, bad or indifferent as it's presently conducted, and I don't want to.

DJ: We were talking earlier about the visibility of the judiciary. Does the confirmation process help in that respect?

Breyer: Like many things in the Constitution, it's a compromise. It's a way of having public input for an official who will have an effect on the public's life and you want to give the public some say. Then the question is how much say and under what circumstances and how do you conduct those proceedings. Those are basically political questions for the political branches to resolve.

DJ: For the judiciary is it better to have that rather than a behind-the-scenes appointments process?

Breyer: If you put it that way, it must be.

DJ: Just one other thing - it goes to the visibility of the court - just the other day a recent law graduate launched a Supreme Court fantasy league Web site [www.fantasyscotus.net]. People can go case by case and predict the outcome and there's a prize at the end of the term.

Breyer: I don't think I will bet on it.

DJ: I don't think you'd be allowed to. I thought it does show there is that kind of public interest in the court we were talking about.

Breyer: I'm glad the public is interested. The more the public knows about the court, the better.

Posted 1:55 PM by Howard Bashman

Posted 10:50 AM by Howard Bashman

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October 27, 2009

For Class Actions, It's All About Location

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - When the U.S. Supreme Court hears arguments in a major class action case next month, trial lawyers in California will face a severe threat to their ability to file certain claims in plaintiff-friendly state courts.

Car rental giant Hertz Corp. has asked the justices to review a 9th U.S. Circuit Court of Appeals decision in order to clarify under what circumstances defendants can remove class action cases to federal court.

If Hertz wins, it could dramatically change the class action landscape in California, with fewer cases being heard in state courts, legal experts said.

At the heart of the case is the 9th Circuit's interpretation of a key section of the Class Action Fairness Act, a 2005 tort reform law, commonly known as CAFA, that requires class action suits to be heard in federal courts if certain criteria are met, such as when the plaintiffs and the defendant are located in different states. Hertz v. Friend, 08-1107.

The key to determining whether a defendant can be deemed out-of-state under CAFA is the location of the company's "principal place of business." But federal appellate courts differ over how to determine that fact.

The 9th Circuit has adopted a "place of operations" test, which means that a company's principal place of business is wherever it has the majority of its operations.

That contrasts with the 7th Circuit, which has a "nerve center" test that relies upon where the defendant company's headquarters are located.

These tests have huge ramifications in terms of which courts class actions end up in.

Due to California's size, many companies - such as Hertz, which is based in New Jersey - have large operations here even though they are not headquartered in the state.

The 9th Circuit rule makes it harder for a company like Hertz to remove the case to federal court if it is sued in California, their lawyers said. That's because plaintiffs can say that there is no diversity jurisdiction, the legal concept that determines when federal courts have jurisdiction to hear cases. In order for a federal court to assert jurisdiction over a state law dispute, one of the parties must be from out of state.

Class action lawyers throughout the state are eagerly awaiting the Nov. 10 argument.

"This case is extremely important to the defense bar," said Gail Lees, chair of the class action and complex litigation practice group at Gibson, Dunn & Crutcher in Los Angeles.

If the 9th Circuit decision were to stand, there would be "a massive number of cases where defendants would be denied the protections of CAFA," she added.

Lees points to national figures compiled by the Federal Judicial Center, which show a 72 percent increase in class action filings from 2001 to 2007 in federal courts across the country. Courts within the 9th Circuit's jurisdiction saw a 165 percent increase during that same period.

Hertz's lawyers, led by Washington-based O'Melveny & Myers partner Sri Srinivasan, said the playing field in California is not level for any company with a national presence.

"Under the 9th Circuit's approach, any national company that does business in California at a level roughly proportional to its business in other states on a per capita basis could well be deemed a California citizen," Srinivasan said.

In response, Robert J. Stein III of Adorno & Yoss in Santa Ana, one of the attorneys representing plaintiffs in the Hertz case, asserted that large companies routinely game the system by deliberately basing their headquarters in a different state from where they have the bulk of their employees.

"This clearly is not what was intended by diversity jurisdiction," he said. As such, the Hertz case has "broad implications," Stein added.

The question of what court presides over a class action is vital to the case's chances of moving forward, said Claudia Center, senior staff attorney of the Legal Aid Society's Employment Law Center in San Francisco, which has filed an amicus brief in support of the plaintiffs.

"There's at least a strong perception ... that state courts are more willing to certify class actions and are less willing to grant summary judgment [to defendants]," she said.

The Hertz case arose in September 2007, when a group of plaintiffs filed suit in Alameda County Superior Court alleging various violations of California employment laws. Hertz immediately sought to remove the case to federal court.

But in January 2008, U.S. District Judge Maxine M. Chesney of the Northern District of California ruled, based on 9th Circuit precedent, that Hertz had failed to show that "its principal place of business is other than California." She remanded the case back to the state court. In a brief October 2008 opinion, the 9th Circuit affirmed.

The business community, led by the U.S. Chamber of Commerce, strongly supports Hertz's position.

Robin S. Conrad, who heads the National Chamber Litigation Center, said the 9th Circuit definition of the principal place of business means that "it's going to be the larger states that have the thumb on the scale" when it comes to deciding in which court a case is heard. Such a development is "certainly a concern" for businesses that operate nationally, she added.

In a reference to the plaintiff-friendly reputation of state courts in places like California, Conrad said that it is the bigger states "that more likely than not end up on everyone's judicial hellholes list."

On the other hand, Center argues in the Legal Aid Society's brief, companies that seek to do business in California should also be subject to its employment laws.

It's not a coincidence that the bigger states like California and New York are the ones that have "progressive worker protection laws," she said.

Hertz proposes that courts should only consider where a company has its headquarters. It would be an easier test to apply than the 9th Circuit's because it would not require judges to balance various factors, Hertz attorney Srinivasan argues.

"That test has proven very straightforward to apply in the court of appeals that has used it," he added.

Plaintiffs' attorney Stein counters that Hertz's proposed test is at odds with the history of diversity jurisdiction.

"It would seem that adopting a strict headquarters test would actually go against CAFA's intent to keep class actions involving local disputes out of federal court," he said.

As the argument approaches, Center, for one, believes the Supreme Court probably will come up with a new test, but possibly not as simple and business-friendly as the one Hertz would like.

Lawyers are always reluctant to guess what the Supreme Court will do, but Center was sure about one thing.

"I will predict that Hertz won't get what they want," she said.

Posted 11:54 AM by Howard Bashman

Posted 5:44 PM by Howard Bashman

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September 14, 2009

FINANCE CASE RENEWS FOCUS ON PRECEDENT
Roberts, Alito Pledged Deference; Activists After All?

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - When Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. successfully navigated their Senate confirmation hearings, both promised to show deference to U.S. Supreme Court precedent.

Now, following oral arguments last week in a major campaign finance case, it appears they will vote to overturn two prior Supreme Court cases, a move that critics say shows that their adherence to a modest judicial philosophy is patchy at best.

But a close reading of the confirmation hearing transcripts shows that Roberts and Alito, who were both nominated by George W. Bush in 2005, left themselves plenty of wiggle room when it comes to re-appraising old cases they disagree with.

Although both said they would respect stare decisis, the legal concept of respecting the authority of prior court decisions, neither said justices should always follow Supreme Court precedent.

Their comments could help justify their actions if, as most observers predict, the court strikes down restrictions on independent corporate-funded speech prior to federal elections. Citizens United v. FEC, 08-205.

To reach that goal, the court would have to overrule two prior Supreme Court cases that gave the court's blessing to restrictions on corporate spending: Austin v. Michigan Chamber of Commerce, 496 U.S. 652 (1990) and McConnell v. FEC, 540 U.S. 93 (2003).

During the argument last week in Citizens United, Roberts and Alito gave no hint they were inclined to avoid the First Amendment question presented in the case and decide the case on narrower grounds.

Roberts has also given prior warning as to where he stands on campaign finance issues following his majority opinion in a related case two years ago, when the court weakened a key provision of the landmark McCain-Feingold Bipartisan Campaign Finance Reform Act of 2002. FEC v. Wisconsin Right To Life, 551 U.S. 449.

Alito, who was in the majority in that case, wrote a brief concurring opinion in which he pointedly did not rule out overturning McConnell at a later date.

Some court-watchers, however, are loath to predict a broad constitutional ruling in the campaign finance case after being burned last term when they made similar forecasts on an important voting rights case.

Then, Roberts and Alito were part of an 8-1 majority that avoided the constitutional question and thereby upheld a vital part of the Voting Rights Act. Northwest Austin Municipal Utility District Number One v. Holder, DJDAR 8986.

Other legal experts point out that although the court did not decide the constitutional question in the voting rights case, it could return to it at a later date.

Remarks to Senators

Roberts and Alito both faced questions about how they would approach stare decisis during their confirmation hearings.

From the perspective of senators, particularly those who are pro-choice, the questioning was an attempt to pin the nominees down on their willingness to overrule Roe v. Wade, the landmark 1973 case that endorsed the right of women to have abortions.

Although unwilling to elaborate much on that issue, Roberts and Alito did give lengthy legalistic explanations of their interpretation of stare decisis.

Roberts, whose hearing took place in September 2005, described overruling precedent as "a jolt to the legal system" that should be avoided unless absolutely necessary.

"It is not enough that you may think the prior decision was wrongly decided," he said. Justices have to take into account "settled expectations" and such issues as "the legitimacy of the court," "whether a particular precedent is workable or not" and "whether a precedent has been eroded by subsequent developments," Roberts added.

During Alito's confirmation hearing in January 2006, the nominee acknowledged under questioning from then-Sen. Joseph R. Biden Jr., D-Del., that the Supreme Court does not need to follow its own precedents.

"It is not an absolute requirement, but it is the presumption that the court will follow its prior precedent," he said. Alito then added that the court does, however, "need a special justification for overruling a prior precedent and that reliance and reaffirmation are among the factors that are important."

He cited the notorious 1896 ruling Plessy v. Ferguson, in which the court endorsed separate-but-equal accommodations for blacks and whites, as an example of a case the court rightfully overruled.

Justices not boxed in

Looking back at those comments, "there are no statements that either made that boxes them in," said Rick Hasen, an expert in election law at Loyola Law School in Los Angeles. The justices are now engaged in process of balancing their respect for stare decisis with their misgivings about the earlier rulings, he added.

Other legal experts, like Doug Kendall, of the Constitutional Accountability Center, a progressive legal group that supports campaign finance limits, concede the justices can overrule cases but stress that any court that does so needs stronger justification.

"It's tough for them to justify overturning a precedent like Austin," Kendall said. Although Austin was decided in 1990, it is based on 100 years of campaign finance law, Kendall added.

Key to how the court will rule is Roberts's and Alito's willingness to categorize the case as a recent ruling that is not settled law, he said.

The oral argument would suggest that they have no qualms about categorizing it that way, especially Alito, who at one point expressed his views with some clarity.

"All of this talk about 100 years and 50 years is perplexing," Alito said. "It sounds like the sort of sound bites that you hear on TV. The fact of the matter is that the only cases that ... may possibly be reconsidered are McConnell and Austin. And they don't go back 50 years, and they don't go back 100 years."

Who's leaning which way?

Michael O'Neill, who was chief counsel of the Senate Judiciary Committee during both the Roberts and Alito confirmation hearings, thinks that Alito may have fewer reservations than Roberts about overruling precedent.

In some ways Roberts still thinks like the advocate he was, O'Neill said, keen to raise issues that later courts can address down the line.

Alito may be less reluctant to reappraise precedent because, having spent 16 years as a judge on the 3rd U.S. Circuit Court of Appeals, he is not so conscious of the disruptive effect such changes can have on practicing lawyers, O'Neill added. Lawyers on the ground "have a more conservative approach because they know how a big jolt to the law can affect the parties," he said.

Roberts, meanwhile, has said he favors an incremental approach to changing the law.

His opinion in the 2007 campaign finance case, which weakened the McCain-Feingold law by allowing corporations to fund issue advertising that does not explicitly endorse a candidate, would seem to reflect that view.

Famously, his opinion limiting the scope of campaign finance laws prompted fellow conservative Justice Antonin Scalia to describe his approach as "faux judicial minimalism" and "judicial obfuscation" because the chief justice did not specifically overturn the court's 2003 ruling in McConnell.

Citizens United now gives Roberts the chance to reap the fruit of the seeds he planted in that earlier opinion, having given clear notice of his intent.

"That appears to be what he is doing here, which is quite appropriate," said O'Neill, now a professor at George Mason University School of Law. "You hate to move the law in fits and starts."

Posted 9:35 AM by Howard Bashman

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July 30, 2009

Court Creates Waves in Criminal System
Right to Cross-Examine Expert Witnesses Means Big Changes In Presenting Lab Evidence

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - Just four days after the U.S. Supreme Court decided a major criminal case at the end of June, Los Angeles Chief Deputy District Attorney John Spillane sent a memo to all the lawyers in the office warning them of the repercussions.

The immediacy of his reaction illustrates the frantic response around the country to the decision, in which the Supreme Court ruled that the Sixth Amendment rights of defendants to confront witnesses are violated if they are not given the opportunity to cross-examine certain expert witnesses. Melendez-Diaz v. Massachusetts, DJDAR 9363.

Before the ruling came down, it was common practice in California for laboratory supervisors to testify on behalf of the technicians who actually carried out the tests. Most lawyers, including Spillane, interpret Melendez-Diaz to mean that the technician must testify if the defense requests it.

"Effective immediately, deputies handling cases involving scientific analyses ... should attempt whenever practicable to call as a witness the actual analyst who performed the scientific testing," Spillane wrote in his memo, a copy of which was obtained by the Daily Journal.

How much of a burden this new practice will place on prosecutors and the various crime laboratories that carry out tests across California, including those run by police and sheriffs' departments, remains to be seen.

Not all district attorney's offices are likely to be affected as much as Los Angeles, where there has long been a backlog in DNA testing, a problem exacerbated by a lack of financial resources.

In San Francisco, for example, Chief Assistant District Attorney Russ Giuntini said that although the ruling could have "very serious ramifications" for laboratories, there is "not yet" consensus among prosecutors across California on how to respond. Guidance is likely to be provided by the California courts of appeal, where several cases are already pending, he said.

"I think we will get some clarity fairly quickly," Giuntini said.

In his majority opinion in Melendez-Diaz, Justice Antonin Scalia insisted that "confrontation is one means of assuring accurate forensic analysis." It serves to "weed out" both fraudulent results and incompetence, he added.

Justice Anthony M. Kennedy, foreseeing the potential chaos the majority's ruling could cause, wrote in a dissent that the ruling had "vast potential to disrupt criminal procedures that already give ample protections against the misuse of scientific evidence," he added.

On the ground, attorneys are trying to figure out whether Kennedy is right.

Lael Rubin, director of the bureau of prosecution support operations at the district attorney's office in Los Angeles, said prosecutors there are currently both assessing whether the ruling could affect any ongoing cases and ordering new tests if necessary. The office's policy is to make available the person who carried out the test first or require a new test if they aren't.

There have been "numerous requests" for additional analysis, she said. Overall, however, "it's too soon to make an assessment" about the long-term implications, in part because it's not yet clear how broadly the ruling will be applied, Rubin said.

Attorneys do agree, however, that the biggest area of potential strife is cold cases.

It's in those cases where it's most likely that the original technicians may not be available because they could be retired or deceased. Even worse for prosecutors, the Supreme Court ruling could also apply to other types of forensic tests, such as those carried out by medical examiners. "There are still some open questions," Rubin said. Courts may decide that there is an exception in such cases that allows prosecutors to use the original results, she added.

The defense bar generally views Melendez-Diaz quite differently.

Albert Menaster, a deputy public defender in Los Angeles, said prosecutors are exaggerating both the importance of the ruling and the impact on their cases. "They always do," he added.

The bottom line, Menaster noted, is that laboratory tests are only required in between 25 percent and 30 percent of criminal cases and, of those, very few go to trial. In those that do go to trial, the defense often opts against challenging the forensic evidence for strategic reasons, so there is no need to call a witness.

Constantly requiring testimony on drug analysis "just makes the jury mad at us," Menaster added.

Jeffrey L. Fisher, the Stanford Law School professor who successfully argued Melendez-Diaz, did, however, concede that prosecutors might face problems with cold cases.

"I don't like the result either," he said. "It's unfortunate, but it's the price we have to pay for a system where defendants are presumed innocent."

Staff at forensic laboratories are also digesting the court's decision, which is likely to affect them most. Jeffrey Boschwitz, vice president of North American sales and marketing at Orchid Cellmark, a company that works with the Los Angeles district attorney's office, said Melendez-Diaz has not yet had a "significant impact" on day-to-day operations.

Some jurisdictions in other states where the company has contracts aren't even aware of how important Melendez-Diaz could be, he added.

Boschwitz accepted that the biggest problem would be when technicians no longer with the company are asked to testify. But that would only happen in a small number of cases and would not be prohibitively expensive, he added. Either the technician can be contacted and asked to testify or, if the former employee cannot be reached or has passed away, the sample could be re-tested by someone else.

On rare occasions, he added, "it's possible" that there may not be enough of the original sample left for it to be re-tested. But, for DNA samples at least, that would be "fairly uncommon," Boschwitz said.

As attorneys in California continue to assess how they should respond to Melendez-Diaz, they can take comfort from the fact that other states have greater concerns.

In Virginia, where state law did not previously require anyone to testify about laboratory reports, Democratic Gov. Timothy Kaine has convened the state Legislature for a special session over the summer so that the law can be changed.

Further complicating matters, the Supreme Court decided in June to review a Virginia case that would clarify Melendez-Diaz. The question is whether the defense can call a laboratory technician as a witness if the prosecution doesn't. Briscoe, et al., v. Virginia, 07-11191.

In the weeks following the Melendez-Diaz ruling, defense lawyers in Virginia have had a field day exploiting the uncertainty over the law, with numerous cases being thrown out because no expert witnesses are available, according to media reports.

But Stanford's Fisher warned that conclusions should not be drawn from actions taken in the immediate aftermath of a Supreme Court decision before those involved have had a chance to fully appreciate its impact.

"There's bound to be cases where the defense can catch the prosecution off guard," he said.

Posted 10:30 AM by Howard Bashman

Posted 5:00 PM by Howard Bashman

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July 24, 2009

HIGH COURT RULING SHAPES LOCAL CONTROL
California Officials To Seek Relief from Court Oversight

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - Lawyers for California's troubled Department of Corrections and Rehabilitation plan to file a motion Friday to test whether a little-noticed U.S. Supreme Court decision issued last month will help the state extricate itself from long-running institutional litigation.

In a decision that has so far received little attention, the Supreme Court held in June by a 5-4 vote that a federal judge in Arizona abused his discretion when he required the state to continuously increase funding for English-as-a-second-language instruction. Horne v. Flores, DJDAR 9410.

But the case was over much more than education funding. Justice Samuel A. Alito Jr.'s majority opinion touched upon controversial questions about the role of courts in forcing reform onto local and state governments, sometimes over the objections of elected officials and voters.

He made it clear that, in the future, courts have to be more careful in taking account of "changed circumstances" that could lead to the lifting of long-running consent decrees and other types of court orders. Courts can take into account new policies introduced by elected officials or even budgetary restraints, Alito said.

The implications of the ruling, which reversed a 9th U.S. Circuit Court of Appeals decision, could, some legal experts say, be far-reaching, affecting court-ordered reform of such diverse bodies as police departments, prisons and housing authorities.

In California, where the prison system is embroiled in almost two dozen class-action lawsuits filed by prisoners, the state's lawyers are hoping the decision will help them convince judges to end court oversight in several cases.

To that end, attorneys will file a motion Friday with U.S. District Judge Charles R. Breyer of the Northern District of California seeking to end his involvement in litigation over the treatment of developmentally disabled inmates. The inmates alleged various constitutional violations relating to their medical care and lack of access to vocational programs, among other things.

The lawsuit was originally filed in 1996, leading to final settlement in 2002 in which the state agreed to make various improvements. Clark v. California, cv-01486 (N.D. Cal., filed April 22, 1996).

Rochelle East, senior assistant attorney general for the correctional law section at the attorney general's office, said in an interview Thursday that there is no further need for the court's involvement.

The motion will cite Horne as one of the reasons for Breyer to grant the request. "It's been 10 years," East said. "We think ... it's an appropriate time to terminate it." Donald Specter of the San Quentin-based Prison Law Office, the lead attorney for the inmates, could not be reached for comment.

The quick action by the state's lawyers - just weeks after the court's opinion was released - indicates to some experts that the ruling will have wide implications.

"I think it could have profound consequences," said David Schoenbrod, a professor at New York Law School. "At last, newly elected mayors and governments can look to find another way to comply with the diktats of federal law."

Schoenbrod and fellow New York Law School Professor Ross Sandler are known for their critiques of court oversight. Their work was cited in both the majority and dissenting opinions in Horne.

Schoenbrod said the decision could apply to thousands of cases across the country, although the extent of the impact rests on to what extent government lawyers take advantage of it and how lower courts interpret it. The ruling does not necessarily mean governments will be able to walk away from court orders, he stressed, but it will at least give elected officials the chance to suggest other ways of tackling alleged violations of federal law.

Other legal experts are less certain of how much Horne changes the legal landscape.

"My view is that the decision gives no clear answers and it's too soon to tell," said Sri Srinivasan, a partner at O'Melveny & Myers in Washington, D.C., who argued the case on behalf of the plaintiffs.

That's partly because the thrust of Alito's opinion was that lower courts "had failed to adhere to standards that the Supreme Court had laid down in prior decisions," he added. Thus, the decision "is more about correcting a failure to abide by already established principles" than it is about "charting new principles," Srinivasan said.

Steven Schwartz, an attorney at the Northampton, Mass.-based Center for Public Representation, a public interest law firm, also has quibbles about how much Horne tilts the balance in favor of defendants, but he notes that government attorneys have already cited the case in four of 12 institutional reform cases he handles.

Plaintiffs lawyers can fight back by arguing that Alito's language "is not as sweeping as it appears," he said. But he conceded that much rests upon how an individual judge approaches such cases.

"Sometimes they are invested and sometimes they are disgusted" by institutional litigation, Schwartz said.

The key - though also obscure - issue in Horne was how courts should apply Federal Rule of Civil Procedure 60(b)5, which specifically allows state officials to seek to vacate a court order if the facts have significantly changed.

In his majority opinion, Alito stressed that courts should adopt "a flexible standard that seeks to return control to state and local officials as soon as a violation of federal law has been remedied." That doesn't necessarily mean control must be returned only when the defendant meets the requirements of the original order, Alito said.

In his lengthy dissenting opinion, Justice Stephen G. Breyer - brother of the district judge in California - warned that the majority could "create the dangerous possibility that orders, judgments and decrees long final or acquiesced in, will be unwarrantedly subject to perpetual challenge, offering defendants unjustifiable opportunities endlessly to relitigate underlying violations."

Breyer accused the majority of deciding a "scholarly debate" over the role of courts in institutional litigation instead of focusing on the specific facts in the case. He disputed whether the Arizona case should even be described as institutional litigation because it rested on whether the schools met goals set by Congress rather than whether the constitutional rights of students had been violated. Institutional litigation traditionally hinges on alleged constitutional violations.

Back in California, the state's lawyers are likely to use Horne in some of the other prison-related cases, Senior Assistant Attorney General East revealed, including a high-profile dispute over the quality of medical care in California prisons. Plata v. Schwarzenegger, cv01-1351, (N.D. Cal., filed April 5, 2001). "We are certainly considering that," she said.

U.S. District Judge Thelton Henderson of the Northern District of California took control of the prison health care system in 2006 after plaintiffs claimed violations of their constitutional rights caused by poor medical services.

In January, the state's lawyers petitioned Henderson to end his oversight, but the judge rejected that request. In May, the court-appointed receiver reached a tentative compromise with Republican Gov. Arnold Schwarzenegger that would have led the state to spend $1.9 billion on new facilities.

But late last month, the governor backed out of the deal, citing the state's budget problems.

Jonathan Phillips, a senior associate at Arent Fox in Los Angeles, believes the Supreme Court decision will help the state's case.

Phillips helped write an amicus brief in Horne on behalf of the American Legislative Exchange Council, which represents conservative state legislators. The brief highlighted the burdens placed on local governments by court-ordered reform.

Horne, Phillips said, would allow the state's lawyers to "challenge the injunction slightly differently."

Among the factors that Judge Henderson would be required to consider would be the budget crisis in California, he added.

At a minimum, Henderson would be required to undertake a "careful reexamination of whether there needs to be an injunction," Phillips said.

As legal experts on both sides of the issue agree, the frequency with which Horne is cited doesn't necessarily mean that government defendants will win.

Ultimately, the outcome will hinge on each individual judge and the facts in each case.

"Every one of these cases is different," East said. "That's where the rubber is going to hit the road."

Posted 2:00 PM by Howard Bashman

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July 06, 2009

JUSTICE KENNEDY'S NOT THE ONLY SWING VOTE ON HIGH COURT

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - The public perception of the U.S. Supreme Court is that the nine justices are split rigidly into two ideological camps with Justice Anthony M. Kennedy uncomfortably straddling the divide.

It's an exaggeration that only rings true in a small proportion of the court's decisions, albeit usually the ones focusing on hot-button social issues.

In 79 cases decided in the term that ended Monday, only 23 were 5-4 rulings. Of those, 16 were split along familiar ideological lines with Justice Kennedy as the swing vote.

The liberal wing prevailed in five, while the conservatives won 11. But the remaining eight 5-4 rulings saw the justices aligned differently. Those cases usually hinged on Justices Antonin Scalia or Clarence Thomas joining with several of the liberal justices.

"I do believe the media is overly fixated on Justice Kennedy as the swing vote," said Jeffrey Fisher, a professor at Stanford Law School who regularly argues before the court.

Scalia and Thomas were both key votes in a case Fisher won this term. The court held in a 5-4 ruling that the Sixth Amendment rights of defendants to confront witnesses are violated if they are not given the opportunity to cross-examine certain expert witnesses. Melendez-Diaz v. Massachusetts, 2009 DJDAR 9363.

The other criminal case focused on exceptions to the exclusionary rule that protects people from unconstitutional searches under the Fourth Amendment. A similarly aligned court limited the right of police officers to search cars when they pull someone over. Arizona v. Gant, 2009 DJDAR 5611.

The challenge for counsel such as Fisher, who represent liberal causes before the court, is to decide which of the conservative justices is most easily persuaded.

Kennedy isn't always the first choice.

That's because both Scalia and Thomas can be swayed by arguments that appeal to their rigid conservative judicial views, "which can lead them where it cuts against their conservative political leanings," Fisher said. The same arguments wouldn't work with Kennedy because he doesn't have such a strong judicial philosophy, he added.

Outside the realm of criminal law, Thomas and Scalia also signed on to a majority opinion authored by the court's most liberal justice, Ruth Bader Ginsburg, in a case involving consumer rights.

The court ruled 5-4 in favor of a plaintiff seeking to pursue a claim against Discover Bank in state court. The bank had sought to remove the case to federal court in order to compel arbitration. Vaden v. Discover Bank, 2009 DJDAR 3385.

What the two criminal cases and Vaden also share in common is that Justice Stephen G. Breyer, one of the liberal justices, was in the dissent. This indicates his concern at the practical implication of cases, a theme that runs through his votes on both criminal and business cases, said another leading Supreme Court advocate, David C. Frederick of Kellogg, Huber, Hansen, Todd, Evans & Figel in Washington. Breyer is not "doctrinally pure" in the same way as Thomas or Scalia, he added.

That isn't to say that Thomas or Scalia always reach the same conclusion.

In one of the last decisions of the term, Scalia wrote the majority opinion holding that state attorneys general can enforce state laws against national banks. Thomas was in the dissent. Cuomo v. Clearing House, 2009 DJDAR 9597.

A few days earlier, Thomas wrote the majority opinion in a maritime case in which he sided with the liberal justices, with Scalia in the dissent. Atlantic Sounding v. Townsend, 2009 DJDAR 9337. The majority concluded that a crew member on a tugboat could claim punitive damages for injuries he suffered at sea.

The fluid nature of vote-counting on the Supreme Court is also reflected in some of the court's more high-profile rulings that didn't end in 5-4 votes. One was a drug regulation case in which many expected the court to be split along ideological lines. The pharmaceutical industry attempted to convince the court that state liability lawsuits are pre-empted under federal law by U.S. Food and Drug Administration labeling regulations.

The court disagreed, ruling 6-3 in favor of plaintiff Diana Levine, with Thomas and Kennedy joining the liberal bloc. Wyeth v. Levine, 2009 DJDAR 3199. Frederick, who argued the case for Levine, said he had a strategy at oral argument that was designed to woo Thomas based on how the justice had voted on other pre-emption cases.

"I was hopeful we could entice him," he added. Although not essential to the outcome - because Kennedy also joined the majority - the strategy worked.

Even more unexpected than that outcome was the 8-1 ruling in an important case on the Voting Rights Act. At issue was Section 5 of the act, which requires political subdivisions in certain states with a history of elections tainted by race discrimination to get approval from the Justice Department before making any changes to their voting regulations. Northwest Austin Municipal Utility District Number One v. Holder, DJDAR 8986. The court stopped short of striking down Section 5, but the justices said it should be easier for political subdivisions to opt out of Justice Department supervision of their elections if there is no recent history of racial discrimination.

Many observers had expected the conservative wing to persuade Kennedy to find Section 5 to be unconstitutional. But instead, led by Chief Justice John G. Roberts Jr., the court ruled narrowly and didn't reach the constitutional question.

Legal observers can only speculate as to why Roberts seemingly led the effort to dodge the key issue in the case. Some, like Frederick, suggest that Roberts may have lacked enough votes to strike down Section 5.

Others, including Arthur Hellman, a professor at the University of Pittsburgh School of Law, said Roberts was trying to avoid a damaging institutional clash with both the Democratic-controlled Congress and a Democratic president.

"He would be concerned about the prospect of a court-Congress battle that would not be good for either institution," Hellman said.

Taken as a whole, the rulings that didn't fall upon ideological lines illustrate that the court should not be viewed from just one perspective, said King & Spaulding partner Paul Clement, who served as solicitor general during the Bush administration.

"There are a number of fault lines," he said.

Posted 11:37 AM by Howard Bashman

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July 01, 2009

9TH CIRCUIT REVERSED 14 TIMES THIS TERM

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - Back in December, the nine black-robed justices of the U.S. Supreme Court had an unusual experience during a routine oral argument: Both of the arguing counsel abandoned the reasoning of the federal appeals court ruling under scrutiny.

The circuit court in question was the San Francisco-based 9th U.S. Circuit Court of Appeals.

It was a moment that, in a sense, encapsulated the 9th Circuit's performance before the high court in the term that ended Monday.

Indeed, until the last week of the term, the 9th Circuit - often characterized as the most liberal of the circuits, with a high reversal rate to match - had not been affirmed in 13 argued cases that had been decided by the more conservative Supreme Court.

The court narrowly avoided a shutout when the justices affirmed its rulings in two education cases.

The final score: 14 reversals, two affirmances.

(That includes two cases that were partly affirmed and partly reversed. The Daily Journal counted one as a reversal and one as an affirmance based on how the Supreme Court ruled on the main legal question.)

Of the reversals, three were unanimous and three were closely fought 5-4 rulings.

Reflecting on the outcome, Chief Judge Alex Kozinski, a Reagan appointee based in Pasadena, noted in an interview that the Supreme Court has tended to take fewer 9th Circuit cases in recent years and warned of the dangers of reading too much into those that are reviewed by the Supreme Court.

"It's a small tip of the iceberg of what we do," he said by telephone.

Not surprisingly, one of the unanimous reversals was in the case argued in December, a low-profile antitrust dispute in which the 9th Circuit opinion was written by Judge Sidney R. Thomas, a Billings, Mont.-based Clinton appointee. The 9th Circuit affirmed the lower court ruling allowing several Internet service providers to pursue a price-squeezing claim against a unit of phone company AT&T Corp.

The outcome before the Supreme Court was apparent from the moment Chief Justice John G. Roberts Jr. posed his first question to the lawyer for AT&T.

"You are probably feeling pretty good about your chances since your opponent has given up, right?" he said, to laughter in the courtroom.

The justices eventually reversed the 9th Circuit but allowed the plaintiffs to restate their complaint in district court. Pacific Bell Telephone Co. v. Linkline Communications, DJDAR 2673.

Judge Thomas, reluctant to comment about a case that is still pending in the lower court, said in a telephone interview that it is not unknown for both parties to abandon a judge's ruling.

"I'm happy when the Supreme Court can clarify an area of the law," which it did in its opinion, he added.

In that case, the plaintiffs went on to fight another day. In other cases involving big business, plaintiffs, especially environmental activists, didn't fare so well. The Supreme Court reversed the 9th Circuit in all four environmental rulings that were under review. In each, the 9th Circuit had ruled in favor of environmental interests.

"It sounds to me like the Supreme Court is less hospitable to environmental claims than we are," Kozinski said.

But he noted that the 9th Circuit also hears more environmental cases than most circuits because of the large territory it covers, which includes a considerable amount of federally administered land.

The other major reversal was an employment dispute over pregnancy leave, in which the 9th Circuit had found in favor of the employee.

The case hinged on whether AT&T discriminated against women by not allowing them to accrue pension benefits for time they spent on maternity leave before Congress passed the Pregnancy Discrimination Act in 1978.

The Supreme Court held 7-2 that AT&T could not be held liable. AT&T Corp. v. Hulteen, DJDAR 7019.

At least one member of the 9th Circuit, Portland-based Reagan appointee Judge Diarmuid F. O'Scannlain, seemed pleased with the high reversal rate. He wrote the dissenting opinions in the pregnancy case and in a criminal case that was also reversed. Hedgpeth v. Pulido, 2008 DJDAR 17639.

"I had a good year," O'Scannlain said in an interview.

He, along with Judges Ronald M. Gould, a Clinton appointee, and San Francisco-based George W. Bush appointee Carlos T. Bea were the judges the justices were most likely to agree with.

It was also a busy term for Judge Kim McLane Wardlaw, a Pasadena-based Clinton appointee, who wrote the majority opinion in the pregnancy case that was reversed. The Supreme Court also disagreed with her vote in three other cases.

But she did write the majority opinion in a high-profile case concerning strip searches in schools.

The justices, in an 8-1 vote, agreed with Wardlaw that school officials violated the Fourth Amendment's protections against unreasonable searches and seizures when they strip-searched Arizona middle school student Savana Redding. Safford v. Redding, DJDAR 9383.

The Supreme Court did not, however, concur with the 9th Circuit's ruling that the school official involved did not deserve qualified immunity. In an interview, Wardlaw downplayed the significance of whether the Supreme Court agrees with the way a circuit judge voted.

"I really do not think it's very meaningful whether any given judge is on the most panels that are reversed or the most affirmed," she said.

That's because the Supreme Court always has the freedom to depart from precedent in a way circuit judges can't, she added. The only 9th Circuit opinion the Supreme Court affirmed in full this term was written by Clinton-appointee Judge Susan G. Graber, who is based in Portland.

The Supreme Court agreed on a 6-3 vote that parents who place disabled children in private school should have their tuition fees reimbursed even when the student has not previously received special education services in public schools. Forest Grove v. T.A., DJDAR 8975.

Compared with recent years, the 9th Circuit's reversal rate "was at the high end," said Arthur Hellman, a law professor at the University of Pittsburgh who follows the court closely. The 9th Circuit remains "disproportionately represented" on the Supreme Court docket, he added, which makes the reversal rate look more significant that it is.

O'Scannlain clearly thinks that there is good reason for the justices to take a higher number of 9th Circuit cases.

He noted that it was another year "in which the 9th Circuit is out of sync with the Supreme Court."

Thomas disagreed, saying that the circuit is "certainly within the mainstream."

Wardlaw supported his view, noting that the justices only reviewed 16 out of around 12,500 9th Circuit cases. The 2nd Circuit, by comparison, has a caseload of around 8,000.

Of nine 2nd Circuit cases under review, the second highest number after the 9th Circuit, seven were reversed.

Wardlaw quoted Franklin D. Roosevelt appointee Justice Robert H. Jackson who, when describing the role of Supreme Court justices, noted: "We are not final because we are infallible, but infallible only because we are final."

Posted 11:30 AM by Howard Bashman

Posted 10:25 PM by Howard Bashman

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June 25, 2009

Environmental Issues Lose in Supreme Court
Mining Decision is Fifth to Disappoint Activists This Term

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - The U.S. Supreme Court resolved its environmental caseload this term the same way it started: By reversing the 9th U.S. Circuit Court of Appeals.

The last of the court's five environmental rulings came Monday when the justices ruled 6-3 that mining waste doesn't require the same kind of strict regulation as many other forms of solid waste discharged into the nation's waterways. Coeur Alaska v. Southeast Alaska Conservation, DJDAR 8998.

Marking a total defeat for environmental interests this term, the ruling means mining companies face less costly regulation when it comes to dumping waste into water.

Although the five cases focused on different issues, what several of the decisions share in common is deference to executive branch policies that were implemented by the Bush administration, environmental law experts said.

Monday's ruling allowed a mining company in Alaska to dump waste into a pristine lake. It marked the fourth time the justices have reversed the 9th Circuit in four environmental cases this term. In a fifth case, the court reversed a 2nd Circuit ruling on another section of the Clean Water Act.

The first 9th Circuit reversal came back in November, in the court's first ruling of the term, when the court voted 5-4 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. Winter v. NRDC, DJDAR 16797.

The next two 9th Circuit cases involved forest service regulations and a dispute over pollution cleanup costs.

"It's been a miserable year for the environment in the Supreme Court," said Richard Frank, executive director of the Center for Law, Energy, and the Environment at UC Berkeley School of Law.

In contrast, it was a good term for business interests and the U.S. government.

In Monday's ruling, the court relied on an internal 2004 Bush administration memorandum stating that, under the Clean Water Act, mining waste should be defined as "fill material," meaning it fell under the authority of the Army Corps of Engineers rather than the U.S. Environmental Protection Agency.

Paul S. Weiland, who heads the land use and environmental resources group at Nossaman, said the decision is "certainly helpful" for mining companies, which now know for sure which section of the Clean Water Act applies to waste material. They will also face less of a financial burden in meeting the costs of regulation, as the Army Corps of Engineers' rules are less strict.

Addressing the mining case and others, Glenn Sugameli, an attorney with the environmental group Earthjustice, criticized the court for donning "pro-business blinders" at the expense of other interests.

Another example he cited was the 2nd Circuit case, in which the court reversed Judge - and likely future Supreme Court Justice - Sonia Sotomayor, who wrote the lower court opinion in favor of environmental groups. Entergy v. Riverkeeper, DJDAR 4885.

In that case, the Supreme Court ruled 6-3 in April that the government can take into account economic costs when considering what kind of technology power plants should use to update their water-intake cooling mechanisms.

In doing so, the court upheld the right of the Bush administration's EPA to adopt a cost-benefit analysis when deciding what upgrades energy companies have to make under the Clean Water Act.

For Albert C. Lin, an environmental law professor at UC Davis School of Law, the outcome indicates that a majority on the court is "quite sensitive to concerns about costs and economics."

That concern is also reflected in a May Superfund ruling, he added, in which the high court let Shell Oil Co. off the hook for millions of dollars of environmental cleanup costs at a California Superfund site.

The court held in an 8-1 decision that the company was not liable simply because it delivered agricultural chemicals to the site. That was the only environmental case in which the court rejected the federal government's position. Burlington Northern v. United States, DJDAR 6381.

The dispute was over a 5-acre site in the town of Arvin, located in Kern County, about 15 miles southeast of Bakersfield.

The one case that didn't present a conflict involving business instead touched on another issue of concern for environmentalists: standing. It centered on a little-known dispute over a U.S. Forest Service rule exempting certain projects from public comment.

The 5-4 ruling, in which the justices barred California environmentalists from proceeding with a lawsuit challenging various regulations, echoed a line of cases decided during Chief Justice William H. Rehnquist's tenure, in which the court tightened the definition of standing, thereby making it harder for plaintiffs to file suit. Summers v. Earth Island, DJDAR 3035.

But as Berkeley's Frank noted, "it's too early to say" whether the ruling is a sign that the court under Chief Justice John G. Roberts Jr. will continue in that direction.

That's in part because in a key global warming case decided in 2007, the court went the other way in holding that states have standing to sue the EPA to enforce the Clean Air Act. Massachusetts v. EPA, 549 U.S. 497.

The forest service regulation case shares a common trait with the Navy sonar ruling of being "really helpful" to the federal government, Nossaman's Weiland said.

Both cases make it harder for private plaintiffs to challenge government actions. In the Navy sonar case, the majority announced an "almost insurmountable standard" for plaintiffs in any case involving national security, Weiland added.

Despite the five defeats, all is not lost for environmental groups.

With the Bush administration out of office, environmentalists are now hoping that the Supreme Court will, as Earthjustice's Sugameli put it, "apply the same principles" of deference to the Obama administration if the EPA enacts new rules that are more pro-environment.

The administration and Congress could also act to reverse some of the recent decisions.

UC Berkeley's Frank predicted that environmental groups will pressure the Obama administration to revisit some of the policy changes made by the EPA in the Bush era, like the ones upheld in the two Clean Water Act cases.

Whether or not the new administration succeeds in rolling back any of the Bush policy changes "is uncertain at best," he said.

Staff writer Robert Iafolla contributed to this report.

Posted 2:45 PM by Howard Bashman

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May 22, 2009

3rd Circuit Committee in Kozinski Probe Completes Investigation

By John Roemer
Daily Journal Staff Writer
SAN FRANCISCO - A special judicial committee of the 3rd U.S. Circuit Court of Appeals has completed its misconduct investigation of Chief Judge Alex Kozinski of the 9th Circuit in a long-running probe into sexually explicit photos found on a public Web site run by Kozinski, the Daily Journal has learned.

The committee sent its report and a recommendation regarding possible sanctions to the 3rd Circuit's judicial council in late April, according to a source close to the investigation who declined to be named because he was not authorized to speak about the matter.

U.S. Supreme Court Chief Justice John G. Roberts appointed the five-judge committee last June 16 to evaluate Kozinski's conduct in light of the photos, which showed nude women on all fours painted to look like cows, images of masturbation and public sex and other graphic material.

Kozinski, who keeps chambers in Pasadena, said at the time he was unaware that the site - www.alex.kozinski.com - was open for unrestricted viewing.

The results of the completed investigation have not yet been released.

Asked whether the investigation had hindered the 9th Circuit's operations, Kozinski replied Thursday, "I have been blessed with terrific staff and very helpful and understanding colleagues. We remain one of the busiest and most productive federal appellate courts in the country."

Kozinski and his attorney, Kirkland & Ellis partner Mark Holscher of Los Angeles, declined to comment further on developments in the investigation Thursday. But in an e-mail to the Daily Journal last June, Kozinski wrote, "I consider the server and its contents a private matter. It was not meant to be accessible by others, and I had no idea it was. I would have been more careful of its contents, had I known that it was."

Chief Judge Anthony J. Scirica of the Philadelphia-based 3rd Circuit, who heads both the special committee and the judicial council, did not return a call for comment.

One question the committee likely considered was whether Kozinski violated Canon 2A of the Code of Conduct for federal judges, which requires that "a judge must avoid all impropriety and appearance of impropriety" in "both the professional and personal conduct of a judge," according to official comment on the code.

The content of the report and the nature of the recommendation remain closely guarded. Kozinski had 21 days to respond to the committee's findings, under the rules governing federal judicial misconduct investigations. The 3rd Circuit's judicial council will next consider whether to discipline Kozinski, who called for an investigation into his own conduct after the Web site's existence was disclosed nearly a year ago. In re Complaint of Judicial Misconduct, No. 08-90035.

Kozinski can then appeal the 3rd Circuit's disposition of the complaint to the federal courts' policymaking body, the U.S. Judicial Conference.

New judicial misconduct rules, never before tested, allow for the transfer of such investigations to another circuit "in exceptional circumstances" that in Kozinski's case avoided the awkward prospect of having his subordinate judges scrutinize him.

Two complications may have slowed the investigatory process that has stretched on for nearly a year, according to lawyers experienced in judicial misconduct matters.

Roberts' order specified that the 3rd Circuit should investigate Kozinski's conduct on his Web site "and any pending or new complaints relating to the same subject matter."

That opened the door for Kozinski's chief antagonists to ship lengthy new written grievances to the 3rd Circuit.

One came from Leonidas Ralph Mecham, a former top federal courts administrator whose feud with Kozinski over internal 9th Circuit policy dates from 1998. Mecham sent a 38-page misconduct complaint in November focused on old claims that Kozinski had tolerated and protected the downloading of Internet pornography by federal judges and court employees.

Another complaint came from Cyrus Sanai, the Beverly Hills lawyer who originally discovered the damaging photos online. Indeed, Sanai said, lawyers retained by the 3rd Circuit to assist it in its probe solicited an affidavit from him recounting his involvement with Kozinski. Sanai added that he responded with a lengthy statement stressing his previous run-ins with the judge.

An authority on judicial misconduct matters, Arthur Hellman of the University of Pittsburgh School of Law said those add-on complaints likely bogged down the committee's inquiry.

"If the only question was whether Judge Kozinski took adequate precautions to keep his Web site private, this investigation would probably have been over long ago," Hellman said this week. "So it seems that the special committee was investigating more than that. The 'something more' could well be the complaints filed by Mecham and Sanai."

Even so, both Sanai and Mecham said 3rd Circuit investigators conducted no follow-up interviews based on their complaints, leading them to question whether their criticisms got a serious hearing.

"It's going to be a whitewash," Sanai predicted Wednesday. "They don't want to deal with these issues."

A second complication arose because the revelation about Kozinski's Web site forced him to recuse himself and declare a mistrial in a federal pornography prosecution he was hearing by designation in Los Angeles just as his Web site photos became public last June.

The Justice Department had charged defendant Ira Isaacs with importing or transporting obscene videos as part of a major Bush administration crackdown on pornography. The indictment linked Isaacs to at least 20 Web sites that sold movies containing scenes of bondage, defecation, urination and other graphic matter.

After the mistrial, Isaacs moved for dismissal of the charges on double jeopardy grounds. A different judge denied the motion, and Isaacs' appeal is currently before the 9th Circuit. U.S. v. Isaacs, 08-50423.

The investigation into Kozinski's Web photos and the Isaacs appeal converged last Oct. 30 when federal prosecutors wrote all 50 9th Circuit judges asking them to consider recusing themselves from the Isaacs appeal.

The Kozinski Web site photos, the federal prosecutors wrote, "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 in the Isaacs case noted in a May 4 pleading that "the appellate docket sheet does not reflect that the court has taken any action one way or the other in response to this notice."

That left open the question of whether the 3rd Circuit might have expanded its investigation to include the Isaacs matter.

Kozinski could be subject to further discipline if the council finds the judge's personal misconduct damaged the prosecutors' case in the Isaacs trial, Hellman said.

"One thing we don't know is whether the Ira Isaacs appeal will delay either the resolution of the Web site complaint or the public announcement," Hellman said. "First, the 3rd Circuit Judicial Council may want to wait for the outcome of the appeal, so that it will know whether Kozinski's recusal and mistrial declaration lead to a dismissal of the criminal case. Second, the 3rd Circuit may be concerned about prejudicing the appeal by issuing its findings while the criminal matter is still pending."