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SILVER LINING SEEN IN CIRCUIT RULING ON BLUE WHALES Lanny Sinkin, the Hawaii attorney who last week lost a bid to have the Ninth Circuit U.S. Court of Appeals grant legal standing to the world’s whales, dolphins and porpoises, says he was a victim of bad timing. Had the presidential election not been so close, and the country not so politically polarized, Sinkin said, the panel of judges would have gone in his favor. But giving whales the right to halt government sonar testing would have been another ruling along the lines of taking “under God” out of the Pledge of Allegiance, he said. “I think I lost because if the Ninth Circuit came out and said whales can sue [President] Bush, every talk show would trash this court,” said Sinkin, of the Rainbow Friends Animal Sanctuary in Hilo, Hawaii. Sinkin said the three-judge panel — Senior Judges Procter Hug Jr. and Arthur Alarcon and Judge William Fletcher — appeared to like his oral arguments, and he left their courtroom Feb. 12 feeling confident. But the judges found a way to go against him. “This decision is judicial activism at its worst,” Sinkin said. According to environmentalists, military sonar kills and injures cetaceans. The Natural Resources Defense Council successfully blocked some use of the technology, but warned this summer that sonar still threatens ocean mammals. In his complaint, filed in Cetacean Community v. Bush, 04 C.D.O.S. 9331, Sinkin says a friendship between humans and cetaceans could help both communities but warns that the current administration wants to keep people and whales from becoming closer. The filing is written from the animals’ point of view: “We, the Cetacean Community, come to this honorable court to offer what we consider a gift, not a complaint.” That may sound a little strange even for the supposedly wacky Ninth Circuit, but the legal standing of animals and inanimate objects has long been controversial. Environmentalists sometimes list non-humans as plaintiffs, but usually they also include human organizations to ensure standing. University of Southern California Law School professor Christopher Stone — author of “Should Trees Have Standing? And Other Essays on Law, Morals and the Environment” — says last week’s opinion, although it declined to give cetaceans the right to seek redress in court, does have a silver lining. “It does acknowledge that animals at least could constitutionally have standing,” Stone said. “That’s a major step.” — Jeff Chorney SENATOR JUDGE? Orange County Superior Court Judge James “Jim” Gray spent a decent share of his career enforcing state drug and gun laws — but now he’s on the road telling Californians why prohibitions on both are senseless. Gray, a 20-year judicial veteran, has taken leave from the bench to run for U.S. Senate as a Libertarian. Gray, 59, comes across as opinionated, personable and even folksy. “You know something? Judges live in a fishbowl,” Gray said via cell phone while passing through San Jose on a campaign stop. “Most judges try to be really careful, and you are limited to your free speech rights. But I’ve stepped out of that role. “To be honest with you, and this is only one man’s view, I don’t think I’ve changed in this election. You have to be political — but this hasn’t affected my opinions on the issues. I’m just more outspoken about them.” Gray is challenging incumbent Democrat Barbara Boxer and Republican Bill Jones. The odds of besting front-runner Boxer are slim. Nonetheless, Gray has traveled extensively to press the flesh and promote his laissez-faire positions on drugs, firearms, economics and abortion. He’s made stops in Redding, Chico, San Francisco and throughout Southern California. “This is an amazing election because Democratic support for Boxer is shallow,” he said. “Most people just don’t want a Republican to win. Republicans don’t want Boxer to win. So I look at them and go, ‘Have I got a deal for you.’” Gray is quick to point out that his personal opinions will take a back seat if he dons the black robes again after Nov. 2. “I took an oath of office to uphold the law and enforce it, and if I cannot do that, I should resign,” he said. With that, he hangs up and continues his 300-plus mile drive south to another campaign event. — Justin M. Norton ROCKY MOUNTAIN FUND RAISING Far from the Bay Area, a Rocky Mountain beer nabob and a career attorney are locked in a tense battle that could tip the balance of power in the U.S. Senate. For a group of San Francisco plaintiff lawyers, Colorado’s race between Republican Pete Coors — the prematurely white-haired star of TV beer ads — and Colorado Attorney General Ken Salazar, a Democrat, hits close to home. “The first line of attack on me was that I was a lawyer,” Salazar told a group of about 20 attorneys in the conference room of Gold Bennett Cera & Sidener, a San Francisco plaintiff firm, at an informal Oct. 19 fund-raiser. “It’s really scary,” said partner Steven Sidener, since Coors advocates changing the law to squeeze the plaintiff bar. “He may want to impose fees on losing plaintiffs.” For Salazar, the casual gathering at Gold Bennett was a side stop on a fund-raising trip to California that included large events in Los Angeles and San Francisco. It was arranged by partner Solomon Cera, who came to know Salazar while doing legal work in Colorado for the past few years. Cera said the prospect of having a Democratic attorney take over a seat currently held by Republican Ben Nighthorse Campbell is especially appealing to trial lawyers. “We think it’s important that the Democrats maximize their seats in the Senate because Bush has made clear that tort reform is going to be one of his priorities in the second term,” Cera said. The event wasn’t all about money; Cera brought his children, ages 8 and 13, to hear Salazar’s 25-minute speech. “They were pretty excited to meet a guy who’s going to be a senator,” Cera said. And, he added, not every lawyer who came made a donation. But Salazar is up against a deep-pocketed candidate in a race that’s broken Colorado spending records. “This is the last of my trips out of state, so I’ll need a special blessing before I leave the room,” Salazar said. Sidener was happy to oblige: In his pocket was an envelope full of checks. “I’ve got one from Joe Cotchett for $4,000,” he said. — Justin Scheck PUT THE SECRECY CLOAK BACK ON Theresa Bridgeman is a Rhodes scholar at England’s Oxford University. Edwin Lau works for the Organisation for Economic Co-operation and Development in Paris. They, along with John Doe, a resident of the United Kingdom who wants to remain anonymous, are California citizens challenging a new state law that lets overseas Californians vote by facsimile. It isn’t the ability to vote by fax that bothers the threesome. It’s the fact that the legislation — signed into law on Sept. 27 by Gov. Arnold Schwarzenegger to benefit members of the armed forces — requires them to sign an oath waiving their right to a secret ballot. The law, which took effect immediately, states that the faxed vote doesn’t count unless the oath is signed. It warns: “Your vote will no longer be secret.” In a petition for writ of mandate before the California Supreme Court, Mountain View solo practitioner Scott Rafferty argued that the law violates the state Constitution. “Denying our troops (and overseas civilians) the secret ballot denies each of these citizens the fundamental right to vote their conscience free from any appearance of coercion,” he wrote. “This court,” Rafferty continued, “is the only protection available to the people when the Legislature encroaches upon powers that the people have reserved to themselves in the Constitution. Voting in secret is such a power.” On Oct. 15, the Supreme Court ordered the secretary of state to explain why Rafferty’s request shouldn’t be granted — but only after the Nov. 2 election. The court also denied Rafferty’s request for an interim stay. “We conclude,” the justices wrote, “that it is impossible, as a practical matter, to provide interim relief with regard to the upcoming election without engendering undue confusion and uncertainty in the election results.” Chief Justice Ronald George and Justices Marvin Baxter and Janice Rogers Brown — all Republicans — signed the order, as did Justice Carlos Moreno, a Democrat. A similar federal law has generated some criticism. A September editorial in The New York Times called waiving the right to a secret ballot a “fundamentally undemocratic requirement.” The California case is Bridgeman v. Shelley, S128311. — Mike McKee

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