Milan Smith

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Milan Dale Smith Jr.
MDS official photo.jpg
Judge of the United States Court of Appeals for the Ninth Circuit
Assumed office
May 18, 2006
Appointed byGeorge W. Bush
Preceded byA. Wallace Tashima
Personal details
Milan Dale Smith, Jr.

(1942-05-19) May 19, 1942 (age 77)
Pendleton, Oregon
EducationBrigham Young University (B.A.)
University of Chicago Law School (J.D.)

Milan Dale Smith Jr. (born May 19, 1942) is a United States Circuit Judge of the United States Court of Appeals for the Ninth Circuit.[1] Smith's brother, Gordon Smith, was a Republican United States Senator from Oregon from 1996 to 2009.


Smith was born in Pendleton, Oregon. He is the son of Milan D. Smith Sr., who would serve on the staff of Secretary of Agriculture, Ezra Taft Benson. He received a Bachelor of Arts degree from Brigham Young University in 1966. Smith attended the University of Chicago Law School, on a full-tuition scholarship, from which he graduated in 1969 with a Doctor of Law degree. After law school, Smith became an associate attorney at the Los Angeles firm of O'Melveny & Myers. In 1972, Smith left O'Melveny & Myers to co-found his own law firm, Smith & Hilbig, which eventually became Smith, Crane, Robinson & Parker. He was a President-General Counsel of the Los Angeles State Building Authority from 1983 to 2006. Smith was a Vice Chairman of the California Fair Employment and Housing Commission from 1987 to 1991.

Ninth Circuit nomination and confirmation[edit]

Smith was nominated by President George W. Bush on February 14, 2006 to fill a seat vacated by Judge A. Wallace Tashima.[2] He was rated well qualified by the American Bar Association.[3] He was confirmed just over three months later by the United States Senate on May 16, 2006 by a vote of 93-0.[4] He was the fifth judge appointed to the Ninth Circuit by Bush, and the first since Carlos Bea was confirmed in 2003.

Notable decisions[edit]

Smith has been one of the Ninth Circuit's most prolific writers. According to one periodical, he authored the most majority opinions of any judge on the Ninth Circuit in the three-year period ending on May 10, 2013.[5]

In July 2007, in Lands Council v. McNair, Smith wrote a concurrence described as "unusually blunt and wide-ranging", in which he criticized the court for "taking the law too far and causing much of 'the decimation of the logging industry in the Pacific Northwest' and the loss of legions of timber jobs."[6] Smith's view prevailed when the case was reviewed en banc. He wrote the opinion for the unanimous eleven-judge panel in July 2008.

Smith wrote the majority opinion in United States v. Alvarez, which struck down the Stolen Valor Act of 2005. The panel ruled, 2 to 1, that the law violated the First Amendment. "The right to speak and write whatever one chooses - including, to some degree, worthless, offensive and demonstrable untruths - without cowering in fear of a powerful government is, in our view, an essential component of the protection afforded by the First Amendment," Smith wrote in the majority opinion. The Supreme Court affirmed the judgment in a 6–3 decision.[7]

In Christopher v. Smithkline Beecham Corp., 635 F.3d 383 (9th Cir. 2011), Smith wrote that pharmaceutical sales representatives were "outside salesmen" and therefore not entitled to overtime pay under the federal Fair Labor Standards Act. In so holding, Smith declined to afford controlling deference to the Department of Labor's contrary view, and expressly disagreed with the Second Circuit Court of Appeals' prior decision to do so. The Supreme Court affirmed the judgment of the Ninth Circuit. The Court agreed with the Ninth Circuit that the pharmaceutical representatives are "salesmen," and similarly rejected the Department of Labor's interpretation of the statute.[8]

In Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936 (9th Cir. 2011) (en banc), Smith, writing for a majority of an 11-judge en banc panel, concluded that an ordinance of the City of Redondo Beach, California, that barred day laborers from soliciting work from occupants of motor vehicles violated the free speech clause of the First Amendment.

In Leigh v. Salazar, 677 F.3d 892 (9th Cir. 2012), Smith, writing for the majority, held that a photojournalist may have a First Amendment right to observe wild horse "gathers"—rounding up and removing excess horses—on Federal government land. The district court had denied the photojournalist's motion for a preliminary injunction. Smith's opinion first held that the question was not moot, because the public's right of access to future horse gathers was at stake. It then addressed the First Amendment question. Quoting both James Madison and the theme song to Mr. Ed, the opinion remanded the case back to the district court to analyze the photojournalist's claim under Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984), specifically, to determine whether horse gathers had historically been open to the press and public, and whether such access plays a significant positive role in the process.[9]

In Karuk Tribe of California v. United States Forest Service, 681 F.3d 1006 (9th Cir. 2012), Smith dissented from an en banc decision of the court holding that a federal agency's decision to refrain from acting triggered the Endangered Species Act's interagency consultation process. The dissent began with a reproduction of a woodcut and excerpt from Jonathan Swift's Gulliver's Travels, depicting and describing his capture by the Lilliputians—an unusual sight in the Federal Reporter. In addition to criticizing the majority opinion in the case, the dissent criticized other recent Ninth Circuit decisions as lacking a basis in the law: Nw. Envtl. Def. Ctr. v. Brown, 640 F.3d 1063 (9th Cir. 2011); Pacific Rivers Council v. United States Forest Serv., 668 F.3d 609 (9th Cir. 2012); San Luis & Delta-Mendota Water Authority v. United States, 672 F.3d 676 (9th Cir. 2012). After Smith's dissent, the first two of those cases were promptly overturned by the Supreme Court, Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326 (2013), and U.S. Forest Serv. v. Pac. Rivers Council, 133 S. Ct. 2843 (2013).[10]

In United States v. Henry, 688 F.3d 637 (9th Cir. 2012), Smith, writing for a unanimous three-judge panel, upheld a conviction for the possession of a homemade machine gun. Rejecting the defendant's Second Amendment claim based on District of Columbia v. Heller, 554 U.S. 570 (2008), Smith wrote that machine guns are "dangerous and unusual weapons" that are not "typically possessed by law-abiding citizens for lawful purposes," and that their possession is not protected by the Second Amendment. Citing binding precedent, United States v. Stewart, 451 F.3d 1071, 1078 (9th Cir. 2006), Smith also rejected the argument that because the gun was homemade, it was beyond Congress's power under the Constitution's Commerce Clause to regulate.[11]

In Haskell v. Harris, 669 F.3d 1049 (9th Cir. 2012), Smith, writing for the majority of a three-judge panel, concluded that a California law requiring police officers to collect DNA samples from adults arrested for felonies did not violate the Fourth Amendment. After the Ninth Circuit elected to rehear this case en banc, the Supreme Court held in Maryland v. King that a Maryland law requiring the collection of DNA samples from arrestees charged with "serious crimes" was constitutional. Thereafter, a majority of the 11-judge en banc panel refused to bar implementation of the California law. Haskell v. Harris, 745 F.3d 1269 (9th Cir. 2014) (per curiam), without deciding whether the statute might be unconstitutional as applied to at least some arrestees. In a concurring opinion, Smith maintained that the California law is "materially indistinguishable from the Maryland law .... " Id. at 1271. He therefore concluded that "[t]his case is over, and the district court has no obligation to give the Plaintiffs an opportunity to amend their complaint." Judge Breyer in the Northern District of California stayed the case "pending final resolution of state law" in light of the California Court of Appeal's decision in People v. Buza, 231 Cal. App. 4th 1446 (2014), which held the statute unconstitutional on state law grounds. In 2018, the California Supreme Court in People v. Buza, Cal. 5th 658 (2018), reversed the California Court of Appeal's decision, holding that the DNA collection was lawful as part of the normal booking procedure for individuals validly arrested for a serious offense.[12]

In Natural Resources Defense Counsel v. County of Los Angeles, 725 F.3d 1194 (9th Cir. 2013), Smith wrote an opinion for a unanimous panel concluding that pollution exceedances detected at monitoring stations of the County of Los Angeles and the Los Angeles County Flood Control District were sufficient to establish the County's liability under the Clean Water Act. The Supreme Court declined to review this decision.

In Washington Environmental Council v. Bellon, 732 F.3d 1131 (9th Cir. 2013), Smith wrote for a unanimous panel that environmental organizations lacked standing to challenge regulators' failure to define greenhouse gas emissions limits because the nexus between the harm and the desired regulation was too attenuated, including because there was no evidence that the desired limitations would curb a significant amount of greenhouse gas emissions.[13]

In on 8 v. Bowen, 752 F.3d 827 (9th Cir. 2014), Smith, writing for a divided panel, rejected an effort by contributors to California's anti-gay marriage ballot measure, Proposition 8, to shield their identities from disclosure. The opinion rejected a Free Speech Clause challenge to the California requirement that committees report donations made before the election but after the pre-election reporting deadline, and that certain other aspects of the donors' challenges were either moot or not ripe, because the information the donors sought to keep confidential had already been published across the internet.[14]

In Reza v. Pearce, 806 F.3d 497 (9th Cir. 2015), Arizona State Senator Russell Pearce had ordered Salvador Reza barred from the Arizona Senate building, allegedly because Reza disrupted Senate proceedings, and Pearce feared that he would do so in the future. Reza was then arrested when he later tried to enter the Senate building to meet with a State Senator. Smith, writing for a divided panel, reversed the district court's grant of summary judgment to Pearce, holding that when disputed facts were resolved in Reza's favor, as required on a motion for summary judgment, Pearce's conduct violated clearly established First Amendment law. While Pearce believed that Reza had been at least clapping loudly in the overflow room during the debate on the Omnibus Immigration Bill, the responsible officer clearly told Pearce that there was no reason to remove any audience members from the building, the hearing continued without interruption, and it was not until two days after the hearing that Pearce ordered Reza barred from the building. Smith held that in those circumstances, a blanket ban from the building clearly exceeded the bounds of reasonableness established by the case law. Conversely, Smith held that the district court did not err in granting the arresting officers' motion to dismiss on qualified immunity grounds, because they were complying with a facially-valid order from Senator Pearce. Pearce's petition for rehearing en banc failed, and after further consultation with the Arizona Attorney General's Office, Pearce later filed a notice that he did not intend to pursue Supreme Court review.[15]

In Sakkab v. Luxottica Retail North America, Inc., 803 F.3d 425 (9th Cir. 2015), Smith, writing for a divided panel, held that the Federal Arbitration Act did not preempt California's rule that barred waiver of representative claims under its Private Attorney Generals Act (PAGA). Smith held that a California employee bringing an action under PAGA does so as a proxy for the state's labor law enforcement agencies, that, "[a]s the California Supreme Court has explained, a PAGA action is a form of qui tam action," and that "[t]he FAA was not intended to preclude states from authorizing qui tam actions to enforce state law."[16]

On remand from the Supreme Court, Smith authored an opinion on behalf of a unanimous en banc panel in Tibble v. Edison International, 843 F.3d 1187 (9th Cir. 2016) (en banc). There, he vacated the district court's judgment in favor of an employer and its benefits plan administrator on claims of breach of fiduciary duty in the selection and retention of certain mutual funds for a benefit plan governed by ERISA. Smith reasoned that federal law imposes on fiduciaries an ongoing duty to monitor investments, even absent a change in circumstances. Looking to the law of trusts, the duty of prudence requires fiduciaries reevaluate investments periodically and to take into account their power to obtain favorable investment products, particularly when those products were substantially identical—other than their lower cost—to products they had already selected.[17]

In Real v. City of Long Beach, 852 F.3d 929 (9th Cir. 2017), Smith concluded that a tattoo artist had standing to bring a facial and an as-applied First Amendment challenge to a city zoning ordinance that restricted the artist's ability to open and operate a tattoo shop.[18]

Writing on behalf of a unanimous court, Smith in Kennedy v. Bremerton School District, 869 F.3d 813 (9th Cir. 2017), held that a high school football coach spoke as a public employee when he would kneel and pray on the fifty-yard line immediately after games, in full school apparel, while in view of students and parents. The coach had a professional responsibility, Smith reasoned, to communicate demonstratively to students and spectators, which he used to press his particular views upon observers. Because the coach's demonstrative conduct was made in his capacity as a public employee, the school did not illegally retaliate against him when the school ordered the coach not to speak in the manner that he did. In a special concurrence, Smith noted that the school district's action also was justified in order to avoid violating the Establishment Clause.[19]

In Estate of Lopez v. Gelhaus, 871 F.3d 998 (9th Cir. 2017), Smith authored the majority opinion affirming the denial of summary judgment based on qualified immunity where a deputy sheriff fatally shot a thirteen-year-old boy. Viewing the facts in the light most favorable to the plaintiffs, the deputy deployed deadly force within seconds after exiting his vehicle while the decedent was walking in the opposite direction on an adjacent sidewalk holding what appeared to be a gun pointed at the ground, without warning about the amount of force that would be used, and without observing any aggressive behavior by the decedent. Because the decedent did not pose an immediate threat to law enforcement officials or anyone else, the law clearly established that the deputy's conduct was unconstitutional and the deputy was not entitled to qualified immunity.[20] On June 25, 2018, the Supreme Court denied cert.[21]

In Fields v. Twitter, Inc., 881 F.3d 739 (9th Cir. 2018), Smith, writing for a unanimous three-judge panel and in a matter of first impression before the circuit courts, interpreted the Anti-Terrorism Act's proximate causation requirement for individuals seeking to bring a civil action. Plaintiffs, on behalf of family members who were killed by an ISIS attack while serving as government contractors in Jordan, argued that their injury was caused “by reason of” Twitter's material support of ISIS because ISIS-affiliated individuals used Twitter. Applying the Supreme Court's analysis of statutes with similar language, Smith held that a plaintiff must show at least some direct relationship between the injuries that he or she suffered and the defendant's acts. Because plaintiffs failed to plead a connection between Twitter's provision of accounts to ISIS and the deaths of the government contractors, Smith dismissed their claims.[22]

Smith wrote the majority opinion in Williams v. Gaye, 885 F.3d 1150 (9th Cir. 2018), which upheld a jury verdict finding that the 2013 song “Blurred Lines” infringed on Marvin Gaye's estate's copyright to the 1977 song “Got To Give It Up.” Smith reached this decision on narrow grounds based on the procedural posture of the case.[23]

In Chamber of Commerce v. City of Seattle, 890 F.3d 769 (9th Cir. 2018), Smith, on behalf of a unanimous Ninth Circuit panel, affirmed in part and reversed in part the district court's dismissal of an action challenging, on antitrust and labor law grounds, a Seattle ordinance authorizing a collective-bargaining process between driver coordinators such as Uber and Lyft and independent contractors working as for-hire drivers. The ordinance permitted drivers, through an “exclusive driver representative,” and driver coordinators to agree on the amount of payment to be made by the driver coordinator to the drivers, or vice versa. Smith concluded that the Sherman Antitrust Act preempted Seattle's ordinance because the ordinance permitted price-fixing of ride-referral service fees by private cartels. Smith also concluded that the National Labor Relations Act did not preempt the ordinance.[24]

See also[edit]


  1. ^ Marquis Who's Who, Inc (1977). Who's Who in American Law. Marquis Who's Who, LLC. ISBN 9780837935010. Retrieved 2015-04-13.
  2. ^ "Nominations Sent to the Senate". Retrieved 2015-04-13.
  3. ^ "ABA Rating 109th Congress" (PDF).
  4. ^ "U.S. Senate: Roll Call Vote". January 27, 2015. Retrieved 2015-04-13.
  5. ^ Scott Graham, The Recorder, "At the Ninth Circuit, Moderates Do the Talking." May 10, 2013
  6. ^ Milstein, Michael (2007-07-25). "Timber fight pits judge v. judges". The Oregonian.
  7. ^ United States v. Alvarez
  8. ^ Christopher v. SmithKline Beecham Corp
  9. ^ "Leigh v. Salazar, 677 F.3d 892 (9th Cir. 2012)" (PDF).
  10. ^ "Karuk Tribe of California v. United States Forest Serv., 681 F.3d 1006 (9th Cir. 2012)" (PDF).
  11. ^ "United States v. Henry, 688 F.3d 637 (9th Cir. 2012)" (PDF).
  12. ^ "Haskell v. Harris, 669 F.3d 1049 (9th Cir. 2012)" (PDF).
  13. ^ "Washington Environmental Council v. Bellon, 732 F.3d 1131 (9th Cir. 2013)" (PDF).
  14. ^ " on 8 v. Bowen, 752 F.3d 827 (9th Cir. 2014)" (PDF).
  15. ^ "Reza v. Pearce, 806 F.3d 497 (9th Cir. 2015)" (PDF).
  16. ^ "Sakkab v. Luxottica Retail North America, Inc., 803 F.3d 425 (9th Cir. 2015)" (PDF).
  17. ^ "Tibble v. Edison International" (PDF).
  18. ^ "Real v. City of Long Beach" (PDF).
  19. ^ "Kennedy v. Bremerton School District" (PDF).
  20. ^ "Estate of Lopez v. Gelhaus" (PDF).
  21. ^ "June 25, 2018 Orders List" (PDF).
  22. ^ "Fields v. Twitter, Inc" (PDF).
  23. ^ "Williams v. Gaye" (PDF).
  24. ^ "Chamber of Commerce v. City of Seattle" (PDF).

External links[edit]

Legal offices
Preceded by
A. Wallace Tashima
Judge of the United States Court of Appeals for the Ninth Circuit