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Friday, July 31, 2009

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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.

Wednesday, July 29, 2009

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July 28, 2009

High Court Ruling Hits Plaintiffs' Attorneys
Term's "Sleeper Case" Requires Plaintiffs to List Specific, Detailed Allegations to Reach Discovery

By Lawrence Hurley
Daily Journal Staff Writer

WASHINGTON - Thanks to the U.S. Supreme Court, plaintiffs' attorneys now have to think twice before filing civil lawsuits in federal court.

In May, the court held that in order to proceed to discovery, plaintiffs need to list specific and detailed allegations instead of the laundry list of boiler-plate legalese that's been used by attorneys for decades in federal court. If detail is lacking, judges have the discretion to dismiss the suits.

In the case in question, the court held 5-4 that a terrorism detainee had failed to make specific or compelling enough allegations against Bush administration officials to trump the officials' qualified immunity defense to his complaints about his treatment in detention following the Sept. 11, 2001, terrorist attacks. Ashcroft v. Iqbal, 2009 DJDAR 7005.

The ruling is seen by many attorneys as the term's "sleeper case," because its impact is likely to prove far greater than anyone envisioned before it was argued.

"It could cut off a whole range of claims at an early stage," said Arthur Hellman, a professor at the University of Pittsburgh School of Law. "That's potentially very important." Iqbal, he added, "certainly seems to put barriers in the way of getting damages from higher level officials."

The decision came as a surprise to many plaintiffs' lawyers.

Christine Spagnoli, president of the Consumer Attorneys of California, said it's another reason for trial lawyers, who usually prefer more plaintiff-friendly state courts anyway, to avoid filing suit in federal court. "It will obviously make it harder to bring defendants into cases," she said.

Justice Anthony M. Kennedy's majority opinion tells lower court judges that they should dismiss claims that lack "facial plausibility."

Under the new interpretation of the Federal Rules of Civil Procedure, plaintiffs need "factual allegations," he wrote. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice," Kennedy wrote. He based his ruling in part on a 2007 ruling regarding pleading standards in antitrust cases. Bell Atlantic v. Twombly, 550 U.S. 544.

Justice David H. Souter, who wrote the majority opinion in Twombly, issued a dissent in Iqbal in which he said the majority had misinterpreted the earlier case. He argued that lawsuits should only be tossed if there is no plausible allegation at all.

"Twombly does not require a court at the motion-to-dismiss stage to consider whether the factual allegations are probably true," Souter wrote. The "sole exception" is with claims that "defy reality," he added.

Spagnoli of the Consumer Attorneys of California, who is also a partner at Santa Monica-based Greene Broillet & Wheeler, noted that Iqbal may be particularly problematic when plaintiffs' lawyers seek to bring a parent company into a case in which a subsidiary is sued.

Discovery is often needed to provide evidence of a link between the two companies, she said, and without the parent company's involvement, the subsidiary may not have the resources to pay the full amount of damages.

Trial lawyer Christopher B. Dolan of the Dolan Law Firm in San Francisco said it wouldn't surprise him if defense attorneys cited Iqbal in state court too in an effort to encourage judges to dismiss lawsuits. "They will argue what they can," he said. "It will be cited as persuasive authority in state court."

Another problem for trial lawyers is that the notion of what is "plausible" will vary from judge to judge, according to F. Paul Bland Jr., a Washington-based attorney for Public Justice, a public interest law firm that files lawsuits on behalf of consumers.

"Instead of having a rule of law ... you replace it with a rule of unfettered discretion," he said. Trial lawyers will have to be "more detailed and specific where possible," he noted.

But in some instances that still won't be enough to survive a motion to dismiss.

In a lot of cases, attorneys can show evidence of an injury, but it's hard to say before the discovery process "how or why something happened," Bland said. Under the new rule, those cases would likely never proceed to discovery, and the plaintiff will never know if the evidence was there to support the underlying claim, he said.

While plaintiffs' lawyers worry, defense attorneys are quietly pleased with the Supreme Court's intervention.

Jordan Eth, a partner in the San Francisco office of Morrison & Foerster, who represents corporate defendants in civil litigation, said the ruling does "raise the hurdle" for plaintiffs' lawyers.

But the plaintiffs' bar is also exaggerating the impact of the decision, he added. He noted, for example, that plaintiffs' lawyers already have to file detailed, specific complaints in securities class-action cases.

Iqbal merely stresses the principle that in order to proceed to discovery, plaintiffs need more than just vague allegations, he said. "The key ... actually has to fit the lock."

As lawyers and judges react to the ruling, there's also a chance that Congress may intervene.

Sen. Arlen Specter, D-Pa., has already introduced legislation, called the Notice Pleading Restoration Act, which would return pleading standards to what they were before both Iqbal and Twombly. "The effect of the court's actions will no doubt be to deny many plaintiffs with meritorious claims access to the federal courts," Specter said in a statement on the Senate floor last week.

So far, none of Specter's colleagues have signed on to his bill, but trial attorney Dolan believes congressional action would be the best option for the plaintiffs' bar to pursue.

"I'm hoping a legislative clarification will deal with this misinterpretation," he said.

Saturday, July 25, 2009

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July 24, 2009

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."

Tuesday, July 07, 2009

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July 06, 2009


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.

Wednesday, July 01, 2009

© 2009 The Daily Journal Corporation.
All rights reserved.

Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

July 01, 2009


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."

© 2009 The Daily Journal Corporation.
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Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

July 01, 2009


By Lawrence Hurley
Daily Journal Staff Writer

WASHINGTON - Judge Kim McLane Wardlaw of the 9th U.S. Circuit Court of Appeals revealed Tuesday she was not vetted by the White House when David H. Souter announced his retirement from the U.S. Supreme Court.

The Pasadena-based Clinton appointee, who has served on the 9th Circuit since 1998, said in an interview she had not expected to be nominated.

"I knew my name was mentioned and I took that as a compliment," Wardlaw said. "I had no expectations at all."

At the time of Souter's retirement announcement in May, Washington insiders initially mentioned Wardlaw's name with some frequency, particularly in light of speculation that the ideal pick for President Barack Obama would be a Hispanic woman.

That way, the president could meet demands from both women and Hispanics that he appoint one of their own, political pundits surmised.

Wardlaw, the daughter of a Mexican-American woman, is one of few experienced federal judges who meet those criteria.

Her chances of being nominated may have suffered, however, because she failed to attract enthusiastic support from Latino groups in California, which instead endorsed California Supreme Court Justice Carlos Moreno.

Chris Arriola, past president of California La Raza Lawyers Association, noted that although Wardlaw is "eminently qualified" and participates in Hispanic legal activities, she does not have the same level of involvement as Moreno, a past president of the Mexican American Bar Association.

Wardlaw, who is married to prominent Los Angeles Democratic powerbroker Bill Wardlaw, did win the backing of Sen. Dianne Feinstein, D-Calif., who suggested Obama consider her or Moreno.

Obama eventually nominated another Hispanic woman, 2nd Circuit Judge Sonia Sotomayor, to replace Souter, who officially retired Monday.

Other shortlisted contenders included Solicitor General Elena Kagan and 7th Circuit Judge Diane Wood.

Wardlaw praised Sotomayor and predicted a smooth confirmation.

"I think she will be great," she said. "She should sail through the confirmation process."

Sotomayor's confirmation hearing is scheduled to begin July 13.