Legal Pad

Breaking: Govt Can't Use State Secrets Privilege in Al-Haramain

[Dan Levine]

Check out Chief Judge Vaughn Walker’s fresh decision (.pdf) in a pivotal national security case involving President Bush’s warrant-less wiretap program.

In the opinion, Walker finds that the government cannot defeat an Islamic group’s lawsuit by using the state secrets privilege. So Al-Haramain wins summary judgment. More in a few.

Hastings Gets Support from Law School Groups as It Heads to SCOTUS

[Cynthia Foster]

As Hastings heads to the Supreme Court to defend its no-bias policy (free reg. req.) on the types of student groups that can receive school funds, law school organizations across the country are stepping up behind it.

In a National Law Journal story, it's reported that both the Association of American Law Schools and the Society of American Law Schools have filed amicus briefs on behalf of Hastings, which denied a Christian student group school funding in 2004 because the organization discriminated against gays and lesbians.

The SALT brief, filed in conjunction with a pro bono team at Schulte Roth & Zabel, argued that Hastings' policy is "appropriate."

From the NLJ:

The brief argues that Hastings' non-discrimination policy does not unfairly target the Christian Legal Society's religious message or prevent the organization from conveying its message. At the same time, the brief urges the Court to continue to give schools the autonomy to establish their own policies regarding student groups. Religious groups should not have a constitutionally mandated exception from non-discrimination rules, according to the brief.

These briefs come after numerous others that have been filed in the case, on both sides. The NLJ has more.

Walker's Got Little Patience

[Dan Levine]

Never a good sign when a judge walks off the bench while a lawyer is in mid-sentence.

Yet, Orrick Herrington & Sutcliffe partner Stephen Bomse should have been too surprised by Chief Judge Vaughn Walker’s exit Tuesday: Walker had been hammering Bomse throughout a hearing on whether groups like the ACLU would have to turn over documents to the proponents of Prop 8.

This discovery mess – which threatens to delay a final Walker ruling on the constitutionality of Prop 8 – commenced in January, when the Ninth Circuit forced Yes on 8 to turn over some of its campaign materials.

Freedom to Marry Day: Love At the County Clerk's

[Jason Doiy]

Since 2001, Marriage Equality's Freedom to Marry Day has encouraged same-sex couples across the country to visit their local county clerk's office and request a license.

 

This morning, same-sex couples sang "What the World Needs Now is Love" while waiting in line to request marriage licenses at the San Francisco City Clerk's office. Below, attorney Molly McKay and Davina Kotulski, originally married in 2004, hold hands.

Con Law Profs, Scholars and Government Attorneys Unite Against Yoo

In the last 10 days, constitutional law professors, legal ethics experts and former government attorneys have banded together, through court filings, to fight Berkeley Law professor and so-called torture memoist John Yoo's appeal in the Padilla case (free reg. req.).

The three groups (comprised of names as notable as Erwin Chemerinsky, Deborah Rhode, Bruce Fein and Cruz Reynoso) are petitioning U.S. District Judge Jeffrey White to reject Yoo's appeal (free reg. req.) in Padilla's suit against the professor, according to SFGate.

"It is the essential role of the judicial branch to prevent the 'war on terror' from becoming the blank check for official torture that Yoo and the United States (Justice Department) seek," nine constitutional law teachers told the court.

Yoo denies any wrongdoing and says he never authorized torture. He appealed Judge White's refusal to dismiss the Padilla suit, saying allowing it to proceed "would interfere with presidential war-making authority."

The government lawyer group, including Fein, told White that the Department of Justice's Office of Legal Counsel is counted on to "candidly" tell the president when his office is taking unconstitutional action. Yoo, according to them, jeopardized this credibility. 

— Cynthia Foster

Fiorina: Nobody Said Attention-Getting Was Pretty or Sane

In response to widespread criticism of Carly Fiorina's bizarre new Senate ad, the campaign has seemed to take a "Duh, that's why we made it" approach to dealing with the now-viral video that features robotic sheep and a trippy Darth Vader-esque voice over.

According to spokeswoman Julie Soderlund, who spoke with the LA Times blog PoiltiCal via email:

"... the Democrats are all out there attacking the video which is both predictable and fine by us since the more people talk about it, the more people watch it, which of course is the whole point."

It's not really just the Democrats who are "attacking" the video, though.

Assemblyman and Senate candidate Chuck DeVore (R-Irvine) chose to capitalize on the #demonsheep Twitter tag, used by watchers of the video to broadcast nuggets such as "Hows the Tea Party convention going? Did they chase out all the #demonsheep ?"

DeVore purchased the demonsheep.org domain and posted on it a video of him mocking Fiorina, situated jauntily within a lo-fi site design that takes this whole thing to new levels of ridiculous.

Perhaps most alarmingly, a commercial producer tells the Fishbowl LA blog that Fiorina's people likely shot all of the sheep footage themselves, rather than using stock footage. Hope she at least didn't use any washed up liberal livestock from Sonoma County.

— Cynthia Foster

BASF and Others Urge Senate to Reject Legal Aid Nom

The Bar Associate of San Francisco, and over 70 other organizations, is protesting President Obama's nomination of a Sacramento-area attorney to the board of Legal Services Corp., an agency responsible for overseeing federal legal aid programs that subsidize lawyers for the poor.

The protesting bodies say that nominee Sharon Browne has spent much of her 25-year career working to undermine the very legal aid programs she could now be overseeing, if the Senate confirms her nomination.

From SFGate's story:

Browne "has spearheaded numerous efforts at odds with the mission of the Legal Services Corp.," Arturo González, head of the Bar Association of San Francisco, said in a letter to the Senate committee reviewing the nomination.

Among other cited examples, Browne backed Prop 209 and Prop 227 and a challenge of the California State Bar's program that used dues money to mentor parolees and minority lawyers. Her foundation, Pacific Legal Foundation, also unsuccessfully challenged state programs that pool interest generated by trust accounts held for poor clients by their lawyers. The Supreme Court upheld those programs in 2003.

Pacific Legal Foundation, according to its site "is the oldest and most successful public-interest legal organization that litigates for property rights, limited government, free enterprise and a balanced approach to environmental regulation, in courts across the country."

— Cynthia Foster

Ronald M. George: Definitely Not a Clinton Donor

It’s official. The Ronald George who contributed to Hillary Clinton’s presidential campaign in 2008 is not California’s chief justice. So says Clinton campaign treasurer Shelly Moskwa, who emailed me today.

"This was an inadvertent clerical error on the Hillary Clinton for President FEC reports," Moskwa wrote. "We are in the process of amending our reports to correct the error."

The conservative FlashReport blog launched the George-supports-Clinton hoopla Monday with an item concluding, erroneously, that the chief justice had violated a canon barring sizable contributions to nonjudicial candidates. Links to the item made the rounds on Twitter.

On Tuesday, FlashReport publisher John Fleischman wrote that he was a "victim" of Clinton campaign “misreporting.”

"There are a couple of important take-aways from this experience," Fleischman wrote. "The first is that I should endeavor, whenever possible (and there was no tight deadline for this piece on the Chief Justice) to contact the subject of a story. The second is to remind everyone that just because it's on the FEC website doesn't mean it is true."

— Cheryl Miller

Carly Fiorina's New Senate Spot May Cause Seizures

If you haven't seen it already, Carly Fiorina's new campaign ad, targeting rival Tom Campbell, is completely insane. Featuring, among other things, psychedelic robotic sheep that about look like something out of Donnie Darko and long shots of the back of Fiorina's head, the ad was uploaded to YouTube and slapped on an attack site today.

The purpose, ostensibly, is to paint Campbell as a "fiscal conservative in name only" like all those other sheep in Washington. The effect, according to me, is inducing acid flashbacks.

All paid for, perhaps, by Wilson Sonsini partners?

(And if you or anyone you know spots a FCINO like Campbell, Fiorina's attack site has a "Report a Sighting" feature you may find useful.)

— Cynthia Foster

Does This Mean Bybee Goes on Colbert Now?

Looks like the impeachment fire surrounding Ninth Circuit Judge Jay Bybee is going to be deprived a lot of oxygen.

According to Newsweek, a long awaited Justice Department report on the so-called torture memos — which Bybee signed when he worked for the Bush Administration — will say that Bybee and Berkeley Law Professor John Yoo did not commit professional misconduct. Rather, the report concluded that Bybee and Yoo exercised “poor judgment.”

Bybee has been lambasted over his role in approving the memos, and he himself has expressed mixed feelings about his time in the Justice Department, as explored in my profile of the judge last year (free reg. req.). The department’s Office of Professional Responsibility originally recommended that the two lawyers be referred to disciplinary authorities, but longtime career prosecutor David Margolis downgraded that prescription, Newsweek reported.

No predictions from the magazine about when the full report will be released, but if the age-old Washington DC ‘soften the ground’ leaks are any measure (the Post had more details over the weekend), we won’t be waiting too much longer.

— Dan Levine