Posts belonging to Category Judiciary

Professor Mariano-Florentino Cuéllar Appointed to California Supreme Court

In July, Governor Jerry Brown appointed Stanford Professor Mariano Florentino Cuéllar to the California Supreme Court to replace Justice Marvin R. Baxter, who is retiring. If confirmed, Cuéllar would start as an associate justice on January 4, 2015. Cuéllar, who is a Democrat, was born in Matamoros, Mexico. During his childhood, he crossed the U.S.-Mexico border on foot to attend school in Texas; at the age of 14, he moved with his family to California’s Imperial Valley. He went on to receive a bachelor’s degree from Harvard College, his juris doctor from Yale Law School, and a Ph.D. in political science from Stanford University.

Cuéllar focuses his research and teaching on administrative law and governance, public organizations, and transnational security. He has written on issues such as administrative law and national security, including two books, Administrative Law: The American Public Law System and Governing Security: The Hidden Origins of American Security Agencies. He has been extensively involved in public service, notably, serving as Special Assistant for Justice and Regulatory Policy for the Obama administration during 2009-2010 and as Co-Chair for Obama-Biden Transition’s Immigration Policy Working Group in 2008 and 2009. During the President Clinton’s second term, he served as Senior Advisor to the Under Secretary for Enforcement at the U.S. Department of the Treasury.

Cuéllar is married to Judge Lucy H. Koh of the U.S. District Court of the Northern District of California. After a state bar evaluation committee review, Cuéllar will go before a judicial appointments commission for confirmation, and his name will appear on the November ballot for California residents to cast their vote. Governor Brown also has another vacancy to fill, which was left by Justice Joyce L. Kennard when she retired this past April.

Breaking News: U.S. Supreme Court Strikes Down DOMA and California’s Proposition 8 in Landmark Moment for Gay Rights

The Supreme Court today issued its long-awaited rulings on both the federal Defense of Marriage Act (DOMA) and California’s Proposition 8, striking down a key DOMA provision as unconstitutional and dismissing the state case on lack-of-standing grounds, thereby clearing the way for gay marriage to again be legal in California.

The principal consequence of the DOMA ruling is that legally married same-sex couples will be eligible for the same federal benefits as heterosexual couples. See Windsor v. United States, 570 U. S. ____ (2013) (slip opinion available here). In the Proposition 8 ruling, the Court ruled that the plaintiffs didn’t have standing to challenge the lower court’s ruling that struck down the voter initiative banning gay marriage. See Hollingsworth v. Perry, 570 U. S. ____ (2013) (slip opinion available here).

The narrow Hollingsworth majority didn’t consist of the usual suspects, as Chief Justice Roberts wrote the opinion, joined by Ginsburg, Breyer, Kagan and Scalia. Dissenting in the DOMA decision, Scalia was ironically consistent in urging that the Supreme Court limit itself to a modest, deferential role. See Windsor, slip op., dissent at 1 (“We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America.”).

While the entirely technical Proposition 8 ruling was without the soaring language that has characterized Supreme Court decisions on issues of broad consequence, the DOMA opinion contained several quotable passages, including: “By creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect.” Windsor, slip op. at 22.

Federal Update: NLRB Cases on Hold; 2012 Decisions Uncertain; Obama Makes Key Federal Circuit Appointments

In Noel Canning v. NLRB, No. 12-1115 (D.C. Cir. Jan. 25, 2013), the D.C. Circuit Court ruled that President Obama lacked the authority to make three recess appointments to the five-member National Labor Relations Board (NLRB). The recess appointments were deemed unconstitutional, leaving the NLRB with only one board member — two short of the three required to make a quorum and allow the NLRB to function. At least 30 workplace disputes pending before the NLRB are now in limbo.

Of greater consequence, Noel Canning potentially abrogates every NLRB decision since January of 2012, including: Costco Wholesale Corp., 358 NLRB No. 106 (Sept. 7, 2012) (employer’s “social media policy” prohibiting electronic postings that “damage the Company, defame any individual or damage any person’s reputation” held unlawful); Karl Knauz Motors, Inc., 358 NLRB No. 164 (Sept. 28, 2012) (employer’s rule prohibiting “disrespectful” language or “any other language which injures the image or reputation of” employer held unlawful); and Banner Health System, 358 NLRB No. 93 (July 30, 2012) (asking employee who was subject of an internal investigation to refrain from discussing matter violates the NLRA).  Also in question are D. R. Horton, Inc., 357 NLRB No. 184 (Jan. 3, 2012) and Convergys Corp., 2012 NLRB LEXIS 742 (Oct. 25, 2012), key pro-worker decisions finding class action waivers unconscionable.

Meanwhile, as his NLRB appointments are being assailed, President Obama has made two appointments to the Federal Circuit. Unique among the federal intermediate appellate courts, the Federal Circuit was established in 1982 pursuant to Article III of the Constitution, in order to effectuate the merger of the United States Court of Customs and Patent Appeals and the appellate division of the United States Court of Claims. The Federal Circuit’s jurisdiction covers patents and trademarks, but also takes the appeals of certain administrative agency decisions. Indeed, fully half of the Federal Circuit’s caseload is administrative law.

The president’s two most recent appointments, Raymond Chen and Todd Hughes, are notable in broadening the federal judiciary’s diversity. Hughes would be the first openly gay federal appeals court judge, while Chen would be the first Asian American to serve on the Federal Circuit in over 25 years.

Oral Argument in Kilgore v. KeyBank to Determine Whether Public Injunction Claims Remain Outside Application of Concepcion

A Ninth Circuit en banc panel recently heard oral argument in the much-watched Kilgore v. KeyBank Nat’l Assn., No. 09-16703 (audio recording available here), which concerns whether two California Court of Appeal decisions remain good law in light of the U.S. Supreme Court’s holding in AT&T Mobility v. Concepcion. The two California cases are Broughton v. Cigna Healthplans, 21 Cal. 4th 1066, 988 P.2d 67 (1999) (public injunctive relief claims not arbitrable as a matter of California public policy; California’s Consumer Legal Remedies Act (CLRA) injunctive actions), and Cruz v. PacifiCare Health Systems, Inc., 30 Cal. 4th 303 (2003) (same; UCL injunctive actions).

Specifically at issue in Kilgore is whether public injunctive relief claims under the CLRA and UCL are not arbitrable as a matter of California public policy, as established in Broughton and Cruz. A three-judge Ninth Circuit panel had previously ruled that Concepcion overruled Broughton and Cruz. Additionally, Kilgore was issued just days after the California Supreme Court granted a petition for review in Iskanian v. CLS Transp. Los Angeles, LLC, ___ Cal. App. 4th ___ (2012). In Iskanian, the California Supreme Court will decide whether Concepcion overruled the unconscionability jurisprudence of Gentry v. Superior Court, 42 Cal. 4th 443 (2007). Since both appeals concern the extent of FAA preemption, with an underlying issue of California substantive law, the Kilgore appeal will likely be stayed until there is a disposition of Iskanian (the discussion of which provided a moment of levity during the oral argument as the attorney for KeyBank indicated that he was not familiar with Iskanian). Similarly, some members of the Kilgore panel queried whether a disposition of Kilgore ought to be deferred until the U.S. Supreme Court issues a decision in American Express Co. v. Italian Colors Restaurant, as to which a certiorari petition was just granted, or whether, instead of awaiting the Iskanian ruling, the procedure whereby a question is “certified” to the California Supreme Court ought to be used, thereby obtaining a definitive interpretation as to issues of state substantive law.

The Kilgore appeal has attracted considerable amicus interest, and the oral argument got underway with Chief Judge Kozinski questioning the Chamber of Commerce’s amicus counsel, asking if Concepcion is distinguishable on the most apparent ground: that the public injunctions in Broughton and Cruz are remedies, not claims. Responding to that and other similar inquires, the amicus counsel gave emphasis to the fact that seeking a public injunction under the UCL requires class certification, and was ready with an adept citation to Supreme Court precedent in which punitive damages were preempted by the Federal Arbitration Act (FAA).

Considerable time was devoted to discussing the FAA’s “savings clause,” which Concepcion held did not prevent FAA preemption. But does Concepcion bar any state-created legislation that might limit arbitration, even in circumstances where, as in Broughton and Cruz, public health and safety are implicated? Assuming a judicial posture, amicus counsel reiterated that the FAA had preemptive effect in the case at hand, sidestepping the broader hypothetical.

Judge M. Margaret McKeown pressed as to whether there is an intersection between unconscionability and public policy, and invoked the U.S. Supreme Court’s recent Marmet Health Care Ctr., Inc. v. Brown decision (132 S. Ct. 1201 (2012)), which seemingly puts state-created unconscionability doctrine outside the ambit of FAA preemption, before the proceedings focused on Cruz and Broughton. When questioned whether overruling Broughton and Cruz would be applicable only in federal courts or in California state courts as well, the voluble Chamber of Commerce amicus counsel opted for the more aggressive interpretation, whereby the disposition would be applicable in state and federal courts alike. While the degree to which the amicus parties worked cooperatively with counsel for KeyBank is unknown, but it is often an indication of confidence that an appellate panel is a favorable one when counsel opts for a broader interpretation when a narrower, more risk-averse interpretation is available.

Judge Harry Pregerson, widely viewed as among the most “plaintiff friendly” in the Ninth Circuit, questioned counsel only sparingly, and as to relatively technical issues of standing under the UCL. However, Judge William Fletcher worked off Judge Pregerson’s reference to UCL standing to elicit from KeyBank’s counsel the concession that there would be no injunctive relief available in a private action (i.e., other than in an action brought by the California Attorney General) even if there were a general fraud. Later in the oral argument, and at a moment of abrupt candor, Judge Pregerson asked the plaintiff’s counsel (who Pregerson let it be known is a personal acquaintance): “What is the bottom line of your lawsuit?” Counsel responded in essence that the preservation of the right to bring private actions that seek public injunctions to combat broad wrongs is the “bottom line” in Kilgore.

In addition to the judges referenced above, the 12-member Kilgore en banc panel consisted of Judges Paul Jeffrey Watford, Mary Murguia, Consuelo Callahan, Richard C. Tallman, Milan D. Smith Jr., Morgan Christen, and Andrew Hurwitz.