How Appealing Extra

How Appealing Extra

Monday, November 30, 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.

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 []. 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.

Wednesday, November 11, 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.

November 11, 2009

Class Actions Look for a Home

By Lawrence Hurley
Daily Journal Staff Writer

WASHINGTON - In a major class action case, the U.S. Supreme Court looks likely to reverse a 9th U.S. Circuit Court of Appeals ruling that makes it easier to sue big companies in plaintiff-friendly California state courts.

During Tuesday's argument, Park Ridge, N.J.-based car rental giant Hertz Corp. asked the justices to clarify under what circumstances defendants can remove class actions to federal court.

A win for Hertz would alter the class action landscape in California, legal experts say, with fewer cases being heard in state court. Hertz v. Friend, 08-1107.

No justices expressed support for the 9th Circuit's decision, although it also appears unlikely Hertz will get exactly what it wants. Justice Ruth Bader Ginsburg and Justice Sonia Sotomayor largely dominated the argument, with both apparently keen on a compromise solution.

The case hinges on the 9th Circuit's interpretation of where a company's "principal place of business" is located.

That is vital to determining whether class actions can be heard in federal court under the Class Action Fairness Act, a 2005 tort reform law. Federal courts are often characterized as less plaintiff-friendly than state courts.

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

The 7th Circuit has a "nerve center" test that relies instead upon where the defendant company's headquarters are located.

The 9th Circuit's approach means that because of California's size, companies with large operations there but which are based somewhere else have difficulty removing cases to federal court.

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 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 "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.

The Hertz dispute began 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.

In January 2008, U.S. District Judge Maxine M. Chesney of the Northern District ruled Hertz had failed to show "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.

Hertz, represented by Sri Srinivasan of O'Melveny & Myers' Washington office, wants the court to endorse a simple test that largely mirrors the 7th Circuit's.

The majority of justices seemed sympathetic to the company's plight, based on the fact there is no dispute its headquarters is in New Jersey.

Sotomayor and Ginsburg in particular expressed a desire to allow lower courts to take into account other factors if there is a dispute over whether the company's stated headquarters is actually the legitimate nerve center of corporate activity.

Sotomayor proposed there be a rebuttable presumption that the principal place of business is the company's headquarters.

"Is there something to a rule that says headquarters is presumptively the nerve center, but a challenged party, whoever that is, can rebut it?" she asked at one point.

Plaintiffs would get the chance to show the headquarters in question is a "shell headquarters," Sotomayor added.

The 9th Circuit's reasoning also came under criticism.

Sotomayor said she had a "hard time" understanding why California constituted Hertz's principal place of business just because it conducts 20 percent of its business there.

Ginsburg adopted a similar line of questioning, which hinted at her support for Sotomayor's suggestion.

Under the 9th Circuit rule, "California is going to be the big winner in this," she said. "It's going to be able to keep all those cases in its state court because so many multi-state corporations, I imagine, would come out just the way Hertz does."

Therefore, she added, "why not just keep it simple" and assume that a company is based where is headquarters is located unless there is a compelling reason not to.

Arguing his first case before the Supreme Court, Todd M. Schneider, a partner at Schneider Wallace Cottrell Brayton Koncecky in San Francisco, sought to defend the 9th Circuit ruling.

He noted that courts within the circuit have routinely concluded that corporations are based out-of-state in various contexts even though the same definition of "principal place of business" has been used for the last 50 years. "It has not come to pass that all corporations are California corporations," Schneider said.