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.
Supreme Court Short List Profiles: Solicitor General Elena Kagan
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.
California Supreme Court 4/21/10 Conference
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.
California Court of Appeal Takes A Further Step Toward Reining In Unfair Competition Law
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.
Taxpayer Action Draws Significant Amicus Interest
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.
Supreme Court Expresses Perplexity During Hastings Argument
“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.
Illinois Supreme Court To Hear Arguments In Nine Civil Cases in May
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.
Supreme Court Finds Common Ground in Free Speech Case: Law Prohibiting Depictions of Animal Cruelty Ruled Overbroad
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.
Supreme Court Short List Profiles: Judge Kim McLane Wardlaw of the 9th Circuit Court of Appeals
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:
Supreme Court Short List Profiles: Justice Carlos Moreno of the California Supreme Court
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.
