How Appealing Extra

How Appealing Extra

Thursday, October 29, 2009

© 2009 The Daily Journal Corporation.
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October 29, 2009

U.S. Supreme Court Considers Life Sentences For Juveniles

By Lawrence Hurley
Daily Journal Staff Writer

WASHINGTON - The future of four prison inmates in California could hang in the balance when the U.S. Supreme Court debates next month whether juveniles can be sentenced to life without parole for non-homicide offenses.

Four convicted felons in the state received such sentences. Life without parole for crimes not involving murder is not a common punishment for juveniles in California - not to mention the nation as a whole - but on Nov. 9 the Supreme Court will take up the issue when the justices hear arguments in two cases out of Florida.

Lawyers for the two Florida juveniles appealing their sentences say that life without parole for juveniles convicted of non-homicide offenses violates the 8th Amendment ban on cruel and unusual punishment.

The cases have attracted considerable attention from legal groups, with experts predicting it could be the start of a concerted attack on the entire concept of life without parole. Some liberal activists and scholars view life without parole in a similar light as the death penalty.

California is one of eight states that have sentenced juveniles to life without parole for certain non-capital crimes.

The four males currently serving such sentences were convicted between 1993 and 2003, according to California Department of Corrections and Rehabilitation data that was made available to the Public Interest Law Center at Florida State University. They were aged 16 or 17 when they committed the crimes. The prison service's data does not detail the nature of their offenses, but they are all thought to be kidnapping-related, a Corrections Department spokesman said. The state will not release the names of the four inmates.

When murder offenses are included, there are 263 inmates in California prisons serving life without parole for offenses committed when they were juveniles. They make up a small number of the roughly 170,000 inmates in California's state prisons.

A recent report compiled by the Florida State researchers, based on data provided by 47 out of 50 states, including California, concluded that there are 109 juveniles nationwide serving life without parole for non-homicides. Of those, 77 are in Florida.

The Supreme Court will examine the convictions of Terrance Graham, who was 16 when convicted of armed burglary and a year older when he violated his probation; and Joe Sullivan, who was 13 when convicted of sexual battery. Graham v. Florida, 08-7412, and Sullivan v. Florida, 08-7621.

The two cases come to the Supreme Court just four years after the justices banned the death penalty for juveniles on a close 5-4 vote. Roper v. Simmons, 543 U.S. 551.

That case also rested on the 8th Amendment. Justice Anthony M. Kennedy wrote in the majority opinion that juveniles are less culpable than adults who commit the same offenses. Lawyers for the Florida inmates are hoping the court will reach a similar conclusion over life without parole.

Law-and-order conservatives, however, are worried that the cases could open the door to a wider challenge against all sentences of life without parole.

As Kent S. Scheidegger, an attorney at the Criminal Justice Legal Foundation in Sacramento, noted, "the ink was barely dry on Roper" before lawyers started making the argument that life without parole for juveniles was also unconstitutional.

His main concern is that even a narrow Supreme Court decision to restrict life without parole for juveniles in certain circumstances could help civil rights groups in future cases.

"We are more worried about a 'small step' effect," Scheidegger said.

Activists who have been leading an unsuccessful fight - at least so far - to reform California's sentencing laws are now hoping the Supreme Court will do the job for them.

Legislation that would allow an individual sentenced to life without parole as a juvenile to seek re-sentencing after serving at least 10 years in prison has so far failed to pass the California Assembly.

Elizabeth Calvin, a Santa Monica-based senior advocate at Human Rights Watch, said it was gratifying that the Supreme Court had at least "recognized this is such a serious issue" by agreeing to hear the cases.

The publicity generated by the Florida cases is also helpful to her group's cause, she said, because it's contributed to "a growing awareness that the U.S. is the only country that uses this sentence."

Florida State researcher Paolo G. Annino, who compiled the national report, says the fact that Florida is so out of step with the rest of the country in terms of how often life-without-parole sentences are imposed on juveniles is hard to ignore.

"What the numbers show is that it's an unusual outcome in this country, and Florida is a clear outlier," he added.

How the Supreme Court rules seems largely in the hands, once again, of Justice Kennedy, who is often the swing vote on the ideologically divided court.

The fact that the court chose not to consolidate the two cases also indicates that the justices could reach differing conclusions in each, according to Pamela Harris, executive director of the Supreme Court Institute at Georgetown Law Center.

She thinks both are tough cases to call, in part because there was no indication at the time Roper was decided that the liberal justices anticipated it would be the basis for subsequent challenges to life without parole.

"They thought they drew a line in Roper," she said. "If they extend that beyond Roper, what's the next bright line?"

Tuesday, October 27, 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.

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.