Month: November 2021

Charles Fleming – Nominee to the U.S. District Court for the Northern District of Ohio

Longtime federal defender Charles Fleming would be, if confirmed, the second black judge on the Northern District, after Judge Solomon Oliver.

Background

Born in 1962, Charles Esque Fleming received his B.A. from Kent State University in 1986 and his J.D. from Case Western Reserve University School of Law in 1990. After law school, Fleming spent a year as an associate at Forbes, Forbes & Associates before becoming an assistant federal defender, where he has worked ever since.

History of the Seat

Fleming has been nominated for a seat on the U.S. District Court for the Northern District of Ohio. This seat was vacated on January 31, 2021, when Judge James Gwin moved to senior status.

Legal Experience

Other than a brief stint in private practice, Fleming has spent his entire legal career as a federal defender, representing indigent defendants at the trial and appellate levels in Northern Ohio. Among the matters he handled there, Fleming successfully suppressed evidence obtained against his client through an illegal arrest. See United States v. Walker, 43 F. Supp. 2d 828 (N.D. Ohio 1998).

Fleming has also had the opportunity to argue a number of appellate matters as federal defender. For example, Fleming challenged the conviction of one of his clients where a juror brought a dictionary into the deliberation room and looked up the definition of “reasonable.” See United States v. Gillespie, 61 F.3d 457 (6th Cir. 1995). The Sixth Circuit rejected the challenge by noting that the trial judge had taken appropriate measures to ensure that the independent investigation had not affected the jury verdict. See id. at 460. Fleming also challenged an in-court identification of his client after the victim was shown a photograph of him by the police during a line-up. United States v. Meyer, 359 F.3d 820 (6th Cir. 2004). A divided panel of the Sixth Circuit affirmed the conviction.

In one notable case, Fleming convinced Judge Gwin to suppress evidence obtained through a police stop where the officer asked the defendant to see his identification, leading to a warrantless arrest and search of his vehicle. See United States v. Campbell, 486 F.3d 949 (6th Cir. 2007). However, a divided panel of the Sixth Circuit reversed the grant of the motion to suppress, over the dissent of Judge Ransey Guy Cole. Id. at 958.

Political Activity

Fleming has a handful of political contributions to his name, one each to the senatorial and presidential campaigns of Barack Obama and one to Florida Democrat Kendrick Meek.

Overall Assessment

Fleming would bring three decades of criminal defense experience to the bench. While some nominees with public defense experience have been criticized lately for a narrow focus of experience (in a manner that nominees who have only been prosecutors have not been), it is unlikely that such arguments will derail Fleming’s nomination.

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Judge David Ruiz – Nominee to the U.S. District Court for the Northern District of Ohio

A former civil litigator, federal prosecutor, and federal magistrate judge, Judge David Ruiz is well-qualified for a federal trial level position, and is expected to receive a comfortable confirmation.

Background

David Augustin Ruiz received his B.A. from Ohio State University in 1997, and his J.D. from the Ohio State University Moritz College of Law in 2000. After law school, Ruiz spent two years in Pittsburgh before returning to Ohio to work at Calfee Halter & Griswold in Cleveland.

In 2010, Ruiz became a federal prosecutor with the U.S. Attorney’s Office for the Northern District of Ohio.

In 2016, Ruiz was selected to be a U.S. Magistrate Judge with the U.S. District Court for the Northern District of Ohio. He continues to serve in that capacity today.

History of the Seat

Ruiz has been nominated for a seat on the U.S. District Court for the Northern District of Ohio. This seat was vacated on February 15, 2021, when Judge Solomon Oliver moved to senior status.

Legal Experience

Before he joined the federal bench, Ruiz practiced with Calfee Halter & Griswold in Cleveland. Among the matters he handled there, Ruiz defended Wells Fargo Bank West against a class action suit in Ohio state court alleging failure to properly record mortgages. See Coleman v. Wells Fargo Bank West N.A., 2008-Ohio-3559 (Ohio App. 8th 2008). In another case, Ruiz represented a public utility company in successfully defending against a suit alleging damages from power surges. Pro Se Commer. Props. v. Illuminating Co., 2010-Ohio-516 (Ohio App. 8th 2010).

From 2010 to 2016, Ruiz served in the U.S. Attorney’s Office for the Northern District of Ohio. In the office, among other matters, Ruiz defended denials of supplemental security income from the Social Security Administration. See, e.g., Jones v. Comm’r of Soc. Sec., 933 F. Supp. 2d 934 (N.D. Ohio 2013). See also Henry v Comm’r of Soc. Sec., 973 F. Supp. 2d 796 (N.D. Ohio 2013).

Jurisprudence

Ruiz has served as a U.S. Magistrate Judge on the U.S. District Court for the Northern District of Ohio since his appointment in 2016. Among his most notable cases, Ruiz served as the magistrate judge on a securities fraud action involving ViewRay, Inc., a MRI-guided radiation systems manufacturer. See Plymouth Cty. Ret. Ass’n v. ViewRay, Inc., 2021 U.S. Dist. 160230 (N.D. Ohio Aug. 25, 2001).

Overall Assessment

Ruiz has little that should cause him trouble during his confirmation. As a relatively uncontroversial nominee, he should be confirmed early next year.

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Bridget Brennan – Nominee to the U.S. District Court for the Northern District of Ohio

A long time federal prosecutor who currently heads the U.S. Attorney’s Office for the Northern District of Ohio, Bridget Brennan’s support from Ohio Senators Rob Portman and Sherrod Brown makes her a likely candidate for a smooth confirmation.

Background

Bridget Meehan Brennan received her B.A. from John Carroll University in 1997 and her J.D. from the Case Western Reserve University School of Law in 2000.

Brennan started her legal career as an associate at the Cleveland office of Baker Hostetler, where she worked until 2007. Since then, Brennan has been a federal prosecutor with the U.S. Attorney’s Office for the Northern District of Ohio. Brennan served as First Assistant with the office since 2018 and is currently the acting U.S. Attorney.

History of the Seat

Brennan has been nominated for a seat on the U.S. District Court for the Northern District of Ohio. This seat was vacated on January 31, 2021, when Judge Dan Polster moved to senior status.

Legal Experience

Brennan has worked in two capacities throughout her legal career: the first as an associate in private practice; and the second as a federal prosecutor. During her time in private practice, Brennan was part of the legal team for Progressive Corp., defending against a class action fighting an alleged policy of using cheap imitation parts to repair insured vehicles. See Augustus v. Progressive Corp., 2003-Ohio-296 (Ohio App. 8th 2003). She also defended the Cleveland Plain Dealer against a defamation complaint filed by a Cuyahoga County Common Pleas Judge Peter Sikora. Sikora v. Plain Dealer Publ. Co., 2003-Ohio-328 (Ohio App. 8th 2003).

Since 2007, Brennan has been with the U.S. Attorney’s Office, serving in various capacities, including heading the Civil Rights Unit, the Criminal Division, and, since 2021, the entire office. Brennan was notably one of the lead prosecutors in the hate crime trial of Samuel Mullet, who attacked and cut the hair of religiously orthodox Amish with others. After convictions at trial, the Sixth Circuit overturned the hate crime convictions of Mullet and 15 others, finding that the jury should have been instructed that the religious belief of the victims was a “but for” cause of the attack, rather than a “significant factor.” See United States v. Miller, 767 F.3d 585, 589 (6th Cir. 2014). Brennan also prosecuted Randolph Linn, who was sentenced to 20 years in prison for setting fire to the Islamic Center of Greater Toledo.

Overall Assessment

With a largely uncontroversial record and the support of her home state senators, Brennan will likely be confirmed swiftly with little opposition.

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Samantha Elliott – Nominee to the U.S. District Court for the District of New Hampshire

Concord based attorney Samantha Elliott is President Biden’s nominee to replace Judge Paul Barbadoro on the U.S. District Court in New Hampshire.

Background

Samantha Dowd Elliott received a B.A. cum laude from Colgate University in 1997 and a J.D. from Columbia Law School in 2006. Elliott has been at the firm of Gallagher, Callahan & Gartrell, P.C. since her graduation, and currently works as a partner.

History of the Seat

Elliott has been nominated for a seat on the U.S. District Court for the District of New Hampshire. The seat opened on March 1, 2021, with Judge Paul Barbadoro’s move to senior status. Elliott was nominated to fill the vacancy on September 30, 2021.

Legal Experience

Elliott has spent her entire career at Gallagher, Callahan & Gartrell, P.C., where she worked primarily in commercial and employment litigation, while also taking some cases involving negligence and product liability matters. Among her notable matters, Elliott represented a supermarket developer in litigation challenging a zoning variance that it received from the town of Bedford. See Hannaford Bros. Co. v. Town of Bedford, 64 A.3d 951 (N.H. 2013). The New Hampshire Supreme Court found that the petitioner challenging the variance lacked standing to bring the suit, dismissing it. See id. at 959. Elliott also represented municipalities before the First Circuit as it rejected a challenge to a law establishing a buffer zone around abortion clinics. Reddy v. Foster, 845 F.3d 493 (1st Cir. 2017).

In other matters, Elliott represented the Town of Sanbornton in defending against a suit brought by a man injured by a stun gun while allegedly fleeing during a field sobriety test. See Huckins v. McSweeney, 90 A.3d 1236 (N.H. 2014). The plaintiff sued the town and the officer for battery, among other claims, and challenged the constitutionality of a New Hampshire statute that established immunity of municipalities for certain intentional torts committed by their employees. See id. at 1239. However, the New Hampshire Supreme Court found the laws to be constitutional, and noted that this allowed the plaintiff to continue to pursue his claim against the officer directly. Id. at 1242-43. Elliott later represented the City of Concord in another challenge before the New Hampshire Supreme Court that reaffirmed the immunity officers had in intentional tort matters. See Farrelly v. City of Concord, 130 A.3d 548 (N.H. 2015).

Political Activity

Elliott has made several political contributions throughout her career, all of them to New Hampshire Democrats.

Overall Assessment

As an experienced attorney in New Hampshire state and federal courts, Elliott is likely to be well-versed in the cases she is likely to hear as a federal judge. While some may object to her work defending municipalities in suits based on officer torts, Elliott’s supporters can likely point out that her positions were ultimately affirmed unanimously by the New Hampshire Supreme Court, and that her clients were entitled to zealous representation.

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Judge John Chun – Nominee to the U.S. District Court for the Western District of Washington

The U.S. District Court for the Western District of Washington had some of the oldest judicial vacancies in the country coming into the Biden Administration. Three appointments later, the court is now short only two judges. Additionally, with the nomination of Judge John Chun, another vacancy is scheduled to be filled.

Background

John Hyung-Seung Chun received his B.A. from Columbia University in 1991 and his J.D. from Cornell University Law School in 1994. After graduating, Chun clerked for Judge Eugene Wright on the U.S. Court of Appeals for the Ninth Circuit and then joined Mundt McGregor LLP as an associate. In 2002, he became a partner at the firm.

In 2005, Chun became a partner at Preston, Gates & Ellis LLP (now K&L Gates). In 2006, he shifted to the Summit Law Group PLLC.

In 2013, Chun was appointed by Governor Jay Inslee to the King County Superior Court. In 2018, Inslee elevated Chun to the Washington State Court of Appeals, Division One, where he serves to this day.

History of the Seat

Chun has been nominated for the U.S. District Court for the Western District of Washington. This seat opened on June 28, 2016, when Judge James Robart moved to senior status. On April 14, 2016, President Obama nominated federal prosecutor J. Michael Diaz to replace Robart. Diaz’s nomination stalled in the Republican-controlled Senate and was never confirmed.

Due to a dispute between the Trump Administration and Washington’s U.S. Senators over the Ninth Circuit nomination of Eric Miller, no agreement was reached on district court judges, and the Administration did not nominate anyone to fill this vacancy. President Biden nominated Chun on September 30, 2021.

Legal Experience

Before becoming a judge, Chun served in private practice for nearly two decades, during which time he focused on labor and employment litigation. He started at the firm of Mundt McGregory LLP, where he represented American Property Consultants, Ltd. in defending against claims that his client induced the plaintiffs to sign contracts through fraudulent claims. Kamaya Co. v. Am. Property Consultants, Ltd., 959 P.2d 1140 (Wash. App. 1998). Chun argued that the claims should be arbitrated under the contract’s arbitration clause, which the Court of Appeals agreed with. Id. at 1142.

Among other matters he has handled, Chun was hired by the City of Edmonds to investigate if any state or federal antidiscrimination laws were violated when Finance Director Lorenzo Hines left. Edmonds Beacon Staff, Finance Director Resigns; Cites City Council Conflict, Disrespect, Edmonds Beacon, Jan. 16, 2014. Chun concluded that there was no violation of law. See id. Chun also argued before the Washington Supreme Court against a wrongful termination in violation of public policy claim brought by a police officer. Piel v. City of Federal Way, 306 P.3d 879 (Wash. 2013). The Washington Supreme Court ruled against him on a 4-3 vote. See id.

Jurisprudence

Chun has been a judge since 2013, first serving on the King County Superior Court, handling civil, domestic relations, juvenile,and felony criminal cases, as well as appeals from the lower courts of limited jurisdiction, and then serving on the Washington Court of Appeals since 2018.

Among the notable matters he handled on the King County Superior Court, Chun rejected a challenge to the Washington charter school initiative, which the legislature funded with lottery proceeds. See Opinion, Charter School Ruling a Victory for Students, Spokane Spokesman Review, Feb. 26, 2017. Chun ruled that the funding mechanism did not divert funds from public schools. See id. Chun’s ruling was affirmed by the Washington Supreme Court. El Centro de la Raza v. State, 428 P.3d 1143 (Wash. 2018).

In another notable ruling, Chun ordered a Defendant who plead guilty of possession of child pornography to pay restitution to the victim depicted in the images. State v. Velezmoro, 384 P.3d 613 (Wash. App. 2016). The Washington Court of Appeals affirmed the ruling, finding that Chun did not need to find that the Defendant was the “but-for” cause of the victim’s trauma before ordering restitution. See id. at 617.

One decision that may draw attention is a 2015 ruling that the Washington Department of Corrections could not release the evaluations for level I sexual offenders under a public records request. John Doe G. v. Dep’t of Corr., 391 P.3d 496 (Wash. App. 2017). While the Washington Court of Appeals affirmed his ruling, the Washington Supreme Court reversed, finding both that the evaluations could be released but also that Chun erred in allowing the plaintiffs to proceed pseudonymously. John Doe G. v. Dep’t of Corr., 410 P.3d 1156 (Wash. 2018).

Among other reversals, the Washington Court of Appeals reversed a 2016 grant of summary judgment against a plaintiff who fell while leaving a store, finding that the issue of causation of injury should have been left to the jury. See Mehlert v. Baseball of Seattle, Inc., 404 P.3d 97 (Wash. App. 2017). The Washington Court of Appeals also reversed in favor of Tommie Davis, who Chun sentenced for unlawful possession of a firearm, finding that Chun had improperly used Davis’ convictions for burglary in California to enhance the sentence, ruling that the California burglary statute was not sufficiently similar to the Washington Burglary statute. See id. at 209.

Since 2018, Chun has served on the Washington Court of Appeals, reviewing appeals from superior court rulings. Among the opinions he has authored, Chun agreed that a trial court judge could not admit a defendant into Drug Diversion Court over the objection of the prosecutor, State v. Daniels, 437 P.3d 723 (Wash. App. 2019), and affirmed a trial court for declining to strike an asian juror in a criminal case where the defendant failed to adequately provide race neutral reasons for the strike. State v. Omar, 460 P.3d 225 (Wash. App. 2020).

Earlier this year, Chun notably ruled that a Seattle ordinance barring a person from carrying a “dangerous knife” did not violate the Second Amendment as applied against the Defendant for carrying a sword. See Zaitzeff v. City of Seattle, 484 P.3d 470, 474 (Wash. 2021).

Writings and Statements

As a law student, Chun authored a note discussing developments in product liability law, which governs damages arising from defects in commercial products. John H. Chun, The New Citadel: A Reasonably Designed Products Liability Restatement, 79 Cornell L. Rev. 1654 (September 1994). After discussing various standards of liability adopted by state courts, Chun endorses the risk-utility standard, which attaches liability where a product’s inherent danger outweighs its utility. Id. at 1659.

Overall Assessment

The Western District of Washington has seen a feast of new judges after years of famine. The Biden Administration’s nominees to this court have all drawn stiff opposition but have nonetheless pushed through with narrow bipartisan majorities. Chun is likely to be no different.

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Dale Ho – Nominee to the U.S. District Court for the Southern District of New York

Dale Ho has spent the past fifteen years litigating voting rights cases in state and federal courts, racking up both victories and defeats in the process. Ho has now been tapped for the U.S. District Court for the Southern District of New York.

Background

Dale Ho graduated from Princeton University in 1999 and then from Yale Law School. After graduating, Ho clerked for Judge Robert S. Smith on the New York Court of Appeals and for Judge Barbara Jones on the U.S. District Court for the Southern District of New York.

Ho then joined the firm of Fried Frank Harris Shriver & Jacobsen and then worked at the NAACP Legal Defense and Educational Fund. In 2013, Ho joined the American Civil Liberties Union, where he currently serves as Director of the Voting Rights project.

History of the Seat

Ho has been tapped for a seat on the U.S. District Court for the Southern District of New York to a seat vacated by Judge Katherine Forrest, who resigned from the Southern District on September 11, 2018. On December 2, 2019, the Trump Administration nominated DOJ career official Iris Lan to fill the vacancy, but Lan was blocked from confirmation due to opposition from liberal groups over Lan’s role in reassigning an official critical of the Administration’s child separation policies.

Senate Majority Leader Chuck Schumer recommended Ho for the Southern District of New York in June 2021. Ho was nominated for the court on September 30, 2021.

Legal Career

Other than a short stint at Fried Frank, Ho has spent his entire career as a voting rights attorney, including litigating some of the most significant voting rights cases in the past decade.

Notably, Ho has litigated against voting restrictions passed by state legislatures across the country. He successfully obtained an injunction against a North Carolina bill eliminating same-day voter registration. League of Women Voters of N.C. v. North Carolina, 769 F.3d 224 (4th Cir. 2014). Ho has also litigated against Wisconsin’s photo ID requirement for voters, successfully obtaining a district court injunction against the law, which was stayed by the Seventh Circuit. Frank v. Walker, 769 F.3d 494 (7th Cir. 2014).

Most notably, Ho managed to convince a federal judge to overturn a Kansas law requiring documentary proof of citizenship for voter registration. See Fish v. Kobach, 840 F.3d 710 (10th Cir. 2016. See also Fish v. Schwab, 957 F.3d 1105 (10th Cir. 2020). The lawsuit notably led to sanctions against Kansas Secretary of State Kris Kobach, after Judge Julie Robinson found that he failed to ensure compliance with her orders.

More recently, Ho represented Common Cause in fighting President Trump’s lawsuit seeking to overturn Pennsylvania’s mail-in voting plan implementation, a suit rejected by Judge Nicholas Ranjan. Trump v. Boockvar, 493 F. Supp. 3d 331 (W.D. Pa. 2020).

Outside of the voting rights context, Ho represented the NAACP as an amicus group in the litigation over California’s ban on same-sex marriage. See Perry v. Schwarzenegger, 630 F.3d 909 (9th Cir. 2011).

Writings

In his role as Director of the Voting Rights Project, Ho has written and spoken extensively on voting rights law and policy in the United States. His statements have generally criticized the Supreme Court for narrowing voting rights enforcement and permitting legislatures to restrict voting access. For example, after the Supreme Court’s 2013 decision in Shelby County v. Holder, which invalidated the Section 5 preclearance formula of the Voting Rights Act, Ho noted that the decision eliminated “a powerful tool to deter the adoption or prevent the implementation of discriminatory voting laws in those parts of the country where voting discrimination had proved stubbornly persistent.” Dale E. Ho, Voting Rights Litigation After Shelby County: Mechanics and Standards in Section 2 Vote Denial Claims, 17 N.Y.U. J. Legis. & Pub. Pol’y 675 (2014). He also described advocates’ efforts to use Section 2 to combat voter restrictions, discussing the challenges of such an approach. See Dale Ho, Building an Umbrella in a Rainstorm: The New Vote Denial Litigation Since Shelby County, 127 Yale L.J. 799 (February 8, 2018). Ho has also been critical of “formalism” in interpreting the Voting Rights Act (relying on bright-line rules rather than more flexible balancing tests), arguing that bright-line rules do not serve the stated goals of judicial efficiency and race neutrality. Dale Ho, Two Fs for Formalism: Interpreting Section 2 of the Voting Rights Act in Light of Changing Demographics and Electoral Patterns, 50 Harv. L. C.R.-C.L. L. Rev. 403 (Summer 2015).

This is not to say that Ho’s writings always take a maximalist position on voting rights. In a 2013 article on majority-minority districting, Ho notes that “in places where racial polarization has declined substantially, critics of minority vote dilution doctrine have raised valid questions as to whether majority-minority districts remain necessary…” Dale Ho, Beyond the Red, Purple, and Blue: Essay: Minority Vote Dilution in the Age of Obama, 47 U. Rich. L. Rev. 1041, 1075 (March 2013). In the same article, Ho nonetheless notes that majority-minority districting is necessary in much of the country despite progress made elsewhere. Id.

In other matters, Ho appeared on NPR on behalf of the NAACP in 2012 to distinguish First Amendment precedent that protected NAACP members in the 1950s from the current push by conservative groups to shield their donors. Peter Overby, Conservatives Invoke NAACP Case in Fight for Secret Donors, NPR Weekend Edition, Dec. 30, 2012.

Overall Assessment

Given his prominence in the voting rights movement, as well as his youth, and the likelihood of his elevation to the appellate bench, it would not be surprising to see Ho attract strong conservative opposition, just as fellow voting rights attorney Myrna Perez did on her nomination to the Second Circuit. Nonetheless, Ho remains favored to overcome that opposition and be confirmed in the next few months.

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