Milan Smith

Milan Dale Smith, Jr.
Judge of the United States Court of Appeals for the Ninth Circuit
Incumbent
Assumed office May 18, 2006
Appointed by	George W. Bush
Preceded by	A. Wallace Tashima
Personal details
Born	Milan Dale Smith, Jr. (1942-05-19) May 19, 1942 Pendleton, Oregon
Education	Brigham Young University (B.A.) University of Chicago Law School (J.D.)

Milan Dale Smith, Jr. (born May 19, 1942) is a United States Circuit Judge of the United States Court of Appeals for the Ninth Circuit.^[1] Smith's brother, Gordon Smith, was a Republican United States Senate from Oregon from 1996 to 2009.

Background

Smith was born in Pendleton, Oregon. He was the son of Milan D. Smith Sr., who would serve on the staff of Secretary of Agriculture, Ezra Taft Benson. He received a Bachelor of Arts degree from Brigham Young University in 1966. Smith earned a Juris Doctor from the University of Chicago Law School in 1969. Before becoming a judge, he was the managing partner at the law firm of Smith, Crane, Robinson, and Parker, which he co-founded in 1972. He was a President-General Counsel of the Los Angeles State Building Authority from 1983 to 2006. Smith was a Vice Chairman of the California Fair Employment and Housing Commission from 1987 to 1991.

Ninth Circuit nomination and confirmation

Smith was nominated by President George W. Bush on February 14, 2006 to fill a seat vacated by Judge A. Wallace Tashima.^[2] He was confirmed just over three months later by the United States Senate on May 16, 2006 by a vote of 93-0.^[3] He was the fifth judge appointed to the Ninth Circuit by Bush, and the first since Carlos Bea was confirmed in 2003.

Notable decisions

Smith has been one of the Ninth Circuit's most prolific writers. According to one periodical, he authored the most majority opinions of any judge on the Ninth Circuit in the three-year period ending on May 10, 2013.^[4]

In July 2007, in Lands Council v. McNair, Smith wrote a concurrence described as "unusually blunt and wide-ranging", in which he criticized the court for "taking the law too far and causing much of 'the decimation of the logging industry in the Pacific Northwest' and the loss of legions of timber jobs."^[5] Smith's view prevailed when the case was reviewed en banc. He wrote the opinion for the unanimous eleven-judge panel in July 2008.

In September 2008, Smith was the one dissenter on a three judge panel that held that a school ban of an instrumental version of "Ave Maria" did not violate students' freedom of speech and religion.^[6]

Smith wrote the majority opinion in United States v. Alvarez, which struck down the Stolen Valor Act of 2005. The panel ruled, 2 to 1, that the law violated the First Amendment. "The right to speak and write whatever one chooses - including, to some degree, worthless, offensive and demonstrable untruths - without cowering in fear of a powerful government is, in our view, an essential component of the protection afforded by the First Amendment," Smith wrote in the majority opinion. The Supreme Court affirmed the judgment in a 6–3 decision.^[7]

In Christopher v. Smithkline Beecham Corp., 635 F.3d 383, Smith wrote that pharmaceutical sales representatives were "outside salesmen" and therefore not entitled to overtime pay under the federal Fair Labor Standards Act. In so holding, Smith declined to afford controlling deference to the Department of Labor's contrary view, and expressly disagreed with the Second Circuit Court of Appeals' prior decision to do so. The Supreme Court affirmed the judgment of the Ninth Circuit. The Court agreed with the Ninth Circuit that the pharmaceutical representatives are "salesmen," and similarly rejected the Department of Labor's interpretation of the statute.^[8]

In Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936 (9th Cir. 2011) (en banc), Smith, writing for a majority of an 11-judge en banc panel, concluded that an ordinance of the City of Redondo Beach, California, that barred day laborers from soliciting work from occupants of motor vehicles violated the free speech clause of the First Amendment.

In Leigh v. Salazar, 677 F.3d 892 (9th Cir. 2012), Smith, writing for the majority, held that a photojournalist may have a First Amendment right to observe wild horse “gathers”—rounding up and removing excess horses—on Federal government land. The district court had denied the photojournalist’s motion for a preliminary injunction. Smith’s opinion first held that the question was not moot, because the public’s right of access to future horse gathers was at stake. It then addressed the First Amendment question. Quoting both James Madison and the theme song to Mr. Ed, the opinion remanded the case back to the district court to analyze the photojournalist’s claim under Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984), specifically, to determine whether horse gathers had historically been open to the press and public, and whether such access plays a significant positive role in the process.^[9]

In Karuk Tribe of California v. United States Forest Service, 681 F.3d 1006 (9th Cir. 2012), Smith dissented from an en banc decision of the court holding that a federal agency’s decision to refrain from acting triggered the Endangered Species Act’s interagency consultation process. The dissent began with a reproduction of a woodcut and excerpt from Jonathan Swift’s Gulliver’s Travels, depicting and describing his capture by the Lilliputians—an unusual sight in the Federal Reporter. In addition to criticizing the majority opinion in the case, the dissent criticized other recent Ninth Circuit decisions as lacking a basis in the law: Nw. Envtl. Def. Ctr. v. Brown, 640 F.3d 1063 (9th Cir. 2011); Pacific Rivers Council v. United States Forest Serv., 668 F.3d 609 (9th Cir. 2012); San Luis & Delta-Mendota Water Authority v. United States, 672 F.3d 676 (9th Cir. 2012). After Smith’s dissent, the first two of those cases were promptly overturned by the Supreme Court, Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326 (2013), and U.S. Forest Serv. v. Pac. Rivers Council, 133 S. Ct. 2843 (2013).^[10]

In United States v. Henry, 688 F.3d 637 (9th Cir. 2012), Smith, writing for a unanimous three-judge panel, upheld a conviction for the possession of a homemade machine gun. Rejecting the defendant’s Second Amendment claim based on District of Columbia v. Heller, 554 U.S. 570 (2008), Smith wrote that machine guns are “dangerous and unusual weapons” that are not “typically possessed by law-abiding citizens for lawful purposes,” and that their possession is not protected by the Second Amendment. Citing binding precedent, United States v. Stewart, 451 F.3d 1071, 1078 (9th Cir. 2006), Smith also rejected the argument that because the gun was homemade, it was beyond Congress’s power under the Constitution’s Commerce Clause to regulate.^[11]

In Haskell v. Harris, 669 F.3d 1049 (9th Cir. 2012), Smith, writing for the majority of a three-judge panel, concluded that a California law requiring police officers to collect DNA samples from adults arrested for felonies did not violate the Fourth Amendment. After the Ninth Circuit elected to rehear this case en banc, the Supreme Court held in Maryland v. King that a Maryland law requiring the collection of DNA samples from arrestees charged with "serious crimes" was constitutional. Thereafter, a majority of the 11-judge en banc panel refused to bar implementation of the California law. Haskell v. Harris, 745 F.3d 1269 (9th Cir. 2014) (per curiam), without deciding whether the statute might be unconstitutional as applied to at least some arrestees. In a concurring opinion, Smith maintained that the California law is "materially indistinguishable from the Maryland law .... " Id. at 1271. He therefore concluded that "[t]his case is over, and the district court has no obligation to give the Plaintiffs an opportunity to amend their complaint." Judge Breyer in the Northern District of California stayed the case “pending final resolution of state law” in light of the California Court of Appeal’s decision in People v. Buza, 231 Cal. App. 4th 1446 (2014), which held the statute unconstitutional on state law grounds. In turn, the California Supreme Court granted review, 342 P.3d 415 (2015), and the case remains pending.^[12]

In Lane v. Facebook, 709 F. 3d 791 (9th Cir. 2013), Smith, writing for five other judges, dissented from the failure to take a class action case en banc, citing potential problems with the use of cy pres relief in the class action settlement context. When the Supreme court denied certiorari, Chief Justice Roberts noted that the Supreme Court may need to address the issue of cy pres settlements in future cases.^[13] Smith's dissent was later selected for publication in the Green Bag Law Review's Almanac and Reader as an example of excellent legal writing produced in 2013.^[14]

In Shell Offshore v. Greenpeace, 709 F.3d 1281 (9th Cir. 2013), Smith dissented from a panel opinion upholding an injunction against Greenpeace USA relating to Greenpeace's opposition to Shell's plan to drill for oil in the Arctic. Judge Gould, writing for five other Ninth Circuit judges, later dissented from the failure to take the case en banc, writing that "the dissent of Judge M. Smith has the better position as contrasted with the majority opinion" and noting that the majority opinion "relies on a guilt-by-association model that offends justice." 722 F.3d 1144 (9th Cir. 2013).

In Natural Resources Defense Counsel v. County of Los Angeles, 725 F.3d 1194 (9th Cir. 2013), Smith wrote an opinion for a unanimous panel concluding that pollution exceedances detected at monitoring stations of the County of Los Angeles and the Los Angeles County Flood Control District were sufficient to establish the County’s liability under the Clean Water Act. The Supreme Court declined to review this decision.

In Washington Environmental Council v. Bellon, 732 F.3d 1131 (9th Cir. 2013), Smith wrote for a unanimous panel that environmental organizations lacked standing to challenge regulators’ failure to define greenhouse gas emissions limits because the nexus between the harm and the desired regulation was too attenuated, including because there was no evidence that the desired limitations would curb a significant amount of greenhouse gas emissions.^[15]

In Protectmarriage.com-Yes on 8 v. Bowen, 752 F.3d 827 (9th Cir. 2014), Smith, writing for a divided panel, rejected an effort by contributors to California’s anti-gay marriage ballot measure, Proposition 8, to shield their identities from disclosure. The opinion rejected a Free Speech Clause challenge to the California requirement that committees report donations made before the election but after the pre-election reporting deadline, and that certain other aspects of the donors’ challenges were either moot or not ripe, because the information the donors sought to keep confidential had already been published across the internet.^[16]

Institute for Cetacean Research v. Sea Shepherd Conservation Society, 774 F.3d 935 (9th Cir. 2014) involved an ongoing dispute between Japanese whalers and conservationists based in Washington State who sought to interfere with whaling expeditions. Smith, following an earlier decision enjoining defendants from approaching plaintiffs any closer than 500 yards on the open sea, held that the defendant had aided and abetted foreign entities’ violations of the injunction, and the defendant’s board members were involved sufficiently to be liable for civil contempt. Smith rejected the defendant’s contention that the Volunteer Protection Act, 42 U.S.C. § 14503, immunized the board members, finding it “highly improbable” that when “Congress passed the VPA, it intended to prohibit federal courts from finding volunteer board members liable for their acts of contempt.” The decision also held the defendant’s executive director in contempt for personally violating the injunction by coming within 500 yards of one of the plaintiffs’ vessels.^[17]

In Haeger v. Goodyear Tire & Rubber Co., 793 F.3d 1122 (9th Cir. 2015), Smith, writing for a divided panel, held that the district court did not abuse its discretion in using its inherent authority to sanction defendant and its counsel for concealing information in a product liability suit by awarding fees and costs and requiring the manufacturer to file a copy of the sanctions order in any related case. Smith held that a court’s inherent investigatory power concerning fraud on the court is not limited by overlapping statutes or rules, and while the Federal Rules of Civil Procedure provide one avenue to sanction a party for discovery non-compliance, it is not the exclusive avenue. Defendant had failed to disclose multiple responsive product tests, instead representing that they did not exist, and settled with plaintiff while withholding the tests. Judge Watford, dissenting, would have held that the sanctions awarded exceeded what was demonstrably necessary to compensate the plaintiff for the discovery non-compliance under Miller v. City of Los Angeles, 661 F.3d 1024 (9th Cir. 2011). Rehearing en banc was denied, 813 F.3d 1233, and petitions for certiorari have been filed.^[18]

In Reza v. Pearce, 806 F.3d 497 (9th Cir. 2015), Arizona State Senator Russell Pearce had ordered Salvador Reza barred from the Arizona Senate building, allegedly because Reza disrupted Senate proceedings, and Pearce feared that he would do so in the future. Reza was then arrested when he later tried to enter the Senate building to meet with a State Senator. Smith, writing for a divided panel, reversed the district court’s grant of summary judgment to Pearce, holding that when disputed facts were resolved in Reza’s favor, as required on a motion for summary judgment, Pearce’s conduct violated clearly established First Amendment law. While Pearce believed that Reza had been at least clapping loudly in the overflow room during the debate on the Omnibus Immigration Bill, the responsible officer clearly told Pearce that there was no reason to remove any audience members from the building, the hearing continued without interruption, and it was not until two days after the hearing that Pearce ordered Reza barred from the building. Smith held that in those circumstances, a blanket ban from the building clearly exceeded the bounds of reasonableness established by the case law. Conversely, Smith held that the district court did not err in granting the arresting officers’ motion to dismiss on qualified immunity grounds, because they were complying with a facially-valid order from Senator Pearce. Pearce’s petition for rehearing en banc failed, and after further consultation with the Arizona Attorney General’s Office, Pearce later filed a notice that he did not intend to pursue Supreme Court review.^[19]

In Sakkab v. Luxottica Retail North America, Inc., 803 F.3d 425 (9th Cir. 2015), Smith, writing for a divided panel, held that the Federal Arbitration Act did not preempt California’s rule that barred waiver of representative claims under its Private Attorney Generals Act (PAGA). Smith held that a California employee bringing an action under PAGA does so as a proxy for the state’s labor law enforcement agencies, that, “[a]s the California Supreme Court has explained, a PAGA action is a form of qui tam action,” and that “[t] he FAA was not intended to preclude states from authorizing qui tam actions to enforce state law.”^[20]

See also

• Udall family
• Lee-Hamblin family

References

External links

• FJC Bio
• U.S. Department of Justice Profile
• Fotouhi, David, "From Worst to First?: Judge Smith Describes Improving the Ninth Circuit," Harvard Law Record, April 24, 2008.
• "Senate approves Smith's brother for federal appeals court," The Associated Press, May 17, 2006
• "White House Looks at Two Names for Ninth Circuit," The Recorder, November 9, 2005