Criminal Justice And Human Rights Law Blog: United States Court of Appeals for the Ninth Circuit

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Showing posts with label United States Court of Appeals for the Ninth Circuit. Show all posts

Monday, December 06, 2010

Supreme Court to Hear Wal-Mart Discrimination Case - NYTimes.com

WASHINGTON — The Supreme Court on Monday agreed to hear an appeal in the biggest employment discrimination case in the nation’s history, one claiming that Wal-Mart discriminated against hundreds of thousands of women in pay and promotion. The lawsuit seeks back pay that could amount to billions of dollars.

The question before the court is not whether there was discrimination but rather whether the claims by the individual employees may be combined as a class action. The court’s decision on that issue will almost certainly affect all sorts of class- action suits, including ones asserting antitrust, securities and, products liability and other claims.

If nothing else, many pending class actions will slow or stop while litigants and courts await the decision in the case.

Brad Seligman, the main lawyer for the plaintiffs, said in a telephone interview after the court decision: “Wal-Mart has thrown up an extraordinarily broad number of issues, many of which, if the court seriously entertained, could very severely undermine many civil rights class actions. We welcome the court’s review of this limited issue, and we’re confident that the core of our action will go forward.”

In their brief urging the justices to deny review, the plaintiffs had said Wal-Mart’s objection to class-action treatment boiled down to the enormous size of the class.

“Petitioner returns repeatedly to the refrain that the certified class is very large, a fact that is indisputably true but legally irrelevant,” the brief said. “The class is large because Wal-Mart is the nation’s largest employer and manages its operations and employment practices in a highly uniform and centralized manner.”

Wal-Mart, which says its policies expressly bar discrimination and promote diversity, said the plaintiffs, who worked in 3,400 different stores in 170 job classifications, cannot possibly have enough in common to make class-action treatment appropriate.

In April, an 11-member panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco, ruled by a 6-to-5 vote that the class action could go forward.

Judge Michael Daly Hawkins, writing for the majority, said the company’s policies and treatment of women were similar enough that a single lawsuit was both efficient and appropriate. He added that the six women who represent the class, four of whom had left Wal-Mart, had claims typical of the other plaintiffs.

The size of the proposed class was not an obstacle, Judge Susan P. Graber wrote in a concurrence.

“If the employer had 500 female employees, I doubt that any of my colleagues would question the certification of such a class,” Judge Graber wrote. “Certification does not become an abuse of discretion merely because the class has 500,000 members.”

That drew a sharp dissent from Chief Judge Alex Kozinski. “Maybe there’d be no difference between 500 employees and 500,000 employees if they all had similar jobs, worked at the same half-billion square foot store and were supervised by the same managers,” he wrote. “But the half-million members of the majority’s approved class held a multitude of jobs, at different levels of Wal-Mart’s hierarchy, for variable lengths of time, in 3,400 stores, sprinkled across 50 states, with a kaleidoscope of supervisors (male and female).”

“They have little in common but their sex and this lawsuit,” Judge Kozinski concluded.

In a second dissent, Judge Sandra S. Ikuta said that allowing the case to go forward as a class action would prevent Wal-Mart from presenting tailored defenses to individual claims.

In their briefs in the case, Wal-Mart Stores v. Dukes, No. 10-277, the two sides cited the work of the court’s newest justices to the court. Wal-Mart twice relied on an influential unsigned law review note that Justice Elena Kagan wrote as a student at Harvard Law School on class certification in employment discrimination suits.

The plaintiffs responded by noting that Justice Sonia Sotomayor had voted to certify an even larger class action in an antitrust case involving eight million merchants when she was a judge on the United States Court of Appeals for the Second Circuit, in New York. Wal-Mart was a plaintiff in that class action.

Judge Sotomayor acknowledged that the very fact of class certification provided the plaintiffs with “leverage in settlement negotiations.”

“While the sheer size of the class in this case may enhance this effect,” she added, “this alone cannot defeat an otherwise proper certification.”

Friday, October 08, 2010

Court upholds Washington inmate voting ban

A state can prohibit felons from voting even if the ban disproportionately harms minorities, a federal appeals court ruled Thursday in a Washington state case that bolsters a similar law in California.

The Ninth U.S. Circuit Court of Appeals in San Francisco overturned a 2-1 decision by one of its panels in January that struck down the Washington law on the grounds that the state's criminal justice system was racially biased.

That ruling, the first of its kind in the nation, would have allowed prisoners as well as parolees to vote in Washington. It also could have invalidated laws in the eight other states in the circuit, including California, if courts found that a state's system of arresting and prosecuting suspects was racially skewed.

Every state except Maine and Vermont bars felons from voting.

In California, 283,000 felons in prison or on parole are ineligible to vote, according to a report from the nonprofit Sentencing Project. About 114,000 are African Americans, who are disenfranchised at seven times the rate of the general population, the report said.

A state appeals court upheld the California law in a separate case last year.

On Thursday, an 11-judge appeals court panel upheld the Washington law, which has remained in effect during the case.

A six-judge majority noted that other appeals courts have concluded that federal civil rights laws do not apply to a state's disqualification of felons from voting.

At the least, the judges said, minority inmates must prove that a state's law or its justice system was intentionally biased against them, and there was no such evidence in this case.

The other five judges rejected that standard, but said they were not convinced that the Washington system was infused with discrimination.

They also noted that state legislators changed the law last year to allow felons to vote when they complete parole.

The 2-1 ruling by the court panel in January found that minorities were "more likely than whites to be searched, arrested, detained and ultimately prosecuted," and that racial disparities could not be explained by differences in crime rates.

More...

Thursday, September 23, 2010

Elizabeth B. Wydra: Supreme Court Waits in the Wings as Appeals Court Considers the Constitution, Voting Rights, Race and Criminal Justice

Serious questions about racial discrimination in our criminal justice system, laws that deny the vote to those who have been convicted in this system, and the reach of the Constitution's guarantee of the right to vote free from racial discrimination may soon be heading for the Supreme Court.

Earlier this week, an en banc panel of 11 judges on the 9th Circuit Court of Appeals heard argument in Farrakhan v. Gregoire, a challenge under the Voting Rights Act to Washington State's law denying those who have been convicted of felonies the right to vote. (The Voting Rights Act establishes a nationwide prohibition on voting qualifications that have the result of discriminatorily denying or abridging the right to vote on account of race.) A 3-judge panel of the Court of Appeals, splitting 2-1, ruled in January that Washington's law violated the Voting Rights Act in light of "compelling" evidence of racial discrimination in the State's criminal justice system. As the panel decision explained, in Washington State, "minorities are more likely than whites to be searched, arrested, detained, and ultimately prosecuted," and, because "some people becom[e] felons not just because they have committed a crime, but because of their race, then that felon status cannot, under section 2 of the [Voting Rights Act], disqualify felons from voting." Unfortunately, the full appeals court subsequently vacated the panel's opinion and ordered the case reheard by an expanded "en banc" panel of 11 judges.

Every other federal court of appeals to consider the matter--the 9th Circuit in Farrakhan will be the third circuit to consider the issue en banc--has held that plaintiffs may not challenge a felon disenfranchisement statute under the Voting Rights Act. In one of these cases, Simmons v. Galvin, the Supreme Court invited the Solicitor General to express the views of the United States on whether the Court should agree to hear the case in order to resolve the question. The Acting Solicitor General suggested that the Court should not take Simmons, for several reasons--one of which was because the Supreme Court would have the chance to take up the issue of whether laws disenfranchising incarcerated felons can violate the Voting Rights Act in Farrakhan, which the SG apparently thinks is a better case for review because of its "more developed record." Veteran court-watcher Linda Greenhouse agrees, suggesting that, rather than take Simmons, "[t]he justices may prefer to wait to see what the Ninth Circuit does with [Farrakhan]."

We will have to wait for the en banc panel's ruling to know for certain what the 9th Circuit will do with Farrakhan. The judges certainly did not tip their hands at the hearing (and the ideological make-up of the judges on the panel would suggest that there is no obvious majority one way or the other). But Tuesday's wide-ranging and interesting argument did yield some clues as to what is on the judges' minds.

First, given one judge's comment at the hearing yesterday, the en banc panel is clearly aware that the Supreme Court could be "waiting" for the 9th Circuit to rule before acting on the Simmons case.

Second--and perhaps because the judges feel the eyes of the Justices upon them--the 9th Circuit is clearly interested in the major constitutional question in this case: whether the Constitution gives Congress broad power to proscribe racial discrimination in voting, including felon disenfranchisement laws that operate in tandem with racial discrimination in the criminal justice system to deny the vote to African Americans. Seizing on the fact that Section 2 of the 14th Amendment recognizes the authority of states to bar criminals from voting, both the 2nd Circuit and the 11th Circuit have rejected Voting Rights Act challenges to felon disenfranchisement laws, emphasizing constitutional doubts about Congress's power under the 15th Amendment to apply the Act to such statutes. In an earlier stage of the Farrakhan litigation, Chief Judge Kozinski, speaking for 7 judges of the 9th Circuit, raised similar arguments in a dissent from the court's earlier refusal to hear the case en banc. Several questions were asked at Tuesday's hearing about the relationship between the 14th Amendment, which allows for states to disenfranchise certain voters, and the 15th Amendment, which guarantees the right to vote free from racial discrimination. Constitutional Accountability Center filed a brief in the case, available here, answering this central constitutional question, and CAC's arguments were echoed at the hearing in some of the judges' questions and the responses given by counsel for the plaintiffs.

As explained in the brief, Section 2 of the 14th Amendment was not about state felon disenfranchisement laws at all, but rather how to apportion representatives for Congress in light of the fact that the newly freed slaves were now citizens but were still denied the right to vote by southern states. Section 2 provided that apportionment of members of Congress would be determined by the numbers of persons residing in the state, but that any state that disenfranchised male citizens over the age of 21 would lose a proportionate percentage of its congressional representation; in other words, if states did not give freedmen the right to vote, the states' representation in Congress would be reduced. However, this "reduction" penalty did not apply to states that disenfranchised those who participated in rebellion, or other crimes. This language appears to support the idea that the 14th Amendment, by its text, condones felon disenfranchisement, even if it discriminates against citizens based on race.

But Section 2, to the extent it allowed racial discrimination in voting so long as states were willing to pay the penalty of reduced representation, was superseded when the American people ratified the 15th Amendment. The 15th Amendment plainly prohibited racial discrimination in voting, and gave Congress broad authority to enforce this new constitutional command. Far from affirming that racially discriminatory felon disenfranchisement laws could survive after the 15th Amendment, the Amendment's framers specifically declined to carve out an exception for criminal disenfranchisement laws similar to that found in Section 2 of the 14th Amendment. Accordingly, it is entirely within Congress's 15th Amendment power to enact a statute such as the Voting Rights Act that seeks to root out disenfranchisement laws that transfer racial discrimination from the criminal justice system into the context of voting.

Tuesday's hearing in Farrakhan demonstrated the depth of the problem of discriminatory felon disenfranchisement laws. As Ryan Haygood from the NAACP LDF, arguing for the plaintiffs, noted at the conclusion of the argument, African Americans make up 23% of Washington State's prison inmates (but just 3.4 percent of the State's population), with prosecutors asking for 50% tougher sentences for black defendants than they do for white defendants. This means that nearly one-quarter of African American men in Washington State do not have the right to vote because of a criminal justice system that Washington conceded is racially discriminatory.

The problem is not limited to Washington State. According to an analysis by the Sentencing Project, felon disenfranchisement laws have taken the right to vote away from 20% of African Americans in Virginia, compared with a 6.8% disenfranchisement rate for all Virginia residents. In Texas, the disenfranchisement rate of African Americans is 9.3% compared with 3.3% for all Texans. In New York, 80% of the disenfranchised are black or Hispanic. Across the nation, an estimated 1 in 7 black men has lost the right to vote. This is a problem of enormous magnitude for our democracy and our communities.

Fortunately, the Constitution and the Voting Rights Act give Americans some legal tools to address this crisis. Let's hope that the 9th Circuit gets it right in Farrakhan v. Gregoire. And if it does, let's hope that the U.S. Supreme Court is waiting for Farrakhan in order to uphold the text and history of the Constitution and the promise of the Voting Rights Act, and not so it can set our country back in our struggle for a free, equal, participatory republic.

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