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How Appealing Extra

Tuesday, October 05, 2010

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October 4, 2010

High Court to Hone in on 9th Circuit; A Third of Cases to Be Reviewed This Term Arise From Nation's Biggest Circuit

By Lawrence Hurley
Daily Journal Staff Writer

WASHINGTON - When Cliff Gardner walks up to the podium at the U.S. Supreme Court next week, he may well momentarily think he has stepped into the boxing ring next door to his Berkeley law office.

As a defense lawyer representing a prison inmate seeking habeas corpus relief, he will be dreading a knockout punch from the conservative-leaning court.

The Supreme Court regularly takes pro-defendant habeas corpus cases with the intent of reversing lower court rulings, especially if those rulings, like the one in Gardner's case, come out of the 9th U.S. Circuit Court of Appeals. The 9th Circuit is often seen as the federal appellate court most out of sync with the Supreme Court, not just in habeas corpus cases, but on a host of other issues. In the 2009-2010 term, the circuit was reversed or vacated 12 times and affirmed four times.

Gardner's is one of four 9th Circuit habeas corpus rulings the court has taken so far to be argued in the 2010 term, which starts Monday.

The rest of the docket also has a substantial 9th Circuit and California flavor.

Of 54 cases the court has agreed to hear so far, 18 are 9th Circuit rulings. The justices will also be reviewing one California Court of Appeal opinion in a product liability case and a direct appeal from the three-judge district court panel that has ordered the state to release thousands of prison inmates.

Commenting on the proportion of 9th Circuit cases, University of Pittsburgh School of Law professor Arthur Hellman noted that the circuit was "overrepresented on the docket."

The 9th Circuit is the biggest circuit by area and population, and its caseload constitutes 20 percent of the total heard by federal circuit courts. But its rulings make up 33.3 percent of the cases the Supreme Court has agreed to review so far. That's a higher percentage than recent years. Last term, for example, there were 16 9th Circuit cases out of 77 heard on the merits, which is 21 percent of the docket.

One of the reasons may be that the losing lawyers in 9th Circuit cases are "more aggressive" in seeking review because they know that the Supreme Court often looks upon the circuit's rulings with a skeptical eye, Hellman said.

The case that Gardner is arguing, in which California Attorney General Jerry Brown sought review of the 9th Circuit ruling, could be a perfect example.

"I understand why most people think they will reverse," Gardner said of the justices in a recent interview at his office.

Although the Supreme Court regularly takes habeas corpus cases that have little application beyond the individual inmate involved, experts say Gardner's case could have a broader impact in large part because of an additional question the court itself has asked the lawyers to argue: whether federal courts should give deference to the state appeals court's final judgment if the state court denied habeas corpus review via a summary decision. Harrington v. Richter, 09-587. Gardner's client, Joshua Richter, was convicted of murdering a man and injuring another during a 1994 robbery in Sacramento. In August 2009, the 9th Circuit granted Richter habeas relief in an en banc decision, with four judges dissenting.

Pamela Harris, executive director of the Supreme Court Institute at Georgetown Law Center, described it as a "huge case" because it could affect hundreds of cases across the nation. The California Supreme Court regularly disposes of cases via so-called "postcard" denials.

The question of how federal courts should view such rulings "has been kicking around" since Congress passed the Antiterrorism and Effective Death Penalty Act in 1996, Harris said. The law included a major reform to habeas corpus law that restricted the ability of defendants to seek review of state court rulings in federal court.

Harry J. Colombo, the California deputy attorney general who is arguing the case for the state - his first before the Supreme Court just two months before he retires - said the outcome "would be significant" if the court concludes, as expected, that summary decisions should be given deference under AEDPA.

"It would be more consistent with the federal habeas statutory scheme," he added. Most observers expect Colombo to win that case.

They also predict the Supreme Court will affirm in another case, which is probably the most high-profile 9th Circuit case scheduled for argument. The question there is whether a California law restricting the sale of violent video games to minors violates the First Amendment. Schwarzenegger v. Video Software Dealers Association, 08-1448.

The law, which California passed in 2005 but which has never gone into effect because of the legal challenge, would have banned the sale or rental of video games that allow users to facilitate the "killing, maiming, dismembering, or sexually assaulting an image of a human being" to consumers under the age of 18. The 9th Circuit struck the law down in a February 2009 ruling.

At issue in the case is whether violence in video games can be treated the same as sexually explicit material, the sale of which to minors can be banned under a 1968 U.S. Supreme Court decision. Ginsberg v. New York, 30 U.S. 629.

In that case, the court concluded the state had a rational basis for believing obscene material would harm minors.

The Supreme Court has never ruled on whether violence can be treated the same as sexually explicit material.

Similar laws to California's have been struck down by other federal courts, meaning there is no circuit split, which has prompted most legal experts to ponder why the Supreme Court bothered intervening.

Eugene Volokh, the well-known First Amendment expert at UCLA School of Law, who has filed a brief in support of the video game industry, speculated that the court's decision to take the case, which requires the votes of a minimum of four justices, at least "suggests that at least four of the justices disagree with the lower court."

The video game case is just one of a number of major business-related cases before the justices, including four that feature questions on when federal law preempts state law. One, on the issue of whether federal law preempts a plaintiff from suing Mazda Motor Corp. under California law, is the case in which the court will review a California Court of Appeal ruling. Williamson v. Mazda, 08-1314.

In August 2002, Thanh Williamson, a passenger sitting on an aisle seat in the second row of a 1993 Mazda minivan, was killed in a collision. She was wearing a lap seatbelt, which caused her body to jackknife, causing severe injuries and internal bleeding.

Her husband, Delbert, who survived the crash, sued Mazda in Orange County Superior Court alleging various state law product liability and negligence claims. Judge Hugh Michael Brenner dismissed the suit, agreeing with Mazda's argument that the Federal Motor Vehicle Safety Standard, the law that lays out minimum safety standards for vehicles, preempted the state law claims. At the time of the crash, it did not require shoulder belts for the aisle seats of minivans.

In an October 2008 opinion, the 4th District Court of Appeal affirmed.

The case has attracted significant interest from the business community, which has thrown its support behind the car company.

Maureen Mahoney, of counsel at Latham & Watkins in Washington, who is part of the team representing Mazda, said the case illustrates the difficulties car manufacturers face. On the one hand, they have to design cars that can be sold nationwide and meet federal standards, but on the other hand, they can face "crushing liability" in state courts even if they have met the national requirements, she said.

Plaintiffs' attorneys "must be entering the term with some trepidation," Mahoney added, in part because the now retired Justice John Paul Stevens was "their champion" when it came to preemption cases. His replacement, Elena Kagan, has recused herself from the Mazda case due to her previous role as solicitor general, which will make it even tougher for the plaintiffs, experts say. Kagan has so far recused herself in 25 of the cases the court has decided to hear.

Doug Kendall, president of the liberal-leaning Constitutional Accountability Center, who has filed an amicus brief on the side of the plaintiffs, conceded that Stevens' departure was a boon for Mazda, but he noted that in preemption cases, "the court's lineup does not split along ideological grounds." He also noted that recently the court has been more favorable to plaintiffs in preemption cases than it had in previous years.

One of the other preemption cases looks to many experts like another 9th Circuit reversal. The court will examine a challenge to an Arizona law requiring employers to check on the immigration status of their workers. The 9th Circuit upheld the law in a March 2008 opinion. An alliance of business and civil rights groups argue that the law is preempted by federal immigration law. Chamber of Commerce v. Whiting, 09-115.

Roy T. Englert Jr, a partner at Robbins, Russell, Englert, Orseck, Untereiner & Sauber in Washington, described it as "an easy case" for the Supreme Court, which will view it through the prism of "federal power versus state power," and likely find in favor of the federal government.

It may well be, however, that the biggest cases of the term haven't yet reached the justices.

Whether the cases that receive most of the attention from court experts and the media at the beginning of the term remain at the center of attention next June when the court hands down its final opinions depends on what petitions the justices look favorably on in the coming months in time for them to be argued before next term.

Many lawyers expect the court to take up the huge gender discrimination class action filed by female employees against Wal-Mart, Wal-Mart v. Dukes, 10-277. In April, the 9th Circuit approved class certification on a 6-5 en banc vote. If that case is argued this term, many court-watchers think it could end up as one of the major rulings.

"It's the 800-pound gorilla," Englert said.