Posted 2:10 PM by Howard Bashman

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March 18, 2010

Spotlight On Potential High Court Nominee

By Lawrence Hurley

Daily Journal Staff Writer
WASHINGTON - A case the U.S. Supreme Court has taken up over a Christian group's challenge to UC Hastings College of the Law's nondiscrimination policy for student groups could end up influencing the political debate over a possible vacancy on the court this summer.

In many ways, the case puts 7th U.S. Circuit Court of Appeals Judge Diane P. Wood, one of the leading contenders for the eventual opening, in the same position that then-2nd Circuit Judge Sonia Sotomayor was in last year over her role in a case before the court last term.

Rumors have been circulating that Justice John Paul Stevens, the longest serving of the current justices, might resign at the end of the term since it emerged last summer that he'd only hired one clerk for next term.

When Sotomayor was nominated in May 2009 after Justice David Souter stepped down, conservative activists highlighted her involvement in a 2nd Circuit decision in which the panel found that the City of New Haven, Conn. could throw out the results of a test for firefighters seeking promotion after blacks didn't score highly enough on it. White firefighters who passed the test challenged the city's decision, saying it discriminated against them under Title VII of the Civil Rights Act.

The Supreme Court ended up reversing the 2nd Circuit ruling last June on a 5-4 vote. Ricci v. DeStefano, 2009 DJDAR 9567. That happened just weeks before Sotomayor appeared before the Senate Judiciary Committee for her confirmation hearing. Republican senators spent considerable time asking about her role in the case.

This time around, the subject matter is vastly different. The focus of attention would be a dissenting opinion that Wood wrote in 2006 when the 7th Circuit tackled the same issue that's before the Supreme Court in the UC Hastings case.

In its 2-1 ruling, the 7th Circuit overruled a district judge who had refused to grant a preliminary injunction requiring Southern Illinois University School of Law to recognize the Christian Legal Society, which does not permit homosexuals in its organization. Christian Legal Society v. Walker, 453 F.3d 853.

Wood said in her dissent that the school's nondiscrimination policy should have stayed in place while the case proceeded, largely because of the absence of a fully developed factual record showing that the group had was likely to prevail on the merits.

With Justice Stevens saying in a recent interview with the New Yorker that if he were to retire this year, he would decide in the coming weeks, Wood's four-year-old dissent could get more attention in the months ahead.

Most court watchers think the frontrunner if there is a vacancy would be Solicitor General Elena Kagan, in part because she is considered a moderate and therefore more easily confirmable. Wood is seen as the darling of the left, having written opinions on various hot-button issues, including abortion, during her 15 years on the appellate bench. Other names mentioned include Merrick Garland, a judge on the U.S. Court of Appeals for the District of Columbia Circuit, and Jennifer Granholm, the governor of Michigan.

Wood's dissenting opinion has already attracted the ire of some conservatives. It was mentioned by some last summer when Wood was widely touted as a contender to replace Souter before Sotomayor got the nod.

In a May 2009 memo distributed before Sotomayor was nominated, the Washington-based conservative Judicial Confirmation Network, originally formed to support President George W. Bush's nominees, highlighted Wood's opinion in its critique of her qualifications.

"She has consistently twisted the constitution to deny the rights of religious people that the constitution in fact was designed to protect," the memo said. "In one case, she would have allowed a public university to revoke the student organization charter of the Christian Legal Society because it declined to extend membership to homosexuals."

The conservative group, which has now changed its name to the Judicial Crisis Network, is likely to raise the matter again should there be a vacancy, according to legal counsel Carrie Severino.

The fact that the Supreme Court is hearing the 9th Circuit case "will make her role in the case and the way she approaches the law even more salient," Severino said.

At issue in the case before the Supreme Court, to be argued April 21, is UC Hastings' policy that requires all student groups to allow anyone to be full voting members and serve as officers. The rule is applied to those seeking to join religious groups even if they don't share the core religious belief of the group in question. Christian Legal Society v. Martinez, 08-1371.

In order to be a voting member of the Christian Legal Society, students have to adhere to "orthodox Christian beliefs, including the Bible's prohibition of sexual conduct between persons of the same sex."

The 9th Circuit upheld the Hastings policy in a brief one-page opinion citing circuit precedent.

In an e-mail, Supreme Court advocate and commentator Tom Goldstein of Akin Gump Strauss Hauer & Feld in Washington said Wood's opinion "would go into the equation" when the White House is selecting a nominee, but he noted that she has written several other opinions on such issues as abortion that would likely get more attention from conservatives.

The Christian Legal Society case differs from the firefighter dispute last term, he added, because the group "stands a good chance of losing," which would mean that Wood's position would be vindicated.

Both sides make reference to the 7th Circuit case in their briefs.

Michael McConnell, the Stanford Law School professor arguing the case for the Christian group said he isn't sure how much the 7th Circuit case will figure in the high court's consideration of the issue.

"It is hard to say, but I am preparing for anything," he said.

Gregory G. Garre of Latham & Watkins in Washington, the lawyer representing Hastings before the Supreme Court, declined to comment.

In her dissent, Wood said the university "was on well-trodden ground" when it told the society that the nondiscrimination policy applied to all student groups, she said.

Conservative activists, including Ed Whelan of the Ethics and Public Policy Center, have not just focused on Wood's opinion. They also point to the lengthy exchanges between Wood and the group's attorney, Greg Baylor, at the oral argument in 2005.

At one point in the audio recording of the argument, Wood characterized the legal society's views of homosexuals as one in which homosexuals are "not fully human."

That prompted a quick response from Baylor, who said that the membership policy "is not about hatred, it is about love."

At that, Wood, in a tone of surprise, said: "Goodness."

The way she conducted herself at oral argument "would be a small part of a much larger case against her," Whelan said.

Michael Dorf, a Cornell Law School professor who wrote an amicus brief in support of Hastings on behalf of the Association of American Law Schools, rejected any suggestion that Wood's approach to the case was out of the mainstream.

"I think that the conservatives who invoked Judge Wood's dissent on this point are way off the mark," he said. "Her position rests on a principle that conservatives have long touted: that rights are 'freedom from' government interference, rather than entitlements to government subsidies."

Posted 10:20 AM by Howard Bashman

DAILY JOURNAL NEWSWIRE ARTICLE
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© 2010 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.

March 2, 2010

For Amputees, An Attorney Who Knows Their Pain

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - When Conal Doyle walks to the lectern at the U.S. Supreme Court Tuesday, he will do so with a detectable limp.

The California-based plaintiffs' lawyer, who recently relocated to Los Angeles from Oakland, will become one of the few known amputees to have argued before the justices.

The 39-year-old had his right leg amputated at the age of 2 after being born without one of the bones in the leg.

It is not known how many amputees have argued before the court, as it is often not noticeable to court staff. Occasionally, the court provides assistance to counsel who need it, according to the public information office. In one example from recent years, an attorney who had trouble standing for the entire 30-minute argument was allowed to rest on a high stool. Others have used wheelchairs.

Doyle, a keen skier, needs no such assistance.

Fitted with a prosthetic leg, Doyle regularly represents amputees, often on a pro bono basis when they are battling for insurance coverage.

"It helps me to empathize with my clients and with technical issues related to prosthetics," he said of his own experiences in an interview in Washington last week.

By coincidence, the man whose family he represents in the Supreme Court case also faced an amputation months before he died. He was Francisco Castaneda, a Salvadoran national who died of penile cancer after being refused a biopsy by federal immigration officials. He passed away in February 2008 despite the amputation of his penis. His family is now hoping to sue the individual health care workers who failed to assist him.

The Supreme Court case is likely to be an uphill battle for Doyle, according to legal experts, in part because the 9th Circuit is the only federal court to have allowed claims against individual federal health care workers.

The case hinges on whether a claim for damages relating to health care in federal immigration detention can only be sought via the Federal Tort Claims Act, the normal mechanism for suing the federal government. Hui v. Castaneda, 08-1529.

Castaneda's family would rather sue the healthcare workers individually via a so-called Bivens action, named for a 1971 Supreme Court ruling that allows people to sue individual federal employees for constitutional violations. Bivens v. Six Unknown Named Agents, 403 U.S. 388.

Plaintiffs prefer Bivens claims, which can lead to a jury trial, over the FTCA, which lead to a bench trial and no chance of punitive damages. The defendants include two civilian doctors employed by the federal Prison Health Service, Timothy Shack and Esther Hui, in addition to several other officials.

Castaneda, who was brought to the United States by his parents as a child but never had legal immigration status, was originally detained by the California Department of Corrections in December 2005 following a criminal conviction for drug possession. It was at that point that he first sought medical help for a lesion on his penis. Medical staff suggested he see a urologist and have a biopsy. But he completed his sentence in March 2006 without doing so.

Facing deportation, he was transferred into the custody of Immigrations and Customs Enforcement in San Diego. He again sought medical help but didn't see a urologist until June 2006. The urologist, who wasn't a federal employee and is not a party in the case, suggested a biopsy but it was never scheduled because officials at the Washington D.C.-based Division of Immigration Health Services refused to give permission.

He was not deported and eventually released in February 2007 and immediately sought medical help. He was diagnosed with penile cancer, and his penis was amputated on Feb. 14, 2007.

Castaneda filed suit in the Central District of California against the U.S. government and public health officials in November of that year claiming violations of his Fifth and Eighth Amendment rights.

In its Oct. 2008 ruling, the 9th Circuit allowed the Bivens claim to proceed.

The federal government has admitted liability on the FTCA claims but damages have not yet been established. A parallel case in state court against California officials remains pending.

Doyle, a partner at Oakland-based Willoughby Doyle who is working on the case in association with public interest firm Public Justice, has only ever argued before appellate courts on a handful of occasions. One was in the win before the 9th Circuit.

He has completed multiple moot courts in preparation for Wednesday's argument.

"It's a complex case so the trick is trying to make these complex arguments make sense," he said.

Doyle, a Florida State University College of Law graduate who began his career in Florida defending local governments in civil rights cases, may be arguing his first case before the high court, but he's in good company. His opposing counsel, Elaine J. Goldenberg, a partner at Jenner & Block in Washington, is also making her debut.

In a brief email, Goldenberg said she's "feeling confident in the strength of our legal arguments."

She also has the backing of the Obama administration. Solicitor General Elena Kagan wrote in an amicus brief that language in the 1970 Emergency Health Personnel Act specifically barring "any other civil action" apart from FTCA claims should apply to Bivens claims against Prison Health Service employees.

"The provision was specifically designed to protect PHS personnel from damages suits because their low pay made it difficult for them to purchase liability insurance," Kagan wrote.

John T. Nockleby, a professor who runs the civil justice program at Loyola Law School in Los Angeles, said it's likely that at least four justices would vote to reverse the 9th Circuit, based on the fact that four votes were needed to grant the defendants' petition.

"I think that going in you would have to say the defendants have four votes," he said. "The question is where the middle of the court is these days."

Despite the obstacles he faces, Doyle remains both upbeat and realistic as the argument approaches.

"I'm excited to do it," he said. "I'm really feel we should win the case but I understand certain members of the court do not look favorably on Bivens claims. We feel strongly we are right on the law."

Posted 12:14 PM by Howard Bashman

DAILY JOURNAL NEWSWIRE ARTICLE
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© 2010 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.

March 1, 2010

California Attorneys Weigh In on Guns

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - Reflecting strong California interest in a major gun rights case before the U.S. Supreme Court, lawyers from the state have been heavily involved on both sides as this week's oral argument approaches.

The court will hear arguments Tuesday as to whether the Second Amendment right of individuals to own firearms can be applied to state laws and regulations via the 14th Amendment. McDonald v. Chicago, 08-1521.

Of 52 amicus briefs in the closely watched case, California-based lawyers filed 11. Another two were filed by Washington-based lawyers on behalf of clients from California.

Although the latest case before the high court is out of Chicago, it closely mirrors one currently before the 9th U.S. Circuit Court of Appeals concerning Alameda County's gun show ban that prevents such events from being held on county-owned land.

It is also a sequel to the Supreme Court's decision in 2008 finding that the Second Amendment extends to an individual's right to bear arms. Heller v. District of Columbia, 554 U.S. 290. That case, which only involved federal law because the jurisdiction in question was the District of Columbia, didn't address whether the Second Amendment applied to states.

In the California case, a unanimous 9th Circuit panel concluded in April 2009 that the Second Amendment did apply to the state but that states nevertheless had the authority to regulate. Nordyke v. King, 2009 DJDAR 5557. Judge Diarmuid F. O'Scannlain wrote in the opinion that the ban was not problematic because the Second Amendment as interpreted by the Supreme Court in Heller, protects the right to bear arms only in self-defense, not the right to carry a firearm on publicly-owned land.

The court later re-heard the case en banc in September but held off issuing a decision after the Supreme Court took up the issue.

The 7th Circuit and 2nd Circuit have both concluded that the Second Amendment isn't incorporated against the states via the 14th Amendment guarantee of due process, meaning that the right to bear arms is not an individual right under state law unless the state provides for it in its constitution.

Among the many amicus briefs coming out of California is one filed by the gun rights activists who challenged the Alameda County regulations and California Attorney General Jerry Brown, who filed a brief back before the justices decided to hear the case, urging that the court decide the issue once and for all. Also keen to have their voices heard are 34 California district attorneys and even experts on American colonial history. Overall, seven of the briefs filed by California lawyers are in support the City of Chicago and the Village of Oak Park, which are defending their gun regulations, while four support efforts by the National Rifle Association and others to overturn the regulations. Several of the briefs were filed on behalf of out-of-state or national groups.

In Attorney General Brown's brief, he pointed out that California, unlike 44 other states, does not have a provision in its constitution that mirrors the Second Amendment.

Brown wrote that "the court should extend to the states Heller's core Second Amendment holding that the government cannot deny citizens the right to possess handguns in their homes, but also provide guidance on the scope of the states' ability to reasonably regulate firearms." Brown did not file a brief supporting either side in Heller.

Donald E.J. Kilmer Jr., the San Jose attorney who argued the 9th Circuit case on behalf of gun show operators, urged the court in his brief to not only incorporate the Second Amendment but also give lower courts guidance on how to approach cases on gun regulation like the Alameda County gun show case.

He wants the Supreme Court to require lower courts to apply strict scrutiny, the form of review reserved for balancing constitutional rights against government interests, when a fundamental right is at issue or the governmental regulation being assessed involves a "suspect classification," when analyzing gun regulations.

"The government should have some compelling reason for saying 'you can't engage in this conduct'," he said. Alameda County made no such effort in his case, he said.

What Kilmer described as "common sense" laws, such as those requiring background checks for those attempting to purchase firearms, could meet such a standard, he added.

In the brief filed on behalf of California district attorneys and other groups, attorney C.D. "Chuck" Michel of Michel & Associates in Long Beach, argues that incorporation of the Second Amendment would constitute a recognition of what most Americans believe anyway: that there is an individual right to armed self-defense, even in states like California that don't have such a provision in state law.

"The bottom line is that once the federal right is incorporated, then the state right - or lack thereof - becomes less relevant," Michel, who represented the NRA in the 9th Circuit, said in an interview. "In that respect, it's critical that the Second Amendment is incorporated."

The city of San Francisco, which settled its own case over gun regulations in public housing in the wake of Heller, signed onto a brief supporting Chicago that was filed by Henry C. Su of Howrey in Palo Alto on behalf of various cities, including Oakland, Sacramento, and Richmond.

The brief calls upon the Supreme Court not to disrupt the "delicate federal-state balance" that allows states to regulate gun ownership. Su argues that the Second Amendment was enacted solely to protect the states and citizens from federal power. Therefore "it makes no sense to incorporate the right to bear arms against the states."

Owen J. Clements, San Francisco's chief of special litigation, warned of the "scary prospect" of local jurisdictions, especially smaller cities with budgets to match, having to worry about litigation costs whenever a gun regulation is considered.

A Supreme Court ruling incorporating the Second Amendment would likely have "a chilling effect on reasonable gun regulations," he added.

In another brief arguing against incorporation, Robert A. Goodin of Goodin, MacBride, Squeri, Day & Lamprey in San Francisco adopts a historical approach. He represents historians who disagree with the Supreme Court's conclusion in Heller.

The brief contains references to historic texts like William Blackstone's Commentaries on the Laws of England, published in 1769, the English Bill of Rights from 1688, and proceedings of the British House of Commons from the early 1800s.

Goodin, who conceded the brief is quite unlike his usual legal work, said the Second Amendment was intended only to enshrine the right of individuals to participate in the local militia.

"Heller got it wrong," he said.