Rosemary Collyer. (Photo: Diego M. Radzinschi / NLJ)
A federal judge in Washington reached a “remarkable result” when she ordered Texas to pay $1 million in legal fees to groups that challenged the state’s electoral redistricting plans — a result that Texas Solicitor General Jonathan Mitchell called “unprecedented” and wrong.
Texas, chided by the judge for not putting much effort into responding to the fee petition, is appealing the judge’s order.
Judge Rosemary Collyer ordered Texas to pay the fees on June 18. She called the state’s response to the petition “a case study in how not to respond to a motion for attorney fees and costs.” Texas had filed a three-page advisory arguing it didn’t owe fees because the U.S. Supreme Court struck down the law that forced the state to come to court in the first place to secure approval for its redistricting plans.
Mitchell filed papers on June 23 asking the U.S. Court of Appeals for the D.C. Circuit to put Collyer’s fee award on hold while the state appealed. He defended the response to the fee petition, arguing the state “reasonably sought to minimize any additional unconstitutional burdens that this litigation might pose on the state’s resources.”
A three-judge panel in 2012 found that Texas failed to meet the standards under the federal Voting Rights Act for adopting nondiscriminatory redistricting plans. Texas appealed to the U.S. Supreme Court. While that case was pending, the Supreme Court in June 2013 struck down a section of the Voting Rights Act that required certain states — Texas among them — to seek approval from the U.S. Department of Justice or the court before making changes to election processes, including redistricting.
Collyer awarded fees to certain groups that intervened in the case to challenge the redistricting plans — a contingent of Texas state senators and representatives, Hispanic and African-American voters in Texas and the Texas State Conference of NAACP Branches. Those groups had argued they were owed fees because they won before the three-judge panel.
Mitchell’s emergency petition to the D.C. Circuit ended up being moot. On June 24, Collyer agreed to stay her order while Texas appealed.
The judge repeated her finding that Texas’ response to the fee petition “ignored” the legal arguments raised by the challengers. “Nonetheless,” she wrote, “the court recognizes that the situation that the parties present is uncommon and, as such, the court should have stayed its order in the first place.” — Zoe Tillman
PAMELA HARRIS CAN EXPLAIN
Federal appeals court nominee Pamela Harris spent much of her June 24 confirmation hearing explaining past statements about the law that raised opposition from Republican senators.
Sen. Ted Cruz, R-Texas, told Harris he was “troubled” by comments she made at an American Constitution Society panel in 2009 that she was “a profoundly liberal person” who sees the Constitution as “a profoundly progressive document.” The former O’Melveny & Myers appellate litigator, nominated for the U.S. Court of Appeals for the Fourth Circuit, said those comments came when she was arguing against audience members who thought the Constitution should be amended to address court decisions they thought were too conservative. She told Cruz that she thought the “commitment to the Constitution ought to transcend that kind of political difference.” Dozens of top appellate lawyers — including Gregory Garre of Latham & Watkins and Lisa Blatt of Arnold & Porter — filed a letter in support of Harris. — Todd Ruger
STATES CLING TO LIFE TERMS
Less than half of the 28 states affected by a 2012 U.S. Supreme Court decision banning mandatory sentences of life in prison without parole for juvenile murderers have reformed their laws. And of the 13 states that have made legislative changes in response to Miller v. Alabama, only four — Delaware, North Carolina, Washington and Wyoming — allow resentencing for their existing juvenile life-without-parole populations, according to a study by The Sentencing Project, which conducts sentencing-policy research and reform advocacy.
Miller struck down the mandatory federal and state sentences for juveniles who committed homicides before they were 18. The 5-4 court, led by Justice Elena Kagan, held that the sentence “prevents those meting out punishment from considering a juvenile’s ‘lessened culpability’ and greater ‘capacity for change,’ and runs afoul of our cases’ requirement of individualized sentencing for defendants facing the most serious penalties.”
The 13 states that have changed their laws in response to Miller imposed new minimum sentences on juvenile murderers that must be served before parole review. — Marcia Coyle
KLAYMAN AGREES TO CENSURE
Larry Klayman, the Washington attorney who won a landmark trial court ruling against government surveillance, has agreed to accept a public censure for violating attorney ethics rules.
Klayman signed the negotiated discipline with the Office of Bar Counsel in Washington on June 23. He was accused of conflicts of interest in three cases in which he represented a client suing Judicial Watch, the conservative watchdog group he founded and later had a falling out with after leaving in 2003.
“I wanted to put [the ethics case] behind me because I have a lot of important things to do to also protect the American people,” Klayman said. The agreement is still subject to review. If a hearing committee accepts the deal, it will recommend approval to the District of Columbia Court of Appeals, which makes the final decision.
If the committee rejects the agreement, the case will be sent back to bar counsel for prosecution. Bar Counsel Wallace Shipp Jr. declined to ­comment. Judicial Watch President Thomas Fitton, who filed the ethics complaint against Klayman, said he would reserve comment for the hearing committee’s review. — Zoe Tillman
MUSIC INDUSTRY DISCORD
As the House of Representatives tries to walk the line between competing copyright interests in the music industry, advocates for songwriters, record companies and radio providers last week pointed fingers at each other for problems they see in the song licensing system and the efforts to reform it.
Testifying before a House subcommittee, songwriters Rosanne Cash and Paul Williams, as well as representatives of the Recording Industry Association of America and other organizations ­connected with the creation of music, called for what they consider fair market value for tunesmiths’ works. Commercial radio officials with the National Association of Broadcasters, Pandora Media Inc. and Sirius XM Holdings Inc. expressed concern about some of the efforts to get songwriters more money.
“I want all of us to succeed,” said Cash, a daughter of the late singer Johnny Cash. “But I just have to point out that all of these [individuals] on the panel would not be here had songs not been ­written.” — Andrew Ramonas
SOMETHING FOR EVERYONE
The battlefield for securities class actions shifted on June 23, with the U.S. Supreme Court giving plaintiffs and defendants weapons to deploy in what might be an even more intense and costly level of warfare in the future.
Ruling in Halliburton v. Erica P. John Fund, the court rejected business pleas to reverse a 1988 precedent­ that made it easier for plaintiffs to launch and sustain securities class action litigation rooted in company misstatements.
The precedent has forced defendants to settle even flimsy claims and has cost companies billions, critics say. At the same time, the court offered defendants a new way to thwart such lawsuits by giving them a chance, before a class is certified, to rebut plaintiffs’ claims that the misstatements affected stock prices. The something-for-everyone decision might have the effect of frontloading the fisticuffs between both sides, and costing both sides more money before the merits are even argued. — Tony Mauro
‘I’M NOT A HOSTILE WITNESS’
White House lawyer Jennifer O’Connor has played behind-the-scenes roles in crisis control and prevention for the Obama administration, but she found herself in the public spotlight June 24 on Capitol Hill amid the firestorm over missing Internal Revenue Service emails. O’Connor, a former IRS lawyer, was called before the House Committee on Oversight and Government Reform, which has been pressing an investigation into missing emails from former Internal Revenue Service official Lois Lerner.
White House Counsel Neil Eggleston, who brought O’Connor in May as his first hire at the White House, initially pushed back against a request that O’Connor testify about her work at the IRS. Eggleston did not fight the subsequent congressional subpoena issued on June 23, however.
O’Connor found herself in the crossfire right after the first question, from Chairman Rep. Darrell Issa, R-Calif. Issa cut off O’Connor’s ­explanation and said: “Yes or no, you’re a hostile witness.” O’Connor replied: “I’m not a hostile witness.” Issa retorted: “Yes you are.” Issa later rescinded the comment, saying he should have called O’Connor a “noncooperative” witness because she declined to show up without a subpoena. — Todd Ruger
DRONE MEMO DISCLOSED
A U.S. Department of Justice memo explaining the justification for the targeted killing of an American citizen in Yemen was released last week under court order. Drone strikes in 2011 killed suspected terrorist Anwar al-Awlaki. The U.S. Court of Appeals for the Second Circuit, which earlier said the government cannot shield the memo from the public, on June 23 published a redacted version of the July 2010 Office of Legal Counsel document. The court sided with The New York Times and the American Civil Liberties Union, which sued under the Freedom of Information Act over access to drone documents. The memo, written by David Barron, now a federal appeals judge, addressed constitutional questions about the planned operations against al-Awlaki. — Zoe Tillman