Legal Pad

Nevada Chief Judge Returns Reinhardt's Fire

[Scott Graham]

Judge Robert Jones isn’t taking Stephen Reinhardt’s criticisms lying down.

After Ninth Circuit Judge Reinhardt publicly accused Nevada’s chief district judge of trying to evade appellate review of a decision that could theoretically swing the presidential election, Jones fired back Thursday with an order accusing Reinhardt of improperly meddling in the case.

“The undersigned was quite surprised when Judge Reinhardt contacted my chambers through the Ninth Circuit Clerk's Office and requested early entry of the order granting preliminary injunction, in light of a preliminary hearing date set by himself on the Defendants Emergency Motion to the Ninth Circuit for Stay Pending Appeal,” Jones wrote.

On Friday, Ninth Circuit Executive Cathy Catterson confirmed that a deputy clerk contacted Jones’ chambers to clarify the status of Townley v. Miller, 12-16881, and might have been acting at the behest of Reinhardt, who is the senior presiding judge of the Ninth Circuit’s motions panel for September. Such communications by a motions panel are “fairly common procedure,” Catterson said.

Judge Reinhardt Calls Electioneering on Chief Judge of Nevada

[Scott Graham]

In a remarkable smackdown by federal court standards, the U.S. Court of Appeals for the Ninth Circuit assumed jurisdiction over a Nevada elections case this week, with one Ninth Circuit judge accusing the chief judge of Nevada of deliberately trying to run out the clock till the Sept. 7 deadline for printing the ballots. 

Chief Judge Robert Jones "has deliberately attempted to avoid entering any order that would allow an appeal before that date," Ninth Circuit Judge Stephen Reinhardt wrote in a concurrence to the Sept. 4 order granting the state's request to get before the appellate court. "His dilatory tactics appear to serve no purpose other than to seek to prevent the state from taking an appeal of his decision before it must print the ballots."

At issue is a 37-year-old law that allows Nevada voters to mark their ballot "none of these candidates." A lawsuit said to be financed by the Republican National Committee was filed in June seeking to invalidate that option, apparently on the theory that it could siphon off anti-Barack Obama votes from Mitt Romney in the presidential election this fall.

According to Reinhardt's concurrence, Jones, an appointee of George W. Bush, assigned the case to himself after the assigned judge withdrew. He then waited three weeks to set a hearing for Aug. 22, despite both sides' request for expedited briefing, according to Reinhardt. Two days later he entered a minute order granting the injunction, but -- with the Sept. 7 deadline for printing ballots looming this week -- had not issued a "reasoned opinion," in Reinhardt's words.

The Ninth Circuit's motions panel, consisting of Reinhardt and Judges Kim McLane Wardlaw and Carlos Bea, stayed the order Tuesday pending appeal and published it today.

Failure to act by the Ninth Circuit, Reinhardt wrote in his concurrence, "would allow the district court to erroneously invalidate Nevada's long-standing election process and to deprive its citizens of their right to participate in presidential elections in the manner that the law prescribes" without review by the Ninth Circuit or the Supreme Court. "Such arrogance and assumption of power by one individual is not acceptable in our judicial system."

[Note: This item has been corrected to reflect that Jones was appointed to the district court by George W. Bush, not the senior George Bush.]

 

Ninth Circuit Offers a Window Into Maui

[Scott Graham]

If you wanted to attend the Ninth Circuit Judicial Conference in Maui earlier this month but were pinching pennies like Senator Charles Grassley, the court is now offering the next best thing: video of the most popular seminars and ceremonies.

Among the highlights are Supreme Court Justice Anthony Kennedy's welcoming remarks to the conference; a conversation between Kennedy, Ninth Circuit Judge Marsha Berzon and three other conference representatives; and Quinn Emanuel partner Kathleen Sullivan's review of the 2011-12 Supreme Court term.

Grassley's severe criticism of the Ninth Circuit for scheduling its conference in Hawaii -- which led to the court postponing next year's conference to 2014 -- was clearly on the minds of conferees. "If the American public knows, and they should know, what we do at this conference, they would be immensely proud," Kennedy told the conference.

"We look forward to seeing you at the next conference in Monterey," said Ninth Circuit Judge Richard Clifton of Hawaii, introducing the last seminar of the conference. "We also look forward to being able to welcome this conference back to our islands at some point in we hope the not-too-distant future."

Email on Controversial AOC Proposal Surfaces

[Cheryl Miller]

Three years ago a veritable judicial ruckus erupted when a draft piece of legislation that appeared to give the Judicial Council authority to appoint presiding judges and court executives was discovered in the Capitol.

The fracas over the never-introduced bill, authored by someone in the judiciary who is still unidentified, never really died down. In fact, it’s become a touchstone for judges who see the document as evidence of a power-hungry Administrative Office of the Courts hell-bent on centralization.

An email that surfaced last week may only add fuel to that fire. It’s a June 16, 2009 missive from Donna Hershkowitz, assistant director of the AOC’s Sacramento lobbying shop, passing along proposed Department of Finance judicial budget language and the AOC’s response to a half-dozen Capitol staffers. It’s the first document made public linking a specific AOC executive to the controversial draft.

“… I’m forwarding the language finance sent,“ Hershkowitz wrote. “The AOC made revisions to the language to provide necessary technical assistance to make the language work.”

The revisions she refers amend Government Code Section 77001 to read, “The Judicial Council shall adopt rules, policies, or directives, which shall provide, consistent with statute … means of selecting presiding judges, assistant presiding judges, executive officers or court administrators, clerks of court, and jury commissioners.”

Contacted last week, Hershkowitz and the AOC’s chief lobbyist, Curtis Child, declined to say who authorized the draft language. They also say, as they did three years ago, that no one in the judiciary endorsed the language, which they insist was drafted to fix structural and wording problems in the Department of Finance’s bill. (A Finance spokesman three years ago said his department never asked for the amendments). And even if the bill had been enacted, they say, the changes would have had “no substantive effect” on local courts’ ability to select their own presiding judges and other court officers.

"No one had any intent to put together any language secretly that would have allowed the Judicial Council to appoint presiding judges," Child said.

Suspicious judges aren’t buying the explanations.

“The proposal speaks for itself,” said Sacramento County Superior Court Judge Maryanne Gilliard, a director of the Alliance of California Judges. “It was a blatant and sneaky attempt to eliminate the statutory requirement for ‘a decentralized system of trial court management.‘”

The answers also did little to soothe Los Angeles County Superior Court Judge Lance Ito, who in an email called the revelation of the AOC’s draft language three years ago “the event that caused me to lose all faith in the AOC and the Judicial Council.”

Ito has been among the most vocal judges demanding to know who authorized the draft. The judge said he plans to continue pressing the issue.

“The [lobbyists'] refusal to identify the author begs the question, ‘What else are they hiding?’” Ito wrote. “I will be attending the CJA conference in Monterey in October for the specific purpose of asking the chief [justice] these questions in the annual Ask The Chief session that closes the conference.”

 

Kicked Out, Call Keker?

[Cynthia Foster]

It may be out of his usual purview, but John Keker is stepping in to fight for culture and against strip clubs.

The big shot lawyer, who prosecuted Oliver North and defended Frank Quattrone, now represents Jeanette Etheredge, owner of Tosca Café on Columbus Ave. The 93-year-old saloon and its owner are under threat of eviction because of a $500 a month rent hike Etheredge says she just can’t pay. The landlord in question is Roger Forbes --  a partner in Déjà Vu Consulting, which owns about 75 strip clubs nationwide.

In an email Wednesday, Keker said he’s representing Etheredge pro bono because of their longstanding friendship.

“My wife Tina and I have been good friends with Jeanette Etheredge since our kids were in nursery school together at Telegraph Hill Neighborhood Assoc., more than 40 years ago,” he wrote. “I help Jeanette when she needs help.”

Lucky Jeanette.

Alsup to Ninth Circuit: Don't Listen to 'Incorrect' Argument

[Scott Graham]

Earlier this month, while trying to block the City of San Francisco from forcing cellphone retailers to hand out fact sheets about radiofrequency energy, Wiley Rein partner Andrew McBride put U.S. Distirict Judge William Alsup's handling of the case in play.

“The judge proposed his own language to revise [the fact sheet], San Francisco adopted that language in a week, and I never got an opportunity to put in evidence on this new revised fact sheet,” McBride told the Ninth Circuit on August 9.

Claims that a trial judge committed error is nothing new at the court of appeals, but Judge Alsup apparently was incensed after reading an account of the argument Monday in sibling publication The Recorder. Alsup wrote a letter to the Ninth Circuit on Monday afternoon accusing McBride of misstating the record.

"Counsel has implied that the court gave no further opportunity to comment prior to approving the final version of the revised fact-sheet. This is incorrect," Alsup wrote in CTIA The Wireless Association v. City and County of San Francisco.

Recorder's 'At the Podium' Column Now With Video

[Scott Graham]

We're trying something new today with sibling publication The Recorder. We're presenting an edited highlight reel from a Ninth Circuit hearing to accompany today's At the Podium column on the argument.

In CTIA v. City and County of San Francisco, a trade association is trying to stop the city from forcing cellphone retailers to warn customers about the health risks from RF energy. After suggesting some revisions Judge William Alsup OK'd San Francisco's law last fall.

Andrew McBride and Vince Chabbria brought passion and energy to their arguments -- McBride so much that he spoke over the judges several times, while Chhabria drove one judge to a sarcastic rant .

The full hour-long hearing, which was recorded by the Ninth Circuit, can be viewed at the court's website here. The judges, left to right, are Mary Schroeder, Consuelo Callahan and Edward Korman.

Kennedy Backs Ninth Circuit on Hawaii Conference

[Scott Graham]

Supreme Court Justice Anthony Kennedy is standing behind the U.S. Court of Appeals for the Ninth Circuit's decision to hold its annual judicial conference in Hawaii. Which is a good thing, since the justice is speaking at the conference.

The gathering of the bench and bar, which has come under fire from Senators Charles Grassley and Jeff Sessions, is "a prudent and a proper exercise of the judicial function," Kennedy told the conference today, according to a press release on the Ninth Circuit's website.

Last month the court announced that it would cancel its 2013 conference to save money. Chief Judge Alex Kozinski has said that it was too late to pull out of this year's conference, which Grassley estimates will cost more than $1 million.

 

Manoukians' Son Killed While Serving in Afghanistan

[Scott Graham]

Heartbreaking news from the Santa Clara County court community this weekend, as the San Jose Mercury News and others reported that Marine Captain Matt Manoukian, son of Sixth District Justice Patricia Bamattre-Manoukian and Superior Court Judge Socrates "Pete" Manoukian, was killed last week in Afghanistan.

Manoukian, a member of the First Marine Special Operations Battalion, was already the owner of a purple heart, having saved a fellow soldier's life after both were wounded in 2007 bomb blast. On Thursday an insurgent disguised as a policeman fatally shot Manoukian during a predawn meal and security meeting at a police checkpoint. He was 29.

Pete Manoukian told the Mercury News his son had been eating before daybreak in observance of Ramadan, out of respect for the people of Afghaninstan and Iraq, whom he had gotten to know during his four tours of duty. "He was very into their culture," the judge told the Mercury News. "He managed to learn Arabic and worked on opening up a school and setting up a police station and got a courthouse running with some of his people. He even taught little kids to play baseball after one of our friends sent baseballs and bats."

Matt Manoukian had planned to conclude his military service at year's end and had enrolled in Golden Gate Unversity School of Law with an eye toward becoming a public defender.

Notice of Matt's death came Thursday night with a knock on the door of the family's Los Altos Hills home. When Pete Manoukian saw four figures on the porch in uniforms bearing the Marine insignia, "I thought, oh, this isn't good," he told the Mercury News.

Manoukian was a graduate of Mountain View's St. Francis High School and the University of Arizona. He  attended the officer candidate school in Quantico, Va. He also is survived by two brothers. Services were to be announced at a later time.

A Momentary 'Dukes' Distraction

[Cynthia Foster]

While he waits to hear if he’s killed Dukes dead, Wackenhut will have to do.

Theodore Boutrous, the Gibson Dunn & Crutcher partner who got the U.S. Supreme Court to throw out one of the largest discrimination class actions of all time, won a significant employment law victory in Los Angeles Superior Court this week for his client, a Florida-based security firm. Judge William Highberger decertified a hefty class of 130,000 Wackenhut Corp. workers suing for lost meal breaks, and liberally cited the highest court’s decision in Wal-Mart v. Dukes along the way.

It was no doubt gratifying for Boutrous to see his work in Dukes so relied upon, but it’s likely he’s just drumming his fingers waiting for the next installment in the Dukes drama.

The plaintiffs weren’t deterred by Boutrous’ success with SCOTUS, and filed a smaller, regional suit in the Northern District of California last year. Boutrous and Wal-Mart have moved to throw that case out, too, perhaps putting a nail in the coffin of what was once a 1.6 million-woman strong class of Wal-Mart workers. The regional suit, composed of 90,000 workers, is a shadow of its former self, but the employment law bar is watching closely. Among other hot topics: Just how small does a class need to be to proceed manageably? Boutrous has spent the last eight years persuading judges that the answer is very small.

U.S. District Judge Charles Breyer is due to hand down his decision any day now. We’re all waiting — even if we’re momentarily distracted by defense wins like Wackenhut.