False Statement About Prior Military Service Protected by First Amendment – Strong Divide Between the Majority and Dissent

Stevie E. Leahy

discuss

U.S. v. Alvarez, No. 08-50345 (available here)

The Stolen Valor Act (“Act”) imposes a criminal penalty on the utterance/writing of a false statement of fact related to receiving a military honor.  It was created to protect authentic recipients of authorized military medals and awards, since fraudulent claims can damage the reputation and meaning of those well-deserved accolades.  Great idea, unfortunately it was so poorly drafted (according to the majority) that the Ninth Circuit held the Act failed strict scrutiny – despite a blatant lie about receiving the Medal of Honor, defendant Alvarez cannot be charged under the Act because it violates the First Amendment.

As Judge Smith points out (discussed during oral argument), “most people lie about some aspects of their lives from time to time.”  And that is clearly true here…

continued…

• NINTH CIRCUIT LEAVES US WITH NO TEST TO DETERMINE RELIGIOUS EXEMPTION FROM TITLE VII

  August 26,2010

  The Ninth Circuit issued three opinions in Spencer v. World Vision, Inc., No. 08-35532, on August 23, 2010 (full opinion available here).  World Vision, Inc. (“WVI”) terminated a number of employees when it learned they did not subscribe to certain Christian beliefs.  The Western District of Washington granted summary judgment in favor of WVI, based on its argument that it qualifies for the religious exemption from Title VII, and so is permitted to discriminate on the basis of religion.  The exemption applies to any “religious corporation, association, educational institution, or society.”  See 42 U.S.C. § 2000e-1(a).  This statutory language is subject to wildly varying interpretations.        Judge O’Scannlain’s Opinion and Judge Kleinfeld’s Concurrence both affirmed summary judgment.  Judge Berzon disagreed in her dissent, opining that WVI does not fall into the religious exemption.  All three Judges enunciated separate tests to determine whether an entity qualifies for the exemption, leaving lower courts – not to mention entities withreligious affiliations – with more questions than answers. 

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  Jamie C. Chanin

• Pre-Jet Blue Flight Attendant Mayhem

  August 17,2010

  Eid v. Alaska Airlines, Inc., No. 06-16457 (available here)

  Having been at the mercy of an airline numerous times in the past, suffering through delays, cancellations, lost baggage, and rude flight crew, I have to admit I was initially biased towards the plaintiffs in this case (despite recent publicity surrounding extremely rude treatment of flight attendants on Jet Blue).  Reading through the facts of the case, most people would probably side with plaintiffs as well.  Two flight attendants act unreasonably and irrationally, seemingly because of the passengers' ethnicity, causing everyone on board a lengthy delay.  What began with someone standing to stretch was quickly worked up into a frenzy by the attendants, who shouted hysterically at passengers that were quietly sitting in their seats.  The district court initially granted Alaska Airlines' MSJ, but Judge Kozinski and the Ninth Circuit reversed in part in plaintiffs favor.

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  Stevie E. Leahy

• UNLV Officials Immune from Suit Based on Response to Alleged Bullying By Star Athlete

  August 9,2010

  If you allegedly attack your college roommate with a pair of scissors, are then arrested and given a disciplinary notation on your transcript, have your due process rights been violated?  And can those university employees responsible for that disciplinary action be held liable for violating your due process rights? The Ninth Circuit's recent decision  in Krainski v. State of Nevada holds - -- no. (full decision available here) This is a case where the plaintiff/appellant, Megan Krainski (Krainski) alleged that she had been harassed and threatened by her roommate, Kenya Polee, a star long jumper for the University of Nevada Las Vegas (UNLV).  Krainski told a University official about Polee’s behavior, and then alleged in her complaint that the university official told Polee that Krainski was going to make a formal complaint.  Before Krainski filed her complaint, Polee and university employees allegedly fabricated a story where Krainski tried to attack Polee with scissors.  Polee and the officials then made a report to University Police to arrest Krainski for the crime of assault with a deadly weapon.

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  Lauren B. Browne

• In Depth on Prop 8: Defendants’ Arguments for Rational Basis Under Equal Protection

  My earlier post on Prop 8 (available here) did not get into the specifics of Judge Walker's decision, and I wanted to elaborate on some of the more important elements of his holding now that the dust has settled.  Within the analysis of Equal Protection, Judge Walker scrutinizes the defendants' six arguments for why Proposition 8 is rational.  He takes his time and uses his extensive findings of fact* to break down each of these arguments; what we are left with is either extreme judicial activism from a biased homosexual judge or a well-written decision sounding in logic by a conservative appointee.  Read on, and form your own opinion.

  * "FF"  refers to "Finding of Fact" in the Perry v. Schwarzenegger decision (available here)

  (1) Reserving marriage as a union between a man and a woman and excluding any other relationship from marriage

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  Stevie E. Leahy

• Closing Argument Highlights – Perry v. Schwarzenegger

  June 17,2010

  After an extended wait, lawyers for the Prop 8 trial finally had the opportunity to make their closing arguments to Judge Vaughn Walker of the Northern District of California.  Ted Olson gave the closing on behalf of the plaintiffs, Charles Cooper for the defendants.  Overall, there was a lot of interplay between the judge and the attorneys.  The defense side received tougher questions from Judge Walker, and at times it seemed less like closing argument and more like a witness being examined on cross.  He even called out Cooper on the lack of evidence and witnesses at one point that they bantered over for several pages of the transcript ("[W]hy in this case did you present but one witness on this subject? One witness.  Why only one witness?”).

  Readers, I apologize in advance for the length of this post.  I broke it down by issues, and pulled quotations from both sides to show the contrasting positions.  These are not in a particular order, and there were certainly other important issues discussed that are not included here.  If you are interested in something that was missed, let us know in the comments section.

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  Stevie E. Leahy

• Boy Scouts Policy vs. State Constitutional Law

  June 14,2010

  Barnes-Wallace v. City of San Diego, No. 04-55732 (available here) The Ninth Circuit has requested clarification from the California Supreme Court on the No Preference and No Aid Clauses of the California Constitution in connection with policies of The Boy Scouts of America.  This group seems to attract litigation on numerous issues across the country, and Barnes-Wallace deals with a lease between the Boy Scouts and the City of San Diego.  Although federal and state constitutional violations were alleged, the questions certified by the Ninth to the CA SCT are exclusively state constitutional law issues.  Here are the facts....

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  Stevie E. Leahy

• Barry Bonds Perjury Trial: Blood/Urine Sample Evidence Out (No Exceptions!); A Reminder of What Deference Looks Like; and What This Means For Bonds’ Trial

  USA v. Bonds, 09-10079 (Circuit Judges Reinhardt & Schroeder, Judge Bea in dissent) (full opinion available here). You may or may not know that the government is currently prosecuting Barry Bonds (SF Giants player who hit 71 home runs in 2001 . . . more here) for perjury (lying under oath).  Basically, the government's position is that in 2003 Bonds lied to the grand jury when he swore under oath that he had not taken performance enhancing drugs.  To convict Bonds of perjury, it must prove he lied.  To prove the lie, the government has blood and urine samples and test result log sheets from San Francisco based BALCO Laboratories, Inc. under the name "Barry Bonds" that purportedly show positive test results for performance enhancing drugs.  The government's big hurdle, which it notably failed to clear, is that it must prove that the tested samples BALCO recorded actually came from Barry Bonds.  It's a game of connect the dots:  Barry Bonds' blood/urine . . .to  Anderson . . .  to Valente . . . BALCO samples & tests results.

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  Wendy McGuire Coats

• 1st Impression: 9th Cir. Holds Restitution May Be Ordered As Part of Supervised Release for “Any Criminal Offense” Including Violations of Internal Revenue Code

  June 22,2010

   In USA v. Batson(09-50238) (Circuit Judges Canby, Hall, and O'Scannlain, full opinion available here)  the government wins the battle on the issue of the district court's power, but it seems to lose the war on the restitution amount awarded in this case. Question of 1st Impression: Whether federal courts may order restitution as a condition of supervised release for offenses set forth in the Internal Revenue Code? Answer, yes. The Power to Issue Restitution Orders:  Unlike many of their inherent powers (like the power to sanction), a district court's power to order restitution is conferred only by statute.  The VWPA (Victim and Witness Protection Act) and the MVRA (Mandatory Victims Restitution Act) are two such statutes.  The VWPA is discretionary and the MVRA is mandatory if the elements are met, and both acts are tied to violations defined by statute.  Additionally, the Probation Statute (18 U.S.C. § 3563(b)) authorizes courts to order restitution as a condition of probation and 18 U.S.C. § 3583(d) extends this power to supervised release.  This Case: Batson spent 3 years falsifying tax returns and assisting her clients in receiving undeserved tax returns.  She was indicted (1 count conspiracy, 6 counts aiding & assisting in preparing fraudulent tax returns, 2 counts making false statements) and pled guilty to one count of aiding and assisting.  The financial loss caused by this one count is in dispute somewhere between $4,571 and $8,028, but during her plea colloquy Batson stipulated that she prepared false returns totalling $965,673 (at minimum).  Batson was sentenced to 12 months imprisonment and 12 months of supervised release (plus fines and the $100 special assessment).  As for restitution, the governemnt requested and the district court ordered Batson pay restitution in the amount of $176,854 (basically, the amount the government can't get back from Batson's clients).

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  Wendy McGuire Coats

• “The Ninth” Publisher & Contributing Authors Named “Rising Stars” 2010 by Southern California Super Lawyers

  June 23,2010

  Publisher Wendy McGuire Coats and Contributing Authors  Brian J. Bergman and  Matthew A. Berliner were named "Rising Stars" 2010 by Southern California Super Lawyers.   Wendy McGuire Coats is a founding partner of McGuire Coats LLP and Publisher of The Ninth.  Brian J. Bergman is an associate with the law firm Bergman & Dacey, Inc.     Matthew A. Berliner is a founder of the law firm Brown, Wegner & Berliner LLP located in Irvine, California.

  

  

  

  Daniel L. Coats

• SCOTUS Reverses 9th Circuit 7-1 in Monsanto Case

  June 27,2010

  In Monsanto Co. v. Geertson Seed Farms, 09-475 (decision available here the Supreme Court reversed a Ninth Circuit opinion affirming an injunction that barred the federal government from de-regulating genetically-modified alfalfa without a detailed environmental study.  Justice Alito, writing for a majority of the court, concluded that this injunction was both premature and overbroad.  In reaching this result, the Court reiterated that there is no presumption in favor of injunctive relief where the federal government has failed to adequately study the environmental impacts of its decisions, as required by the National Environmental Policy Act (NEPA). The Court also refrained from deciding whether a detailed-evidentiary hearing must be held before an injunction issues.   Justice Steven dissented, taking the majority to task for mis-interpreting the injunction [the injunction did not categorically prohibit deregulation contrary to the majority's opinion] and for deciding a legal issue [whether the district court erred in categorically enjoined partial de-regulation of genetically-modified alfalfa in any sense] not adequately presented to the lower courts or SCOTUS.  Justice Stevens would have upheld the district court's injunction as an "equitable application of administrative law."

  Sharla A. Manley

• No Right to Anonymity for Signatories

  June 29,2010

  Doe et al v. Reed ( decision available here)

  In a case linked to the same-sex marriage battle, the Supreme Court held in an 8:1 decision that disclosure of referendum petition signatories generally does not violate the First Amendment (previous discussion available here).  This ruling affirms the Ninth Circuit decision, and returns the specific facts related to the Washington state law back to the district court to determine if they are sufficient to justify exemption from disclosure.  Justices Sotomayor, Stevens, Ginsburg, Breyer and Scalia expressed doubt that petitioners/plaintiffs should prevail.  However, it is still possible the district court will rule in their favor in light of Justice Alito's concurring opinion, which included helpful language that the evidence in this case may be sufficient once it is finally aired in court.  

  Pending this determination, the names of the signatories on the Washington referendum will be kept anonymous.

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  Stevie E. Leahy

• Ninth Circuit Punts to California Supreme Court on Issue of County Health Benefits Impacted by Budget Crisis

  July 6,2010

  On June 29, 2010 in Retired Employees Association of Orange County, Inc. v. County of Orange, No. 09-56026 (available here), the Ninth Circuit issued an order certifying a question to the Supreme Court of California and staying the appeal.  The question at issue is “Whether, as a matter of California law, a California county and its employees can form an implied contract that confers vested rights to health benefits on retired county employees.”  For 23 years, Orange County pooled active and retired employees for the purpose of setting health benefit premiums.  The result of this pooling was that retiree health benefits were subsidized:  retiree premiums were lowered below actual expenses while active employee premiums were raised above actual expenses.  Because of budgetary concerns, the County passed a resolution splitting the pool of active and retired employees, effective January 1, 2008.  In November 2007, the Retired Employees Association (“REA”) filed suit against the County to enjoin the County from splitting the pool, alleging that the County breached an implied contract, was prohibited from changing the pooling by promissory estoppel, and violated the retirees’ due process rights.

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  Jamie C. Chanin

• Family Law Attorney’s Worst Nightmare: Ex-Husband-to-Be Kills Wife & Shoots Judge & Goes After Cash

  July 27,2010

  Joan Mack v. Randal Kuckenmeister (No.  09-15290, Judge Tashima and Judge Thomas) (full opinion here) presents two issues:  (1) does the state court in a dissolution proceeding have jurisdiction to determine whether a Domestic Relations Order (“DRO”) is a Qualified Domestic Relations Order (“QDRO”) under the Employee Retirement Income Security Act (“ERISA”);  and (2) are the state court proceedings binding on the Plan Administrator to seek affirmative relief in the district court?   The underlying facts of this case are a family law attorney’s worst nightmare.  Darren and Charla Mack were involved in, presumably, a heavily contested divorce for more than a year.  Darren agreed to Charla receiving $500,000 from his 401(k).  The Nevada state court judge made the oral order and instructed Charla’s attorney to prepare the QDRO.  Before the order was signed by the judge and Charla, Darren murdered Charla and shot the judge.  Charla’s estate then sought an order from the Court to enter the QDRO nunc pro tunc so Charla’s estate could receive the funds from the 401(k).  The Court entered the QDRO, and Darren appealed to the Nevada Supreme Court arguing that the QDRO contravened federal law relating to retirement accounts.

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  Lauren B. Browne

• Misleading “ZeroGravity AeroStructures” Lead to Multimillion Dollar SEC Civil Enforcement Judgment

  August 2,2010

  SEC v. Platforms Wireless, 07-56542 (available here)

  The Securities and Exchange Commission ("SEC") filed a civil enforcement action against a wireless technology company, Platforms Wireless, and its former chairman and CEO, William Martin. Defendants allegedly engaged in the sale of unregistered securities and issued misleading press releases, both in violation of the Securities Act (the "Act").  Judge Miller of the SD of Ca granted summary judgment on these two issues, ordering disgorgement of ALL profits from the sale of the unregistered securities, as well as prejudgement interest (nearly totaling a whopping $2.75 million).

  Judges Nelson, Gould and Dowd for the Ninth Circuit affirmed.  Despite numerous attempts during oral arguments to show that a genuine issue of material fact existed, and a MSJ was inappropriately granted, Judge Miller's decision was sound.  In addition to an obscure movie reference, the SEC presented  a strong case that no "rational juror" could disagree with.

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  Stevie E. Leahy

• Judge Walker’s Four Prong Analysis Not Enough to Lift the Same-sex Marriage Ban

  August 18,2010

  Although today is the day that same-sex marriage was ordered to resume in California, couples who had been preparing and eagerly anticipating their nuptials have once again been jolted by the roller coaster ride of the Prop 8 legal battle.

  Earlier this month, Judge Walker famously held that a same-sex marriage ban under Prop 8 violated Equal Protection and Due Process (previous discussion available here).  Proponents of Prop 8 immediately asked for a stay to hold the ban in place during the appeals process, however the  Judge only granted a temporary stay "for a limited time solely in order to permit the court of appeals to consider the issue in an orderly manner."  This stay was to last until the 18th, today, when gay marriage was slated to resume.

  In his decision to lift the ban, Judge Walker analyzed the four factors to determine the appropriateness of a stay:

  (1) whether proponents have made a strong showing that they are likely to succeed on the merits; [Walker: No, they did an awful job presenting evidence to support their case.   Plus they don't have standing anyway]

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  Stevie E. Leahy

• Dear Spain, Give Me Back Grandma’s Pissarro! . . . the En Banc Decision in Cassirer v. Thyssen: An Analysis and Application of Exceptions to the FSIA

  August 13,2010

   On August 13, 2010, the Ninth Circuit issued its opinion in Cassirer v. Thyssen-Bornemisza Collection, 06-56325, (Opinion by Rymer; Dissent by Judge Gould and Joined by Judge Kozinski - - full opinion available here).   In Cassirer, the Ninth Circuit analyzed a question of first impression:  whether a Defendant state and its instrumentality can claim foreign sovereign immunity where neither Defendant was the expropriator of the property at issue.  To recognize subject matter jurisdiction for American courts, the Ninth Circuit’s analysis of the exceptions to the Foreign Sovereign Immunities Act was two-fold: (1) finding subject matter jurisdiction for the action itself due to the expropriation of the property by the Nazi government, and then (2) finding sufficient commercial activities of the Defendants with the United States.  As summarized by Judge Rymer, “Claude Cassirer is an American citizen whose grandmother’s Pissarro painting was allegedly confiscated in 1939 by an agent of the Nazi government in Germany because she was a Jew.  He filed suit in federal district court to recover the painting, or damages, from the Kingdom of Spain and the Thyssen-Bornemisza Collection Foundation, an instrumentality of Spain, which now claims to own the painting.  Spain and the Foundation moved to dismiss, asserting, among other things, sovereign immunity pursuant to the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1602, et seq.”

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  Laura G. Brys

• GENERIC.COM™ = SLIMCHANCE.COM

  August 6,2010

  In Advertise.com, Inc. v. AOL Advertising, Inc. (consolidated appeals 10-55069 & 10-55071, Cir. Judges  Fletcher and Paez, full opinion available here), the Ninth Circuit addresses the question of whether a generic term with a top-level domain indicator (“TLD”) tacked onto the end of it may be registered as a trademark.  More particularly, does slapping on the “.com” TLD to the end of the word “advertising” magically render the mark ADVERTISING.COM trademarkable?  The CACD thought so; the Ninth Circuit didn’t.  An online advertising company creatively named Advertise.com appealed a CACD ruling granting a preliminary injunction in favor of appellee AOL in relation to its federally registered ADVERTISING.COM trademark.  The district court enjoined Advertise.com from using “any design mark or logo that is confusingly similar to the stylized forms of AOL’s ADVERTISING.COM marks” and from using the designation and trade name ADVERTISE.COM or any other name confusingly similar to ADVERTISING.COM.  The Ninth Circuit, reviewing for abuse of discretion, agreed with Advertise.com that the mark ADVERTISING.COM is generic and that AOL was not likely to succeed on the merits and vacated a portion of the injunction.

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  Brian J. Philpott

• Judge Walker Overturns Prop 8 – “Tradition Alone Cannot Support Legislation”

  August 4,2010

  Perry v. Schwarzenegger, No. 09-2292 (available here)

  Chief Judge Vaughn Walker of the Northern District of California handed down the long awaited decision in Perry v. Schwarzenegger, holding in favor of plaintiffs and same-sex marriage (previous discussion of closing arguments available here).  California's Proposition 8 was declared unconstitutional on the basis of the Due Process Clause AND the Equal Protection Clause, and its enforcement has been enjoined.  The Conclusions of Law, which start on page 109, are strongly worded and should be of no surprise to anyone who has followed this case: "Proposition 8 both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation."

  Due Process

  The fundamental right to marry protects an individual's right to choose a partner regardless of sex.  The state has never before inquired into a couple's "procreative capacity or intent" prior to issuing a marriage license, so that should be no different for two people biologically incapable of having a child without some type of assistance.  Even though same-sex marriage was not a part of a state's traditional marriage set up, society's ideas about gender are changing and people want marriage to adapt to those changes.  The time has passed where genders are boxed in distinct, static roles in society and marriage.

  Because marriage is a fundamental right, including marriage between two women or two men, the state must have a compelling interest to deny it under strict scrutiny.  The state was not able to offer any basis to show why marriage should be limited to a union between a man and a woman.  "The trial evidence provides no basis for establishing that California has an interest in refusing to recognize marriage between two people because of their sex."   The state simply couldn't prove their case - none of their arguments about procreation or tradition or protecting our children were shown to be a valid reason to prohibit same-sex marriage.  Judge Walker found that the only support for Prop 8 was moral disapproval - nevermind strict scrutiny, Prop 8 wouldn't even survive rational basis.  Which brings us to the next conclusion of law....

  Equal Protection

  Judge Walker tested Prop 8 under rational basis, which means it could only have been upheld if it was rationally related to a legitimate government interest.  As discussed above, none existed.  He goes on to say that gays and lesbians are the type of minority that strict scrutiny was designed to protect (aka a suspect class).  He took the 6 justifications that Prop 8 was designed to further (these will be broken down in detail in a later post) and dismissed them in turn: "the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples."  Such a notion is inappropriate in legislation.

  As opposed to the conclusions of law, findings of fact can be given deference by the Ninth Circuit and are very helpful to plaintiffs.  For example, Finding of Fact #33, eliminating gender restrictions in marriage has not deprived the institution of marriage of its validity.  Or #48, that "same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions."  Or #56, "The children of same-sex couples benefit when their parents can marry."   Benefit, not suffer for the rest of their lives.  Take that Protect Marriage.

  We are literally in the midst of a generational shift, a change in opinion on the issues of gay rights.  It has slowly been turning in favor of gay marriage, [1]and this decision will hopefully continue to push in that direction.  A temporary stay will likely be granted, since both parties have previously made clear that they plan to appeal a defeat (defendants preemptively filed a motion for a stay late in the day on August 3, 2010 - I'm thinking Judge Walker gave a courtesy copy yesterday?).  It's only a matter of time before the Ninth Circuit announces that it will take the case.

  This decision was a lengthy 136 pages, and our post above barely skims the surface of all that is included.  For example, the credibility of the witnesses (bad for defendants) and the suspicious lack of any mention of DOMA, the federal law that defines "marriage" as a union between a man and a woman.  Stay tuned for more coverage on this decision....

  ---

  [1]"Americans’ support for the moral acceptability of gay and lesbian relations crossed the symbolic 50% threshold in 2010. At the same time, the percentage calling these relations 'morally wrong' dropped to 43%, the lowest in Gallup’s decade-long trend."  Lydia Saad, Americans' Acceptance of Gay Relations Crosses 50% Threshold, Gallup, May 25, 2010, available at http://www.gallup.com/poll/135764/Americans-Acceptance-Gay-Relations-Crosses-Threshold.aspx (last accessed Aug. 3, 2010).  See also L.A. Times, Majority of Californians Sat They Would Vote In Favor Of Same-sex Marriage, July 21, 2010, available at http://latimesblogs.latimes.com/lanow/2010/07/majority-of-californians-would-vote-for-samesex-marriages-new-poll-shows.html (last accessed August 4, 2010).

   

  Stevie E. Leahy

• “Get me out of this case!”–Ninth Circuit rules that non-settling PRPs may intervene in CERCLA suits to contest settlement agreements of other PRPs

  June 9,2010

  The Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) requires liable parties to pay for the clean up of contaminated sites. CERCLA bars contribution claims against Potentially Responsible Parties (“PRPs”) that have obtained administratively or judicially approved settlements with the government.  Therefore, CERCLA provides a strong incentive for PRPs to settle by leaving non-settling PRPs liable for all of the response costs not paid by the settling PRPs.  Early settlement is especially important in environmental matters where the costs of paying for an environmental cleanup often significantly increase over time.  In United States v. Aerojet Gen Corp., 2010 U.S. App. LEXIS 11131 (9th Cir. June 2, 1010) (full opinion available here), the Ninth Circuit addressed the question of whether a non-settling PRP may intervene in court to oppose a consent decree incorporating a settlement that, if approved, would bar contribution from the settling PRP.  This issue had split the federal courts, with the Eight  and Tenth circuits holding that intervention was allowed, while district court’s in the Ninth Circuit and Sixth Circuit had previously held that intervention was not allowed in this circumstance.

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  Brian J. Bergman

• First Amendment Does Not Immunize From Political Fallout

  June 16,2010

  Blair v. Bethel School District, No. 08-35895 (available here)

  Along with four other individuals, plaintiff/appellant Blair served as an elected member of the Bethel School District Board for the past decade.  Blair was extremely critical of the school superintendent, a view that was not supported by the rest of the Board.  After one outspoken criticism for which Blair refused to offer an apology, the other elected members voted in a "secret session" to remove him from the Vice Presidency (these details are revealed at oral argument, available here).  Although still a member of the Board (without title), Blair sued under 42 U.S.C. § 1983, alleging that he was retaliated against for exercising his First Amendment rights to free speech and petition.

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  Stevie E. Leahy

• SCOTUS Overturns Ninth Circuit Ruling in Quon

  June 24,2010

  In a 9-0 opinion written by Justice Kennedy, the Supreme Court  overturned a Ninth Circuit ruling on the Fourth Amendment as applied to new technologies (decision available here).  Police officer and plaintiff/respondent Quon brought suit after his employer, the City of Ontario Police Dept., read personal text messages sent on his employer-issued pager (previous discussion of the facts available here).   The Ninth Circuit held that the Dept. violated Quon's Fourth Amendment right against unreasonable search and seizure.  They presented three issues for cert, all of which SCOTUS addressed, but in a narrow holding: this decision could have been a watershed case within the emerging area of technology privacy, but the Justices did not expand existing caselaw, instead relying on the existing O'Connor precedent  as controlling.  [1]

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  Stevie E. Leahy

• SCOTUS Grants Cert in McCoy v. Chase Manhattan Bank, USA

  On Monday June 21, 2010,  Supreme Court agreed to review the Ninth Circuit’s ruling in McCoy v. Chase Manhattan Bank, USA, 559, F.3d 963 (2009), that found that Chase violated the Truth in Lending Act (“TILA”) by increasing interest rates retroactively to the beginning of the payment cycle due to a default of the lender.   The Ninth Circuit panel in a 2-1 decision available here (Opinion by Judge Hawkins, and agreed to by Judge Pregerson, dissent by Judge Cudahy), found differently than the various District Courts that had examined the same issue.  In fact, the panel even determined that a prior Ninth Circuit unpublished decision  on the issue was erroneous; a fact that Judge Cudahy hammered home in his dissent. 

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  Matthew A. Berliner

• En Banc Decision in Murdoch Denies Habeas Relief; Kozinski in Scathing Dissent: “Spectacular misscarriage of justice” & “Cases like this are the reason federal habeas exists”

  June 26,2010

  On June 21, 2010 the Ninth Circuit issued its en banc opinion in Murdoch v. Castro, 05-55665,  (Opinion by Judge Tashima; Concurrence by Judge Silverman; Dissent by Chief Judge Kozinski (joined by Judges Fletcher and Wardlaw, and joined in part by Judges Thomas and McKeown; Dissent by Judge Thomas  - all available here).  Judge Tashima's introduction sets the stage for the case:

  Charles Murdoch was convicted of murder in California state court. Before trial, the prosecutor informed the court that a prosecution witness and participant in the crime had written a letter to his attorney  that Murdoch was not involved in the crime and that the witness had been coerced into implicating Murdoch. The state court ruled that Murdoch could not have access to the letter because it was protected under California’s attorney-client privilege.  In order to determine whether Murdoch is entitled to habeas relief, we must decide whether, under “clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), the Confrontation Clause of the Sixth Amendment of the United States Constitution compelled the release of the letter to Murdoch in spite of the attorney-client privilege.

  Ultimately, the Ninth Circuit en banc panel said no, finding no Supreme Court case directly addressing the potential conflict between state-law attorney-client privilege and the Confrontation Clause.

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  Wendy McGuire Coats

• Eleven Things You Need to Know About Immigration to Have an Educated Opinion on SB 1070

  June 30,2010

  On July 28, 2010, Senate Bill 1070 will go into effect in Arizona.  Supporters from the right and opponents from the left have been battling over the propriety of 1070 since before Governor Brewer signed the controversial measure on April 23 of this year, and the debates--both legal and political--will continue.  Polls show that between 50 and 60 percent of Americans are in favor of the Support Our Law Enforcement and Safe Neighborhoods Act, and that number is even higher in Arizona.  Proponents say the law is aimed at criminal aliens, drug smugglers, and human traffickers; others allege that the law takes aim at all Hispanics.  Governor Brewer added fuel to the debate last week when she said that most "illegal" immigrants are drug mules, from which even many conservative political figures quickly stepped back. As an immigration attorney, SB 1070 and the debates surrounding it are frustrating.  Immigration law is second only to the federal tax code in complexity, and the validity of someone's physical presence in the United States can often be incredibly difficult to ascertain.  While SB 1070 holds itself out to be an uber-strict and no-nonsense approach to "illegal" immigration, I do not think it is.  Rather, it creates an entire new world of issues for Arizona law enforcement who continue having absolutely no authority over the ultimate fate of "illegal" aliens. So, I am offering my list of the eleven things you need to know about immigration law to truly understand SB 1070.  Beyond that, you decide.

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  Emily K. Allen

• Ninth Circuit Rules that Counsel’s Gross Negligence Warrants Relief from a Judgment Dismissing a Plaintiff’s Lawsuit due to Failure to Prosecute

  June 28,2010

  On June 25, 2010, the Ninth Circuit, in Lal v. State of California, No. 09-15645 (Judges Fletcher and Paez; with Judge Hall in dissent; opinion available here), held that an attorney’s gross negligence that results in a judgment from a dismissal due to the plaintiff’s failure to prosecute may provide grounds for relief from the judgment.   In Lal v. State of California, the plaintiff, Lal, sued the State of California, the highway patrol, and two officers for the shooting death of her husband.  During the time that the matter was pending before the District Court, Lal’s counsel failed to serve required pleadings, failed to attend a case management conference, and even failed to appear before the District Court for the hearing to show cause why Lal’s suit should not be dismissed.  During all of this, Lal did not know that her counsel was failing to prosecute her case and missing court hearings and deadlines.  Subsequently, the District Court dismissed Lal’s suit for failure to prosecute and entered judgment in favor of the defendants.

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  Matthew A. Berliner

• Who is an “owner and operator” for purposes of CERCLA liability?

  July 25,2010

  The Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) is a federal statute whose primary purpose is to remedy contamination caused by hazardous substances, by providing for identification of problem sites and applying rigorous cleanup standards.  (42 U.S.C. 9601 et seq.).  CERCLA liability is joint and several, meaning that a responsible party may be held liable for the entire cost of a cleanup even where other parties were responsible for the majority of contamination.  CERCLA’s liability provisions apply to four categories of persons who are potentially responsible for cleanup costs.  The four categories of persons who may be liable include:

  1.      Current site owners and operators of the contaminated site (regardless of whether their activities contributed to the contamination);

  2.      Those who owned or operated the contaminated site at the time of the disposal of hazardous substances;  3.      Those “who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances…”; and 4.      Those who accepted hazardous substances for transportation to the contaminated site.  (42 U.S.C. 9607(a)(1)-(4)) 

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  Brian J. Bergman

• Ninth Circuit Holds One Test for Independent Contractor Status – Common Law Agency Approach

  July 29,2010

  The Court in Murray v. Principal Financial Group (No.  09-16664, opinion by Judge Schroeder, full opinion available here) examined and articulated the factors a court should look to when determining whether an individual is an independent contractor or employee for purposes of Title VII.  In Murray the plaintiff, Patricia Murray, is a “career agent” for Principal Financial Group where she sells products including annuities, 401(k) plans, and insurance.  The underlying question examined by the Court was simply whether or not Ms. Murray could bring an action against Principal Financial Group for violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e).  Only employees (and not independent contractors) can bring claims for violations of Title VII.  The Court sought to clarify what the appropriate test was for determining the employment versus independent contractor status of an individual performing work for a company.  In clarifying what the district court believed were three separate tests, the Ninth Circuit concluded that there was only one test—the common law agency approach as articulated by the Supreme Court in Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318 (1992).

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  Todd B. Scherwin