Litigation
Jun. 1, 2001
Stone Age Judicial Preserve Will Purify Judges for Energy-Related Cases
LOS ANGELES - Stone Age Judges, Part Deux. Today we revisit the Paleolithic legal battle over whether any federal judge in California who partakes of modern civilization - i.e. benefits from the use of electricity and natural gas - is fit to preside over litigation spawned by the state's energy crisis.
LOS ANGELES - Stone Age Judges, Part Deux.
Today we revisit the Paleolithic legal battle over whether any federal judge in California who partakes of modern civilization - i.e. benefits from the use of electricity and natural gas - is fit to preside over litigation spawned by the state's energy crisis.
The latest skirmish is scheduled for today in Washington, D.C., before the federal judicial panel on multidistrict litigation. Lawyers involved in a group of proposed class actions alleging collusion to drive up the price in California of natural gas, a key power-plant fuel, will duke it out over whether the antitrust cases should be moved out of the state. The panel is charged with determining the proper jurisdiction for complex, state-line-crossing litigation. The panel also sometimes oversees pretrial phases of such sprawling lawsuits.
The panel will hear arguments centering on four lawsuits brought by plaintiffs' attorneys and the cities of Los Angeles and Long Beach. The suits allege that El Paso Energy Co., Southern California Gas and San Diego Gas and Electric conspired to limit the number of natural gas pipelines supplying California, driving up the cost of both gas and electricity.
According to papers filed with the panel, lawyers for defendant El Paso Energy Corp. will argue that all Golden State federal judges probably are tainted by a corrupting dependency on electric lights, air-conditioning and home heating. The reasoning is that California's federal judges presumably are utility customers. Therefore, the judges are de facto members of the proposed class, which would cover practically everybody in the state who flips a light switch.
When I reported last month on this assertion by El Paso's lawyers, I thought it was pretty brazen and would be hard to top. But now El Paso's lawyers have gone themselves one better. In case papers, they suggest that one of the fairest venues of all would be - Texas!
When I read that, I smacked myself on the forehead.
"How could I have been so blind?" I asked myself. "Of course, the cases should be heard in federal court in Texas. Even though it is El Paso's home state, I am sure no jurist or juror in spacious, steer-trampled Texas would ever considering favoring the home team.
"Everyone knows that the reputation of Texas is unblemished by any suspicion of official tilt toward oil and gas companies. The state fairly reeks of evenhandedness, probity and zealous regulation."
However, the plaintiffs' lawyers suing El Paso - headed by Carole Handler of Los Angeles' O'Donnell & Shaeffer - don't want to go anywhere near Texas. Rather, they want the cases tried in California state court, where they originally filed them.
In a game of jurisdictional hopscotch, El Paso's attorneys - now led by James J. Brosnahan of San Francisco's Morrison & Foerster - removed the cases to federal District Court in Los Angeles. They then petitioned the multidistrict panel to get them out of California.
In papers filed earlier this month, El Paso's lawyers asserted that either Washington, D.C., the seat of the federal energy bureaucracy, "or perhaps the Southern District of Texas, where all the El Paso defendants and their witnesses are located, are more sensible locations."
El Paso's team noted that two federal judges in California, Barry Moskowitz and Claudia Wilken, recently recused themselves from electricity class actions, apparently because they potentially were class members.
El Paso's team then noted that "it will be difficult to identify a district judge in California ... who is not disqualified because of membership in one or more of the classes defined by the plaintiffs in the various actions."
Not so, argued Handler and crew, who accused El Paso of employing a "devious strategy" to escape California justice.
"Judges are not required to recuse themselves as members of the general public - even in utility rate cases," Handler declared in her reply.
Frankly, reading the arguments over the merits of electrified versus nonelectrified judges gave me a headache. To prevent further pain and speed the course of justice in the future, I have a modest proposal.
I suggest the establishment of a Stone Age Judicial Preserve in a wilderness designated by Congress. Judges who wish to preside over the litigation explosion stemming from the California energy crisis - or any other case requiring a Garden of Eden-like innocence of contemporary life - would be required to live in the preserve, in a state of nature.
In my imagination, I see a sylvan, blissful place where the chief topics of talk are how to catch jack rabbits and the best ways to start a cooking fire.
The only problem I foresee is - no one wants to leave.
Garry Abrams
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