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May 7, 2003
Re: Opposition to Lifetime Ninth Circuit Nomination of
Judge Carolyn Kuhl
Dear Senator:
We are writing to express our opposition to the confirmation
of California state trial Judge Carolyn B. Kuhl to a lifetime
position on the United States Court of Appeals for the Ninth
Circuit, which decides the fate of federal environmental and
other safeguards in nine Western and Pacific states. Her record
indicates that, if confirmed by the Senate, she would unjustifiably
seek to limit public access to the courts in this vital circuit.
As both an advocate and a judge, Carolyn Kuhl's record
demonstrates hostility to public rights and access to the
courts. This record includes: 1) a sweeping attempt to
overturn well settled precedent to eliminate associational
standing, which is the basis for public-interest access to
courts; 2) a private practice specialty seeking to limit the
right of citizens to bring suits under the False Claims Act;
and 3) a judicial ruling that would have unjustifiably nullified
an important part of California's anti-SLAPP legislation,
which protects against industry lawsuits that are designed
to intimidate individuals who speak out about pollution and
other issues. Her advocacy of each of these positions is in
severe tension with the vital public interest served by citizen
environmental enforcement. As explained below, our concerns
were heightened by Judge Kuhl's inaccurate testimony before
the Judiciary Committee and her misleading responses to written
questions.
In briefing and arguing UAW v. Brock, 477 U.S. 274
(1986) for the Reagan Administration, Ms. Kuhl urged the Supreme
Court to dispense with the long-standing and well-established
doctrine of associational or representative standing. This
doctrine provides access to the courts to a broad range of
public-interest groups for the purpose of representing the
interests of their members. The doctrine enables environmental
groups to go to court to uphold and enforce laws that protect
the health and safety of all Americans, including a wide range
of safeguards for clean air, clean water, endangered species,
and wetlands.
In particular, the brief signed by Ms. Kuhl argued that "there
is no justification for the anomalous doctrine of representative
standing." Brief for Respondent, Summary of the Argument
§ 2, Brock, (Feb. 10, 1986) (No. 84-1777). She
urged the Court to adopt a new rule that groups could only
represent their members by suing under the class-action rules.
(Id. at § I.B). Because it is difficult, expensive,
and time-consuming to comply with class-action requirements,
far fewer environmental and other public-interest lawsuits
would be possible if the Court had accepted Ms. Kuhl's arguments.
The apparent intent, and certainly the result, of her arguments
would have been to chill a wide range of vital public-interest
litigation.
Charles Fried, President Reagan's Solicitor General and Ms.
Kuhl's direct supervisor, has identified Kuhl as the one who
"launched" this "frontal attack" on associational
standing. In his memoir Order and Law, Mr. Fried described
rules that "allow for the role of progressive-minded
lawyers and legal organizations as the moving parties of ...
radical social changes." Referring to Ms. Kuhl's argument
in the Brock case, he declared: "My Deputy and Counselor,
Carolyn Kuhl, launched a frontal attack on this trend. . .
." Charles Fried, Order and Law: Arguing the Reagan
Revolution -- A Firsthand Account 17-18 & n.5. Fortunately,
as Fried also notes, Ms. Kuhl's argument for overruling established
Supreme Court precedent that provided for associational standing
was opposed by "a vast array of organizations,"
including the Chamber of Commerce and the American Medical
Association, and was "rejected by the Court with no dissent."
Id. at n.5.
In her testimony before the Judiciary Committee and her answers
to written questions, Judge Kuhl inaccurately and misleadingly
characterized her role in the Brock case. Most remarkably,
in her oral testimony, Judge Kuhl asserted that "the
position of the United States in UAW v. Brock, I believe
was set before I came to the Solicitor General's Office. I
argued that case. I had just recently come to the office and
I argued it, but I am not on the brief." Tr. at 54-55.
Judge Kuhl's assertion was flatly untrue. She was on the
merits brief in Brock, as she subsequently admitted
in response to a question by Senator Leahy. But more importantly,
at her hearing Judge Kuhl did not alter her testimony, or
even respond when, just minutes after Judge Kuhl disclaimed
any involvement with the brief or the government position
in Brock, Senator Feinstein quoted Charles Fried's description
of the central role Kuhl played in advocating for the extreme
position ultimately taken by the Solicitor General's office
in Brock. See Tr. at 56. By this point, Judge
Kuhl must have recognized that her description of her role
in Brock was in serious tension with that of her supervisor.
Nonetheless, Judge Kuhl continued to describe the position
taken by the government using the passive voice, attempting
to disassociate herself from the argument she had apparently
advanced quite passionately:
I will recognize that the UAW v. Brock case was
kind of a novel argument. The reason it was made was because,
first of all, we were defending a ruling that had been made
by the lower court. But secondly, the thought was that applying
class action standards would assure that when an association
came before a court, that its members' interests were being
represented . . . .
Tr. at 56-57.
The UAW v. Brock case did not call for a novel argument
and Kuhl's argument was not merely novel, it was extreme.
There is no reason why the government had to make this argument
before the Supreme Court in order to defend the far narrower
D.C. Circuit ruling, which accepted the doctrine of associational
standing. The government's brief in Brock could have easily
defended the ruling below within the confines of well-established
and settled law. That is precisely what the Solicitor General
did argue in opposing Supreme Court review. Indeed, this opposition,
which was prepared without Ms. Kuhl's input before she became
Deputy Solicitor General, described the doctrine of associational
standing as "well settled." See Brief for
the Respondent in Opposition to Petition for Writ of Certiorari,
UAW v. Brock, at 6 (Aug. 14, 1985) (No. 84-1777) (LEXIS
pagination). Rather than defend the D.C. Circuit ruling by
applying what the Solicitor General had just told the Court
was well settled law, Ms. Kuhl, according to Mr. Fried, took
the extraordinary step of using the case to launch a sweeping
attack on the entire doctrine of associational standing.
Judge Kuhl's responses to written questions by Senator Leahy
on the Brock case heighten the severe problems with
her nomination. In those responses, she again characterizes
her argument for overruling precedent on associational standing
as a "defense of the ruling below," and she attempts
to downplay her role in the formulation of the argument:
In defending the favorable ruling of the court below, and
in vigorously representing his client, the Secretary of
Labor, the Solicitor General chose to argue forthrightly
for a modification of existing law. It is common for the
United States to argue for a restrictive approach to standing.
Responses to Leahy at 7. Her characterization of her argument
as merely a "modification of existing law" and "a
restrictive approach to standing" obscures the fact that
her argument would essentially have eliminated associational
standing, and masks the reality that it is very uncommon for
the Solicitor General to advocate the overturning of well-settled
precedent. Such an argument is advanced only after intense
debate and careful consideration. As the sequence of briefs
indicates and Charles Fried makes clear, the moving force
behind the government's striking change of position in Brock
was Carolyn Kuhl.
Mr. Fried's account of Ms. Kuhl's role also makes Judge
Kuhl's responses to Senator Leahy's Questions 3(d) & (e)
completely unacceptable. In response to questions about whether
she "still" agreed with the arguments made in Brock,
Kuhl asserted that it was wrong for Senator Leahy to assume
that she ever agreed with those arguments. Responses to Leahy
at 8-9. In many circumstances, we are sympathetic to the argument
that a lawyer representing a client cannot be presumed to
agree with the view he or she advances on behalf of a client.
This is not one of those circumstances. Mr. Fried not only
ascribes a leadership role to Ms. Kuhl in advancing the associational
standing argument in Brock, he describes her campaign to "launch
an attack" on rules that "allow for the role of
progressive-minded lawyers and legal organizations as the
moving parties of . . . radical social changes."
The picture Mr. Fried paints of Ms. Kuhl's role in Brock
is very consistent with the New York Times' description
of Kuhl's role in the Bob Jones case as part of a band
of "young zealots" seeking to overturn long-established
Justice Department policies to advance a conservative ideology
in the courts. The difference is that Judge Kuhl has renounced
the role she played in the Bob Jones case, stating that the
argument she advanced in that case "was wrong . . . because
it did not properly put the nondiscrimination principle that
should have been primary in this decision first." Tr.
at 39. In contrast, rather than denouncing the argument she
made in Brock, taking issue with Mr. Fried's depiction of
her role, or attempting to explain how her views on standing
have evolved over the years, she has asserted that in Brock
she was simply a lawyer representing a client. This is not
a plausible response given Mr. Fried's account.
Ms. Kuhl's record as private practitioner and as a judge
reveals other reasons to believe that she would use her position
as a Ninth Circuit judge to restrict citizen access to the
courts. In private practice, Ms. Kuhl developed a specialty
in representing corporate defendants in suits brought by citizen
litigants and whistleblowers under the federal False Claims
Act. For example, in United States ex rel. Madden v. General
Dynamics Corp., 4 F.3d 827 (9th Cir. 1993), Ms. Kuhl challenged
the constitutionality of the False Claims Act's qui tam
provisions, which allow private parties to sue to enforce
federal law against corporate wrongdoers. Brief of Amici Electronic
Indus. Ass'n et al. (Oct. 22, 1992). Kuhl's position in the
Madden brief that qui tam plaintiffs lack Article
III standing has been resoundingly rejected by the courts.
In Vermont Agency of Natural Resources v. United States
ex rel. Stevens, 529 U.S. 765 (2000), Justice Scalia,
the Court's most extreme advocate of limiting standing, detailed
the extensive history of qui tam suits dating back
to 13th-century England. This long tradition of qui tam
actions, he wrote, "leaves no room for doubt" that
a qui tam plaintiff has Article III standing. Ms. Kuhl's
position would have eliminated the ability of private citizens
to bring these important "whistleblower lawsuits"
before the courts.
Ms. Kuhl also advocated against holding corporations liable
for environmental pollution in a number of other cases. One
example is Fairchild Semiconductor Corp. v. U.S. EPA,
984 F.2d 283 (9th Cir. 1993), where she challenged the constitutionality
of EPA's application of cleanup standards under the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA).
Finally, as a judge, Kuhl was unanimously reversed in Liu
v. Moore, 69 Cal. App. 4th 745 (1999), for a ruling that
would have undermined California's law that protects against
what are called "strategic lawsuits against public participation"
("SLAPPs"). SLAPP lawsuits include retaliatory suits
by industry against those who bring claims for environmental
contamination. They are designed to intimidate individuals
who speak out about pollution and other issues, "chill[ing]
the valid exercise of the constitutional rights of freedom
of speech and . . . the redress of grievances." Cal.
Code Civ. Proc. § 425.16(a). California's anti-SLAPP
rules require the polluter to pay the attorneys' fees and
costs of someone it has improperly sued in a SLAPP suit. See
id. Like standing rules, anti-SLAPP laws are critical to the
enforcement of environmental, civil rights, and other fundamental
constitutional and legal safeguards.
In Liu, a defendant in a medical malpractice case
filed a SLAPP suit against the plaintiff. In response, the
plaintiff filed a motion to recover attorneys' fees and costs
pursuant to the anti-SLAPP provision. Judge Kuhl ruled that
because the defendant had dismissed the SLAPP suit prior to
the hearing, the plaintiff could not recover the nearly $40,000
in attorneys fees and costs he had incurred in responding
to the improper suit prior to the time it was dismissed. Liu,
69 Cal. App. 4th at 747-50. See also Tr. at 58.
The appeals court sharply disagreed, stating that Judge Kuhl's
decision, if upheld, would "constitute[] a nullification
of an important part of California's anti-SLAPP legislation."
Id. at 748. That is because SLAPP suits could continue
to have a chilling effect because they would force the defendant
in the SLAPP suit to incur substantial attorneys' fees prior
to the time the suit is dismissed. Such a result "would
prolong both the [SLAPP] defendant's predicament and the plaintiff's
outrageous behavior." Id. at 750. We also note
that the attorney that litigated the Liu case before
Judge Kuhl took the extraordinary and courageous step of writing
to Senator Feinstein to criticize Judge Kuhl's ruling and
to document its impact on his client. See Tr. at 57-58.
In her testimony, Judge Kuhl attempts to defend her ruling
in Liu v. Moore, arguing that the issue was one "of
first impression" that had not been addressed in written
opinions of the courts prior to that time. Tr. at 59. She
recalls that she "struggled a good bit with the issue
of . . . [what remains of] the jurisdiction of the court when
the case has gone away." Id.. She concedes that
the court of appeals had to clarify for her what appears to
be a proposition of hornbook law: "the court always has
authority to decide adjunct issues that remain when the case
is dismissed." Tr. at 60. Notably, the appeals court
apparently did not view this issue as difficult, dealing with
it in a footnote. Liu, 69 Cal. App. 4th at 751 n.3.
Ms. Kuhl's sweeping attempt to overturn settled precedent
establishing the doctrine of associational standing that allows
public-interest access to the courts, her far-reaching arguments
about standing under the False Claims Act, and her judicial
ruling that would have nullified an important part of California's
anti-SLAPP legislation, are all at odds with the vital public
interest served by citizen environmental enforcement. Because
of her record of extreme views on critically important issues,
we strongly urge you to reject the lifetime nomination of
Carolyn Kuhl to the Ninth Circuit Court of Appeals.
Sincerely,
Paul Schwartz
National Campaigns Director
Clean Water Action
Doug Kendall
Executive Director
Community Rights Counsel
William Snape
Vice President and Chief Counsel
Defenders of Wildlife
Vawter Parker
Executive Director
Earthjustice
Beth Lowell
Policy Director
Endangered Species Coalition
Sara Zdeb
Legislative Director
Friends of the Earth
Lexi Shultz
Legislative Director
Mineral Policy Center
Gregory Wetstone
Director of Advocacy
Natural Resources Defense Council
Sylvia Liu
Interim General Counsel
Oceana
Brian Baenig
Legislative Director
Environment and Health Program
Physicians for Social Responsibility
Pat Gallagher
Director
Sierra Club Environmental Law Program
Sierra Club
Leslie Jones
Staff Attorney
The Wilderness Society
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