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Stanford University assistant law professor Jenny Martinez had something of a home court advantage when she arrived at the U.S. Supreme Court on Wednesday. She was to argue in one of a handful of cases before the high court that test the power of the executive branch during the war on terrorism.

Though she had never argued there before, the scene was familiar — as a clerk for Justice Stephen Breyer in 1998, Martinez had watched countless arguments. Still, she said Thursday, “It’s a lot more nerve-wracking to be doing it than just watching it.”

Martinez represents accused enemy combatant Jose Padilla in one of the more closely watched cases in recent Supreme Court history.

New York solo Donna Newman is Padilla’s original court-appointed lawyer. The pair asked to split oral argument, but the court turned them down. So the argument went to Martinez — she said a coin flip decided it — who first got involved in the case a year and a half ago when she argued before the Second Circuit U.S. Court of Appeals on behalf of amici curiae.

The recent transplant from Jenner & Block in Washington, D.C., is the lone Californian among nine lawyers for Padilla, who has been held without charges in a South Carolina military facility as an enemy combatant for nearly two years.

The central issue in Rumsfeld v. Padilla, 03-1027, is whether the president has the authority to seize and detain a U.S. citizen in the United States, based on his determination that Padilla is associated with al-Qaida and engaged in “hostile and warlike” acts against the United States.

Newman notes that Martinez brought international law expertise to the table.

The Stanford international law professor, who specializes in human rights law and the law of war, spent a year working for an American judge at the United Nations’ International Criminal Tribunal for the former Yugoslavia, in The Hague. “I’m one of the few people that had actually read the Geneva Convention before Sept. 11,” Martinez said.

The high court is expected to decide the case by the end of June, Newman said.

Pam Smith


The bike messengers who schlep legal papers around San Francisco are clamoring for justice.

Two San Francisco bicycle messengers who used to work for First Legal Support Services LLC say the company has ducked paying for overtime by calling them independent contractors. The suit, which seeks class action certification, could include 200 other employees, said the plaintiffs’ Oakland attorney, H. Tim Hoffman.

Up until 2000, First Legal’s bike messengers, drivers and legal researchers were hourly and salaried workers. That year, the owner made them independent contractors, even though the couriers were essentially doing the same work, says the lawsuit, which was filed in San Francisco Superior Court in April.

But under the new system, “they were paid less, got no benefits and no Social Security contribution,” said Hoffman. Reno attorney Mark Thierman and Oakland attorney Randall Crane are also on the plaintiffs’ legal team.

The messengers’ suit already has a little traction: In 2002, an administrative law judge from the National Labor Relations Board, James Kennedy, ruled that First Legal’s workers were employees, not independent contractors.

First Legal, which has offices in San Francisco, San Jose, Los Angeles, Sacramento, San Diego, Riverside and Santa Ana, says it isn’t doing anything wrong.

“We don’t believe that there is any merit whatsoever to this litigation,” said David Tait, the Rancho Cucamonga-based managing director of the company. He declined to comment further.

Jahna Berry


While fans are waiting for the outcome of Michael Jackson’s molestation case, First Amendment attorneys are watching a related matter with ramifications beyond “did he or didn’t he?”

Santa Barbara Superior Court Judge Rodney Melville issued a gag order in the case that forbids lawyers and witnesses — even people who are merely “expected to testify” — from speaking to the press.

Now, Gibson, Dunn & Crutcher partner Theodore Boutrous Jr. has appealed the gag to the state Supreme Court. Boutrous hopes a ruling in his favor will cut down on the orders, which he said have become too common in recent years.

“The California Supreme Court has not looked at these issues for many years,” Boutrous said. “Establishing standards for implementing the First Amendment would restrict the implementation of these gag orders.”

Boutrous represents a coalition that includes NBC, CBS, Fox News, ABC, CNN, The Associated Press and The New York Times Co.

The problem with gag appeals traditionally has been that the media is on its own, without help from the parties to a case — who are the ones whose speech is being restricted. But Jackson resisted the gag in trial court, and Boutrous had Mark Geragos, who represented Jackson at the time, write a letter to the court supporting the media’s effort.

“We think there’s a way to protect sensitive issues without so severely restricting the flow of official information to the general public,” he said.

A public relations firm hired by the Santa Barbara County district attorney’s office, which supports the gag, did not return a call seeking comment.

The case is National Broadcasting Co., Inc., etc. v. Superior Court, S124326.

Jeff Chorney

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