Milan Smith

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Milan Smith
Judge of the United States Court of Appeals for the Ninth Circuit
Assumed office
May 18, 2006
Appointed by George W. Bush
Preceded by Wallace Tashima
Personal details
Born (1942-05-19) May 19, 1942 (age 72)
Pendleton, Oregon, U.S.
Alma mater Brigham Young University, Utah
University of Chicago
Religion Mormon

Milan Dale Smith, Jr. (born May 19, 1942) is a federal judge on the United States Court of Appeals for the Ninth Circuit, based in El Segundo, California.[1]

Smith's brother, Gordon Smith, was a Republican U.S. Senator from Oregon from 1996 to 2009.


Smith was born in Pendleton, Oregon. He was the son of Milan D. Smith, Sr., who would serve on the staff of Secretary of Agriculture, Ezra Taft Benson. He received a B.A. from Brigham Young University in 1966.

Smith earned a J.D. from the University of Chicago Law School in 1969. Before becoming a judge, he was the managing partner at the law firm of Smith, Crane, Robinson, and Parker, which he co-founded in 1972. He was a President-General cousel 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 confirmed just over three months later by the United States Senate on May 16, 2006 by a vote of 93-0.[3] 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]

During his tenure on the Ninth Circuit, Judge Smith has been one of the court's most prolific writers. According to one periodical, Judge Smith authored the most majority opinions of any judge on the Ninth Circuit in the three-year period ending on May 10, 2013. See Scott Graham, The Recorder, "At the Ninth Circuit, Moderates Do the Talking." May 10, 2013.

Smith's first published opinion was released on December 14, 2006. In that case, United States v. Juvenile Male,[4] Smith wrote for a unanimous three-judge panel that reversed the district court for improperly sentencing a juvenile under an adult sentencing scheme.

In July 2007 in Lands Council v. McNair, Smith wrote a concurrence described as "unusually blunt and wide-ranging", in which he blamed his own 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."[5] Judge Smith's view ultimately prevailed in July 2008 when the case was reviewed en banc and he wrote the opinion for the unanimous eleven-judge panel which vacated the panel decision.

In September 2008 Smith was the one dissenter on a three judge panel that held that a school ban of an instrumental version of "Ave Maria" did not violate students' freedom of speech and religion.[6]

Regarding the Stolen Valor Act of 2005, signed into law by President George W. Bush on December 20, 2006, USA v. Xavier Alvarez, case No. 08-50345 in the 9th U.S. Court of Appeals. This case was decided on August 17, 2010 when the panel also ruled the Stolen Valor Act unconstitutional. The federal appeals court panel in California says people have a right to lie about receiving military medals. Specifically, in the 2 - 1 decision, the majority said there's no evidence that such lies harm anybody, and there's no compelling reason for the government to ban such lies. "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," Judge Milan Smith said in the majority opinion. If lying about a medal can be classified as a crime, Smith said, so can lying about one's age, misrepresenting one's financial status on Facebook, or telling one's mother falsehoods about drinking, smoking or sex. ( The Supreme Court subsequently affirmed the Ninth Circuit's judgment in a 6-3 decision.[7]

In Christopher v. Smithkline Beecham Corp., 635 F.3d 383, Judge Smith wrote an opinion for a unanimous panel holding that pharmaceutical sales representatives were "outside salesmen," and therefore not entitled to overtime pay under the federal Fair Labor Standards Act. In so holding, Judge 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 granted certiorari to resolve this split, and 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), Judge 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 Lane v. Facebook, 709 F. 3d 791 (9th Cir. 2013), Judge Smith, writing for five other judges, dissented from the failure to take a class action case en banc, citing potential problems with the use of cy pres relief in the class action settlement context. Chief Justice Roberts later concurred separately in the Supreme Court's denial of certiorari, but noted that the Supreme Court may need to address the issue of cy pres settlements in future cases. (Marek v. Lane, 134 S.Ct. 8 (2013)). [9]

In Shell Offshore v. Greenpeace, 709 F.3d 1281 (9th Cir. 2013), Judge Smith dissented from a panel opinion upholding an injunction against Greenpeace USA relating to Greenpeace's opposition to Shell's plan to drill for oil in the Arctic. Judge Gould, writing for five other Ninth Circuit judges, later dissented from the failure to take the case en banc, writing that "the dissent of Judge M. Smith has the better position as contrasted with the majority opinion" and noting that the majority opinion "relies on a guilt-by-association model that offends justice." 722 F.3d 1144 (9th Cir. 2013)

In Natural Resources Defense Counsel v. County of Los Angeles, 725 F.3d 1194 (9th Cir. 2013), Judge 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 subsequently declined to review this decision.

In Haskell v. Harris, 669 F.3d 1049 (9th Cir. 2012), Judge Smith, writing for the majority of a three-judge panel, concluded that a California law requiring police officers to collect DNA samples from all adults arrested for felonies did not violate the Fourth Amendment to the Constitution. After the Ninth Circuit elected to rehear this case en banc, the Supreme Court decided Maryland v. King[10] in which the Court held that a Maryland law requiring the collection of DNA samples from arrestees charged with "serious crimes" was constitutionally permissible. 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). In a concurring opinion, Judge Smith explained that the California law at issue in Haskell is "materially indistinguishable from the Maryland law upheld in Maryland v. King." Id. at 1271 (M. Smith, J., concurring in the judgment). 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." The case remains pending in the U.S. District Court for the Northern District of California.

See also[edit]


External links[edit]

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