Posted 8:40 PM by Howard Bashman

DAILY JOURNAL NEWSWIRE ARTICLE
http://www.dailyjournal.com
© 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.

April 15, 2009

TEXAS VOTING RIGHTS ACT CASE WILL BE FELT IN SOME CALIFORNIA COUNTIES

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - A high-profile voting rights case to be argued before the U.S. Supreme Court this month could have major implications for four counties in California.

The case involves a challenge to a controversial section of the federal Voting Rights Act, originally passed in 1965 to tackle racial discrimination in elections and reauthorized by Congress in 2006. Northwest Austin Municipal Utility District Number One v. Holder, 08-322.

The provision, Section 5 of the act, requires political subdivisions in certain states with a history of tainted elections to notify the U.S. Justice Department of any changes to their voting regulations.

Although the case before the court, to be argued April 29, comes out of suburban Austin, Texas, how it's resolved will have repercussions for Kings County, Merced County, Monterey County and Yuba County, which all are covered by the so-called "preclearance" provision of the Voting Rights Act.

California Attorney General Jerry Brown has joined five other Democratic attorneys general from states covered by Section 5 in filing an amicus brief supporting the provision.

Section 5 covers either partly or in full 16 states based on a history of either racial or language-based discrimination in elections.

The case before the court concerns the obscure Northwest Austin Municipal Utility District Number One, a tiny administrative jurisdiction in Texas that claims it should be able to take advantage of a subsection of the law that allows certain districts be exempted from the provision if they can demonstrate no history of voting discrimination.

The district in question is in Travis County, Texas, which falls under Section 5, but has its own elections.

In May 2008, a federal judge in the District of Columbia concluded the district could not opt out of the preclearance requirements, holding it did not qualify as a political subdivision that would be eligible for such relief.

The subdivision could only be removed from Section 5 oversight if Travis County or the state of Texas as a whole successfully sought to opt out, the court held.

As part of its appeal, the subdivision's attorneys are also arguing Section 5 is unconstitutional on the grounds that it exceeds the enforcement powers granted to Congress by the 15th Amendment, which guarantees voting rights.

In California, supporters of Section 5 point out that, as recently as 2002, the U.S. Justice Department questioned proposed changes to the way Chualar Union Elementary School District in Monterey County elects its school trustees.

The district, which normally votes to elect members by geographical area, had wanted to introduce an at-large system, but the Justice Department said the move could have a discriminatory impact on Hispanics because they would be less enabled to vote for their preferred candidate.

The department concluded that the proposed change "was motivated, at least in part, by a discriminatory animus," which prevented it from going into effect.

In a statement Tuesday, Attorney General Brown described the Voting Rights Act as "a safeguard against discrimination" that has worked well ever since it was enacted.

"Preclearance encourages the participation of minority groups at an early stage of a covered jurisdiction's efforts to change its election practices, prevents discrimination in election procedures and protects covered jurisdictions against costly litigation alleging discrimination," Brown added.

In the amicus brief Brown has joined in the Texas case, Roy Cooper, the Democratic attorney general of North Carolina, defended the provision's constitutionality.

"Any assertion that Section 5 constitutes an undue intrusion on state sovereignty does not withstand scrutiny," Cooper wrote.

Covered states have found the procedure to be "routine and painless" and have recognized the benefit of a law that "encourages covered jurisdictions to consider the views of minority voters early in the process of making an election law change," Cooper added.

Other states aren't as welcoming of federal oversight as California and the other states that signed onto the brief.

Sonny Perdue and Bob Riley, the Republican governors of Georgia and Alabama, respectively, have filed separate briefs stressing their states' progress opening up voting rights in recent decades.

Ralph Kasarda, a staff attorney at the Pacific Legal Foundation, a conservative legal group based in Sacramento, said such progress has happened in California as well.

He said Section 5 was justified when first enacted in 1965 because of "government-sponsored racism" in certain parts of the country.

The problem was serious enough to trump the constitutional concerns about the provision, which "violates the principles of federalism," Kasarda added.

He said Congress didn't take into account the cultural shift that had occurred since the 1960s when it voted to reauthorize the act in 2006.

"In California we have many minorities in office," Kasarda said. "I don't think we have this blatant discrimination."

Striking down Section 5 would still leave much of the act in place, he added, and states could pass their own laws to protect minority voters.

Nicholas Espiritu, a staff attorney in the Los Angeles office of the Mexican American Legal Defense and Educational Fund, warned that allowing smaller jurisdictions like the subdivision in Texas to opt out of the process would be a dangerous step because the Justice Department and civil rights advocates would have a harder time keeping track of election changes.

As for California, Espiritu insisted that Section 5 has continued relevance, particularly in light of the state's growing Latino population.

"It's been very important in California," he said, "especially in ensuring there aren't retrogressive changes that affect minority voting."

Posted 5:55 PM by Howard Bashman

DAILY JOURNAL NEWSWIRE ARTICLE
http://www.dailyjournal.com
© 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.

March 19, 2009

Lawyer on the Pre-emption Frontlines: Frederick Won Two Supreme Court Cases That May Shape Perception of Court's 2008 Term.

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - For a lawyer arguing before the U.S. Supreme Court, there's nothing worse than facing Justice Anthony Kennedy's steely glare.

If you alienate Kennedy, the current swing vote on the court, there's a good chance you'll lose the case altogether.

That's what seemed to be happening to Washington-based advocate David C. Frederick last October when he represented plaintiffs in a key case looking into whether federal cigarette-labeling regulations prevent plaintiffs from filing in state courts deceptive practices suits against the manufacturers of light cigarettes. Altria v. Good, 2008 DJDAR 18257.

Kennedy didn't take kindly to Frederick's suggestion that lawsuits against the cigarette companies were solely about deceptive marketing practices and did not, technically, touch upon the health risks of smoking.

"Mr. Frederick," the justice said pointedly. "If I take away from your oral argument that it is your position that this suit is not based on a link between smoking and health, I'm going to have difficulty in accepting your position in this entire case."

Frederick was able to extricate himself from that particular dead end, but Gibson Dunn & Crutcher's Theodore B. Olson, who argued the case for the tobacco companies, remembers his counterpart's struggles well.

"He had some tough going there," Olson said. "I thought it was one that could go either way."

It may have been a crucial moment, because it turned out that Kennedy was indeed the swing vote in the 5-4 decision in Frederick's favor that came down in December.

The court concluded that the labeling laws do not, in fact, prevent plaintiffs from filing state lawsuits, a decision that was a blow to the business community.

Not content with rejecting pre-emption once, the justices held in a 6-3 decision earlier this month in an even more high profile case, also argued by Frederick, that state lawsuits against drug manufacturers are not pre-empted by Food and Drug Administration labeling regulations. Wyeth v. Levine, 2009 DJDAR 3199.

In the space of three months, Frederick, who has carved out a niche arguing pre-emption cases, emerged as the victor in two cases that could end up shaping perceptions of the court's 2008 term.

Taken together, the pre-emption cases are a repudiation of the broad arguments adopted by various industries in an attempt to prevent costly litigation in state courts.

By extension, the rulings, especially Wyeth, were also a final defeat for the outgoing Bush administration, which had endorsed the pre-emption strategy.

Frederick, a quietly-spoken veteran of 26 Supreme Court arguments, takes it all in stride.

"What matters is the next one," he said in an interview. "I try not to get too high when things go well and not to get too low when things don't go too well."

Allison Zieve, an attorney for consumer group Public Citizen, hopes the Wyeth case marks the end of an era. Public Citizen had been lined up to argue Wyeth when the trial lawyer lobby pushed for Frederick instead.

"There will be fewer pre-emption arguments than there have been in the past couple of years," Zieve said. "I would expect Wyeth will discourage companies from pursuing those arguments."

That doesn't necessarily mean that the court has suddenly changed course on pre-emption altogether, as Frederick, a partner at Washington firm Kellogg, Huber, Hansen, Todd, Evans & Figel, concedes.

Every pre-emption case is statute specific, he says. Last term, the court ruled in favor of pre-emption in four out of six cases.

In one of those, the court held 8-1 - in a case Zieve lost on behalf of the plaintiffs - that medical devices are subject to federal pre-emption because of specific statutory language. Riegel v. Medtronic, 128 S.Ct. 999.

Justice Ruth Bader Ginsburg was the lone dissenter.

"You really have to get into the history of the statute," Frederick said. "I think the court takes each of these pre-emption cases as it finds them."

The real distinction, experts say, is whether Congress explicitly states in legislation that a particular regulation is intended to supersede state laws. That is known as "express pre-emption."

That argument was successful in Riegel because the device manufacturers could point to such language. In Wyeth, no such language existed, meaning the drug manufacturers had to rely on a weaker argument focusing on so-called "implied pre-emption" in which lawyers look beyond congressional statutes for any evidence supporting their theory of the case.

The cigarette case was a closer vote in part because manufacturer Altria Group Inc., the parent company of Philip Morris, claimed express pre-emption language existed in the labeling law. In the majority opinion, Justice John Paul Stevens conceded that the statute contained some express pre-emption language but concluded that it didn't apply to state deceptive practices claims.

Frederick may be getting a lot of credit for his two victories, but some think he got some help from an unlikely source: The Bush administration.

That, at least, is the theory of Doug Kendall, who heads the Constitutional Accountability Center, a Washington-based progressive legal group.

Kendall believes that the Bush administration pushed too hard in arguing for pre-emption in instances where it was contradicted by statutory or regulatory language.

In Wyeth, for example, administration officials inserted language into an FDA document, over the objections of career staff, in which they asserted that the statutory language supported the pharmaceutical company's position. Government lawyers then cited that language in their brief.

Some of the justices, who may not have been completely sympathetic to Frederick's argument, could have been pushed in his direction because of the government's position, Kendall said.

"The actions taken by the Bush administration were so strained and after the fact, it did color the justices' views in the case," Kendall said.

Stevens, who wrote the majority opinion in Wyeth, even stated that "the FDA's recently adopted position that state tort suits interfere with its statutory mandate is entitled to no weight."

Looking back on his two successful arguments, Frederick admitted that both were tough, not least when he found himself on the wrong side of Kennedy in the Altria argument.

"I thought he was asking one of the very difficult questions in the case, and he wanted a straight answer, which I tried to give him," Frederick said.

In response to Olson's recollections about the argument, Frederick noted good-humoredly that neither lawyer got their way.

"There were times when both of us were in trouble," he said.

Posted 8:10 AM by Howard Bashman

DAILY JOURNAL NEWSWIRE ARTICLE
http://www.dailyjournal.com
© 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.

February 20, 2009

U.S. JUSTICES TAKE UP ISSUE OF ID THEFT BY IMMIGRANTS
Courts Disagree Over Whether It Matters if a Suspect Knows An ID Belongs to Someone Else

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - Last May, federal agents raided a meatpacking plant in Postville, Iowa, and arrested 389 workers on suspicion of being illegal immigrants. Key to the raid was the agents' focus on whether the workers were using invalid social security or alien registration numbers on their job applications.

Many were using such invalid numbers, and 270 of them were subsequently charged with aggravated identity theft.

The highly publicized raid, conducted by the Department of Homeland Security's Immigration and Customs Enforcement and mirrored in other states, including California, was in many ways made possible by a key ruling two months earlier. The 8th U.S. Circuit Court of Appeals held that in order to prosecute someone for aggravated identity theft, the government did not have to show that the accused knew that the means of identification used belonged to another person. United States v. Mendoza-Gonzales, 520 F.3d 912. The St. Louis, Mo.-based federal court of appeals has jurisdiction over Iowa.

That decision, immigration advocates say, gave the green light to the Bush administration's use of the aggravated identity theft statute as part of its immigration enforcement strategy.

It's a handy tool for prosecutors because they can use the threat of a two-year mandatory sentence as a major bargaining chip when negotiating a plea.

Whether or not the Obama administration will continue with that approach remains to be seen, but the narrow legal question raised in the 8th Circuit case has led to a significant split between the federal appellate courts.

So far, two circuits agree with the 8th Circuit, and three have reached the opposite conclusion, including the 9th Circuit in a July 2008 ruling. United States v. Miranda-Lopez, 2008 DJDAR 11261. The 9th Circuit remanded back to the district judge the case of Salvadoran immigrant Roberto Miranda-Lopez, so he could argue that he didn't know the identity card he presented to police belonged to a real person.

Now, the issue is before the U.S. Supreme Court.

On February 25, the justices will hear oral arguments in an 8th Circuit case that followed in the wake of Mendoza-Gonzales. Flores-Figueroa v. United States, 08-108.

Mexican citizen Ignacio Flores-Figueroa's employer reported him to law enforcement authorities after Flores-Figueroa presented the employer with both a new social security card and a permanent resident card that used a different identity than one he had previously used. Immigration officers found the numbers used on both cards were already in use by others.

Flores-Figueroa was subsequently indicted on two counts of aggravated identity theft in addition to several charges relating to both the forged documents and his illegal entry into the country.

His lawyers, led by Kevin Russell of Howe & Russell in Bethesda, Md., say Flores-Figueroa should not be charged with aggravated identity theft because he didn't know the two identities he used belonged to others.

For immigration advocates, the distinction over intent is key because unlike those who seek to steal an identity for personal gain, most undocumented workers make up social security numbers simply so they can get jobs.

Put simply, immigration lawyers believe the government has inappropriately used the identity theft statute to target immigrants.

"I think this is consistent with all the [Bush] administration's enforcement tactics," said Kristina Campbell, a Los Angeles-based staff attorney with the activist group the Mexican-American Legal Defense and Education Fund. "They never were hesitant to expand laws in unprecedented ways to achieve their goals."

All of those charged in the Postville raid eventually pled guilty to lesser charges than identity theft. Most served five-month prison sentences before being deported.

In the government's latest brief in the case, filed just three days after President Barack Obama took office last month, the incoming administration had little option but to stick to the Bush administration's argument.

Court experts say new administrations rarely change their predecessors' positions in cases that have already been scheduled for argument.

Acting Solicitor General Edwin S. Kneedler, a career lawyer at the Justice Department, wrote in the brief that the identity theft statute, passed by Congress in 2004, is intended primarily to "provide enhanced protection" for people whose identity is stolen.

"The harm a victim suffers when her identity is so misused bears no necessary relationship to the perpetrator's awareness of her existence," Kneedler said.

Identity theft victims rights groups back Kneedler's position.

In an amicus brief in support of the government on behalf of several crime victims organizations, Stephen V. Masterson, of Howrey's Los Angeles office, argues that a ruling contrary to the government's interpretation would have a negative impact on the ability of identity theft victims to get restitution.

Whether or not the defendant intended to steal someone's identity, "the havoc wrecked on the victim's life is the same either way," Masterson said.

He stressed that the position taken by his clients is not intended to "advocate any heavy-handed treatment against immigrants."

So far, the Obama administration has not said how it'll tackle immigration enforcement in the workplace, but Janet Napolitano, the new secretary of the Department of Homeland Security, addressed the issue during her confirmation hearing in mid-January.

She conceded that immigration laws have to be enforced at the border but also at the workplace because of "employers who use the lack of enforcement as a way to exploit the illegal labor market."

While stressing that employers who hire illegal workers will be prosecuted, Napolitano did not mention what sanctions the workers themselves would face.

Some immigration lawyers think this could signal a return to the Clinton administration's approach, in which immigration enforcement at the workplace centered on the government obtaining administrative warrants normally used for inspections of regulated entities.

This allowed agents to investigate company records before deciding whether to take any criminal enforcement action. Importantly, the focus of that approach was on the employer rather than the employee.

Although there's been little policy movement in Washington, immigration lawyers remain optimistic that the administration will end some of the Bush administration's tactics.

"We are definitely hopeful that the Obama administration won't continue with the enforcement only strategy of the Bush administration," said Campbell of the Mexican-American legal group.

Even if that change does occur, Campbell still believes the case before the Supreme Court deserves close scrutiny because individual federal prosecutors around the country may still seek to interpret the law in as broad a way as the Bush administration did.

"I think it's important the court clarifies what it means," Campbell said.

Posted 10:50 AM by Howard Bashman

DAILY JOURNAL NEWSWIRE ARTICLE
http://www.dailyjournal.com
© 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.

February 11, 2009

A DRY RUN FOR A SUPREME COURT HOPEFUL
Kagan Likey to Be Confirmed As Solicitor General

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - With Supreme Court Justice Ruth Bader Ginsburg's future thrown into question recently by unexpected cancer surgery, Tuesday's confirmation hearing for solicitor general nominee Elena Kagan suddenly took on new significance.

Kagan, the highly regarded dean of Harvard Law School, would likely be a leading contender to replace Ginsburg if the ailing justice is forced to leave the bench.

Ginsburg's Future Uncertain

Ginsburg is due to be released from the Memorial Sloan-Kettering Cancer Center in New York within the next week following treatment for pancreatic cancer. The 75-year-old justice is expected to return to the bench in time for the next round of oral arguments, which starts Feb. 23.

Yet uncertainty remains because Ginsburg has not yet revealed her long-term prognosis.

Kagan, who would be the first woman to serve as solicitor general, enjoyed a mostly smooth ride at Tuesday's Senate Judiciary Committee hearing and is likely to be confirmed without any complications. That bodes well for her chances of succeeding Ginsburg if the Supreme Court seat becomes vacant.

Kagan has been mentioned repeatedly as a possible candidate for the high court, especially if the Obama administration is keen to appoint a woman. Obama is likely to make such an appointment if Ginsburg - the only woman currently on the bench - is forced to retire.

Senators Question Kagan's Past

As solicitor general, Kagan would represent the administration before the high court and direct its overall appellate strategy.

Although the hearing was largely low-key, Republican senators grilled the 48-year-old nominee about her positions on several hot button political issues.

Most notably, they questioned Kagan's decision as Harvard Law School dean to join a brief in a lawsuit over military recruitment on law school campuses that ended up before the Supreme Court.

In that case, several universities opposed a law allowing the federal government to withhold funding from schools that barred military recruiters from working on their campuses as a protest of the Defense Department's ban on openly gay and lesbian service members.

The Supreme Court unanimously rejected the challenge in a 2006 decision. Rumsfeld v. FAIR, 126 S. Ct. 1297.

For Republicans, like Sen. Jon Kyl, R-Ariz., Kagan's involvement in the case raised the question of whether she would have energetically defended a statute with which she disagreed if she had been solicitor general at the time.

"I absolutely would have, senator," Kagan responded.

In such circumstances, "there is a clear obligation upon the solicitor general to defend a statute," she added.

Although she has never argued a case before the Supreme Court and has little litigation experience, Kagan is highly respected in the legal world.

Several former solicitor generals from both parties - including Theodore B. Olson, now a partner at Gibson, Dunn & Crutcher, who served under President George W. Bush - have supported the nomination.

In addition to her academic career, Kagan held several positions in the Clinton White House, including associate counsel and deputy director of the Domestic Policy Council.

In 1999, Clinton nominated her to the Washington, D.C., Circuit Court of Appeals but the Republican-led Senate didn't move to confirm her appointment.

Earlier, Kagan clerked for Supreme Court Justice and civil rights legend Thurgood Marshall, whom she once described as "the greatest lawyer of the 20th century."

Perhaps with an eye on her future prospects, Kagan was quick to downplay an article she wrote based on her experiences working as a counsel to the Senate Judiciary Committee in the early 1990s, when she helped shepherd through Ginsburg's nomination.

In the 1995 University of Chicago Law Review article, Kagan wrote that nominees should be more forthcoming about their legal positions.

"I'm not sure if, sitting here now, I would agree with that statement," Kagan said in response to a question from Sen. Orrin Hatch, R-Utah.

Thomas Perrelli, nominee for the third highest-ranking official in the Justice Department, also appeared before the committee Tuesday.

A partner at Jenner & Block in Washington, Perrelli is well known within the entertainment industry for spearheading the Recording Industry Association of America's legal battle against piracy.

He's also expected to easily win confirmation.

Both nominees have personal ties to President Barack Obama.

Kagan worked alongside Obama at the University of Chicago Law School in the 1990s, while Perrelli served with him on the Harvard Law Review.

Posted 11:25 PM by Howard Bashman

DAILY JOURNAL NEWSWIRE ARTICLE
http://www.dailyjournal.com
© 2008 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.

December 16, 2008

Supreme Court Ruling Bucks Pre-emption Trend; Despite FTC, Makers of Light Cigarettes Can Face State Deceptive Practices Claims

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - In its first major decision of the term, the U.S. Supreme Court ruled Monday that federal law does not prevent plaintiffs from filing state deceptive practices claims against light cigarette manufacturers.

The 5-4 ruling saw the liberal members of the court prevail, with Justice John Paul Stevens authoring the majority opinion. Altria v. Good, 2008 DJDAR 18257.

The decision marks a departure from the recent trend of the court finding pre-emption language in congressional statutes. The most prominent example of this was an important medical device case from last term that was referred to repeatedly during oral argument in October. Riegel v. Medtronic, 128 S.Ct. 999 (2008).

The question before the justices was whether federal law pre-empts state law claims concerning the false advertising of low tar cigarettes. The close nature of the outcome is perhaps no surprise, as the last time the court addressed the scope of the Federal Cigarette Labeling and Advertising Act - the statute in question - it was badly split. Cipollone v. Liggett Group Inc., 505 U.S. 504 (1992).

On that occasion, a plurality of four, including the court's current swing vote, Justice Anthony Kennedy, agreed that the act pre-empted some state law claims but not others.

"It's important that the court reaffirmed Cipollone," said David Frederick of Washington-based Kellogg, Huber, Hansen, Todd, Evans & Figel, who represented the plaintiffs. The case represents "one step on a multi-step journey" to evaluate when federal pre-emption applies, he added.

Altria Group Inc., the parent company of Philip Morris, argued there was a so-called "express pre-emption" provision in the labeling statute that explicitly mandated that federal law prevented plaintiffs from making state law claims.

If that was the case, it would have prevented a group of Maine residents from pursuing a state law claim that the cigarette manufacturer violated the Maine Unfair Trade Practices Act by labeling some cigarettes as "light," even though it has been proven that low tar cigarettes are not any less harmful than normal cigarettes.

After plaintiffs filed a class action lawsuit in federal court in 2005, Altria stressed that it had no control over the labeling concerning tar and nicotine content, which is regulated by the Federal Trade Commission.

The lower court in Maine bought the argument and granted Altria's motion for summary judgment in 2006. But, the 1st U.S. Circuit Court of Appeals reversed a year later.

In affirming the appeals court, Stevens was joined by Justices David H. Souter, Ruth Bader Ginsburg, Stephen Breyer, and, crucially, Kennedy.

The justices remanded the case back to the district court in Maine, where the merits of the plaintiffs' claim will be addressed.

Stevens conceded that there are express pre-emption provisions in the labeling act but concluded that they do not apply to deceptive practices claims.

The law simply regulates what health warning language should be included on packaging and prevents states from adapting it, he wrote.

"Although both of the act's purposes are furthered by prohibiting states from supplementing the federal prescribed warning, neither would be served by limiting the states' authority to prohibit deceptive statements in cigarette advertising," Stevens added.

Justice Clarence Thomas wrote a dissenting opinion in which he was joined by Chief Justice John G. Roberts Jr., Antonin Scalia, and Samuel A. Alito Jr.

Thomas criticized the majority for relying on the plurality decision in Cipollone.

"The court's fidelity to Cipollone is unwise and unnecessary," he wrote.

Lower courts need a "clear test" in order to correctly interpret Congress' intent to expressly pre-empt state claims, Thomas added.

In his view, based on Scalia's dissent in Cipollone, a close reading of the labeling statute leads to only one conclusion: any lawsuit alleging injury relating to use of cigarettes is pre-empted.

Altria also had a secondary "implied pre-emption" argument, in which the company claimed that even if express pre-emption was not in the statute, there was enough evidence to suggest that Congress implied that state law was pre-empted.

But even Roberts and Scalia hinted strongly at the oral argument that such an argument was a waste of time.

Altria's lawyer, Gibson Dunn & Crutcher's Theodore B. Olson, barely addressed it and Thomas did not reach the issue in his dissent.

David Vladeck, a professor at Georgetown Law Center who filed a brief in support of the plaintiffs, said he was not surprised at the outcome.

Olson was relying on Kennedy reversing his vote against pre-emption in Cipollone, he said.

The decision shows that "the battle lines are pretty clearly drawn" when it comes to pre-emption, Vladeck added.

It's unclear whether the decision has any bearing on the other major pre-emption case on the docket, which focuses on whether federal law prevents plaintiffs from filing state lawsuits on drug liability claims. Wyeth v. Levine, 06-1249.

That case is distinct from Good because it focuses solely on implied pre-emption arguments and involves a different statute.

In a statement on Monday's decision, Philip Morris declared that it would continue to fight the dozens of state lawsuits it faces over its light cigarettes.

"We continue to view these cases as manageable, and the company will assert many of the strong defenses used successfully in the past to defend against this very type of case," said Murray Garnick, the firm's senior vice president and associate general counsel.

Posted 11:20 PM by Howard Bashman

DAILY JOURNAL NEWSWIRE ARTICLE
http://www.dailyjournal.com
© 2008 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.

December 16, 2008

High Court Lets 9th Circuit Sentencing Decision Stand

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - Hundreds of convicted prisoners in California could have the chance to seek new sentences after the U.S. Supreme Court declined Monday to revisit the state's sentencing laws.

A leading sentencing expert suggested, however, that the impact may not be as great as prosecutors contend.

At issue was whether the Supreme Court's decision in 2007 - holding that California's upper-term sentencing procedure was unconstitutional - could be applied retroactively. Cunningham v. California, 127 S. Ct. 856.

Earlier this year, the 9th U.S. Circuit Court of Appeals held that it could because Cunningham was simply a direct application of the Supreme Court's 2004 holding that also limited judges' ability to hand down enhanced sentenced on facts not found by a jury. Blakely v. Washington, 542 U.S. 296.

The defendant in the 9th Circuit case, Frank Butler, was eligible for re-sentencing because, although he was sentenced before Cunningham was decided, it was after Blakely came down, the appellate court ruled. Curry v. Butler, 08-517.

The Supreme Court's refusal to intervene Monday means that the 9th Circuit's decision is left to stand.

In the state's brief, Deputy Attorney General Lawrence M. Daniels said the 9th Circuit's decision "is forcing re-litigation in federal court of hundreds of additional upper-term sentences, which will result in many additional re-sentencings in state court."

Davina Chen, the deputy public defender who represents Butler, said Monday she wasn't sure exactly how many cases will be affected.

She added that even if defendants do win a re-sentencing hearing, that doesn't necessarily mean their sentences will be reduced.

That's because in the aftermath of the recent Supreme Court decisions, the California Legislature passed new sentencing laws that give judges the discretion to impose the same high sentences as long as they do not contravene Blakely.

"It's a victory because they can get another sentence," Chen said. "But when they go back to California [courts] they may or may not get a lower sentences."

Her hope is that state court judges "follow the spirit and not just the letter" of the recent re-appraisals of sentencing law when they impose new sentences, she added.

Sentencing expert Douglas Berman, a professor at the Moritz College of Law at Ohio State University, was skeptical of the state's assertion as to the amount of extra work the 9th Circuit's decision creates.

It's questionable whether the application of Cunningham will have "profound ripple effects the system can't deal with," he said.

Posted 10:45 PM by Howard Bashman

DAILY JOURNAL NEWSWIRE ARTICLE
http://www.dailyjournal.com
© 2008 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.

December 1, 2008

Power Station Case Generating Heat In Monterey Bay

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - The delicate issue of how the government should weigh environmental interests against those of big business comes before the U.S. Supreme Court this week.

The justices will consider what kind of economic analysis the federal government can undertake when deciding how much energy companies have to spend to update water intake mechanisms for power plants so they meet environmental standards, Entergy v. Riverkeeper, 07-588, PSEG Fossil v. Riverkeeper, 07-589, and Utility Water Act Group v. Riverkeeper, 07-597.

Although the consolidated case, scheduled for argument Tuesday, comes out of the New York-based 2nd U.S. Circuit Court of Appeals, it could have a dramatic impact on the opposite side of the country.

Or - to be more specific - in Monterey Bay.

That's where the Moss Landing power station has been operating for the last half-century.

The owners of the plant are currently locked in a similar dispute that is heading to the state Supreme Court, Voices of the Wetlands v. California State Water Resources Control Board, 2007 DJDAR 18432.

The relevance of Riverkeeper to the Moss Landing case is shown by the fact that the California court, which has already accepted the case, has deferred action until the U.S. Supreme Court issues its decision.

At issue is whether the Clean Water Act allows the U.S. Environmental Protection Agency to use a cost-benefit analysis when ordering energy companies to retrofit water intake mechanisms.

"It's important as a matter of deciding the role dollars and cost consideration should play in charting environmental policy," said Richard Frank, executive director of the California Center for Environmental Law and Policy at UC Berkeley School of Law.

The debate over the use of cost-benefit analysis in environmental regulatory decisions has raged for years. In essence, it attempts to calculate the value of environmental interests into a dollar figure that can then be balanced against the cost to the industry of a particular regulation.

The EPA has successfully used cost-benefit analysis to enforce other sections of the Clean Water Act, much to the frustration of environmentalists, who believe it does not give sufficient weight to environmental interests.

The dispute in Riverkeeper arose when various environmental groups, including New York-based Riverkeeper Inc., challenged the EPA's implementation in 2004 of a new rule that requires existing power stations to retrofit their water intake mechanisms.

In its January 2007 decision, the 2nd Circuit, in a blow to the energy industry, held that a cost-benefit analysis was not the appropriate way of calculating environmental interests.

Riverkeeper focuses on Section 316(b) of the Clean Water Act, which regulates the mechanisms power plants use to siphon off water for use in cooling systems.

Since the EPA promulgated rules to enforce the regulation in 1976, it has allowed officials to make cost-benefit analyses on a case-by-case basis.

That means that energy companies can argue in certain circumstances that the cost of adopting the latest technology is prohibitive.

The 2nd Circuit concluded that the Clean Water Act does not allow the EPA to make cost-benefit analyses when it comes to the intake structures.

Rather, the agency is required to make a "cost effectiveness" analysis.

The court defined this as a cost that can be "reasonably borne" by the industry but is limited to "less expensive technology that achieves essentially the same results" as the most expensive technology available.

Under this definition, the EPA would not have the discretion to rule that the costs are too high to make any changes.

The Bush administration has sided with the energy companies, arguing that there is nothing in the Clean Water Act to suggest that the EPA cannot use a cost-benefit analysis.

"The court of appeals erred by attempting to micro-manage the agency's exercise of its broad statutory discretion," Solicitor General Gregory Garre wrote in his brief.

The government maintains that it's up to the EPA to decide what analysis it uses.

Entergy's lead counsel, Elise N. Zoli, wrote in her brief that the 2004 rule and 2nd Circuit decision combined create "a regime under which the nation's existing electricity supply may be forced to shut down during lengthy retrofits."

Opposing the energy companies and the federal government are Riverkeeper, other environmental groups and several states that were involved in the litigation before the 2nd Circuit, including New York, Massachusetts, and Rhode Island.

The Moss Landing case, in state court because the State Water Resources Control Board has the delegated authority from the EPA to issue Clean Water Act permits for power plants, touches upon largely the same arguments.

As Berkeley's Frank put it, the board is "directly confronting the same cost-benefit issue involved in the Entergy case."

The California dispute centers on the attempt by the owners of Moss Landing to seek a new Clean Water Act permit.

From 1998 to 2006 the plant was owned by Charlotte, N.C.-based Duke Energy Corp.; it is now owned by Houston, Texas-based Dynegy, Inc.

The water resources board used a cost-benefit analysis, concluding that a new intake system would add $12 million to $13 million to retrofit the water intake system.

But, the board calculated that the environmental benefit of the updated system would be worth between $4.68 million and $9.75 million and concluded that the cost was "wholly disproportionate" to the environmental benefit and allowed the plant owners to use older equipment instead.

In December 2007, the 6th District Court of Appeal upheld the water resources board's decision. The importance of Riverkeeper to the California case is underlined in various amicus briefs filed in the U.S. Supreme Court case.

Voices of the Wetlands, the environmental group that is the plaintiff in the California case, filed one, authored by Stanford Law School Professor Deborah A. Sivas.

She said in an interview that the importance of the case in California goes way beyond Moss Landing. Owners of the other 18 active coastal plants in the state will also be watching closely. Many of those plants are aging and need to be refurbished, if not rebuilt altogether, Sivas added.

There have been signs that some of the plant owners have been willing to incorporate the latest, more expensive technology for their intake systems, but if the Supreme Court endorses cost-benefit analysis, "it will open the door to all the California coastal plants to do that," she said.

Also weighing in on Riverkeeper is the California Council for Environmental and Economic Balance, an industry group that includes owners of California plants among its members.

San Francisco-based Pillsbury Winthrop Shaw Pittman partner Kevin M. Fong, the group's attorney, argues that in California in particular, with its history of energy shortages, "a site-by-site cost-benefit analysis is essential" because the state's coastal plants generate nearly half of the energy produced in the state.

Adopting a different type of analysis could be disastrous, Fong maintains.

"Enormous costs would be imposed on individual plants, leading to a likely loss of generating capacity and widespread economic disruption resulting from an energy deficit," he wrote in his brief.

Pro-industry lawyers point hopefully to the court's decision last month to uphold the U.S. Navy's right to conduct operations off the coast of California despite the threat to marine mammals. Winter v. Natural Resources Defense Council, 2008 DJDAR 16797.

Steven G. Giesler, an attorney with the Sacramento-based Pacific Legal Foundation, a conservative public interest law firm that filed an amicus brief in support of the energy companies, believes the ruling showed the court's willingness to consider environmental interests in the same way as it would any other party.

To that end, it could be "a hopeful harbinger of what the court will decide" in Riverkeeper, Giesler said.

Sivas, meanwhile, doesn't appear too hopeful her side will prevail.

"It will probably be a close call," she said.

Posted 4:35 PM by Howard Bashman

DAILY JOURNAL NEWSWIRE ARTICLE
http://www.dailyjournal.com
© 2008 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 20, 2008

Will Obama Have an Awkward Inaugural Moment?

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - It could be a little awkward when President-elect Barack Obama faces Chief Justice John G. Roberts Jr. to take the oath of office on Inauguration Day.

That's because Obama will be the first-ever president to be sworn in by a chief justice whose confirmation he voted against. The U.S. Senate Historical Office, and several experts on Supreme Court history, verified that fact Wednesday.

Only 15 senators have ever become president and many of them did not vote to confirm any chief justices to the Supreme Court. The last sitting senator to be elected president was John F. Kennedy in 1960, well before the recent trend for contentious Supreme Court confirmation proceedings began.

There are also a few presidents who, for reasons beyond their control, couldn't wait for the chief justice to swear them in. Lyndon Johnson, who was sworn in by a federal district court judge after Kennedy's assassination in 1963, is the most famous example.

Dennis J. Hutchinson, a law professor at the University of Chicago, agreed with the Senate Historical Office's conclusion with one caveat.

He noted that, in 1836, the Senate confirmed Roger B. Taney as chief justice, but the vote was "in an executive session in which no records were kept."

At the time, future president James Buchanan was a Democratic senator from Pennsylvania and, in theory, could have voted against the nomination.

It's unlikely, "to put it mildly," Hutchinson conceded, because Buchanan was from the same party as the president who nominated Taney, Andrew Jackson.

Despite Obama's vote, it's unlikely to sour the occasion for either man, according to David J. Garrow, an expert on Supreme Court history who teaches at the University of Cambridge.

"We've got two gentlemen who are both smoother than silk in their style of personal interaction," he said. "I don't think it's going to loom large in any way."

Obama has already admitted that, prior to the September 2005 vote, his initial instinct was to vote for Roberts' confirmation because he admired his fellow Harvard Law School graduate's intellect.

According to the Washington Post, he was also wary of voting on ideological grounds because, even then, he was worried opponents could use it to justify voting against his own nominees if he ever became president. Obama was eventually persuaded by a senior aide that it was more important for his short-term political goals to vote 'nay,' according to the newspaper's account.

For the record, Obama's rival for the Democratic nomination, Sen. Hillary Clinton, D-New York, also voted against confirming Roberts. Not surprisingly, Sen. John McCain, R-Ariz., who lost the general election to Obama, voted for confirmation.

Whatever happens at the Jan. 20 inauguration, Supreme Court historian Lucas A. "Scot" Powe, a law professor at the University of Texas at Austin, is confident "this won't be the most awkward swearing-in."

That distinction, he suggested, should go to the 1801 swearing in of Thomas Jefferson by Chief Justice John Marshall.

They "detested each other," Powe said.

Posted 11:05 AM by Howard Bashman

DAILY JOURNAL NEWSWIRE ARTICLE
http://www.dailyjournal.com
© 2008 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 13, 2008

SUPREME COURT STRIKES BAN ON NAVY'S USE OF SONAR IN THE PACIFIC

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - A split Supreme Court Wednesday ruled in favor of the U.S. Navy in a dispute over the environmental damage caused by the use of sonar off the coast of California.

In a decision that will have implications for future environmental challenges, the court vacated two provisions of a preliminary injunction issued by a Los Angeles federal judge that placed limits on the Navy's exercises.

Environmentalists claimed the Navy's use of high-frequency sonar could injure or even lead to the death of whales and other marine mammals.

In its first ruling of the term, the court held 7-2 that the injunction should be vacated, with Justices Ruth Bader Ginsburg and David H. Souter dissenting.

In what environmentalists described as a narrow ruling, the court left in place four other restrictions imposed by U.S. District Judge Florence-Marie Cooper that were not challenged by the Navy.

The impact the decision could have remains an open question.

On the one hand, the plaintiffs - the National Environmental Defense Council - say the Navy is now taking environmental issues more seriously.

But, less to their liking is the fact that the court's majority opinion made it clear that Cooper should have given more deference to the Navy.

As for the exercises in California, they are due to finish in January 2009 in any case, so the effect will be minimal.

In response to the ruling, the Navy promised to act in a way that "protects our nation's security and the precious maritime environment," Chief of Naval Operations Admiral Gary Roughead said in a statement.

Writing for the majority, Chief Justice John G. Roberts Jr. concluded that Cooper failed to balance the Navy's interests against those of the whales before imposing a preliminary injunction over the use of high-frequency sonar. Winter v. Natural Resources, 07-1239.

Upon weighing the interests of the Navy and the plaintiffs, the majority found that it was not "a close question," Roberts wrote. "We conclude that the balance of equities and consideration of the overall public interest in this case tip strongly in favor of the Navy."

Cooper wrote in her August 2007 injunction that there was "near certainty" of severe damage to the environment. The 9th U.S. Circuit Court of Appeals upheld the injunction, with some modifications.

In January, Cooper modified her injunction by allowing the Navy to use sonar as long as it complied with the six restrictions.

The Navy subsequently appealed two of those: a requirement that it shut down sonar when within 2,200 yards of a marine mammal and another ordering it to power down the sonar by six decibels during certain weather conditions.

In March, the 9th Circuit upheld the new restrictions.

In Wednesday's opinion, the majority stressed that its decision did not reach the underlying merits of the National Environmental Defense Council's argument, namely that the Navy had failed to comply with the National Environmental Policy Act. To do so, it was required to prepare an environmental impact report.

Roberts did, however, hint strongly in his opinion where he stood by noting that "even if plaintiffs have shown irreparable injury from the Navy's training exercises, any such injury is outweighed by the public interest."

As for Cooper's injunction, Roberts took issue with the standard of review, which was also adopted by the 9th Circuit. Both courts believed that an injunction was warranted if there was the "possibility" of irreparable injury. But, Roberts wrote, plaintiffs have to establish that they are "likely" to suffer irreparable injury.

Justice Stephen Breyer wrote a separate opinion in which he dissented in part on the issue of whether the 9th Circuit's modified injunction should remain in place until the Navy's exercises conclude in January.

That's because the Navy has yet to complete its environmental impact report required under NEPA. But he and Justice John Paul Stevens, who joined in the concurring section of Breyer's opinion, both agreed that the injunction should be vacated.

In her dissenting opinion, Ginsburg focused on the underlying merits of the environmentalists' case. In noting that the Navy had failed to complete its environmental impact report before beginning the exercises, Cooper had "conscientiously balanced the equities," she wrote.

Although Wednesday's decision will have little impact on the exercises currently taking place, it is likely to affect future environmental challenges within the 9th Circuit's jurisdiction.

Joel Reynolds, an attorney for the National Resources Defense Council, conceded that lower court judges need to carefully marshal their facts before issuing preliminary injunctions going forward.

"In future cases, it would be important for the lower courts to carefully articulate the factual basis for issuing an injunction," he said.

Reynolds noted that the court clearly "wasn't satisfied" with Cooper's reasoning.

The 9th Circuit's willingness to uphold preliminary injunctions in environmental cases has already raised the ire of business groups.

The California Forestry Association and others highlighted their concerns in an amicus brief they filed in the case.

Paul S. Weiland, who heads the land use and environmental resources group at Nossaman, said that in future environmental groups will have a higher hurdle to reach before they can get a preliminary injunction.

But, he stressed, that doesn't mean environmentalists won't be able to win cases on the merits once they are fully litigated.

"The case can proceed, but what the environmental groups expect will change," Weiland said. "There's a better shot now than there was yesterday that the federal government can push back on what's required of them."

Posted 11:45 AM by Howard Bashman

DAILY JOURNAL NEWSWIRE ARTICLE
http://www.dailyjournal.com
© 2008 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 10, 2008

Court Takes Up Whether Lab Technicians Are Required to Testify

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - The U.S. Supreme Court will hear arguments today in a case that could dramatically affect the right of defendants to cross-examine laboratory technicians whose reports are introduced into evidence at trial.

Jeffrey Fisher of Stanford University's Supreme Court Litigation Clinic will be arguing that technicians who prepare forensic reports should be physically present in the courtroom to give testimony in order to meet defendants' Sixth Amendment rights to confront their accusers, Melendez-Diaz v. Massachusetts, 07-591.

In California, the current practice - endorsed by the California Supreme Court in 2007 - is for supervisors to testify on behalf of the technicians who prepared the report, but even that could be under threat, depending on what the Supreme Court rules.

Fisher's client, Luis Melendez-Diaz, was convicted in Massachusetts of cocaine trafficking based in part on a laboratory report that analyzed a substance taken from another man.

He failed to convince the state appellate court in Massachusetts that the laboratory report was testimonial, which would have allowed the defense to cross-examine the technician who prepared it.

The case hinges on whether a major Sixth Amendment ruling from 2004, in which the justices agreed unanimously that any out-of-court statement that is testimonial in nature cannot be used unless the defendant has a right to cross-examine, applies to laboratory reports prepared for use in prosecutions. Crawford v. Washington, 541 U.S. 36. In Crawford, the court didn't address what kind of out-of court statements count as testimonial.

State and federal courts are split on the issue.

Although the case has not attracted much attention as others on the docket this term, Erwin Chemerinsky, dean of the new law school at UC Irvine, has earmarked it as potentially the most important case yet granted in terms of its impact on the legal community. It's a case that judges around the nation he has talked to are following closely, he added.

"I think there's a huge benefit to the defense for being able to cross-examine," Chemerinsky said. "On the other hand, there's an enormous practical problem of requiring a live witness."

Unlike many other states, including Massachusetts, California does not have a statute that allows laboratory reports to be admitted as "public records," which allows them to be exempted from the hearsay rule.

That means that a representative from the laboratory, if required to by the defense lawyer, has to testify about a report at trial.

In 2007, the California Supreme Court found no constitutional problem with the introduction of a DNA analysis report without the live testimony of the examiner who prepared it. People v. Geier, 161 P.3d 104 (Cal. 2007).

The court held that the defendant's Sixth Amendment rights were not violated by the laboratory supervisor providing the testimony instead.

The case has been appealed to the U.S. Supreme Court on the hope that the justices will resolve that question but it will likely be held until the Massachusetts dispute is resolved.

That's because Melendez-Diaz could have an impact on Geier.

"It's up in the air," said California Deputy Attorney General Andrew Mestman, who represents the state in Geier. "It depends how broad or narrow the ruling is."

It would have to be a broad ruling to even reach the question in Geier.

If the court merely says that technicians are required to testify but doesn't specify whether supervisors can, then Geier would still be unresolved.

Jennifer L. Mnookin, a law professor at the University of California at Los Angeles, said that question presented in Geier - whether a surrogate for the technician can testify about the laboratory report - is "not explicitly at issue in Melendez-Diaz, though it certainly is an issue at the edges of the case."

As for Fisher, he said in an interview that Melendez-Diaz "would not have a significant impact" in California although he concedes there may be "cases on the on the margins" that could be affected.

Prosecutors are united in opposing the idea that the Sixth Amendment right to confrontation should extend to laboratory technicians.

Mestman stressed that if technicians - rather than supervisors - had to testify, it would put a strain on resources in California's 14 laboratories.

"There's already significant backlogs and it would be a further burden," he said.

In the federal government's brief, Solicitor General Gregory G. Garre stresses that requiring forensic examiners to testify in person "consumes scarce criminal justice resources, with little or no countervailing benefit to the truth-seeking process."

Attorneys general from 35 states use even stronger language in their joint brief.

Corey L. Maze, the solicitor general of Alabama, wrote that there would be "systematical gridlock in state courts and laboratories," if the court found for Melendez-Diaz.

Maze also warns of the dangers of laboratory technicians failing to appear at trial due to increased demands on their time.

She cited a recent Yale Law Journal article in which Arizona prosecutor Andrew P. Thomas wrote about the increasing importance jurors place on forensic evidence, based in part on the viewing of high-tech forensics TV shows like "CSI."

"Defendants know this, and if petitioner prevails here, it is knowledge they will use against the states," she wrote.

Although stressing that laboratory reports should be considered testimonial, Fisher and some other law professors downplay the practical impact a ruling in Melendez-Diaz's favor would have.

"I don't think it would be a big deal in terms of administrability," Fisher said.

UCLA's Mnookin, who contributed to an amicus brief in support of Melendez-Diaz, believes that the change in the law would only affect a small number of cases.

That's because few criminal prosecutions go to trial, with 95 percent of all state convictions obtained through a guilty plea.

Even when cases do go to trial, there may be no need to confront the forensic examiners because the parties may agree to stipulate to certain facts.

In many trials, "it's not clear if it's to the defense's practical advantage" to call such a witness, Mnookin added.

As for which way the court will go, Chemerinsky noted that the court hinted at its willingness to "strictly enforce" Crawford in a case last year.

The justices held 6-3 that a defendant's Sixth Amendment rights were violated because he couldn't cross-examine the victim he was accused of killing about prior statements she made to police. Giles v. California, 128 S.Ct. 2678.

"That would indicate a court that would be inclined to extend Crawford to this," Chemerinsky said.

Posted 12:55 PM by Howard Bashman

DAILY JOURNAL NEWSWIRE ARTICLE
http://www.dailyjournal.com
© 2008 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 07, 2008

Porn Prosecutors Seek Recusal of Entire 9th Circuit

By John Roemer
Daily Journal Staff Writer
SAN FRANCISCO - Federal prosecutors have written to all 50 judges on the 9th U.S. Circuit Court of Appeals, asking them to consider recusing themselves from hearing accused pornographer Ira Isaacs' appeal.

The rare move is further fallout from the disclosure in June that Chief Judge Alex Kozinski's Web site contained sexually explicit images.

That revelation led to a judicial misconduct probe of Kozinski and to additional complaints from Beverly Hills lawyer Cyrus Sanai against Kozinski and other circuit judges for allegedly mishandling Sanai's federal appeals.

The misconduct probe, the Sanai complaints and the federal call for possible recusal of the entire court have knotted the 9th Circuit in a judicial discipline and procedural tangle.

Laurie L. Levenson, a professor of law at Loyola Law School, said the confluence of a high-profile pornography prosecution and the discovery of questionable content on Kozinski's Web site amounts to trouble for the 9th Circuit.

"It's a can of worms. It's uncomfortable. It's an embarrassment for the court," she said.

"The realities are that the judges have to look in the mirror when they are confronted with the prospect of recusal. They must ask, 'Can we decide a case and expect public confidence when it involves our chief judge and when it involves a case on the front pages of the newspapers?'"

Kozinski's now-defunct site, alex.kozinski.com, included a photo of naked women on all fours painted to look like cows and images of masturbation, public sex, defecation and urination.

A U.S. Department of Justice Obscenity Prosecution Task Force accused self-described "shock artist" Isaacs of distributing movies featuring scatology and bestiality.

The Kozinski Web site photos, the federal prosecutors wrote the judges Oct. 29, "were at least thematically similar to some of the materials in the videos that were the subject of the criminal charges against Isaacs." The prosecutors cited the Los Angeles Times article that described Kozinski's site and noted its content's relationship to the Isaacs images.

Kozinski, who was presiding over Isaacs' Los Angeles trial by designation, recused himself from the Isaacs proceedings after his Web site made the news. He declared a mistrial and called for an investigation into his own conduct.

After the mistrial, Isaacs argued that the Constitution's double jeopardy clause barred his reprosecution, but a new trial judge ruled against him. He appealed to the 9th Circuit. U.S. v. Isaacs, 08-50423.

Kozinski and his defense attorney, Mark Holscher of Kirkland & Ellis in Los Angeles, did not respond to a request for comment on the circuit-wide recusal issue. The 9th Circuit's clerk, Molly A. Dwyer, did not return a call for comment on the procedures the court follows in such cases.

Roger Jon Diamond, the Santa Monica criminal defense lawyer representing Isaacs, opposed circuit-wide recusal.

"It is obvious that what is motivating the Obscenity Prosecution Task Force is its desire to embarrass the 9th Circuit," Diamond wrote in court papers, suggesting that recusal of the entire court would discredit its reputation and hand ammunition to its critics. "It is a matter of common knowledge that political conservatives in Washington, D.C., have been trying to split the 9th Circuit for years."

In a phone interview Diamond added that he wished the trial had gone forward before Kozinski. "He's smart, he's relaxed, he's nice even though he's a Reagan appointee," he said. "And I say that as a criminal defense attorney. He's a libertarian."

The revelations about Kozinski's Web site should not have forced the ending of the trial, Diamond said. "Judges should have more freedom in their personal lives. We don't want to have pro-liberty judges like Kozinski disqualifying themselves."

The 9th Circuit's rulemaking and disciplinary group, the Judicial Council, voted to recuse itself from the Kozinski misconduct investigation, citing the "extraordinary circumstance" that the chief judge's conduct was in question. It sent the matter to the Philadelphia-based 3rd Circuit for a decision on whether Kozinski had violated the federal judiciary's conduct code. That inquiry is ongoing.

In effect, the federal prosecutors asked the 9th Circuit's senior and active judges, shouldn't judges from another circuit also hear a criminal appeal in a case involving some of the same issues?

Lending weight to the government's question was the rank of the Washington, D.C., prosecutors who asked it. They included Matthew W. Friedrich, the acting assistant attorney general for the criminal division and Michael A. Rotker, a criminal division appellate specialist.

They styled their pleading not as a demand but as a "Notice of potential need for recusal" based on Kozinski's actions in declaring a mistrial in the Isaacs case and on the misconduct claims against him.

Arthur Hellman, a professor of law at the University of Pittsburgh School of Law, closely monitors the 9th Circuit.

"The government's notice raises some very difficult issues for the court," Hellman said.

"The number of complications is mind-boggling. How do they handle this? Do they wait for each judge to send a response? Do they poll the judges and decide by a majority vote? Is it an institutional decision or a set of individual decisions? Or can the judges simply decide that because the government filed a 'notice' and not a 'motion,' they don't have to do anything. We're very much in uncharted waters."

Hellman saw a parallel in a 9th Circuit case currently pending en banc review. As with Kozinski hearing the Isaacs case it involved a circuit judge sitting on a criminal trial.

"That appeal calls into question the rulings of Circuit Judge Richard Tallman, who was sitting by designation on a criminal case in the District of Idaho involving a plot to murder an Idaho federal judge," Hellman said. The case is U.S. v. Hinkson, 526 F.3rd 1262 (2008).

"It would have been helpful to make explicit that [the prosecution is] not suggesting that circuit-wide recusal be considered simply because the appeal challenges a ruling by a circuit judge sitting by designation on a district court."

Prosecutors pointed out that there is precedent for an entire circuit's recusal. They cited an instance when the 11th Circuit took that step to avoid hearing appeals of a man convicted of murdering a colleague, Circuit Judge Robert S. Vance. U.S. v. Moody, 977 F.2nd 1420 (11th Circuit, 1992).

That argument surprised John C. Eastman, dean of Chapman University School of Law in Orange.

"So a fairly silly issue over Judge Kozinski is now being equated with the killing of a member of the federal bench?" Eastman said. "I really don't think the kind of emotion associated with that murder exists in this little dispute over Alex Kozinski's sitting as a trial judge."

Posted 8:30 PM by Howard Bashman

DAILY JOURNAL NEWSWIRE ARTICLE
http://www.dailyjournal.com
© 2008 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.

Nov. 03, 2008

Former L.A. District Attorney Goes to High Court to Protect Immunity for Supervisors

By Lawrence Hurley
Daily Journal Staff Writer

WASHINGTON - When Thomas L. Goldstein went to prison for a murder he maintains he didn't commit, he was put there by a jailhouse snitch called Fink.

True to his name, Edward Fink was a long-time informer for the Long Beach Police Department in the late 1970s. At Goldstein's 1980 trial for the murder of John McGinest, Fink testified that the defendant had confessed the murder to him when they shared a cell in Long Beach's jail. He also testified that he was not receiving any benefits from the Los Angeles County district attorney's office for cooperating.

Fink was lying.

Twenty-four years later, after finding out that Fink had in fact benefited from his testimony by negotiating a favorable plea bargain in another case, Goldstein was released from prison, his conviction vacated.

The district attorney's office sought to prosecute him again but then dropped the charges.

Goldstein filed a civil rights suit in 2005, not just against the law enforcement agencies, but also individually against the men in charge of the district attorneys' office in 1980 who, he says, were to blame for the failure to disclose Fink's history.

His main target was John Van de Kamp, the district attorney at the time, later California's attorney general, and now of counsel at Dewey & LeBoeuf in Los Angeles. Also named in the suit was his deputy, Curt Livesay, who is in private practice in Long Beach.

Both were at the district attorney's office at a time when the use of informants was rife, which came to light in 1990 following a major grand jury investigation.

As far as Goldstein is concerned, Van De Kamp and Livesay were responsible for the failure to keep records that would have allowed line prosecutors to know which informers were receiving benefits they could disclose it to defense attorneys.

Now his case is before the U.S. Supreme Court, with oral arguments scheduled for Wednesday.

At issue is whether supervising prosecutors should receive the same absolute immunity that is granted to line prosecutors in such disputes. Van de Kamp v. Goldstein, 07-854.

Judge A. Howard Matz of the Central District of California and, on appeal, the 9th U.S. Circuit Court of Appeals both agreed with Goldstein that the former supervising prosecutors did not have absolute immunity on the grounds that that the complaint was based on an administrative error rather than a prosecutorial one.

In his civil rights suit, in which he cited the damning 1990 grand jury report, Goldstein alleged that Van De Kamp and Livesay "failed to create any system for the deputy district attorneys handling criminal cases to access information pertaining to the benefits provided to jailhouse informants."

This was in direct violation of Supreme Court precedent, Goldstein alleged.

There are two cases, one from 1963 and the other from 1972, that lay out what information prosecutors have to disclose and what procedures they should have in place. Brady v. Maryland, 373 U.S. 83 and Giglio v. United States, 405 U.S. 150.

Van De Kamp and Livesay's lawyer, Timothy T. Coates, of Greines Martin Stein & Richland in Los Angeles, notes in his brief that the 9th Circuit ruling is at odds with Supreme Court precedent.

A key 1976 decision allowed prosecutors absolute immunity for all actions "closely related to the judicial process and taken squarely as a result of their responsibility as prosecutors." Imbler v. Pachtman, 424 U.S. 409.

Federal circuits are split on whether supervising attorneys receive absolute immunity for their administrative roles.

Coates' clients "vigorously dispute both the factual and legal basis" of Goldstein's case, he adds.

Van de Kamp declined in an interview to touch upon the facts surrounding Goldstein's prosecution. But he noted that at the time of the trial he was unaware of the case, in part because his office's Long Beach staff handled it.

"I had no hand in this case whatsoever," Van de Kamp said.

Both he stressed that the Goldstein's innocence has not been proven.

Chilling Effect

At a practical level, the case would likely have a minimal impact on Van de Kamp and Livesay, as the district attorneys' office would pay any damages on their behalf.

But, Steve Cooley, the current district attorney in Los Angeles, believes it would have a dramatic chilling effect on the ability of senior prosecutors to do their jobs.

"When the 9th Circuit ruled they way they did, it occurred to me that in 20 years from now I could be in the same unfortunate circumstance where Mr. Van de Kamp is," he said in an interview.

If the 9th Circuit's decision was to be upheld, it would affect "the scope and quality of the authority the prosecutor in making these decisions without fear," Cooley added.

It's a contention that Goldstein's lawyers dismiss.

"I think this is a very narrow case," said Ronald O. Kaye, of Pasadena-based Kaye, McLane & Bednarski. "I don't think it's going to open up the potential for lawsuits."

That's largely because a defendant has to have his sentence vacated before even attempting to make a federal claim under Section 1983 of the Civil Rights Act, he added.

Wide Interest

The case has attracted widespread interest among criminal law practitioners, with a number of interested groups, the federal government and 49 state attorneys general, filing amicus briefs on behalf of the former prosecutors.

Various civil liberties groups, including the American Civil Liberties Union, have filed briefs in support of Goldstein.

In a brief filed by Stephen N. Six, the attorney general of Kansas, the state attorneys general, including Edmund G. Brown Jr. of California, argue that the 9th Circuit was wrong to draw a distinction between prosecutorial and administrative duties.

The attorneys general warn of an adverse affect on the criminal justice system if the Supreme Court was to adopt the 9th Circuit's rule because supervising attorneys would then have less immunity than trial prosecutors, whose absolute immunity would not be affected.

"The appropriate rule in this context is to accord the supervising prosecutor at least the same level of immunity as the trial prosecutor," Six wrote.

Goldstein's case may be a narrow legal issue, but it also touches upon wider questions about criminal justice policy, according to his supporters.

Alexandra Natapoff, a professor at Loyola Law School in Los Angeles, sees Goldstein's case as just one example of the over-reliance on informants like Fink.

A former federal public defender who contributed to the ACLU's brief in the case, Natapoff is an expert on informant culture. She maintains that prosecutors have too much discretion when handling dozens, or even hundreds, of informants used in various cases.

That those same prosecutors then have immunity as well tilts the deck even further in their favor, she argues.

"It's the deal we have cut," Natapoff said.

Goldstein's experience was "just one rich example of the potential cost of that deal."

Although the Los Angeles County district attorney's office is now much better regulated, due in part to the 1990 grand jury report, civil rights groups claim that does not mean that others around the country have followed the same path.

Santa Cruz-based ACLU attorney M. Allen Hopper, who wrote the group's amicus brief, believes that although the court made it clear in Brady and Giglio that prosecutors must disclose any deals made with informants, there's no evidence that they consistently follow those rules.

In that sense, if the Supreme Court was to uphold the 9th Circuit the case could have wider implications, he added.

"A ruling in Goldstein's case would send a clear message to prosecutors around the country," Hopper said.

It's a message that Van de Kamp doesn't think needs to be sent.

"If this case gets upheld, I don't know why anyone would want to be a DA," he said.

Posted 5:00 PM by Howard Bashman

DAILY JOURNAL NEWSWIRE ARTICLE
http://www.dailyjournal.com
© 2008 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 3, 2008

Pre-emption Tops Justices' Fall Docket
Roberts' Impact on The High Court Is Still Being Debated

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - The increasingly high-profile debate over the extent to which federal law trumps state law takes center stage Monday when the U.S. Supreme Court opens its 2008 term.

After hearing six cases on federal pre-emption last term, the court already has another two on its docket, including one that is the first case to be argued this fall.

It concerns whether federal law pre-empts state law on the issue of how tobacco companies can market low tar cigarettes. Altria v. Good, 07-562.

Revisiting Last Term

Last term, the court found in favor of pre-emption in a series of cases, including a drug device case in which the court ruled in an 8-1 decision that federal law pre-empts state law when it comes to regulating certain types of devices. Riegel v. Medtronic, 128 S.Ct. 999 (2008).

The justices are hearing the second, and possibly even more important, pre-emption case in November.

That is a case about whether plaintiffs can file suit against drug companies in state court over pharmaceutical products if the Federal Drug Administration has already approved the drug. Wyeth v. Levine, 06-1249.

Devastating for Trial Lawyers?

If the pharmaceutical companies win in Levine, it could be devastating for trial lawyers, who could be denied the opportunity to file drug liability cases in state court, depending on how broad the ruling is.

Pre-emption is a suitable note on which to open the 2008-2009 term. In the absence of any sure-fire blockbuster cases this fall, it is set to be one of the dominant issues.

Levine and Altria "are really the two very important cases the court will decide in the business area this year," according to Paul Clement, who recently stepped down as solicitor general.

The business community - and the Bush administration - is keen to push pre-emption as a way to prevent state court juries from awarding multi-million dollar verdicts to plaintiffs.

Georgetown Law Center's David Vladeck, who previously headed consumer advocacy group Public Citizen's litigation team, describes the expanded role of pre-emption as the "get-out-of-jail-free defense" for corporate defendants.

Furthermore, as Erwin Chemerinsky, dean of the new law school at University of California at Irvine, points out, the court under Chief Justice John G. Roberts Jr. has "found pre-emption in every cases where there's been a business challenge to a state or local regulation."

But, as court-watchers note, there is a significant difference between Altria and Levine that could have a major impact on how they come out. Altria, rests on whether Congress explicitly stated that federal law pre-empted state law.

This "express pre-emption" argument, based on finding specific statutory language that makes it clear Congress intended for state law to be pre-empted, was successful in Riegel.

But in Wyeth, the issue is whether pre-emption occurs through implication, not express statutory authorization, in what as known as "implied pre-emption".

Gibson Dunn & Crutcher partner Theodore B. Olson is arguing Altria for the cigarette manufacturer in what will be his 50th appearance before the court, but - having successfully argued Riegel last term - he is also keeping a close eye on Levine.

He said in an interview that the case will clearly be a "topic of conversation" in Levine, but he conceded that the emphasis on implied rather than express preemption could affect the outcome.

"It's not clear how it's going to come out, but the Riegel case is a precedent that will be on the minds of the justices," Olson said. "Do you want juries across the country deciding or do you want these standards set centrally by experts?"

It isn't easy to predict a winner in Levine, in part because, as Vladeck notes, several of the more conservative justices, including Clarence Thomas, have concerns about finding pre-emption when it isn't explicitly authorized in congressional legislation.

"Some of the die-hard conservatives have great skepticism about the courts ability to wipe away causes of action without guidance from Congress," he said.

Thomas, in fact, was the sole dissenter in one of the pre-emption cases last term in which the court held that the Federal Arbitration Act trumps state law in a dispute involving TV's "Judge" Alex Ferrer. Preston v. Ferrer, 128 S. Ct. 978 (2008).

That was one of six preemption cases last term. The court ruled in favor of pre-emption four times, with one 4-4 tie in another case involving pharmaceutical companies, in which Roberts recused himself. Warner-Lambert v. Kent, 128 S. Ct. 1168 (2008).

In the remaining case, in which the court did not find preemption, it was a secondary issue in the dispute involving the punitive damages oil giant ExxonMobil is required to pay for the Exxon Valdez oil spill. Exxon v. Baker, 128 S.Ct. 2605 (2008).

The fact that the court is taking preemption cases is nothing new, said Rebecca K. Wood, a partner in the Washington office of Sidley Austin.

It is just getting more attention now because the court is finding for preemption more often, she added.

But Wood stressed that, of the six cases last term, five involved express preemption. Kent was the only one that didn't. "One term does not a trend make," she said, but "the court did appear to find in favor of preemption more than it normally does."

9th Circuit Cases

Although pre-emption is a dominant theme so far, there are a number of other potentially important cases among the 41 already scheduled for argument.

Several emanate from the 9th U.S. Circuit Court of Appeals, often characterized - not always accurately - as the Supreme Court's punching bag.

One is a challenge to the Navy's use of sonar devices off the coast of California, which environmentalists say is harmful to whales. Winter v. Natural Resources, 07-1239.

The oral argument is Wednesday. Winter is one of three 9th Circuit rulings on environmental issues up for review this fall.

Another 9th Circuit case, scheduled for oral argument in November, addresses whether prosecutors in a long-ago Los Angeles County murder case should receive absolute immunity after the man convicted of the crime, Thomas Goldstein, was found to be innocent after spending 20 years in prison. Van de Kamp v. Goldstein, 07-854.

The case that is likely to attract the most headlines this fall, however, comes out of the 2nd U.S. Circuit Court of Appeals.

It revolves around the question of whether TV networks should be fined when someone swears on live TV.

At issue is the Federal Communications Commission's decision to change its long-standing policy and fine networks for so-called "flying expletives," a move the 2nd Circuit struck down as "arbitrary and capricious." FCC v. Fox, 07-582.

Although characterized by many as a censorship case, Marty Lederman, of Georgetown Law Center, notes that the case - which will be argued on Election Day - actually rests on the Administrative Procedures Act, which the networks are relying on.

"But, looming over the case, is the First Amendment question," he conceded.

Likely to be less prominent in the public eye are a number of employment cases, including one focusing on whether employees are bound by mandatory arbitration when their contract is negotiated by a union. 14 Penn Plaza v. Pyett, 07-581.

Gibson Dunn partner Eugene Scalia, son of Justice Antonin Scalia and an expert on employment law, described it as "potentially one of the most interesting and significant labor and employment cases" of the term.

As for criminal law, there are several Fourth Amendment cases scheduled for argument.

In one being argued Tuesday, the court will decide whether evidence seized during an arrest should be excluded because the arresting officer was incorrectly advised by an another law enforcement agency that there was a warrant for the defendant's arrest. Herring v. United States, 07-513.

Roberts' Impact

The term is likely to provide further guidance as to how Roberts is shaping the court as chief justice in what will be his fourth one in charge.

Sidley Austin's Wood points, for example, to the "lopsided" majorities in the recent preemption cases as a sign of the court moving "towards consensus and narrower rulings" that Roberts is said to favor.

That could foreshadow a narrow ruling in favor of the drug companies in Levine that would bring an end to some state lawsuits but not others, Irvine's Chemerinsky suggested.

Such a conclusion could be reached, he said, by drawing a distinction between potentially dangerous drug risks that have been known about for a long time, as in Levine, and products that have gone to market more recently.

Whatever Roberts' influence, Olson - who knows better than to offer anything less than fulsome praise to the court when he has a case pending - pronounced himself pleased with the chief justice's impact so far.

"Roberts has demonstrated in a short time that he is and will be an outstanding chief justice," he said. "He is a leader, but is also a team player."

Posted 11:40 AM by Howard Bashman

DAILY JOURNAL NEWSWIRE ARTICLE
http://www.dailyjournal.com
© 2008 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.

June 23, 2008

CHIEF KOZINSKI LAWYERS UP AS PROBE HEATS UP
Defense Lawyer Mark Holscher Will Represent Judge

By John Roemer
Daily Journal Staff Writer
SAN FRANCISCO - Chief Judge Alex Kozinski has hired prominent criminal defense lawyer Mark C. Holscher, the Daily Journal has learned.

The development Friday came as the 9th U.S. Circuit Court of Appeals' chief was in hot water for keeping sexually explicit photos on a Web site, alex.kozinski.com, that he said was intended to be private.

Kozinski did not follow his customary practice of returning a reporter's e-mail query. Instead, Holscher phoned but declined to discuss his work for the judge.

Disclosure of the photos forced Kozinski on June 13 to recuse himself from an obscenity trial he was overseeing in Los Angeles federal court.

That situation led Kozinski to call for a judicial misconduct investigation of himself.

Chief Justice John G. Roberts last week transferred the matter to the 3rd Circuit, based in Philadelphia, where a five-judge panel was convened to evaluate Kozinski's behavior.

Holscher, a partner at Kirkland & Ellis' San Francisco and Los Angeles offices, flew to Los Angeles Friday. Kozinski keeps chambers at the circuit's Pasadena courthouse.

Former Federal Prosecutor
The lawyer is a member of the firm's commercial litigation and white-collar criminal defense groups, according to the Kirkland & Ellis Web site. In an earlier position at O'Melveny & Myers, in Los Angeles, Holscher represented former Rep. Randall "Duke" Cunningham, R-Calif., who is currently serving an eight-year prison sentence for bribery, mail fraud and tax evasion. Holscher is a former assistant U.S. attorney in Los Angeles.

As a federal prosecutor, Holscher appeared in 1995 before a 9th Circuit three-judge appellate panel led by Kozinski to defend the conviction of a defendant in a complex loan fraud scheme. Kozinski and the other panelists affirmed the conviction. U.S. v. Turman, 122 F.3d 1167.

Holscher was on a short list to be U.S. attorney for California's Central District in 2002.

Posted 9:18 AM by Howard Bashman

DAILY JOURNAL NEWSWIRE ARTICLE
http://www.dailyjournal.com
© 2008 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.

May 15, 2008

FDA PRE-EMPTION UNDER SCRUTINY
Democrats Probe Uptick in Federal Clampdown on Liability Suits

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - The Bush administration's expanded use of federal pre-emption when it comes to oversight of drugs and medical devices is now coming under the microscope in Congress.

At a House of Representatives Oversight and Government Reform Committee hearing Wednesday, Los Angeles Democrat Rep. Henry Waxman led the inquisition over the Federal and Drug Administration's increased use of the pre-emption doctrine since 2002.

Waxman, who chairs the committee, and other Democrats claim the FDA is increasingly taking the position that drugs or medical devices that have been approved by the agency are not subject to product liability litigation in state courts. The FDA maintains it is merely trying to ensure there are uniform federal standards.

Democrats have labeled the administration's stance as a form of back-door tort reform.

Hollywood actor Dennis Quaid, testifying about the overdose of the drug-thinner Heparin his twin babies received last year due to a labeling problem - provided a celebrity gloss to an otherwise dry occasion.

The relationship between the FDA's authority and state law is an issue that the Supreme Court is also wrestling with this year.

Testifying on behalf of the FDA, Dr. Randall Lutter, deputy commissioner for policy, maintained Wednesday that pre-emption is a legitimate tool for preventing inconsistent state laws from muddying the legal waters as the agency seeks to create uniform rules around the nation.

He also denied the agency has drastically changed the approach that previous administrations have taken, testifying that the policy "goes back a couple of decades."

Waxman didn't buy that explanation.

He noted that the agency expanded the scope of definition "in a rather tricky way" by adding language "at the last minute" to the preamble of a new regulation on drug labeling in 2006.

"I'm offended by that," Waxman said. "There is a branch of government under the Constitution that's supposed to make laws, and Congress was never asked to change the law."

Lutter said the FDA has authority under the Supremacy Clause of the Constitution to be the primary arbiter of whether a drug or medical device is safe.

As such, the FDA's decision should not be "second guessed" by state courts, which lack the expertise of government scientists and doctors, he added.

Rep. Christopher Shays, R-Conn., attempted to defend the agency, saying he wasn't convinced that the FDA hasn't always had the authority to pre-empt state law.

"I think some of the power has been implicit for a long period of time," he said.

Shays suggested that the FDA's lawyers should provide more details about the history of the agency's use of pre-emption.

But a series of expert panelists - albeit ones picked to testify by Democrats - agreed with Waxman that the Bush administration has taken a different approach to previous administrations.

David A. Kessler, the FDA administrator under Presidents George H.W. Bush and Bill Clinton, testified that the state tort system and the FDA have always worked in tandem to provide consumer protection.

Kessler, trained as both a lawyer and a physician, is a professor at University of California, San Francisco, the university system's medical school.

Acting alone, he explained, the FDA does not have the resources to continue oversight of products once they have been approved.

It's the threat of lawsuits that acts as an incentive for manufacturers to be forthcoming about possible defects, Kessler added.

"The tort system has historically provided a critical incentive to drug and device companies to disclose important information to physicians, patients and the FDA about newly emerging risks," he said.

Putting a human face on the issue was actor Quaid, whose twins nearly died as a result of the Heparin overdose last year at Cedars-Sinai Medical Center in Los Angeles.

A nurse incorrectly gave the babies 1,000 times the amount of blood thinner they needed, in large part because the label on the bottle was very similar to the one that contained the smaller dose.

Quaid has since filed suit against the manufacturer, Baxter Healthcare Corp., which has now invoked the pre-emption argument in a bid to get the case dismissed, he testified.

The FDA has effectively given Baxter "the government's seal of approval, a get-out-of-jail-free card that denies us the right to hold the company accountable," he told lawmakers.

Although the focus of the hearing was on the Bush administration, it is the Supreme Court that has really set alarm bells ringing as far as Democrats are concerned.

By the end of this year it will have heard three cases on pre-emption within months.

In February, the court ruled that plaintiffs cannot file state suits against medical device manufacturers that require pre-market approval from the FDA. Riegel v. Medtronic Inc., 128 S. Ct. 999 (2008).

A month later, the court was deadlocked 4-4 in a case addressing whether state claims that an FDA drug approval was obtained by fraud are also pre-empted. Warner-Lambert Co. v. Kent, 06-1498.

This fall, the court will wade into the issue again when the court decides whether drug lawsuits should be pre-empted. Wyeth v. Levine, 06-1249.

Waxman is already planning to introduce legislation that would make it clear that FDA approval does not pre-empt state law claims, in large part as a reaction to Riegel.