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In a decision last month, California Supreme Court Justice Janice Rogers Brown wrote that a California water board had so complicated a series of straightforward issues that it made her “wanna holler and throw up both my hands.” It was a novel use of Marvin Gaye lyrics, to be sure. It was also indicative of how Brown might approach regulatory agencies in Washington, D.C., if she’s confirmed to the federal appeals court here. Amid the recent sniping over Brown’s nomination to the U.S. Court of Appeals for the D.C. Circuit, attention has focused on her views on hot-button social issues such as civil and reproductive rights. It’s Brown’s positions on these issues that have largely triggered staunch opposition to her nomination, which is likely to be the target of an expected Democratic filibuster this week. But most of the cases Brown would be asked to decide if confirmed would involve administrative and regulatory law, typically concerning such matters as challenges to federal environmental and labor laws and energy policy. On the California Supreme Court, by contrast, Brown hears death penalty appeals � which the high court is required to hear � and matters involving contract law and tort claims. But a sampling of Brown’s business and regulatory decisions from the California high court, where she has sat for the past nine years, reveals that she consistently takes a dim view of an agency’s attempt to expand its power and often chides bureaucrats for complicating relatively simple issues. She has also written favorably about limiting punitive damages. “Her sense of regulatory issues is in line with the administration,” says Donald Falk, a partner in the Palo Alto office of Mayer, Brown, Rowe & Maw who frequently has appeared before the California Supreme Court and formerly clerked for the D.C. Circuit’s Douglas Ginsburg, now the court’s chief judge. “She will enforce, by and large, economic policies that the administration is favorable to.” Brown declines comment. WATER UNDER THE BRIDGE In the water regulatory board case Burbank v. State Water Resources Control Board, a trial court had ruled that when establishing standards more stringent than federal water pollution rules, the board should weigh the cost of compliance for water providers against the expected environmental benefits of reducing pollutants. California’s Second District Court of Appeal disagreed, but a majority of the state Supreme Court, including Brown, found that water providers could argue against regulations that go beyond federal standards if they’re too costly. Annoyed with the control board’s skittishness about considering the “economic burdens” for businesses and utilities of meeting state pollution regulations when it created the standards, Brown authored a concurring opinion. In characteristically barbed style, Brown drove home her frustration with the board, writing that “the agencies involved seemed to have worked hard to make this simple question impenetrably obscure” and encouraging what she called “fiscally responsible environmental solutions.” In the same vein, Brown blasted San Francisco government agencies in a 2002 dissent in a case involving fees the city and county charged hotel owners who converted their hotels from residential to tourist use. The majority of the California Supreme Court ruled in favor of the city, saying it had the right to collect the fees and put the money toward affordable housing for the low-income residents displaced by the conversion. Brown argued that San Francisco had illegally expropriated property and resources from hotel owners as a means of remedying its low-income housing shortage. Brown compared the city’s rules to a “neo-feudal regime” and said the fees effectively allowed businesses to buy relief from regulation. She took a similar approach in a 2001 case in which a jury had awarded more than $1 million in damages to mobile-home park owners who sued the city of Clovis, Calif., alleging that the city had violated their constitutional rights by imposing rent control. The mobile-home owners, who sued under Section 1983, a federal civil rights provision of the U.S. Code, claimed the city was committing an unconstitutional “takings” of their property by restricting the amount of money the mobile-home park owners could charge for rent. A majority of the California Supreme Court reversed the award. Brown, an ardent defender of private-property rights, wrote in dissent: “I doubt the majority would be so quick to eviscerate” such an award in a “classic civil rights case.” Brown then threw a dart at administrative agencies, writing: “Sometimes, whether because of bias, incompetence, political expediency, bureaucratic malice, or some combination of oppressive practices, administrative agencies prove themselves incapable of regulating private affairs in a way that comports with fundamental justice.” DOWN ON DAMAGES Brown has also generally shown disdain for what she sees as out-of-control damages awards. In a 2000 case, a majority of the California Supreme Court, including Brown, reversed a $17.35 million punitive damages award to a black engineer who claimed he was underpaid and underpromoted by the Hughes Aircraft Co. Brown went even further than her colleagues in the majority and wrote a concurring opinion in which she proposed strict limits on punitive awards. “[I]n the case of large awards, punitive damages should rarely exceed compensatory damages by more than a factor of three,” she wrote, “and then only in the most egregious circumstances clearly evident in the record.” In her rulings, Brown has also roundly criticized California’s unfair competition law, which allows an individual plaintiff to sue over unfair business practices � even if the plaintiff has not actually been injured by the practice. When the majority of the California Supreme Court agreed in 1998 that a lawyer could, on behalf of the general public and under the unfair competition statute, sue stores for selling tobacco to minors, Brown vigorously dissented. She wrote that the case was a “poster child for abusive litigation” and that it is “one thing to assert that business conduct that is illegal and competitively harmful may be enjoined. . . . It is a radically different thing to say that the only requirement for private litigation under the law is that the defendant’s conduct be denounced, somewhere, somehow, by someone, as ‘unlawful.’ “ SIDING WITH INSURERS Parsing where Brown stands on other business issues can be more complex. In insurance litigation she consistently sides with insurance companies over policyholders. “She will rule against a policyholder if she can think of a way to do it,” says David Goodwin, a partner in Heller Ehrman White & McAuliffe’s San Francisco office who represents policyholders in insurance coverage litigation. In a 1998 case, Brown authored the opinion for a 4-3 majority in a decision involving legal and cleanup costs for environmental contamination. The court said insurers didn’t have to pick up the tab for the costs if their policyholders were ordered to clean up by an administrative agency like the Environmental Protection Agency. In a lengthy opinion, Brown concluded that insurers had to pay only for cleanup and costs resulting from an action filed in court, since the insurance policy covered costs associated with a “suit,” which she said was strictly defined as a suit in court, not an administrative action. And since most environmental claims in California begin and end in administrative agencies and rarely reach the courts, the result was a limitation of coverage. The decision puts Brown “out of sync with 30 years of jurisprudence,” says David Mulliken, a senior partner in San Diego and national chair of the environmental law department at Latham & Watkins who represented the policyholders. For a judge generally considered pro-business, Brown’s deference to insurance companies is puzzling to Goodwin. “Most of my clients are her constituency � namely big business,” says Goodwin. “Why on earth would she feel that an insurance company is a worthier recipient of sympathy than a Fortune 20 company?” In a 2001 decision, Brown again backed insurance companies, disagreeing with the majority in a 5-2 ruling that made it easier for patients to sue the health maintenance organizations that contract with Medicare. Brown and Justice Marvin Baxter disagreed, saying Congress decided that challenges to an HMO’s denial of health services under Medicare have to go through Medicare’s administrative review process; and appeals to those decisions must be sought in federal court, not state court. In dissent, Baxter and Brown argued that the majority’s decision disregarded congressional mandate and allows “virtually any Medicare HMO plan enrollee to bring suit in state court to challenge an HMO’s denial of Medicare benefits. . . . It is not the prerogative of this court to second-guess the measured trade-offs enacted by Congress.” Lily Henning can be contacted at [email protected].

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