Washington Briefs

Back when I covered the Supreme Court for the Los Angeles Daily Journal, I always found it fascinating covering claims of ineffective assistance of counsel made against criminal defense lawyers by former clients. In particular, I was intrigued by what it felt to be one of those lawyers, especially when the case ends up at the high court. I covered a few cases in which the accused lawyer ended up being vindicated by the justices. Quite a roller coaster ride of emotions for the lawyers involved.

It’s now the subject of a feature I’ve written for California Lawyer magazine that is out this month. You can read it here:

Prometheus

Prometheus is best known for being the titan who, against the wishes of Zeus, gave mankind the gift of fire. Prometheus is also the name of a company that comes up with new diagnostic and therapeutic products. Today, the Supreme Court heard arguments in a patent dispute between Prometheus (the company) and Mayo Collaborative Services about whether one of its products can be patented.

The echoes of ancient Greek mythology in the case name may have inspired Chief Justice John G. Roberts Jr. In one of his hypothetical questions to the Obama administration’s lawyer about what processes can be patented, he referred back to one of man’s earliest “discoveries”:

So I have a great idea. You take wood, you put it on a grate, you light it, and you get heat. That .. recites a series of acts performed in the physical world that transforms the subject of the process, the wood, to achieve a useful result, which is heat. So I can get a patent for that?

The answer is no. “It’s not novel, and it’s obvious,” said Solicitor General Donald Verrilli.

Of course, Prometheus (the titan) didn’t get a patent for “discovering” fire because he didn’t discover it. He simply grabbed some fire from the flaming chariot of Helios, the sun god, and gave it to mankind when Zeus wasn’t looking.

Zeus wasn’t best pleased. Prometheus’ punishment was to be chained to a rock for eternity, where a vulture would peck out his liver every day in an endless cycle of pain.

Prometheus could not immediately be reached for comment.

When I first took a look at the 100 questions on U.S. naturalization civics test, I immediately saw some potential traps. I hope not to fall into any of them tomorrow when I’m scheduled to take the test in Baltimore.  To pass the civics test component of the U.S. naturalization process, applicants have to get six answers correct. There are a hundred questions on the list, but only a maximum of ten are asked (if you get all of your first six correct, you’re done).

Some are gimmes, as they say in golf, such as Question 28: What is the name of the President of the United States now? Others might require a little extra work for those who aren’t political and/or legal junkies, like Question 7: How many amendments does the Constitution have?

For me, as someone who has worked as a legal reporter in the U.S. since 2002 (although I have no formal legal training), the potential traps arise in various questions about the Constitution. Perhaps most problematic are the open-ended questions. If asked “what does the Constitution do?” (Question 2) by someone in the street, my most likely answer would be: “where do I start?” That isn’t what U.S. Citizenship and Immigration Services wants to hear, obviously. Instead, it’s the simple phrase “defines the government,” which kind of makes sense. I have memorized it, just in case.

Here are some other questions that threw me a little:

Question 35: What does the President’s Cabinet do?

My answer to this would be that the cabinet members run government departments. But what CIS wants to here is “advises the president,” which is correct but doesn’t convey all that cabinet members do.

Question 48: There are four amendments to the Constitution about who can vote. Describe one of them.

What I find puzzling here is that the obvious answers would be “women can vote” and “African-Americans can vote” but these are not among the official answers. Instead, there’s “any citizen can vote. (Women and men can vote.)” or “a male citizen of any race (can vote).” Both seem strangely phrased to me.

Question 49: What is one responsibility that is only for United States citizens?

The correct answers are serving on a jury and voting, but the use of the word “responsibility” is what baffles me here, mostly in relation to voting. As I understand it, people are under no obligation to vote. It is a right to vote (Question 50 deals with that), sure, but is it a responsibility?

Question 51: What are two rights of everyone living in the United States?

Now this is the one I found most confusing. Before looking at the answers, my response, without thinking, as “the right to due process.” But that isn’t among the list of answers, which — in full, is:

freedom of expression
freedom of speech
freedom of assembly
freedom to petition the government
freedom of worship
the right to bear arms

Where is due process? Where is the Fourth Amendment right to be free of “unreasonable searches and seizures?” Weird.

And, finally, Question 55: What are two ways that Americans can participate in their democracy?

What struck me here is that, in a post-Citizens United age in which, more than ever, political speech = money, none of the possible answers involve “donating to a candidate and/or political party,” which seems an odd omission. Especially when they include “write to a newspaper” among the possible answers. Like that’s going to help.

The nomination this week of Los-Angeles-based Munger, Tolles & Olson attorney Paul Watford to the 9th U.S. Circuit Court of Appeals prompted your blogger to look again at the transcript of a Supreme Court roundtable previewing the 2009 term (Daily Journal subscribers can read it via the paper’s website). At that time, yours truly was the Supreme Court reporter for the Los Angeles Daily Journal and had the job of moderating the conversation.

In his remarks, Watford focused mainly on criminal cases, showing an enthusiasm for that subject area that you might expect from a former federal prosecutor.

Here are some excerpts:

Daily Journal: How will the arrival of Justice Sonia Sotomayor as a replacement for Justice David H. Souter change the dynamic of the court?

Watford: I have reviewed a number of her criminal opinions and I would tend to agree with the commentators who said that she may well turn out to be more conservative than Justice Souter on criminal law issues.

(snip)

Daily Journal: In the criminal law area, the court has granted two petitions to explore how to define “honest services” fraud as it applies to public officials and private figures. The private figure in question is media tycoon Conrad Black. Weyhrauch v. U.S., 08-1196 and Black v U.S., 08-876.

Watford: I certainly have an interest in it. There’s been a lot of uncertainty about the scope of what crimes can be prosecuted under the honest services statute. I don’t think I ever even had a case where that statute came up. But I know the lower courts have been in disarray on this issue and hopefully the Supreme Court will provide some definitive guidance. It had been well established in the context of public officials who had taken bribes. I think the Conrad Black case is interesting because it’s in a purely private context. It’s certainly a timely opportunity for the court to step in.

(snip)

Daily Journal: Prosecutorial abuse is the subject up for discussion in Pottawattamie County v. McGhee, 08-1065. The question is whether prosecutors have absolute immunity for conduct that occurred outside the courtroom. In this instance, a prosecutor obtained false testimony during the investigation and then presented it at trial.

Watford: The entire conviction was based on this coerced testimony. It’s very clear that the prosecutors are absolutely immune for anything they did in court. But there’s a big question about what about everything that occurs before you get into the courtroom, which is the key twist in this case. I find the issue fascinating as a former prosecutor.

From Friday’s Greenwire:

Retired Supreme Court Justice John Paul Stevens highlights a high-profile Endangered Species Act case about a tiny fish that delayed a reservoir project in his new memoir.

The case in question is Tennessee Valley Authority v. Hill, a 1978 ruling in which the court ruled that a project to build the Tellico Dam on the Little Tennessee River had to be halted because it would likely lead to the extinction of the snail darter.

The opinion was not one of Stevens’ own from his 35-year tenure on the court, which came to an end when he retired in 2010. But it is one of Stevens’ favorites from the pen of Warren Burger, who served as chief justice from 1969 to 1984.

 

The mention of the case is in keeping with the theme of the book, “Five Chiefs,” in which Stevens focuses on the five chief justices he either worked alongside or came into contact during his long legal career.

In preparing for the upcoming Supreme Court term, your blogger couldn’t help noticing that former Bush solicitor general Paul Clement and Gregory Garre are on opposite sides in one of the cases he’ll be following closely: PPL Montana v. Montana.

From today’s Greenwire:

When the Supreme Court hears arguments in an upcoming case on riverbed ownership in Montana, the two advocates opposing each other will both be former solicitors general who served in the George W. Bush administration.

Paul Clement, who served as solicitor general from 2005 to 2008, is representing power company PPL Montana, while Gregory Garre, who succeeded Clement as solicitor general in 2008, will line up on behalf of the state of Montana.

The two men know each other well, reflecting the close-knit nature of the small group of lawyers who argue most of the cases before the high court.

From 2005 to 2008 they worked alongside each other at the solicitor general’s office, with Garre serving as Clement’s deputy. In fact, Clement hand-picked Garre to be his No. 2. Garre left his post in January 2009 upon the election of President Obama.

The Montana case, to be argued Dec. 7, will be the first time the two highly respected Supreme Court advocates have faced off against each other.

A federal appeals court judge cashed in on a visit to Las Vegas last year, her 2010 financial disclosure form appears to show.

Judge Catharine Haynes, a George W. Bush appointee to the New Orleans-based 5th U.S. Circuit Court of Appeals, reported “non-investment income” of $1,270 from “the Bellagio video poker jackpot,” which your blogger assumes is a reference to this Bellagio and not this one. The happy even took place Aug. 21.

The information came to light during the reporting of this story on 5th Circuit judges and their investments in the oil and gas industry, in which the following was revealed:

The new reports show that only one judge who formerly had stocks in an oil and gas company is now free from any association with the industry.

That is Judge Catharina Haynes, an appointee of President George W. Bush who previously held up to $15,000 in BP PLC stock but sold several weeks after the April 20 explosion of the Deepwater Horizon rig began the Gulf spill. BP was the owner of the leaking oil well.

This week’s argument in American Electric Power v. Connecticut, a high-profile climate change case at the Supreme Court on whether federal common law public nuisance claims can be used to reduce emissions from power plants, overshadowed developments in a related case that now looks to be over.

Last week, as part of the massive settlement between EPA and the Tennessee Valley Authority over emissions from the latter’s plants, North Carolina agreed to end its public nuisance claim against TVA, a spokeswoman for North Carolina Attorney General Roy Cooper confirmed.

A petition had been filed in the Supreme Court after the 4th U.S. Circuit Court of Appeals ruled in favor of TVA.

“We have not notified the Supreme Court yet,” Cooper’s spokeswoman said in an email. ” Our agreement with TVA provides that dismissal of the cert petition will only occur after a consent decree is entered by the federal district court.  That will not occur for at least 30 days.”

With that case now almost over, there is apparently only one other case on the issue still alive apart from American Electric Power.

That would be a case out of the 9th Circuit called Kivalina v. ExxonMobil, which has been stayed pending the resolution of the Supreme Court case.

The recent release of internal Solicitor General’s Office documents relating to how then-Solicitor General Elena Kagan tried to steer clear of any involvement in the debate over the legality of the federal health care reform law seems to raise one important question of timing — and luck.

That’s because the documents obtained by conservative news site www.cnsnews.com show how the SG’s office handled another case, a challenge to San Francisco’s universal health care law called Golden Gate Restaurant Association v. San Francisco (a case your blogger covered in his role as SCOTUS reporter for the Los Angeles Daily Journal).

The SG’s office was asked by the Supreme Court in October 2009 to share its views on whether the justices should hear that case, but it seems that Kagan managed not to get involved (as she did over preliminary discussions about how the administration should defend the health care reform law). The timing question that arises is: what would have happened if the San Francisco case had come up earlier in her tenure? If it had come to Kagan’s attention before she had an inkling Justice John Paul Stevens was going to resign, would she then have taken a more active role and — crucially — now face even more questions than she does already about whether to recuse if/when the constitutionality of the federal health care law reaches the high court? Or would the SG’s office have just delayed filing its brief indefinitely? It also makes one wonder how far in advance Kagan knew that there would be a vacancy on the court.

Ultimately, it all seems to have worked out perfectly for Kagan. Her best defense when asked about whether she had any involvement in the San Francisco case is the fact that the SG’s brief, which asked the court not to take the case in part because of the enactment of the federal law, was filed after she was nominated. Her name is nowhere to be seen.

One final point: Vince Chhabria, the deputy San Francisco City Attorney who handled the case for the city, tells your blogger that he only ever had contact with Deputy SG Edwin Kneedler. “That’s as high as it went our end,” he says.

It seems U.S. District Judge John Roll, one of the victims of the Tuscon shooting, was a keen supporter of Republican-led efforts to split the 9th U.S. Circuit Court of Appeals into two smaller courts.

It was no secret. Your blogger found out about it when he came upon a Wyoming Law Review article (p109) Roll wrote in 2007 called “The 115 Year-Old Ninth Circuit – Why a Split is Necessary and Inevitable.”

The suggestion that the court be split is an old one that is, in theory, back on the agenda now that Republicans control the House. A bill that would split the circuit has already been introduced. Some Republicans like the idea of having a new circuit that would not be influenced so much by liberal judges from California. Other supporters of the move, like Roll, focus more on administrative issues, citing the fact that the 9th Circuit is the biggest circuit by geography, caseload and number of judges.

Just for the record, in footnote 248, Roll cites a Los Angeles Daily Journal article your blogger wrote on the 9th Circuit split issue in order to make the point that “while there is little or no evidence of pro-split judges and lawyers articulating political reasons for a division of the circuit, this has not been true of all split opponents.” The Daily Journal story was headlined: “Environmentalists Ask Senate to Leave the 9th Circuit Alone.”

UPDATE: Glenn Sugameli, who tracks judiciary issues for Defenders of Wildlife, takes issue with Roll’s conclusions. “Judge Roll was not politically motivated,” he said in an email. “In fact, however, while not everyone supporting a split was ‘simply politically motivated’ [as Roll described it elsewhere in his article] and some who were would not admit it -  the political power behind attempts to split the 9th Circuit has always come from industry and politicians who were simply politically motivated.” More on Sugameli’s work can be seen here.