Smithkline Beecham Corporation v. Abbott Laboratorie

Filing 73

Submitted (ECF) Supplemental Brief for review. Submitted by Appellee Smithkline Beecham Corporation in 11-17357, Appellant Smithkline Beecham Corporation in 11-17373. Date of service: 08/14/2013. [8743371] [11-17357, 11-17373] (BH)

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Smithkline Beecham Corporation v. Abbott Laboratorie Doc. 73 Nos. 2011-17357, 2011-17373 Oral Argument Scheduled for September 18, 2013 Before Hon. Mary M. Schroeder, Stephen R. Reinhardt, and Marsha S. Berzon UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ____________________________________ SMITHKLINE BEECHAM CORPORATION D/B/A GLAXOSMITHKLINE, Plaintiff-Appellee/Cross-Appellant, v. ABBOTT LABORATORIES, Defendant-Appellant/Cross-Appellee, ____________________________________ Appeal From The United States District Court For The Northern District of California In Case No. 4:07-cv-05702-CW, Judge Claudia Wilken _____________________________ SUPPLEMENTAL BRIEF ON CROSS-APPEAL OF PLAINTIFFAPPELLEE and CROSS-APPELLANT SMITHKLINE BEECHAM CORPORATION D/B/A GLAXOSMITHKLINE Brian J. Hennigan Alexander F. Wiles Andrew Ow Christopher Beatty IRELL & MANELLA LLP 1800 Avenue of the Stars, Suite 900 Los Angeles, California 90067-4276 Telephone: (310) 277-1010 Facsimile: (310) 203-7199 Lisa S. Blatt Sarah M. Harris ARNOLD & PORTER LLP 555 Twelfth Street, NW Washington, DC 20004-1206 Telephone: (202) 942-5842 Facsimile: (202) 942-5999 Attorneys for Plaintiff-Appellee and Cross-Appellant SmithKline Beecham Corporation d/b/a GlaxoSmithKline Dockets.Justia.com TABLE OF CONTENTS Page INTRODUCTION ............................................................................................ 1  ARGUMENT .................................................................................................... 2 I. Windsor Confirms That Sexual Orientation Discrimination During Jury Selection Violates The Equal Protection Clause ......................................................................... 2 A. Batson Bars Striking From Jury Service Members Of Groups Subject To Heightened Scrutiny ...................... 4  B.  Windsor Confirms That Heightened Scrutiny Applies To Sexual Orientation .......................................... 5  1.  Windsor Did Not Apply A Rational Basis Form Of Review ...................................................... 5  2.  Windsor Justifies Recognition Of Sexual Orientation As A Suspect Classification ................. 8  3.  Windsor Forecloses Any Argument That Ninth Circuit Precedent Requires Rational Basis Review ................................................................... 11  4.  Windsor Disposes Of Abbott’s Other Arguments ............................................................. 13  CONCLUSION ............................................................................................... 15  -i- TABLE OF AUTHORITIES Page(s) Cases  Armour v. City of Indianapolis, Ind., 132 S. Ct. 2073 (2012).......................................................................... 7, 8 Batson v. Kentucky, 476 U.S. 79 (1986)........................................................................... passim Bowen v. Gilliard, 483 U.S. 587 (1987).................................................................................. 9 City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432 (1985).................................................................................. 9 Dep’t of Ag. v. Moreno, 413 U.S. 528 (1973)................................................................................ 10 Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614 (1991).............................................................................. 3, 4 FCC v. Beach Commc'ns, Inc., 508 U.S. 307 (1993).............................................................................. 6, 7 Heller v. Doe, 509 U.S. 312 (1993).................................................................................. 7 Hernandez v. New York, 500 U.S. 352 (1991)................................................................................ 13 Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) (No. 12-144).................................................... 2, 3 J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994)......................................................................... passim Lawrence v. Texas, 539 U.S. 558 (2003)......................................................................... passim Lewis v. United States, 146 U.S. 370 (1892).................................................................................. 5 - ii - Page(s) Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) .................................................................. 12 People v. Garcia, 77 Cal. App. 4th 1269 (Cal. Ct. App. 2000) ........................................... 10 Phillips v. Perry, 106 F.3d 1420 (9th Cir. 1997) .................................................... 10, 11, 12 Powers v. Ohio, 499 U.S. 400 (1991).......................................................................... 3, 4, 8 Romer v. Evans, 517 U.S. 620 (1996).................................................................................. 2 U.S. v. Chinchilla, 874 F.2d 695 (9th Cir. 1989) .................................................................. 13 United States v. Guerrero, 595 F.3d 1059 (9th Cir. 2010) ................................................................ 13 United States v. Santiago-Martinez, 58 F.3d 422 (9th Cir. 1995) ...................................................................... 5 United States v. Windsor, 133 S. Ct. 2675 (2013)..................................................................... passim Witt v. Dep’t of Air Force, 527 F.3d 806 (9th Cir. 2008) ........................................................... passim Other Authorities  Kathryne M. Young, Outing Batson: How The Case Of Gay Jurors Reveals The Shortcomings Of Modern Voir Dire, 48 Willamette L. Rev. 243 (2011) ...................................................................................... 14 - iii - INTRODUCTION Abbott Laboratories (“Abbott”) used a peremptory challenge on the only known gay juror during voir dire for a trial that challenged Abbott’s controversial 400% price increase for an HIV medication. Plaintiffs immediately objected to the strike under Batson v. Kentucky, 476 U.S. 79 (1986), and the district judge held that Batson does not apply to peremptory strikes on the basis of sexual orientation, in civil cases, or to challenges of a single juror. After trial, GlaxoSmithKline (“GSK”) appealed. After briefing, the Supreme Court decided United States v. Windsor, 133 S. Ct. 2675 (2013), which invalidated Section 3 of the Defense of Marriage Act (“DOMA”) because “seek[ing] to injure” gays and lesbians as a class by denying them equal rights to federal marriage benefits “violates basic due process and equal protection principles.” Id. at 2693. On July 31, 2013, this Court directed the parties to file supplemental briefs “addressing the effect, if any, of . . . Windsor . . . on whether Batson . . . applies to the sexual orientation of jurors and, if so, what level of scrutiny shall be applied in this case.” Windsor compels the conclusion that if the Equal Protection Clause offers any meaningful protection to gays and lesbians, the Clause must guarantee them the right and duty to participate in our country’s jury process. Batson prohibits striking jurors based on classifications that have historically perpetuated discrimination against minority groups, i.e., classifications that -1- warrant some form of “heightened scrutiny” under the Equal Protection Clause. Windsor removes any doubt that sexual orientation is such a classification. Windsor obviously applied more than traditional rational basis review when it invalidated Section 3 of DOMA as a law that denied equal protection to married same-sex couples on the basis of their sexual orientation. Windsor also strongly supports the conclusion that sexual orientation satisfies all the factors that courts consider when determining whether to apply heightened scrutiny. ARGUMENT I. Windsor Confirms That Sexual Orientation Discrimination During Jury Selection Violates The Equal Protection Clause It is untenable after Windsor for courts to sanction invidious discrimination against gays and lesbians in a federal courthouse. We are now at a point where gays and lesbians have equal rights in contexts as varied as marriage benefits under federal law, Windsor, 133 S. Ct. 2675, general antidiscrimination laws, Romer v. Evans, 517 U.S. 620 (1996), and private intimate conduct, Lawrence v. Texas, 539 U.S. 558 (2003). Tellingly, the proponents of California Proposition 8 stated to the Supreme Court that “outside of the marriage context,” the government could not discriminate against gays and lesbians in any context or manner. See Transcript of Oral Argument at 14, Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) (No. 12-144) (question by -2- Justice Sotomayor to Charles Cooper). Surely the Equal Protection Clause’s guarantee that gays and lesbians be free from discrimination does not stop at the courthouse door. Just as DOMA violated the equal protection rights of lawfully married same-sex couples, 133 S. Ct. at 2593, 2595-96, striking prospective jurors solely on the basis of their sexual orientation denies them equal legal status. Just as DOMA “demeans” and “humiliates” those same-sex couples and their children, id. at 2694, striking gays and lesbians from federal juries blatantly and seriously “demeans” and “humiliates” those potential jurors. Windsor aptly observed that “responsibilities, as well as rights, enhance the dignity and integrity of the person.” 133 S. Ct. at 2694. Few rights or responsibilities are more significant than “the honor and privilege of jury duty,” which “for most citizens . . . is their most significant opportunity to participate in the democratic process.” Powers v. Ohio, 499 U.S. 400, 407 (1991). Bias in the “selection of jurors offends the dignity of persons and the integrity of the courts.” Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 628 (1991) (quoting Powers, 499 U.S. at 402). Depriving gays and lesbians of the right and responsibility of jury service inflicts a stigma that offends equal protection principles and impugns the integrity of our Nation’s courts. -3- A. Batson Bars Striking From Jury Service Members Of Groups Subject To Heightened Scrutiny Batson v. Kentucky, 476 U.S. 79 (1986), holds that the “core guarantee of equal protection, ensuring citizens that their [government] will not discriminate . . . would be meaningless were we to approve the exclusion of jurors on the basis of such assumptions, which arise solely from the jurors’” membership in a class that has historically suffered discrimination. Id. at 9798. Classifications that cannot be used as a basis for governmental action in other contexts without triggering any form of heightened scrutiny cannot be used as a basis for peremptory strikes either. See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 130-31 (1994). Striking jurors because they belong to a group that has suffered enduring discrimination is “practically a brand upon them, affixed by the law, [and] an assertion of their inferiority” that perpetuates the very stereotypes used to justify unconstitutional discrimination. Id. at 142. Thus, “whether the trial is criminal or civil, potential jurors, as well as litigants, have an equal protection right to jury selection procedures that are free from state-sponsored group stereotypes rooted in, and reflective of, historical prejudice.” Id. at 128 (citations omitted). The Equal Protection Clause thus prohibits the use of such classifications to deprive individual members of those groups of “‘the right and responsibility of jury service.’” Edmonson, 500 U.S. at 628 (quoting Powers, 499 U.S. at 402). -4- Batson has limits. The Constitution permits peremptory strikes against members of a class subject to traditional rational basis review; because such groups have not suffered longstanding prejudice disqualifying them from other forms of civil and political participation, those peremptory strikes do not reinforce deep-seated prejudices. J.E.B, 511 U.S. at 143; see also United States v. Santiago-Martinez, 58 F.3d 422 (9th Cir. 1995) (upholding use of peremptory strikes for obesity). Although individual peremptory strikes may be exercised in an inherently arbitrary fashion, the use of peremptory strikes as a whole is a rational means of allowing litigants to participate in jury selection. Lewis v. United States, 146 U.S. 370, 376 (1892). But the Constitution does not tolerate peremptory strikes based on classifications such as race, gender, or sexual orientation. B. Windsor Confirms That Heightened Scrutiny Applies To Sexual Orientation 1. Windsor Did Not Apply A Rational Basis Form Of Review When the Supreme Court reviews the constitutionality of a classification without expressly stating the applicable level of scrutiny, this Court determines the relevant level of scrutiny by “analyz[ing] what the [Supreme] Court actually did.” Witt v. Dep’t of Air Force, 527 F.3d 806, 816 (9th Cir. 2008) (emphasis in original). When determining what level of scrutiny the Supreme Court applied in Lawrence to invalidate a criminal law prohibiting sodomy, -5- this Court considered it unimportant that Lawrence never used the words “heightened scrutiny.” See id. at 814-19. Witt held that the Supreme Court applied heightened scrutiny because this Court could not “reconcile what the Supreme Court did in Lawrence with the minimal protections afforded by traditional rational basis review.” Id. at 816. Witt explained that “rational basis review” was incompatible with Lawrence’s discussion of the “liberty at stake,” Lawrence’s conclusion that Bowers “demean[ed] the lives of homosexual persons,” and Lawrence’s rigorous analysis and dismissal of justifications for Texas’s law. Id. at 817 (internal quotation marks and citations omitted). Had Lawrence applied rational basis review, “any hypothetical rationale for the law would do.” Id. Applying Witt’s analysis to Windsor, it cannot seriously be contended that Windsor used rational basis review to invalidate DOMA—a law that was overwhelmingly approved by Congress and accompanied by significant legislative history—under the Equal Protection Clause. Section 3 of DOMA discriminated against gays and lesbians by defining “marriage,” for purposes of federal benefits, to include heterosexual couples married under state law, but not married same-sex couples. Windsor all but ignored the numerous, facially plausible reasons advanced to justify DOMA, and did not even bother to consider other conceivable justifications. Yet under rational basis review, challenged laws “bear[] a strong presumption of validity,” FCC v. Beach -6- Commc'ns, Inc., 508 U.S. 307, 314 (1993), and challengers bear the burden of negating even hypothetical, post hoc rationalizations that did not motivate the legislature, Armour v. City of Indianapolis, Ind., 132 S. Ct. 2073, 2082 (2012); Heller v. Doe, 509 U.S. 312, 319-321 (1993). That is why the United States advised the Supreme Court that DOMA could not be invalidated under the “highly deferential standard” of rational basis review, and could only be struck down by applying heightened scrutiny or “‘a more searching form of rational basis review.’” Brief for the United States on the Merits Question at 52, Windsor, 133 S. Ct. 2675 (No. 12-307) (quoting Lawrence, 539 U.S. at 580 (O’Connor, J., concurring)). Windsor’s analysis is particularly revealing because the briefs in Windsor canvassed at least seven rationales for upholding Section 3 under rational basis review. U.S. Br. at 38-51; Brief on the Merits for Respondent the Bipartisan Legal Advisory Group of the United States House of Representatives at 30-49, Windsor, 133 S. Ct. 2675 (No. 12-307). Had the Supreme Court applied rational basis review, any of these reasons would have been a “reasonably conceivable state of facts that could provide a rational basis for the classification.” Witt, 527 F.3d at 817 (quoting Beach Commc'ns, 508 U.S. at 313). For instance, DOMA’s defenders cited administrative convenience as a primary justification for the law. BLAG Br. at 34. Under rational basis review, that justification alone would have sufficed. E.g., -7- Armour, 132 U.S. at 2081-82 (relying on “administrative considerations”). Justice Scalia’s dissent thus observed that “the Court certainly does not apply anything that resembles that deferential framework.” Windsor, 133 S. Ct. at 2706. Instead, Windsor concluded that “the design, purpose, and effect of DOMA should be considered as the beginning point in deciding whether it is valid under the Constitution.” Id. at 2689. Based on that inquiry, Windsor held that “[t]he avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon” gays and lesbians. Id. at 2693. Just as Lawrence invalidated a statute because it “demean[ed]” the lives of gays and lesbians, Windsor held Section 3 of DOMA unconstitutional because it “demean[ed] those persons who are in a lawful same-sex marriage.” Id. at 2695. That language mirrors the language the Supreme Court uses to discuss other protected classes subject to heightened scrutiny—not traditional rational basis review. E.g., J.E.B., 511 U.S. at 142; Powers, 499 U.S. at 412. 2. Windsor Justifies Recognition Of Sexual Orientation As A Suspect Classification Windsor also supports applying heightened scrutiny to all government actions that discriminate on the basis of sexual orientation because such classifications are presumptively “suspect” or “quasi-suspect.” -8- See GSK Second Br. 19-29. The Supreme Court has often looked to four considerations to determine whether a classification that singles out a particular group is “suspect”: the group has faced a history of discrimination; the classification is irrelevant to an individual’s capacity to contribute to society; the group is relatively powerless politically; and the classification is based on an immutable characteristic that makes the group a discernible minority. See Bowen v. Gilliard, 483 U.S. 587, 602 (1987); City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440-441 (1985). The United States’ brief in Windsor unequivocally concluded that sexual orientation should be subject to heightened scrutiny based on these considerations. U.S. Br. 18-36; accord GSK Second Br. 25-29. Windsor’s reasoning confirms that conclusion. The Court observed a history of discrimination against gays and lesbians with regard to the rights and benefits that flow from the status of marriage. See 133 S. Ct. at 2689. The Court then underscored that nothing about sexual orientation should preclude gays and lesbians from enjoying those rights and benefits, reiterating that “[p]rivate, consensual sexual intimacy between two adult persons of the same sex may not be punished by the State.” Id. at 2692. The Court also emphasized the relative political powerlessness and discreteness of gays and lesbians as a group, insisting that “[t]he Constitution’s guarantee of equality ‘must at the very least mean that a bare congressional desire to harm a -9- politically unpopular group cannot’ justify disparate treatment of that group.” Id. at 2693 (quoting Dep’t of Ag. v. Moreno, 413 U.S. 528, 534-35 (1973)). Peremptory strikes based on a person’s race or gender violate the Equal Protection Clause because those classifications, like sexual orientation, historically have been used to justify invidious discrimination. See J.E.B., 511 U.S. at 141-42; Batson, 476 U.S. at 96-98. California over a decade ago held that discrimination against gays and lesbians during jury selection is unconstitutional. People v. Garcia, 77 Cal. App. 4th 1269, 1279-80 (Cal. Ct. App. 2000). Windsor confirms that this same conclusion applies in federal court. 3. Windsor Forecloses Any Argument That Ninth Circuit Precedent Requires Rational Basis Review Abbott does not contest that heightened scrutiny should apply to classifications based on sexual orientation. Nor has Abbott argued that striking gay or lesbian jurors on the basis of their sexual orientation could be justified under anything other than traditional rational basis review. Abbott instead relies solely on the syllogism that (1) under J.E.B., no classification subject to traditional rational basis review is subject to Batson; (2) Witt and Phillips v. Perry, 106 F.3d 1420 (9th Cir. 1997), held that traditional rational basis review applies to equal protection challenges to laws that discriminate on the basis of - 10 - sexual orientation; therefore (3) Batson does not apply to discrimination on the basis of sexual orientation. Abbott Third Br. 14-16. GSK has explained that pre-Windsor precedents invalidating discriminatory government action against gays and lesbians already undermined Witt and Phillips. GSK Fourth Br. 7-11. Phillips already had less precedential force because it pre-dated Lawrence. And the only basis Witt offered for declining to apply heightened scrutiny to sexual orientation classifications in the equal protection context was that Lawrence addressed only substantive due process. Witt, 527 F.3d at 821. Unlike Lawrence, however, Windsor is expressly based on equal protection grounds, and thus eviscerates Witt and Phillips’s rationale for applying traditional rational basis review to sexual orientation discrimination. Although principles of federalism and individual liberty were also at issue, Windsor independently invalidated DOMA on equal protection grounds. Windsor held that DOMA “violated basic . . . equal protection principles applicable to the Federal Government.” 133 S. Ct. at 2693. Windsor noted the “strong evidence” that DOMA “ha[d] the purpose and effect of disapproval of th[e] class” of same-sex couples. Id. Windsor castigated DOMA for making state-recognized same-sex marriages “second-class marriages for purposes of federal law,” id. at 2693-94, and concluded, “DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal.” Id. at - 11 - 2694. Windsor further stressed, “DOMA contrives to deprive some couples . . . but not other couples, of both rights and responsibilities.” Id. And Windsor closed by invoking “the prohibition against denying to any person the equal protection of the laws” as a reason why “treating [same-sex couples] as living in marriages less respected than others” violated the Equal Protection Clause. Id. at 2695-96. Because Windsor undercuts “the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable,” Windsor, not this Court’s earlier reasoning in Witt and Phillips, controls. Witt, 527 F.3d at 820 (quoting Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc)). Because sexual orientation is a classification subject to more than traditional rational basis review, J.E.B. and Witt do not permit peremptory strikes on the basis of sexual orientation. 4. Windsor Disposes Of Abbott’s Other Arguments Windsor also dispels Abbott’s arguments that “[e]xtending Batson to [s]exual [o]rientation [w]ould [p]resent [s]ignificant [i]mplementation [p]roblems,” Abbott Third Br. 18, and that gays and lesbians have suffered insufficient discrimination in jury service to warrant Batson’s protections. Id. at 16. a. Windsor holds that concerns about implementing constitutional protections for gays and lesbians are insufficient. - 12 - The Supreme Court invalidated DOMA despite dire warnings about significant implementation issues and “difficult choice-of-law issues,” Windsor, 133 S. Ct. at 2708 (Scalia, J., dissenting), because of the constitutional imperative of ensuring that married same-sex couples were treated no differently than other married couples. That reasoning applies with equal force here. The difficulty of implementing non-discriminatory peremptory strikes is not relevant under Batson. Ethnicity, after all, often is not a visible characteristic, but is nonetheless a classification subject to heightened scrutiny and an unconstitutional basis for striking jurors. E.g., Hernandez v. New York, 500 U.S. 352, 355 (1991); U.S. v. Chinchilla, 874 F.2d 695 (9th Cir. 1989) (applying Batson to Hispanic jurors). Thus, in United States v. Guerrero, 595 F.3d 1059 (9th Cir. 2010), this Court observed that Batson prohibits discriminatory strikes even though “in the modern world it can be difficult, if not impossible, to accurately identify the race/ethnicity of everyone we meet.” Id. at 1063 n. 3. And California’s decade-long prohibition on sexual orientation discrimination in jury selection further belies Abbott’s speculation about difficulties of administration. b. Windsor also undermines Abbott’s contention that a specific and documented history of “exclusion from jury service” is a prerequisite before the Constitution prohibits striking members of a protected group from juries on the basis of their status. Abbott Third Br. 16. Windsor underscored that gays - 13 - and lesbians have faced discrimination that was so pervasive and deep-seated that “many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage.” 133 S. Ct. at 2689. Part of that sad history includes discrimination against gays and lesbians in jury service. See Kathryne M. Young, Outing Batson: How The Case Of Gay Jurors Reveals The Shortcomings Of Modern Voir Dire, 48 Willamette L. Rev. 243, 262-63 (2011). Moreover, the profound pressures on gays and lesbians to suppress their sexual orientation lest they face criminal sanctions, disqualification from military service, and harassment explains why many chose silence over the risk of exclusion from public life. Even if discrimination against gays and lesbians in jury service were not well documented, it would not matter. The Equal Protection Clause does not flicker in and out of existence depending on the particular context. The Clause bars government discrimination against any given protected class across the board—whether in housing, employment, or jury service. The Constitution bars restrictive covenants against women notwithstanding the absence of historical discrimination against women in housing. So too here. If the promise of equal rights after Windsor carries any force, Batson prohibits the use of sexual orientation as a basis for excluding gays and lesbians from federal juries. - 14 - CONCLUSION This Court should reverse and remand for a new trial. Dated: August 14, 2013 Respectfully submitted, IRELL & MANELLA LLP By: /s/ Brian J. Hennigan Brian J. Hennigan Attorneys for Plaintiff-Appellee and Cross-Appellant SmithKline Beecham Corporation d/b/a GlaxoSmithKline - 15 - CERTIFICATE OF COMPLIANCE I certify that the foregoing brief complies with the typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) and the type style requirements of Federal Rule of Appellate Procedure 32(a)(6). The brief has been prepared in a proportionately spaced typeface using Times New Roman in Microsoft Word, 14 point. I further certify that the brief complies with this Court’s July 31, 2013 Order that this supplemental brief be no longer than fifteen (15) pages and that the word count of the brief divided by 280 does not exceed the designated page limit pursuant to Circuit Rule 32-3(3). Dated: August 14, 2013 /s/ Brian J. Hennigan Brian J. Hennigan IRELL & MANELLA LLP Attorneys for Plaintiff-Appellee and Cross-Appellant SmithKline Beecham Corporation d/b/a GlaxoSmithKline - 16 -

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