Ninth Circuit's Thomas Uses iPad on Bench While Wrestling With Internet Era's Legal Issues

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By Patrick L. Gregory

June 24 — Judge Sidney Runyan Thomas is slated to become chief judge of the U.S. Court of Appeals for the Ninth Circuit later this year.

It will be a high-profile position for the Montana native, whom his former clerks describe as having a “low-key” demeanor. They also describe him as pragmatic and as one who escapes characterization as an ideologue.

The judge has chaired the circuit's Committee on Automation and Technology, but one former clerk says he downplays the label of being a technologist. However, he views the record from an iPad on the bench and assists clerks with their technological difficulties, the former clerk says.

Moreover, sitting on the Ninth Circuit has allowed Thomas to weigh in on legal problems of the Internet age, ranging from an identity-stealing online dating profile to a file-sharing copyright dispute.

Thomas has also made nuts-and-bolts arguments for why the unusually large circuit shouldn't be split into smaller circuits.

Montana Roots

Thomas's love for Montana is clear. In a circuit that includes Hawaii and Alaska, Thomas's chambers are close to home in Billings, Mont. Before entering private practice in the state, he obtained his B.A. degree at Montana State University and his J.D. at the University of Montana's law school.

Former Thomas clerk Philip J. Tassin, who is now an associate at Keker & Van Nest LLP, San Francisco, told Bloomberg BNA July 28, “I know in being from Montana he definitely does cross-country skiing.”

“He's given some tips on some great places to ski,” Tassin said. Another former clerk, Elizabeth G. Porter, is now a professor at the University of Washington's law school and told Bloomberg BNA July 29 that Thomas “loves Big Sky,” a popular destination for skiers.

Calm Temperament

At Thomas's confirmation hearing in 1995, Sen. Max Baucus (D-Mont.) said, “I believe Sid Thomas personifies judicial temperament.”

“His demeanor is quiet,” Baucus said. “It is extremely thoughtful,” he said.

Thomas's former clerks describe the judge similarly. Kari Hong, who is now a law professor at Boston College's law school, told Bloomberg BNA July 28 that Thomas “is very even-tempered.”

“He has a dry sense of humor that is understated, but his sense of humor is very funny,” Hong said. Former Thomas clerk Stephanie L. Petit, who is now a principal at Adler & Colvin, San Francisco, told Bloomberg BNA in a July 30 e-mail, “Judge Thomas is warm, calm, understated, and funny.”

“It's hard not to be impressed when you meet him,” Porter said. “He is somewhat low-key in his demeanor while being absolutely professional and obviously, undeniably intelligent,” even while “in a profession that's distinguished by intelligence,” she said.

Tassin said, “His personality is, I guess everyone I've known who's met him including myself think he's a delightful man to be around and to talk with.” Thomas is “a great conversationalist, always has lots of interesting stories and anecdotes about his time on the court,” Tassin said.

Power Couple

Thomas's wife Martha Sheehy, whose father John C. “Skeff” Sheehy served as a Montana Supreme Court justice, herself served as president of the State Bar of Montana.

Baucus said at Thomas's confirmation, “The Sheehy name is well known in the State of Montana; it is known as a name of service.”

Hong said that Martha Sheehy, who is a “high-powered” lawyer, “comes from the Kennedy clan of Montana.” The Sheehys “are just renowned throughout Montana because they all went on to do wonderful service,” she said.

Hong said that “when living in Billings and when you meet people outside of chambers, they would always ask which judge I clerked for and when I gave the name, they'd say ‘Ah, isn't he married to a Sheehy?' ”

While Thomas is well known outside of Montana, his wife is “the shining star” within the state, Hong said.

Tech Support

Thomas is “very interested in” and comfortable with using technology, Porter said.

Thomas “was one of the first judges to implement using electronic bench books for iPads, very involved in bringing the Ninth Circuit up to date technologically,” Tassin said.

“I've heard him kind of try to debunk this sense that he's this like technologist who knows all sorts of stuff about computers,” but “I think a lot of people on the court kind of look to him for help for technology,” Tassin said.

The judge is “very humble as he's always saying ‘I don't know why people keep turning to me for advice on this stuff,' ” Tassin said. “There were times he showed his clerks how to work iPads or you know, work programs on the computer that he had a lot more experience with,” he said.

Cable Broadband Struggle

In AT&T Corp. v. City of Portland, 216 F.3d 871, (9th Cir. 2000), the court, in an opinion by Thomas, considered “a struggle for control over access to cable broadband technology.”

The city of Portland, Ore., had voted to approve the transfer of a cable franchise to AT&T, conditioned upon AT&T giving Internet service providers open access to its broadband facilities. Making a literary allusion that Porter said is characteristic of Thomas opinions, the court said, “Like Heraclitus at the river, we address the Internet aware that courts are ill-suited to fix its flow; instead, we draw our bearings from the legal landscape, and chart a course by the law's words.”

The Communications Act prohibited a franchising authority from imposing conditions on a cable operator's provision of telecommunications services, the court said. Portland's condition was therefore void under the act, which “includes cable broadband transmission as one of the ‘telecommunications services' a cable operator may provide,” the court said.

The court rejected Portland's argument that AT&T's “@Home” broadband service was a “cable service” that the city could regulate under the act. Unlike cable television service, internet access like that provided by @Home was “interactive and individual,” because “navigating the Web's hypertext links, corresponding via e-mail, and participating in live chat groups involve two-way communication and information exchange,” the court said.

No Drama

Even when handling death penalty appeals, Thomas is “very no drama, very calm,” Tassin said.

Tassin said that “for a long time now he's been the capital punishment coordinator for the court, handling a lot of the en banc proceedings and all the filings that happen around the time of an execution in the Ninth Circuit, and you know, it's hectic, things are being filed around the clock, for several days before a scheduled execution.”

But he said that Thomas “just handles it,” and that “if you didn't know any differently you wouldn't know that he had been working around the clock and he hadn't been getting much sleep, and he's just like any other day, very calm, very diligent.”

Online Dating

In Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (9th Cir. 2003), Thomas wrote the opinion in a dispute involving “a cruel and sadistic” theft of television actress Christianne Carafano's identity.

Carafano had sued Matchmaker.com after a third party created a fake dating profile on the site. The profile caused her to receive a threatening fax and sexually explicit messages, the court said.

In spite of “the serious and utterly deplorable consequences” of the fake profile, Carafano's claims were barred by the Communications Decency Act of 1996, the court said. A provision in the act made most Internet services immune from liability for publishing false information supplied by another party, the court said.

Congress enacted the provision “to promote the free exchange of information and ideas over the Internet and to encourage voluntary monitoring for offensive or obscene material,” the court said. Matchmaker.com was immune under the provision because no dating “profile has any content until a user actively creates it,” the court said.

Defending His Circuit

At Thomas's 1995 confirmation hearing, Sen. Conrad Burns (R-Mont.) said that Thomas would “make an excellent addition to what will be the newly created Twelfth Circuit Court of Appeals.”

Burns said that Thomas had “witnessed the delays that Montana has had to endure to even get a case heard” before the Ninth Circuit. “So, therefore, Sid has endorsed the concept of splitting” that circuit, Burns said.

However, Thomas opposed the idea of splitting up the Ninth Circuit after he became a judge on the court. In 1998, he analyzed eight proposals to divide the circuit, saying none of them were “viable structural alternatives” that would fix problems such as delays.

Rather, the best course was for Congress to fill judicial vacancies on the circuit, and for the appeals court to “continue to promote and experiment with time-saving procedures,” he said.

Further, the court “must prioritize its technological development,” he said. Thomas said that “video-argument experiments” could lead to litigants being able to argue appeals “without leaving their home states.”

“Video-conferencing will also significantly reduce judicial travel,” while fully implementing electronic filing would “reduce costs and create greater access to information,” he said. The court could also “reduce the possibility of conflicting decisions” within the large circuit through a “subject matter database of pending cases,” he said.

Economies of Scale

Thomas again opposed splitting up the circuit in 2005, saying that it benefited from “economies of scale.”

He said that “the other circuits might benefit from some of the unique programs” that the court had put into place.

Listing several such programs, Thomas said, “By comparison, no other circuit has an Appellate Commissioner, no other circuit has the staff resources for case tracking, no circuit has a mediation program that even comes close to the size of our Mediation Unit, few circuits have a Bankruptcy Appellate Panel, and no circuit has a staff attorneys office to match the size of ours.”

File Sharing

Thomas again wrestled with technology in Metro-Goldwyn-Mayer Studios, Inc. v. Grokster Ltd., 380 F.3d 1154 (9th Cir. 2004), in which movie studios and music publishers had sued distributors of “peer-to-peer” software allowing users to share media files.

Applying Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984), the court's opinion by Thomas found that the distributors weren't liable for contributory copyright infringement because their products were capable of noninfringing uses that were substantial and “commercially significant,” and the plaintiffs failed to show that the distributors “had reasonable knowledge of specific infringement” by users of the software.

The court concluded by saying that “we live in a quicksilver technological environment with courts ill-suited to fix the flow of internet innovation.” While “new technology is always disruptive to old markets,” history has demonstrated “that time and market forces often provide equilibrium in balancing interests, whether the new technology be a player piano” or an MP3 player, the court said.

Courts should therefore “exercise caution before restructuring liability theories,” and the high court “has admonished us to leave such matters to Congress,” the court said. However, the U.S. Supreme Court in Metro-Goldwyn-Mayer Studios Inc. v. Grokster Ltd., 545 U.S. 913 (2005), would vacate the decision, saying Sony was inapplicable where, as here, “the evidence goes beyond a product's characteristics or the knowledge that it may be put to infringing uses, and shows statements or actions directed to promoting infringement.”

Practical Perspective

The judge's former clerks describe him as having a practical perspective on the law. Hong said she believed Thomas's past service as a bankruptcy trustee “has informed his, I think awareness and sympathy and compassion about how the law has incredible impacts on people's lives.”

Thomas is “quite pragmatic, quite practical,” Porter said. Having practiced “for a long time before he became a judge,” Thomas “really is trained to look at things in a very practical way,” she said.

Similarly, Tassin said that Thomas is “always looking at the practical effects of each case.”

Thomas “has a keen understanding that his life experiences are just his, that there is a vast array of other life experiences, and that the law and the system” should “be fair and work for everyone in society,” Petit said.

Not Oversimplified

Porter said that Thomas is “not susceptible to being described with any kind of ideologically broad brush.”

“I do think he's interested in legal clarity, predictability, but I don't, I wouldn't describe him as an ideologue in any sense,” she said.

“I think he is not an over-simple person—he does not have an over-simple judicial philosophy, and he has not been oversimplified,” Porter said.

She said that when Thomas “was short-listed” for a spot on the high court “a few years ago he suddenly became in the public eye, but even then if you go and look at the news coverage of that time, it's like ‘Well, he's from Montana,'—there's not a huge amount being discussed, and I think in a good way.”

Commercial Hopping

Thomas also wrote the opinion in Fox Broad. Co. v. Dish Network, LLC, 747 F.3d 1060 (9th Cir. 2014), which more recently applied Sony.

Fox Broadcasting Co. had sought a preliminary injunction concerning Dish Network's “Hopper” product, designed to “hop” over commercials. Affirming the district court's denial of the injunction request, the court compared the dispute to that in Sony, in which the high court found that Sony wasn't liable for secondary copyright infringement for making Betamax video cassette recorders.

Quoting Sony, the appeals court said that like the Betamax VCRs, the Hopper was used “primarily for time-shifting,” which is “the practice of recording a program to view it once at a later time, and thereafter erasing it.”

The device merely allowed viewers to see programs that they were invited to view in their “entirety free of charge,” the court said.

Oral Argument App

“When lawyers see Judge Thomas scrolling through his iPad they can be sure that he's about to ask a really pointed question about the record,” Tassin said. The judge is a “master of the record,” he said.

At oral argument, Thomas is “exceedingly prepared, knows all the cases that have been cited in the brief,” Hong said. “So some attorneys have been caught off guard if they don't know the case as well as he does,” she said.

“He has a great memory” and is “a pretty active questioner,” Tassin said. “He doesn't steamroll over lawyers,” but “always has questions for lawyers and wants to ask them,” he said.

Thomas's “style is very polite,” and he approaches oral argument “like a conversation—everyone's trying to solve a problem, come to the right decision,” Tassin said.

Ready to Lead

“I think he'll be a truly excellent and effective chief judge,” Porter said. “I think he'll be an excellent administrator in addition to being a wonderful judge” due to his “attention to detail, thoroughness, hard work, reasonableness,” she said.

Thomas gets along well with judges regardless of their ideology, a trait that will “be a big plus and an important factor when he's chief,” Tassin said.

Hong said Thomas “was a great man to work for, a very inspiring man.”

“I wish all the judges were like him,” she said.

To contact the reporter on this story: Patrick L. Gregory in Washington at pgregory@bna.com To contact the editor responsible for this story: Pamela Atkins at patkins@bna.com

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