Brian - do you think Dick Aurelio will cry when he reads this?
"VIA OVERNIGHT MAIL
The Honorable Chief Justice Ronald M. George and
Associate Justices
California Supreme Court
350 McAllister Street
San Francisco, California 94102-3600
Re: Varian Medical Systems, Inc., et al. v. Delfino
Supreme Court Case No. S121400
Amici Curiae Letter Supporting Petition for Review
Dear Chief Justice George and Associate Justices:
On behalf of amici curiae Ulysses Tory and Ruth Craft, and pursuant to California Rules of Court, rule 28(g), we respectfully urge the Court to grant the petition for review currently pending in Varian Medical Systems, Inc. v. Delfino, Supreme Court Case No. S121400.
Interests of Amici
Amici Curiae Ulysses Tory and Ruth Craft have been permanently enjoined from ever saying anything about noted attorney Johnnie Cochran ever again. Amici have a pending Petition for Review which, among other issues, urges this Court to consider whether the plurality decision in Aguilar v. Avis Rent A Car Systems, Inc., 21 Cal. 4th 121 (1999), permits a sweeping permanent injunction on all future speech about an admitted public figure -- regardless of content or context -- notwithstanding controlling constitutional authority to the contrary. (See Supreme Court Case No. S121121, Petition for Review filed Dec. 8, 2003.) Amici contend that the Court of Appeal misread the applicable scope of Aguilar when it relied on Aguilar to support the overbroad injunction in that case. Since all parties in the Varian matter agree that Aguilar should be clarified, Amici join the parties in urging this Court to grant review, and also respectfully suggest that Varian be considered a companion case to Cochran v. Tory, No. S121121.
Why Review Should Be Granted
After grappling with the facts and disparate opinions in Aguilar, the Court of Appeal in Varian struck down portions of a permanent injunction, issued after a defamation trial, that prohibited future speech because the restrictions were unconstitutional prior restraints. 113 Cal. App. 4th 273, 304-06 (2003). Amici agree with the Court of Appeal’s conclusion that Aguilar was not meant to permit permanent injunctions on speech following a defamation trial. The propriety of the Varian Court’s decision on that point has been presented for review. (Answer to Petition for Review (“Answer”) at 2, 23-26.)
Respondents in Varian insist that Aguilar should have a “broad reach,” stretching to allow injunctions on speech following a defamation trial. (Answer at 24.) Petitioners, on the other hand, “read Aguilar much more restrictively,” and do not believe that Aguilar permits permanent injunctions following a defamation trial. (Reply to Answer to Petition for Review (“Reply”) at 9, 12.) Nevertheless, all parties in Varian agree that this Court’s plurality decision in Aguilar has generated confusion on important matters involving speech-related issues, and that review of Aguilar’s proper scope is necessary and important. (Answer at 24-26; Reply at 9, 12.)
Why Varian And Cochran Should Be Companion Cases
Respondents in Varian urge this Court to grant review in order to establish that Aguilar permits injunctions on supposedly defamatory speech. (Answer at 2, 24-26.) Petitioners in Varian agree that “the proper scope of Aguilar is an ‘important issue’ which merits Supreme Court review to resolve confusion in the Courts of Appeal.” (Reply at 9.) Amici, who are also the Petitioners in Cochran, urge this Court to grant review in the Cochran case in order to establish that Aguilar does not permit injunctions on purportedly defamatory speech. Thus, the issue surrounding the proper scope of Aguilar, as presented by Respondents in Varian, is the mirror image of the same Aguilar issue simultaneously presented by the Petitioners in Cochran.
The plurality opinion in Aguilar produced considerable confusion in the Courts of Appeal. In Varian, as well as Cochran, a resolution of the proper scope of Aguilar will impact the profoundly important constitutional right to free speech. Accordingly, if this Court is inclined to review the scope of Aguilar in the context of Varian -- as Petitioners, Respondents and Amici urge it to do -- then this Court should also review the scope of Aguilar in the context of Cochran.
Conclusion
Amici respectfully request that this Court grant review to determine whether Aguilar permits a permanent injunction on future speech following a defamation trial, and respectfully suggest that this Court grant review of Cochran v. Tory, No. S121121, as a companion case.
Respectfully submitted,
LOEB & LOEB LLP
Douglas E. Mirell
Jean-Paul Jassy
signed By Jean-Paul Jassy
for Loeb & Loeb LLP
Attorneys for Amici Curiae Ulysses Tory and Ruth Craft
JPJ:jg" |
