The Appellate Strategist : Appellate Lawyers & Attorneys for Updates on Trial Consultations, Amicus Briefs & Punitive Damage Awards

We continue our profiles of short-listed potential nominees to replace Justice John Paul Stevens with a non-judicial candidate, Jennifer M. Granholm, the current governor of Michigan.

As Jennifer M. Granholm is nearing the end of her second and last term as governor of Michigan, she is once again on a short list of possible candidates to replace a retiring U.S. Supreme Court justice.  If she serves on the high court, she would be the only current justice to have held a state wide political office, to have no previous judicial experience and would be the first former state governor to sit since Earl Warren retired in 1969, in addition to being the third female member of the court.

While Granholm was born in Vancouver, British Columbia, her family moved to California when she was a child. At 18, she became a U.S. citizen. She was an honors graduate of both the University of California at Berkeley and Harvard Law School, where she edited the Civil Rights and Civil Liberties Law Review. While at Harvard she wrote articles warning about the potential threat the civil liberties presented by an increasing surveillance society and by the lack of transparency and access to public information. After graduating law school in 1987, she and her husband moved to his native state of Michigan, where they eventually had three children.

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The California Supreme Court, in O'Neil v. Crane Co., No. S177401, is considering the liability of an equipment manufacturer under these circumstances:  The manufacturer sells a product pursuant to the buyer's specifications (say, a valve or pump) that is accompanied by an allegedly defective part (say, an asbestos-containing gasket) made by another, which is incorporated into a much larger and highly complex installation of machinery (say, the propulsion system for a Navy war vessel) designed by the buyer.  Over decades, the gasket is replaced many times during scheduled maintenance.  Eventually a replacement gasket, produced by an unknown third-party supplier, releases asbestos dust that causes injury.  May the original equipment manufacturer be found liable?
 
The first California Court of Appeal decision to address this question was issued by the First Appellate District (Division 1).  Taylor v. Elliott Turbomachinery Co., 171 Cal.App.4th 564 (2009). Taylor found the manufacturer was not liable because:

• it was not in the chain of distribution of the defective part, and received no profit or other economic benefit from the sale of the part;
• a manufacturer is not liable for an injury caused by a component part supplied by another unless the manufacturer's product caused or created the risk of harm, and
• a manufacturer is not liable where it simply produces a product pursuant to the specifications of a buyer who intends to incorporate it into a buyer-designed product unless the manufacturer's part itself caused the injury, which was not the case in Taylor.

The California Supreme Court declined  review.
 
Seven months after Taylor was decided, the Second District (Division 5) of the Court of Appeal handed down O'Neil v. Crane Co., 99 Cal.Rptr.3d 533 (2009).  O'Neil expressly rejected the holding and analysis of Taylor under analytically indistinguishable facts, concluding that the original product manufacturer may be liable on the theory that the pumps and valves were designed to be used in conjunction with asbestos-containing parts, and the foreseeable use of the product required maintenance which included periodic replacement and disturbance of parts containing asbestos.  If this foreseeable use caused injury, the court found, the manufacturer may be liable for that injury under established California law.  The Supreme Court granted the manufacturer's petition for review.
 
Shortly after O'Neil was decided, and before the Supreme Court granted review, another division (Division 3) of the Second District, in a published opinion, followed Taylor and ignored O'Neil in Merrill v. Leslie Controls, 101 Cal.Rptr.3d 614 (2009).  The Supreme Court issued a "grant and hold" in Merrill (that is, the court granted review and deferred briefing until O'Neil is decided).  Three months later, Division 2 of the Second District decided Hall v. Warren Pumps LLC, 2010 WL 528489 (unpublished) (2010), which also followed the reasoning and holding of Taylor.  A petition for review of Hall is pending, and undoubtedly the Supreme Court will issue a grant and hold in that matter as well.
 
Now yet another division of the Court of Appeal (Second District, Division 4) has expressed its views on the issue.  In a published opinion (Walton v. The William Powell Co., __ Cal.App.4th __, 2010 WL 1612209) the court explicitly adopted the analysis, conclusions, and holdings of Taylor while declining to address O'Neil or its reasoning in light of the Supreme Court's grant of review.  That the court decided to publish its views while breaking no ground not covered by Merrill suggests that is strongly wished its voice to be clearly heard while the Supreme Court is considering the question.  The Supreme Court will unquestionably issue a grant and hold in Walton; however, for those keeping score the number of justices voting for the Taylor view now stands at twelve, while there are three who support O'Neil.  The votes of the justices who will put the issue to rest is expected in the first half of 2011.

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An April 21 decision of the US. Supreme Court is must reading for attorneys who collect debts.  Making a legal mistake can subject the attorney and the firm to liability under the Fair Debt Collection Practices Act.

In Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA (.pdf), the law firm filed a complaint in state court.  The complaint contained a statement that the mortgage debt in question would be assumed valid unless the debtor disputed the debt in writing. When debtor’s attorney showed that the debt had been paid the original lawsuit was dropped.  Debtor then sued the firm and one of its attorneys for violating the FDCPA, alleging that the statement in the complaint that the debt must be disputed in writing was false.

The district court found that the complaint had, indeed, violated the Act but that the defendants were entitled to summary judgment on their statutory “bona fide error” defense under 15 U.S.C. 1692k(c). This provision allows a defendant to escape liability by showing that the violation was not intentional,  but resulted from a good faith error occurring despite the maintenance of reasonable procedures.

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We continue our profiles of short-listed potential nominees with Leah Ward Sears, former Chief Justice of the Georgia Supreme Court.

Justice Sears was born in 1955 in Heidelberg, Germany, where her father served as a colonel in the Army.  Her family later settled in Savannah, Georgia, and she attended high school there.  She received her bachelor’s degree from Cornell University, J.D. from Emory University School of Law, and, later, an LLM from the University of Virginia Law School in 1995.  After graduating from law school she joined the Atlanta law firm of Alston & Bird. 

Five years later Atlanta Mayor Andrew Young appointed Sears to Atlanta’s City Traffic Court, and three years after that, in 1988, she was elected to the Superior Court of Fulton County, Georgia – the first African-American woman to hold this position in Georgia.  In 1992 Georgia governor Zell Miller appointed her to Georgia’s Supreme Court.  She was the first woman and the youngest judge (36) to sit on that court.  She became Chief Justice in 2005 and retired from the court in 2009 when her term as Chief Justice ended.  She is now with the law firm of Schiff Hardin, LLP, in Atlanta. 

Justice Sears was among those considered last year to replace Justice David Souter.

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Appellate Strategist’s continuing series of profiles of “short list” candidates to replace the retiring Justice John Paul Stevens continues with Judge Sidney Thomas of the 9th Circuit Court of Appeals.  Judge Thomas is notable for his relatively conventional professional path, and his geographic and educational roots.  Where many of the current Justices arrived at the Court from the East Coast, Judge Thomas hails from Billings, Montana.  Many Justices had backgrounds in public service before assuming the bench, but Judge Thomas toiled as a private litigator representing a diverse array of commercial interests before the Montana Supreme Court and the federal appellate courts.  And, if he joins the Court, he’d be the only non-Ivy Leaguer among the justices.

Judge Thomas was born in 1953 in Bozeman, Montana, and graduated from Montana State in 1975.  He went directly to law school at the University of Montana, graduating in 1978.  In private practice, he represented mineral rights interests in cases ranging from inverse condemnation to the validity of oil and gas leases, as well as employers in wrongful discharge cases, newspapers in defamation cases, and a national broadcast network in a constitutional challenge to a Montana statute.

While in private practice, Judge Thomas supported the campaign of Senator Max Baucus, D- Mont., who later recommended him for the 9th Circuit.  President Clinton nominated Judge Thomas, who was confirmed by the Senate without controversy in January, 1996.

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In Pearson Dental Supplies, Inc. v. Sup. Ct., the court considered an arbitrator’s decision, pursuant to a mandatory arbitration agreement, that an employee’s discrimination claim was time barred. Since by failing to apply the tolling statute CCP § 1281.12, the arbitrator had committed “a clear error of law” which would deprive the employee of any review on the merits “of an unwaivable statutory employment claim,” the California Supreme Court ruled that the trial court could vacate the award. At the same time, the Court rejected an argument to strike down the arbitration agreement as a whole because it barred access to administrative remedies and set a one year limitations period. In concluding that it was “reasonably susceptible to a lawful interpretation,” the Court interpreted the restriction on administrative remedies as affecting only adjudicative agencies, such as the Labor Commissioner, while not affecting prosecutory agencies, such as the FEHA. For more case history, see the ADR update page.

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Since the days of Robert Bork, it has happened, sooner or later, to every Supreme Court nominee: the uncomfortable moment when a Senator quotes one of the nominee’s writings back to him or her, smiles across the Committee table, and says: “Explain that.”

If Solicitor General Elena Kagan is nominated to replace Justice John Paul Stevens on the Supreme Court next month, as observers like Tom Goldstein of SCOTUSBlog and Jeffrey Toobin of the New Yorker expect, here’s the quote she’ll be hearing:

When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public.

Kagan wrote that in a 1995 book review for the University of Chicago Law Review. During her 2009 confirmation hearings, she addressed the issue this way: “I am also less convinced than I was in 1995 that substantive discussions of legal issues and views, in the context of nomination hearings, provide the great public benefits I suggested. Yet that leaves the question just what these hearings should be about – what matters Senators should explore with the nominee and how the nominee should be evaluated. I confess to finding these questions very difficult.”

Kagan’s professional background is described in detail in the Background Questionnaire she completed for the Judiciary Committee in 2009. A native New Yorker, she received her undergraduate degree from Princeton and a Masters from Oxford. After graduating from Harvard Law School in 1986, she clerked for Judge Abner Mikva on the D.C. Circuit, and then for Thurgood Marshall at the U.S. Supreme Court. Between 1989 and 1991, Kagan was a junior associate at Williams & Connolly in Washington, handling a mix of commercial, First Amendment and white-collar criminal litigation.

Since that time, Kagan’s career has shuttled between academia and public service. She joined the faculty at the University of Chicago Law School in 1991, but left temporarily to serve at the request of now-Vice President Biden as Special Counsel to the Senate Judiciary Committee during the confirmation hearings for Justice Ginsburg in 1993. 

In 1995, she interrupted her academic career again to serve as Associate Counsel to the President, and later as Deputy Assistant to the President for Domestic Policy. After leaving the White House in 1999, she was a Visiting Professor at Harvard Law School, becoming a resident Professor in 2001 and Dean of the Law School in 2003. Kagan was nominated and confirmed as the first woman to serve as Solicitor General in 2009.

General Kagan’s Tenure as Solicitor General. Since Justice Stevens announced his retirement, there’s been considerable public discussion of Kagan as a potential nominee. Columnist Glenn Greenwald has expressed concerns about her substantive views, former Solicitor General Walter Dellinger and Tom Goldstein of SCOTUSBlog have defended her, and Greenwald has responded.

Although these columns have been largely concerned with policy, Kagan’s performance as Solicitor General has come in for some criticism as well. Writers in both Salon and the New York Times have been critical of Kagan’s tenure, and other columnists have quoted from, and linked to, those articles. However, these criticisms do not stand up to close analysis.

Join us below to jump to see why.

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In conference Wednesday (see list of actions), the Court granted review in Save the Plastic Bag Coalition v. City of Manhattan Beach, in which the Court of Appeal upheld vacating a city ordinance banning the use of plastic bags because an environmental impact report was not prepared. See the Environmental update page. In addition, the Court granted review in Harris v. City of Santa Monica, in which the Court of Appeal reversed a plaintiff’s judgment for discrimination because the trial court had failed to give an instruction on mixed motives for her discharge. See Employment – Other update page. In a previous action outside of the weekly conference, the Court asked for additional briefing in Reid v. Google addressing exactly how a party can preserve evidentiary objections so that they are “made at the hearing.” See the Civil Procedure/Evidence/Discovery update page.
 

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California’s Unfair Competition Act has generated an enormous amount of litigation, and has long been a target of tort reform groups. Those reform efforts met with an important success in 2004, when the voters approved Proposition 64, finding that the statute had been “misused by some private attorneys” to file “frivolous lawsuits as a means of generating attorney’s fees.” Proposition 64 significantly tightened standing requirements for private enforcement suits based on the UCL.

Earlier this week, the Fourth District of the California Court of Appeal filed an important decision strengthening the arsenal of weapons available to defense counsel defending UCL suits.

Durell v. Sharp Healthcare [pdf] was a putative class action alleging violations of the UCL, the Consumer Legal Remedies Act, and various common law claims. Plaintiff had been a patient in the defendant’s emergency room several times, and he alleged that the defendant had engaged in deceptive and unfair practices by billing uninsured patients such as plaintiff its full standard rates, while accepting sharply reduced payments for Medicare and privately insured patients.

The UCL prohibits “unlawful, unfair or fraudulent” business acts. In 2009, the state Supreme Court held in In re Tobacco II Cases that Prop 64 meant that a plaintiff must show actual reliance on any supposed misrepresentation to plead a “fraudulent” act. The first question for the Court in Durell was whether Tobacco II applied equally to the “unlawful” prong of the statute.

The court unequivocally held that it did:

A consumer’s burden of pleading causation in a UCL action should hinge on the nature of the alleged wrongdoing rather than the specific prong of the UCL the consumer invokes.

But the court went even further. In Cel-Tech Communications, the state Supreme Court held that a competitor’s claim of an “unfair” act had to be tethered to an incipient violation of an antitrust law, or a comparable statute aimed at protecting competition. Since then, the districts of the Court of Appeal have been divided as to whether Cel-Tech applied to consumer actions. Durell came down firmly on the side of applying the restrictive Cel-Tech test to plaintiff’s action, a test he came nowhere near meeting. Plaintiff’s failure to plead causation was similarly fatal to his claim under the Consumer Legal Remedies Act.

Durell is an important reaffirmation of the voters’ will in Prop 64, and the message for the defense bar is clear: when defending a UCL case based on a purported misrepresentation, always begin by carefully studying plaintiff’s allegations of reliance.

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Demonstrating the potential significance and broad implications of the California Supreme Court's deliberations in Loeffler v. Target Corporation, so far a total of nine amicus briefs have been filed on behalf of sixteen entities addressing the issue of whether a taxpayer can directly bring suit against a retailer who allegedly charged a sales tax on transactions that were not taxable. The concerned entities unwilling to wait on the sidelines range from consumer groups and taxpayer advocates to statewide and national retailers, as well as the California Attorney General and the California State Board of Equalization. Some of these had also filed briefs with the Court of Appeal, which barred the taxpayer claim.

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“What do I do with this case?” asked Justice Breyer in the final minutes of oral argument Monday morning in Christian Legal Society v. Martinez [pdf].

Justice Breyer’s question underscored the apparent confusion regarding what exactly was being challenged in the Christian Legal Society’s case against Hastings College of the Law. Despite the acknowledged importance of the constitutional question – whether and to what extent a public school may require officially recognized student groups to adhere to a non-discrimination policy even if that policy conflicts with a religious organization’s religious beliefs – this confusion may actually discourage the Court from answering the issue directly, in favor of remanding to the lower courts in order to develop a clear factual record.

When argument commenced, the Court almost immediately sought to identify just what it was being asked to decide. 

• Was it the constitutionality of the “written policy” (the school’s  non-discrimination policy) or
   
• The “all-comers policy” (the condition that a registered student organization’s bylaws must provide that its membership is open to all students”)?
   
• Justice Scalia postulated that “the all-comers policy [is] broader than the non-discrimination policy, so that if you comply with that, you automatically comply with everything in the non-discrimination clause.” CLS counsel, Stanford Law Professor Michael McConnell, argued that both are unconstitutional.

Moreover, were the policies being enforced evenly by Hastings on all student groups, or just against CLS?  Justice Kennedy noted the parties did not agree on what case was before the Court. Counsel for Hastings, Gregory Garre, agreed that if the factual record showed the policy was not evenly applied to all groups, the policy would be unconstitutional. Kennedy appeared to concur: “It’s a much different case if Hastings treats the CLS differently than it treats the Democratic and Republican Club.” But given the newly emergent disagreement regarding the facts – i.e. whether the law school’s policies and requirements for registered student organizations were in fact being applied even-handedly – Justice Kennedy stated his concern that “it’s frustrating for us not to know what kind of case we have in front of us.”

Justice Breyer expressed perhaps the strongest frustration, saying: “I have an absolute void in this record, which in turn I think would be important to fill.” He continued: “where I feel I need more facts and I don’t have them . . . what should I do?” Even Mr. Garre conceded the presence of a new dispute: “This case was litigated based on stipulations to avoid precisely these factual issues that we are now talking about for this first time before this Court.” 

Nevertheless, the Court pressed on, attempting to reach the core constitutional question. And a large part of questioning was directed at what could be labeled the “take over problem”: the CLS’s objection to “being run by non-Christians” if it were forced to allow enrollment of members and officers who do not share the group’s core beliefs.  

At one point, Justice Alito asked Hastings’ counsel: “suppose at a particular campus there is a great deal of anti-Muslim animus. And there is a small Muslim group; it has ten students. If the group is required to accept anybody who applies for membership, and 50 students who hate Muslims show up and they want to take over that group, you say: First Amendment allows that?” Mr. Garre parried, saying “this example has never happened at Hastings in 20 years.” 

Garre insisted that “[g]roups can take measures to prevent [such a ‘takeover’].” But Chief Justice Roberts and Justice Alito pressed Garre. Justice Alito demanded to know what recourse an organization would have if such a “hostile takeover” were to actually take place. Garre suggested that “the members would rejoin and form another group,” to which Justice Alito quipped: “if hostile members take over, former members of CLS can form CLS2?” drawing laughter from the gallery.

In contrast, Justice Ginsburg had earlier pointed out that “all the hypotheticals about sabotage, takeover, they haven’t happened.” Justice Kennedy expressed a similar pragmatic view: “Why doesn’t this just all work out? If the Christian Legal Society has these beliefs, I am not so sure why people that don’t agree with them want to belong to them. What . . . doesn’t this all just work out?” This viewpoint would put these two Justices at odds with Chief Justice Roberts and Justice Alito, who seemed unwilling to resolve the issue by resorting to the conclusion that the feared “take over situation” is unrealistic.

Regarding what type of membership discrimination would be permissible, each advocate tried to draw a distinction. Faced with questions about whether a student organization could exclude members because of their race or gender, counsel for CLS distinguished between discrimination based on a potential member’s “status” and discrimination based on a potential member’s “belief” in the organization’s tenets. Mr. McConnell argued that an organization may permissibly condition membership on the latter, but not on the former.

And Hastings’ counsel conceded that an organization may permissibly create “merit” requirements for membership and officer positions within the organization, such as “pass[ing] a test on the Bible” if such a test “were truly an objective knowledge test.” To which the Chief Justice countered: “I assume there are groups that think subscribing to their beliefs is evidence of merit, particularly religious groups. So how can you have a test that allows distinctions based on merit but not beliefs?” At one point the law school seemingly pled the position that by adopting its non-discrimination policies it was merely taking a position of ultimate neutrality: “Hastings isn’t in the business of second-guessing the beliefs of individual groups.” 

Reading the proverbial tea leaves is always an exercise in speculation. Justices Scalia and Alito, along with the Chief Justice, appeared more sympathetic to CLS’ position, while Justices Ginsburg, Sotomayor, and Kennedy appeared to favor the arguments of Hastings. Both Breyer and Kennedy expressed dissatisfaction with the state of the record and confusion about just what issue was before the Court.  This case may turn out to be a tempest in a teapot.

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This afternoon, the Illinois Supreme Court published its May docket for oral arguments, and the Court’s docket includes nine civil cases. The cases, with the issue or issues presented in each, are:

May 13:

• Hurlbert v. Charles, No. 109041: “Under the Supreme Court's decision in People v. Moore, 138 Ill.2d 162 (1990), does a finding of probable cause in a drivers' license summary suspension hearing arising from a DUI arrest collaterally estop the driver from relitigating the issue in a subsequent civil action?

May 18:

• In re Estate of Mary Ann Wilson, No. 108487: “Does 735 ILCS 5/2-1001(a)(3) of the Code of Civil Procedure permit a judge to make an initial determination of whether a petition to substitute judges for cause makes a threshold showing of prejudice before transferring the matter to another judge for decision?
   
• Vancura v. Peter Katris, et al., No. 108652: “(1) Was notary’s employer liable under the Notary Public Act, 5 ILCS 312/7-102, where notary authenticated forged signature on mortgage assignment, based on a theory that employer either expressly or impliedly consented to notary’s alleged misconduct? (2) Is the Notary Public Act the exclusive statement of the standard of care in an action for negligence against a notary? (3) Did notary’s employer breach any applicable duty to train and/or supervise?”
   
• State Building Venture v. O’Donnell, No. 108673: “(1) Was the action of a tenant in a state-owned office building against a state department on its lease barred by either sovereign immunity or collateral estoppel? (2) If not, did the enabling statute 20 ILCS 405/405-315(a)(s), unambiguously permit leases with automatic renewal periods?”
   
• Ready v. United/Goedecke Services, Inc., No. 108910: “Where a defendant has denied liability, may defendant introduce evidence regarding the conduct of other defendants who have settled in good faith pre-trial for the purpose of showing that one or more of the settling defendants were the sole proximate cause of plaintiff’s injuries?”

May 19:

• Millennium Park Joint Venture, LLC v. Houlihan, No. 108923: “Are the remedies set forth in the Property Tax Code, 35 ILCS 200/23-5, 23-10, 23-15, a taxpayer’s sole avenue for arguing that an assessed property tax is ‘unauthorized by law’?”
   
• Hubble v. Bi-State Development Agency, No. 109137: “Is the defendant, an agency formed pursuant to an interstate compact, a “local public entity” within the meaning of the Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/8-101, and therefore subject to the one-year statute of limitations set forth in the Act.”
   
• Irwin v. Department of Revenue, No. 109300: “(1) Did corporate aircraft hangared in different state have substantial nexus to Illinois sufficient to permit Illinois to impose use tax on purchase price of plane? (2) If so, was Illinois statute's system of credits for tax paid other states sufficient to satisfy Interstate Commerce clause without further apportionment?”
   
• Wright Development Group, LLC v. Walsh, No. 109463: “(1) Where the Citizens’ Participation Act gives a defendant successfully moving to dismiss an action a right to an award of attorneys’ fees and costs incurred in connection with the motion (735 ILCS 110/25), was defendant’s appeal from denial of his motion to dismiss mooted by the subsequent dismissal of the action on other grounds? (2) If not, was defendant entitled to dismissal of the defamation action pursuant to the Act?”

Decisions in these cases will be filed later in the year.

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In an 8-1 decision (.pdf), the United States Supreme Court struck down recently enacted 18 U.S.C. 48  which forbids the distribution of images depicting cruelty to animals. 

In United States v. Stevens, the defendant had been convicted of distributing videotapes of pit bulls attacking other animals.  Chief Justice Roberts, writing for the majority, held that the statute went too far.  Its language, which among other things, bans depictions of the unlawful killing or wounding of animals, could be used to prosecute persons distributing depictions of activities such as hunting that were lawful and even encouraged where they occurred but illegal in places (like the District of Columbia) that did not permit hunting.  Although the statute contained an exception for materials with “serious” educational or religious value, the exception did not adequately save the statute as a whole from overbreadth.

Justice Alito was the lone dissenter.  He accepted the government’s argument that the statute reached only depictions of sadistic activity.

It is encouraging that, despite ideological difference, the Supreme Court can achieve consensus on a constitutional issue.  Hopefully, Congress will learn the lessons of the Stevens opinion and craft an animal-cruelty law that is more precisely focused.

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As part of Appellate Strategist's ongoing evaluation of the “short list” of potential nominees to replace retiring Justice Stevens, we turn now to one of the nominees who was also on the short list to replace Justice Souter – Judge Kim McLane Wardlaw of the 9th Circuit Court of Appeals.

Judge Wardlaw is a California native, born in 1954 in San Francisco. She earned her undergraduate and law degrees at UCLA, graduating from law school in 1979. She clerked for the Hon. William P. Gray, U.S. District Court, Central District of California for two years, then worked in private practice as a litigator in Los Angeles from 1980-1995. Wardlaw worked on the Clinton-Gore Presidential Transition Team with the U.S. Department of Justice in 1992-1993, and later on the Mayoral Transition Committee for Los Angeles Mayor-elect Richard Riordan in 1993.

Wardlaw was nominated to the U.S. District Court, Central District of California, by President Clinton in 1995, and to the U.S. Court of Appeals for the Ninth Circuit in 1998. Both her confirmations were quick and unanimous. Such a history of bipartisan support might bode well for a future nomination.

Judge Wardlaw is often described as a moderate liberal or centrist, who would give the court greater diversity as the third female justice and the second Latina. She would also be the only non-Ivy League justice and offer extensive experience as a private litigator.

Join us below the jump for a review of notable Ninth Circuit opinions authored by Judge Wardlaw:

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Appellate Strategist has posted several times in the last week about names being discussed as possible nominees to replace retiring Justice John Paul Stevens. But a list of names, however important, says little about the nominees. We therefore begin our series of short profiles of those whose names top the list. We begin with Carlos Moreno, an Associate Justice of the California Supreme Court.

The recipient of a B.A. in political science from Yale University (1970) and a 1975 J.D. from Stanford Law School, Carlos Moreno served in the Los Angeles City Attorney's Office, prosecuting criminal and civil consumer protection cases. In 1979, he joined a private firm, representing clients in general commercial litigation. He has a solid background as a trial judge, having served on the Los Angeles Superior Court and the U.S. District Court of Appeal, Central District of California. He was appointed to the California Supreme Court in 2001.

Moreno’s standing as a legal scholar is beyond dispute. He has a well-deserved reputation for integrity that cuts across ideological boundaries, and a good judicial temperament, though he has been known to politely but firmly challenge attorneys who make bald statements about legal propositions, often asking “what’s your authority for that, counsel?” (That is not a criticism, by the way.) He construes statutes as they are written, even if he disagrees with the underlying policy, subscribing to the (sometimes novel) view that that is a jurist’s job. His substantive specialties include criminal cases and arbitration.

Join us below the jump for a sampling of recent opinions he has authored.

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Justice John Paul Stevens has been tagged by many as a “liberal.” Appellate Strategist does not propose to debate that general proposition here. Rather, it’s time to begin assessing what effect his absence might have on the growing body of Supreme Court jurisprudence that has been cutting back, a little at a time, on the blockbuster punitive damages awards that so commonly make the headlines. Or at least used to make the headlines.

Here are a few thought-provoking tidbits concerning his role in the development of this important body of law: 

• Justice Stevens pioneered the recent punitive damages jurisprudence, authoring two of the Court’s first forays into the constitutionality of the award amounts. The first was the “granddaddy” of them all, BMW, which blazed the trail. (BMW of No. Amer. v. Gore (1996) 517 U.S. 559.)  After that came Cooper, which created an unprecedented de novo standard of review of punitive awards for constitutional excessiveness. Appellate courts were no longer constrained by the trial judges’ decision re the propriety/excessiveness of the amount. Cooper gave courts of appeal a free hand to bring the excessive “outlier” verdicts into line. (Cooper Industries, Inc. v. Leatherman Tool Group, Inc. (2001) 532 U.S. 424.)
   
• He joined in the Campbell majority opinion, the behemoth that expanded the defendant’s constitutional rights beyond a mere review for excessiveness of the amount. (State Farm Mut. Auto. Ins. Co. v. Campbell (2003) 538 U.S. 408.)
   
• He dissented in Williams. He still believed that due process imposes both substantive and procedural constraints on State power to impose punitive damages, but Williams presented a different issue. The majority held the State may not punish the defendant with punitive damages for harming other victims who were not plaintiffs and not before the jury. (Philip Morris USA v. Williams (2007) 549 U.S. 346.) Justice Stevens saw “no reason why an interest in punishing a wrongdoer ‛for harming persons who are not before the court,’ should not be taken into consideration when assessing the appropriate sanction for reprehensible conduct.” (Citation omitted.)
   
• We discount the Court’s most recent decision, Exxon Shipping Co. v. Baker (2008) 128 S.Ct. 2605, which presented unique issues of punitive damages under federal maritime law, and anyway, there are so many separate opinions and joinders, it would take a computer program to keep the justices’ various positions straight.

These cases have revolutionized the law of punitive damages, helped level the once-tilted playing field, and afforded them relief – in the form of reduced awards – awards that a few years ago were often rubberstamped on appeal as within the jury’s discretion. Countless billions – literally – “billions” with a “b” – have been saved thanks to these legal developments. He clearly made an important contribution.

Now the burning question is: where will the successor stand? In a series of future posts, Appellate Strategist will try to explore that question, and perhaps even offer some answers.

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As Appellate Strategist reported a week ago, when Justice John Paul Stevens announced his retirement, most Supreme Court observers believed that the "short list" contained three names: Solicitor General Elena Kagan, Judge Diane Wood and Judge Merrick Garland. But even as the White House is suggesting that a nominee will be named in early May, it appears that the "short list" is growing longer.

CNN reports that Judge Sidney Thomas of the Ninth Circuit is under consideration as a possible nominee.  Judge Thomas was in private practice in his native Montana before he was nominated to the Ninth Circuit by President Clinton. He has served on the Ninth Circuit since 1996.

According to ABC News, Leah Ward Sears, former Chief Justice of the Georgia Supreme Court,  is on the President's short list as well. Justice Sears was appointed to the Georgia Supreme Court in 1992, and was sworn in as Chief Justice in 2005.  She retired from the court in 2009, and is now in private practice.

The Boston Globe is reporting that Professor Martha Minow, the Dean of Harvard Law School, is another possible nominee. Professor Minow has written extensively on human rights law.  She has taught at Harvard Law School since 1981.

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Many states have enacted statutes automatically invalidating, under one set of circumstances or another, contracts which seem to require mandatory arbitration of disputes. In a 5-0 decision today (with two justices not participating), the Illinois Supreme Court cast such statutes in doubt, holding that two clauses of the Illinois Nursing Home Care Act were preempted by the Federal Arbitration Act. Carter v. SSC Odin Operating Company.

Plaintiff's decedent and plaintiff herself, as special administrator, executed contracts providing that disputes over decedent's care while she lived in the defendant's nursing home would be decided in arbitration. After decedent's death, plaintiff sued for wrongful death and violations of the Nursing Home Care Act. The defendant moved to compel arbitration, relying upon section 2 of the Federal Arbitration Act.

At first glance, the Illinois Nursing Home Care Act would seem to have required the Circuit Court to deny defendant's motion. The Act invalidates any waiver by a resident or his or her legal representative of the right to sue under the Act, and also invalidates any waiver of the right to trial by jury for an action under the Act. But not so fast: according to the Federal FAA, mandatory arbitration terms are valid "save upon such grounds as exist at law or in equity for the revocation of any contract."

So was the Nursing Home Care Act's language grounds equally applicable to revocation of any contract? No, according to the Illinois Supreme Court.

The sort of defense Congress had in mind, the Court wrote, was fraud or lack of consideration -- general defenses that had nothing specifically to do with arbitration. But the FAA strips the states of any power to invalidate arbitration clauses per se. According to the unanimous Court, that national policy is to be applied in broad terms: any statute requiring that a dispute be resolved in court is invalid if the underlying contract had a mandatory arbitration clause.

The lesson for defense counsel is clear. If a statute forbids waiver of a cause of action, or requires a jury trial, and the contract at issue contains an arbitration clause, the underlying statute is probably preempted. Under the Court's reasoning, a statute apparently aimed at protecting a certain class of plaintiffs -- whether nursing home residents, or seniors, or consumers -- from mandatory arbitration clauses will almost never prevail against the FAA. 

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On April 9, the Texas Supreme Court granted petitions for review in the following cases:

• Offshore Specialty Fabricators v. Wellington Underwriting Associates. The case addresses whether an all-risk insurance policy covers weather stand-by charges incurred by the insured.

• XTO Energy Inc. v. Smith Production Inc. The case will determine whether joint operating agreements for oil and gas drilling operations are construed according to their language only or whether industry custom should also be considered.  A possibly fundamental case in the oil and gas field.  

• Haygood v. de Escabedo. This case turns on whether the statute limiting recovery of medical damages to those “actually incurred” permits recovery of amounts charged but later written off by the provider.  The courts of appeals are divided on the issue, which arises in many personal injury cases.

• Reid Road Municipal Utility Dist. No. 2 v. Speedy Stop Food Stores Inc. The case will determine whether the “property owner rule” which permits property owners who are not qualified as experts to testify as to the market value of the property applies to corporate property owners.

• Andrade v. NAACP of Austin.  The underlying case is a challenge to the Secretary of State’s certification of certain paperless voting machines.  The case addresses whether voters have standing to challenge the Secretary’s certification and whether the Secretary enjoys sovereign immunity from such a suit.

• Marsh USA Inc. v. Cook. The case turns on the enforceability of non-solicitation agreements upon a former employee and whether the agreement was supported by independent consideration.

Oral argument has not yet been set for any of these cases.

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Today, the Illinois Supreme Court affirmed a punitive damage award that had been drastically reduced by the trial judge, and cut still more by the intermediate appellate court, to slightly over $80,000, or 1:1.  The State high court affirmed the punitives as reduced to 1:1.  This may sound like just another case applying the Campbell federal due process guidelines regarding excessive awards.  It isn’t. 

In Slovinski v. Elliott (pdf), plaintiff sued his former employer for defamation.  The jury awarded him $81,600 in emotional distress damages and $2 million in punitives.  The trial judge cut that number to $1 million; the appellate court chopped it down still more,  to 1:1.  The Illinois Supreme Court, with one dissenter, affirmed the reduction to $81,600.  In the process it provided some insight into Illinois procedure for “remitting” –  that’s appellate-speak for cutting –  punitive awards, and the propriety of the amount under Illinois state law.

Procedural challenges. Plaintiff argued that the reductions by the trial and appellate courts were procedurally improper for a number of reasons, e.g., that “specific findings” were required in order to cut, and the failure to make findings meant plaintiff should get his $2 million reinstated.  The answer to that one was “no.”  Courts are simply required to explain why a reduction is necessary, and why they think the trial judge or jury got it wrong, not to jump through meaningless hoops.  A refreshing, common sense approach.

Substantive challenge.   The Supreme Court began by noting that a punitive damage award never compensates the plaintiff, who has been made whole by the compensatory award.  Thus, the focus should be on whether the defendant’s conduct justifies the award.  After that, the court had no trouble concluding that $81,600 in punitives was ample punishment, noting:

• Defendant’s intent.  The jury heard no evidence that defendant had an intentional, premeditated scheme to harm the plaintiff.  At most, defendant consciously disregarded its employee’s rights. “This places defendant’s conduct on the low end of the scale for punitive damages, far below those cases involving a defendant’s deliberate attempt to harm another person.”

• No recidivism.  Defendant did not repeat the defamatory statements, but made them only once, and only those present at the meeting heard them.

• Minimal harm to plaintiff.  The jury’s compensatory damages verdict showed “limited harm to plaintiff.”  There was no damage award for loss of reputation or lost wages.  And on the emotional distress award, there was no evidence of any physical harm to plaintiff, no visits to a doctor or therapist, no evidence that plaintiff missed work, no evidence of any alteration in his daily work activities.

This is Illinois State law we’re talking about.  All of this analysis sounds reminiscent of the federal guidepost considerations used to determine when a punitive award is excessive under the due process clause.  But this court was not using a Campbell-BMW analysis.  Slovenski decided this as a matter of Illinois State law.  

This reduced verdict was affirmed because under Illinois law, “an award of punitive damages must be remitted to the extent that there is no material evidence to support it.”  Even in cases of defamation per se, the  malicious conduct necessary to support an award of punitive damages may not be presumed, but must be proved by competent evidence.”  (Emphasis added.)  The trial court thus abused its discretion is remitting the award to only $1 million because there is no basis in the record to support such an award. 

Trial judges take note: whether you cut or not, abuse of discretion won’t necessarily be a shield.

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In conference today (see list of actions), the Court granted review in Brown v. Mortensen, in which the Court of Appeal found that the Fair Credit Reporting Act preempted the restrictions imposed by the Confidentiality of Medical Information Act.  See B & P 17200/Class Actions/Commercial update page.  In addition, the Court also requested supplemental briefing in Murray v. Alaska Airlines, Inc. regarding the application, if any, its decision in McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88. See Civil Procedure/Evidence/Discovery update page.

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On April 19, the United States Supreme Court will hear argument in Christian Legal Society v. Martinez, the third constitutional law case involving a law school – this time UC Hastings – that has found its way onto the High Court’s docket in less than a decade. 

The root of the controversy is the law school’s refusal to recognize the CLS as a registered student organization (and its accompanying denial of University subsidization).  CLS requires its members to sign an affirmation of adherence to CLS’s Statement of Faith “indicating the member holds certain Christian viewpoints commonly regarded in both the Roman Catholic and Protestant evangelical traditions as orthodox[,] . . . including the Bible’s prohibition of sexual conduct between persons of the same sex..”   Hastings justifies its position because this CLS bylaw contravenes the University’s nondiscrimination compliance code prohibiting student organizations from discriminating on the basis of sexual orientation.  Hastings insists that “under federal and state mandates,” the College is “precluded from utilizing student fees to fund [CLS]’s activities until CLS bylaws comport with the Hastings nondiscrimination compliance code.”  CLS argues this condition of receiving and maintaining registered status imposed on CLS violates the organization’s First Amendment rights of expressive association, free speech, free exercise of religion, as well as the organization’s right of equal protection.

Punctuating the significance of this case are a staggering thirty-nine amicus briefs submitted to the Court by amici including the ACLU, the Anti-Defamation League, the American Bar Association, and State Attorneys General from Massachusetts, Maryland, New Jersey, and Vermont (in support of Hastings), and the Boy Scouts of America, the Cato Institute, and State Attorneys General from Michigan, Alabama, Colorado, Florida, Idaho, Louisiana, Nebraska, New Mexico, Pennsylvania, South Carolina, South Dakota, Utah, Virginia, and West Virginia (in support of CLS).

Former Solicitor General Gregory Garre will argue on behalf of Hastings, while former Tenth Circuit appellate court judge and current Stanford Law Professor Michael McConnell will represent the Christian Legal Society. 

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CAPPING AT THREE.  AB2740, a new version of an old bill pending in the California State Legislature, would cap the amount of punitive damages available in California to a flat three times the jury’s award of compensatory damages. AB2740 The previous version died in Committee.  The new iteration (tacked onto a National Guard bill, of all things) was alive and well as of late March, 2010.
 

• Should the measure pass, California would fall in step with many other States that impose some type of ceiling on punitive damages, whether flat-out monetary caps, caps keyed to a multiple of compensatory damages, caps based on defendant’s wealth or the nature of the act, the type of action (e.g., medical malpractice) or some combination, including: Alaska, Arkansas, Alabama, Colorado, Florida, Georgia, Idaho, Indiana, Kansas, Mississippi, Montana, North Carolina, North Dakota, New Jersey, Nevada, Oklahoma, and Texas.  That isn’t a comprehensive list, nor can AppellateStrategist list all the wrinkles and permutations in this post.  But the point is clear.  There’s a growing movement afoot to impose a bright line on the imposition of punitives, thereby streamlining or eliminating the current multipart constitutionality analysis mandated by State Farm Mut. Auto. Ins. Co. v. Campbell (2003) 538 U.S. 408, and BMW of North America, Inc. v. Gore (1996) 517 U.S. 559.

PRODUCT WARNING CASES.  AB2740 would also bar punitive damages in products cases if the warning accompanying the product was “either approved by, or in material compliance with,” a statute, or the standards, rules, regulations or requirements of the federal or state agency responsible for “regulating, evaluating, or approving the product.”  Should the bill pass, it would apply to every products-warning “case pending on or after the date of enactment regardless of when the case was filed.”

The sole exception is that the bar would not apply if plaintiff proves by clear and convincing evidence that defendant intentionally withheld or intentionally misrepresented information it was required to submit to the agency at any time, and the withholding or misrepresentation of that information was causally related to the injury or harm alleged.

AppellateStrategist will monitor the bill, and provide regular updates.  Stay tuned.

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Add yet another appellate opinion to the growing list of California courts that have cut punitive damage awards on constitutional excessiveness grounds. In this one, Amerigraphics, the jury awarded $3 million in punitive damages in an insurance bad faith case.  The trial court cut that number  to $1.7 million, but according to the California Court of Appeal (Second District, Division 2), that was not enough.  The constitutionally-permissible maximum was $500,000. 

At the risk of looking a gift horse in the mouth, the case is a mixed bag for insurer defendants.

One of the principal questions in deciding excessiveness is how bad – “reprehensible” -  the defendant’s conduct was.  That is determined under a scale of relative reprehensibility.  The theory is simple: relatively speaking, some acts and harms are worse, and therefore more deserving of punishment, than others.  For example:

1. Defendants who are repeat offenders – who have committed the act before – need a bigger punishment to discourage them from repetition, to get the message across.

Amerigraphics rejected the notion that an insurer which commits multiple acts in the handling of a single claim for benefits can be viewed as a “repeat offender.”  Though the insurer’s

“conduct could  be characterized as more than a single isolated incident, as the evidence showed several discrete acts of misconduct involving Amerigraphics’s claim for coverage under various policy provisions, the conduct at issue ultimately involved only one insured and one claim. There was no evidence presented that [the insurer] acted similarly toward other insureds in similar circumstances.”   (Emphasis added.)

More authority for the “one claim, one punishment rule.”  That’s as it should be.  Any act – such as the denial of a single claim for benefits – could theoretically be broken down into a series of smaller “sub-acts.” That doesn’t mean the punishment should be multiplied by the number of sub-acts.  (See also Walker v. Farmers Ins. Exch. (2007) 153 Cal.App.4th 965, 975; 63 Cal. Rptr. 3d 507)  Courts should not be in the business of finding ways to maximize a plaintiff’s punitive award.  By definition, in the constitutionality jurisprudence, the plaintiff is made whole by the compensatory award;  the punitive award punishes the defendant; it does not compensate the plaintiff for the injury.

2. Physical harm is worse than economic harm, but, relatively speaking, a defendant who causes economic injury to a financially vulnerable plaintiff deserves more punishment.  

Amerigraphics suggested that the very nature of the insurance relationship means that insureds will qualify as “financially vulnerable.”  The court relied on the “unique” nature of the relationship: insureds purchase policies “precisely to buy peace of mind and security.” Therefore, an insured is “not on equal footing . . . .” with its insurer.  That may have been true in the Amerigraphics case, which involved a small insured put out of business by the carrier’s claims handling, but it does not apply across the board, nor should it.  When, e.g., the insured is a large corporation with an insurance claim, the parties are on relatively equal footing.  The concept of financial vulnerability is not automatically satisfied merely because this is an insurance relationship.  Example in point: Slottow v. Amer. Cas. Co. of Reading, Pa. (9th Cir. 1993) 10 F.3d 1355, 1362 (applying Calif. law.)

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The Illinois Supreme Court announced this afternoon that it will release seven opinions [pdf] on the morning of Thursday, April 15th, including two civil cases:

• No. 106511, Carter v. SSC Odin Operating Company, LLC, which presents the issue of whether the clauses of the Illinois Nursing Home Care Act invalidating any contractual provision limiting a resident's cause of action under the Act, or waiving jury trial, are preempted by the Federal Arbitration Act?
   
• No. 107146, Slovinski v. Elliott, which presents the following issues: (1) Must a Circuit Court make findings of fact and conclusions of law before it may set aside a jury's award of punitive damages?  (2) What standard of review applies to an Appellate Court's power to review a punitive damages award? and (3) May a party attack a punitive damages award based on lack of evidence, when the party declined to produce that evidence in discovery? 

For full details on these cases, click our Illinois Supreme Court Update.  These cases can be found under the links for Arbitration, Punitive Damages, and Civil Procedure, respectively.

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According to the San Francisco Chronicle, two new candidates have emerged as possible Supreme Court nominees to replace retiring Justice John Paul Stevens. 

Justice Carlos Moreno of the California Supreme Court began his career as a deputy city attorney in Los Angeles.  Justice Moreno received his first two judicial nominations from Republican Governors George Deukmejian and Pete Wilson. In 1998, he was appointed to the United States District Court by President Clinton. In 2001, he was appointed to the California Supreme Court by Democratic Governor Gray Davis.

Judge Kim McLane Wardlaw of the Ninth Circuit was in private practice until 1995. She was appointed to the United States District Court by President Clinton in 1995, and elevated to the Ninth Circuit in 1998.

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President Obama made a statement this afternoon, suggesting that he would nominate a replacement for retiring Justice John Paul Stevens within "weeks." In describing his ideal nominee, the President suggested that he would be looking for someone who agreed with Stevens' spirited dissent in Citizens United v. FEC:

I will seek someone in the coming weeks with similar qualities -- an independent mind, a record of excellence and integrity, a fierce dedication to the rule of law, and a keen understanding of how the law affects the daily lives of the American people.  It will also be someone who, like Justice Stevens, knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens. 

Senator Patrick Leahy, the chair of the Senate Judiciary Committee, said today that he expected to have hearings on the President's Supreme Court nominee this summer.  Meanwhile, Newsweek is reporting that Secretary of Homeland Security Janet Napolitano is on the short list for the vacancy, along with Solicitor General Elena Kagan, Judge Diane Wood and Judge Merrick Garland.

Reaction to Stevens' announcement continues in Washington.  Vice President Joseph Biden issued a statement.  Tony Mauro at The Legal Times has the statements of the other Justices, plus retired Justices O'Connor and Souter. The Ninth Justice, the National Journal's new blog on the Supreme Court vacancy, has reactions from many more Senators.

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The New York Times and CNN are reporting that Justice John Paul Stevens will retire when the Court reaches the end of its term in June.  The Appellate Strategist will post further information on the story as President Obama's search for a successor shifts into high gear.

UPDATE: The Supreme Court has posted a copy of Justice Stevens' retirement letter [pdf].  As Douglas Berman points out over at Sentencing Law and Policy, Justice Stevens has increased pressure on the Senate to confirm a replacement quickly by making his retirement effective when the Court rises for the summer, not when his replacement is confirmed and sworn in.  Tony Mauro at The Legal Times  has reactions from members of the Senate and Chief Justice Roberts' statement.

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Within the past several weeks, Supreme Court Justice John Paul Stevens has dropped several hints that he might be about to announce his retirement.   Even though nothing’s definite yet, the news media and the legal blogs are busy speculating about possible replacements. Here’s the roundup – both the “short list” and some of the long shots:

According to The Washington Post’s blog, The Swamp, Jess Bravin of The Wall Street Journal  and Mark Sherman at The Associated Press, there are only three names on the list:

• Solicitor General Elena Kagan, the former Dean of Harvard Law School,  who has served as Solicitor General since 2009;
   
• Judge Diane Wood of the Seventh Circuit.  Before her appointment, Judge Wood was Deputy Assistant Attorney General in the Antitrust Division of the Justice Department; and
   
• Judge Merrick Garland of the D.C. Circuit. Judge Garland was Principal Associate Deputy Attorney General under President Clinton before his elevation to the Court of Appeals.

Kevin Rudin of National Public Radio lists General Kagan and Judges Wood and Garland as the front-runners, but suggests two intriguing possibilities:

• Governor Jennifer Granholm of Michigan. Governor Granholm served as state Attorney General for four years before being elected Governor; and
   
• Secretary of Homeland Security Janet Napolitano.  Before serving six years as Governor of Arizona, Secretary Napolitano served as United States Attorney and state Attorney General.

Tom Goldstein of SCOTUSBlog writes that there is only one real candidate: General Kagan. Nevertheless, he handicaps a number of additional possibilities in addition to Judges Wood and Garland and Governor Granholm:

• Secretary of State Hillary Clinton;
   
• Professor Cass R. Sunstein, who is Felix Frankfurter Professor of Law at Harvard, and currently serves as Administrator of the Office of Management and Budget Office of Information and Regulatory Affairs;
   
• Attorney General Eric Holder;
   
• Governor Deval Patrick of Massachusetts. Governor Patrick served as Assistant Attorney General for the Civil Rights Division in the Clinton Justice Department. From 2000 through 2004, he was General Counsel and Executive Vice President of Coca-Cola; and
   
• Senator Amy Klobuchar of Minnesota.  Senator Klobuchar served as a county prosecutor for several years and later was in private practice.

At the New York Times, Peter Baker lists a number of these candidates and adds four new ones:

• Professor Harold Koh, former Dean of Yale Law School, where he specialized in international law, and now the Legal Adviser to the State Department;
   
• Professor Pamela S. Karlan of Stanford, who specializes in voting rights and the political process;
   
• Senator Richard Durbin of Illinois, who was both in private practice for a number of years before his election to Congress in 1983; and
   
• Senator Claire McCaskill of Missouri, who was a long-time local prosecutor before her election as state Auditor.

Finally, Law 360 interviewed appellate specialists from leading firms around the country, asking them to complete this sentence: “If I were Obama, My Supreme Court Pick Would Be . . ."

The results were interesting and – with the exception of General Kagan’s six votes – showed little overlap with the list of candidates discussed above. Aside from Professor Kathleen Sullivan of Stanford Law School, an authority on constitutional law who was prominently mentioned last year when Justice Souter retired, the only new candidate receiving more than one nomination was the person I suggested:

"In nominating a successor to Justice John Paul Stevens, President Obama should seek not only a brilliant lawyer, but someone who would bring a breadth of real-world experience to a Court which today consists of nine former judges from the Federal Circuits.  Through most of the twentieth century, Supreme Court nominees were frequently drawn from outside the Federal appellate courts, including Congress, the Cabinet and the private bar.  President Obama should revive that tradition by nominating Senator Sheldon Whitehouse of Rhode Island.

Over the next decade, the Supreme Court will likely face a range of important issues in criminal law, including Federal sentencing, the death penalty, habeas corpus and issues arising from the Government’s anti-terrorism efforts.  Senator Whitehouse would bring an important perspective to these issues, having served as both a United States Attorney and as his state’s Attorney General before his election to the Senate, as well as serving on the Judiciary Committee and the Select Committee on Intelligence in the Senate.

In addition, the Court will certainly be asked over the next several years to define the parameters of its recent landmark cases impacting both the legislative and political process, such as Heller v. District of Columbia and Citizens United v. FEC.  Having served in both the state and Federal government, Senator Whitehouse would bring a deep understanding of those worlds, far removed from the judiciary, to the Court’s debates.

In his four years in the Senate, Senator Whitehouse has demonstrated not only that he has a keen legal mind, but has shown himself to be an incisive, aggressive investigator in Senate committee rooms.  Two of the finest twentieth-century Justices -- Hugo Black and Earl Warren -- held political office before joining the Court.  President Obama should elevate another: Senator Sheldon Whitehouse."

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Statistics show that the number of civil cases accepted for review by California’s highest court has varied dramatically in recent years, but by any count, the numbers are still small.

According to a report released by the State’s Administrative Office of the Courts, for the year 2008, the California Supreme Court granted 6% of all civil petitions for review, down from 8% the previous year (2007) but up from the mere 3% granted in 2006. 

For 2008, out of a total of 5,989 civil petitions, the court
• denied just over 5,400
• outright granted 82
• granted and held 210
• granted and transferred 51 back to the intermediate court of appeal. 

These numbers may seem exceedingly low, but consider that many litigants just don’t understand the court’s limited function in reviewing decisions of the lower courts.  Review by the California Supreme Court is discretionary.  As a judicial policy maker, the court typically accepts only those issues that may affect other litigants or when necessary to resolve a conflict in the published decisions.  But many litigants do not understand this unique function, choosing to seek review even when they cannot satisfy these special requirements.  Thus, a great many petitions are denied out of hand.

Maximizing the chances for review:  read and comply with the court’s special requirements.  Follow the rules.  List the issue presented first, followed by an explanation of why this case deserves to be one of the select few that should make the cut.  The petition for review is less a legal document, explaining why the petitioner should win under the law, than it is a persuasive plea on why the court should hear the case.

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