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News for, and by, our local legal community, curated and created by the Santa Clara County Bar. The opinions expressed in this blog are the authors' own and do not necessarily represent or reflect the views of the Santa Clara County Bar Association, its members, its employees, or its governing board.


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Affordable Care Act survives Supreme Court challenge

Posted By Administration, Thursday, June 25, 2015

The Supreme Court on Thursday upheld a key provision of the Affordable Care Act and agreed with the Obama administration that government subsidies that make health insurance affordable for millions of Americans should be available to all.

By a 6-3 vote, a divided court affirmed an Internal Revenue Service ruling that subsidies should be available not only in states that have set up their own health insurance exchanges, but also in those where consumers rely on the federal government exchange.

The decision for the second time defused a potential conflict between President Obama and the Supreme Court over his most notable domestic achievement. While there are more challenges to come, an adverse ruling in this case would have been close to a mortal blow to the act that continues to divide the nation and its political conversation.

The court was interpreting a passage in the law that said the tax credits are authorized for those who buy health insurance on marketplaces that are “established by the state.” Chief Justice John G. Roberts Jr. said that while the law’s wording was problematic, Congress’s intent was clear.

Read the whole story at The Washington Post

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Calif. judge throws out kill-gays ballot measure

Posted By Administration, Wednesday, June 24, 2015

A California judge has thrown out a proposed ballot initiative that advocated killing anyone who engages in gay sex, calling the measure "patently unconstitutional."

Sacramento County Superior Court Judge Raymond Cadei relieved California's attorney general late Monday of the duty to clear the so-called Sodomite Suppression Act for signature-gathering. Cadei said it would be "inappropriate, waste public resources, generate unnecessary divisions among the public, and tend to mislead the electorate" for Attorney General Kamala Harris to process the proposal.

Harris had asked for a judge's permission in March to reject the initiative through a legal complaint against its sponsor, Orange County lawyer Matthew McLaughlin. After McLaughlin did not attempt to defend the measure in court, the attorney general last week sought a default ruling in her favor, a request Cadei granted.

Read the whole story at USA Today

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Brown’s latest nominee another young, judicially inexperienced Obama lawyer

Posted By Administration, Wednesday, June 24, 2015

Like his last state Supreme Court appointee, one of Gov. Jerry Brown’s latest appellate court nominees is a young Obama administration lawyer with no judicial experience. The current pick, Lamar Baker, is stirring up a certain amount of controversy.

Brown named Baker, 37, to one of three vacancies on the Second District Court of Appeal in Los Angeles last month. Baker, a Bay Area native and like Brown a Yale Law School graduate, practiced law in Southern California from 2002 to 2005, then spent five years as a federal prosecutor in Los Angeles before joining the Obama administration. He moved up the ranks to become chief of staff in the Justice Department’s Office of Legal Policy, then joined the White House counsel’s office in 2013 and has served as special assistant and associate counsel to the president for the last year.

Baker might be an unusual choice for other governors but not for Brown, whose three current state Supreme Court appointees had never previously served as judges. The most recent, Justice Leondra Kruger, was a 38-year-old attorney in Obama’s Justice Department with a sparkling reputation but no judicial record before Brown swore her into office in January.

Baker faces a confirmation hearing July 23 before the Commission on Judicial Appointments, whose members include Chief Justice Tani Cantil-Sakauye and Attorney General Kamala Harris. The third member, Paul Turner, the Second District’s senior presiding justice, told the Los Angeles Daily Journal last week that he hadn’t decided whether to support Baker.

Read the whole story at SF Gate

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State Senate tells U.S. Supreme Court not to mess with 'one person, one vote'

Posted By Administration, Tuesday, June 23, 2015

The state Senate on Monday sent a strong message to the U.S. Supreme Court to not mess with the principle of “one person, one vote.’’

The resolution, which passed 36-0, comes just weeks after the Supreme Court announced it would consider a Texas case challenging the way electoral districts are drawn.

Senate President Kevin de León (D-Los Angeles), author of the resolution, said he was “deeply concerned by the inexplicable decision” by the Supreme Court to hear the case. Since the Supreme Court established the principle of  “one person, one vote” in 1964, it has ensured that all people in the country have received fair representation, the senator said.

“This challenge now is nothing more than a cynical and transparent effort to turn back the clock on decades of legal precedent and return an unjust and unequal system of redistricting, one that greatly disadvantages diverse and urban communities,’’ De León said.

Read the whole story at LA Times

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Sharing economy gets a wake-up call with Uber ruling

Posted By Administration, Friday, June 19, 2015

Silicon Valley has created a new breed of American worker: neither employee nor contractor, indispensable to the company but free to work as much or as little as they please — with no real boss.

Together, companies including Uber, Airbnb, TaskRabbit, GrubHub make up the so-called sharing economy, a burgeoning marketplace of digital platforms connecting freelance providers with customers wanting a ride, a place to stay, random errands or grocery delivery.

As the companies proliferate, government regulators are scrambling to rein them in. City and state officials are pushing to protect worker rights while start-ups — insistent that they are merely providing the technology for a network of independent workers — want to be left alone.

The solution, labor and tech watchers say, may have to be a compromise: A new class of workers, protected by laws that take into account the emerging business model. Some advocate a new category of worker — the "dependent contractor," technically self-employed but reliant on income funneled through a third party. Germany and Canada have special protections in place for such laborers.

Read the whole story at LA Times

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Judge rules Ellen Pao must pay $276,000 to Kleiner Perkins

Posted By Administration, Thursday, June 18, 2015

A Superior Court judge ruled on Wednesday that Ellen Pao, the former venture capitalist at the center of the high-profile sex discrimination case earlier this year, must pay Kleiner Perkins Caufield & Byers nearly $276,000 to reimburse the venture capital firm for its expenses during the five-week trial.

The payout is roughly a fourth of the amount Kleiner Perkins had demanded -- $972,814 -- for reimbursement of its trial costs, the lion's share of which went to fees and traveling expenses for expert witnesses. That figure doesn't include fees for Kleiner's legal team, led by Orrick attorney Lynne Hermle.

Judge Harold Kahn, who presided over the trial, said in a tentative ruling that Kleiner was entitled to just a portion of the reimbursement it demanded for expert witnesses -- some of who charged thousands of dollars for a few hours of testimony. Kahn said he didn't deem the expert witness costs unreasonable, but decided to scale them back, citing the vastly different resources available Kleiner Perkins, one of the wealthiest VC firms in the valley, and Pao, the interim CEO at microblogging site Reddit.

Read the whole story at Inside Bay Area

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Academics push for California to switch to universal bar exam

Posted By Administration, Wednesday, June 17, 2015


Prospective attorneys in California have to answer at least 200 questions during the bar exam, a three-day marathon that quizzes them on legal matters big and small. And, some experts say, the ones that have the least bearing on whether they'll become successful attorneys end with the phrase "answer according to California law."

A growing number of academics are pushing for California to join states that have moved to a test that only focuses on national matters.

Known as the universal bar exam, the test was first adopted by Missouri and North Dakota in 2011. Since then, 14 other states also decided to use the test, including New York, where the chief judge said in May that the state would begin administering it in 2016.

Many states could follow New York's lead, especially because more people take the bar there than anywhere else. Last year, nearly 15,000 people took the New York bar exam. California came in second with about 13,000, according to the National Conference of Bar Examiners.

"It just makes a lot of sense now," said Derek Muller, a professor at Pepperdine University who writes on the business of law.

Muller said the California exam, which contains parts of the uniform bar, is based on "a slightly outdated notion" that attorneys would need to be generalists and be able to recall large chunks of legal knowledge.

"The world's a little different today," he said. "The law is much more specialized."

Erwin Chemerinsky, the dean of the UC Irvine School of Law, put an even finer point on the need for California to change. "The current system... is inefficient, burdensome and, frankly, unjustifiable," he wrote in a recent op-ed in The Times.

Read the whole story at LA Times

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Developers can be required to include affordable housing, California high court rules

Posted By Administration, Tuesday, June 16, 2015

Citing an affordable housing crisis of “epic proportions,” the California Supreme Court made it easier Monday for cities and counties to require developers to sell some housing at below-market rates.

The unanimous decision, written by Chief Justice Tani Cantil-Sakauye, follows study after study documenting a lack of affordable housing in the state, especially in California’s coastal regions.

“It will come as no surprise to anyone familiar with California‘s current housing market that the significant problems arising from a scarcity of affordable housing have not been solved over the past three decades,” the chief justice wrote.

“Rather, these problems have become more severe and have reached what might be described as epic proportions in many of the state‘s localities.”

The decision clears the way for Los Angeles and other cities to require developers to sell a percentage of the units they build at below-market rates as a condition of a building permit. Developers also could be given the option of paying into a fund for low-cost housing.

“I applaud the California Supreme Court’s decision,” Los Angeles Mayor Eric Garcetti said in a statement. “This gives Los Angeles and other local governments another possible tool to use as we tackle our affordable housing crisis.”

The ruling came in a challenge to an affordable housing ordinance passed by San Jose five years ago.

Read the whole story at LA Times

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Trial Attorney Vacancy, U.S. Department of Justice

Posted By Administration, Monday, June 15, 2015

Job posting in the U.S. Trustee Program. Application Closing Date June 23, 2015

The U.S. Trustee Program (USTP) is a litigating component of the Department of Justice and has the legal authority to appear in the majority of the bankruptcy cases filed in the United States, from Chapter 7 liquidations to major Chapter 11 business reorganizations.  As a result, USTP employees headquartered in Washington, D.C., and in our 93 field office locations throughout the country handle a wide range of challenging and significant matters as we strive to promote the integrity of the bankruptcy system by enforcing bankruptcy laws. Of particular importance is this Program's effort to address fraud and abuse by debtors, creditors, attorneys, and others in the bankruptcy system by taking formal and informal actions in a civil context and making criminal referrals to and working with the U.S. Attorneys. 

More Information:

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Finding misconduct by Santa Clara County prosecutor, court overturns murder conviction

Posted By Administration, Wednesday, June 10, 2015

A federal appeals court Tuesday overturned the murder conviction of a man accused of gunning down a 19-year-old student at a Gilroy convenience store, arguing the prosecutor -- now a Santa Clara County judge -- made inflammatory, racially charged closing remarks that the defense should have objected to.

The decision by the Ninth U.S. Circuit Court of Appeals said the prosecutor, Stuart Scott, gave closing arguments tainted by "falsified, inflammatory and ethnically charged remarks" that incited the jury in 2004 to find Paul Zapata guilty in just three hours despite conflicting witness testimony.

"Scott wove out of whole cloth, with no evidentiary support, a fictional and highly emotional account of the last words (the victim) heard Zapata shout as Zapata supposedly shot him," the ruling stated, adding that Scott ascribed to Zapata "several despicable, inflammatory ethnic slurs."

The unanimous, three-judge decision can be appealed to the U.S. Supreme Court, but experts consider it unlikely the justices would take up the matter.

The ruling is the latest embarrassing incident for the judge, who was elected last June after running unopposed for a seat on the Santa Clara County Superior Court bench. In March, Scott got in hot water for violating a basic fairness rule by calling a prosecutor into his chambers after a trial, complimenting her, trashing the defense attorney and saying what his likely sentence would be.

Read the whole story at Mercury News


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more Calendar

Barristers' Annual Judges Luncheon

Knowing When To Accept A Case and When It's Time To Say Goodbye.

Disability and ERISA Issue Spotting for Labor Law Attorneys

Recent Recognitions
Hon. Julie A. Emede2017 Outstanding Jurist of the Year
Hon. Edward J. Davila2017 Diversity of the Year

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