Friday, January 17, 2020

Juliana v. United States (9th Cir. - Jan. 17, 2020)

You write some opinions directed to the parties and their counsel.  You write others directed to lawyers and other legally-interested people.  But you write some opinions addressed to the general public and, perhaps, future generations.


There's no shortage of lofty expressions in either the majority opinion or the dissent.  Perhaps not surprisingly, given the topic.

First off, Judge Hurwitz's take for the majority:

"In the mid-1960s, a popular song warned that we were “on the eve of destruction.”1 The plaintiffs in this case have presented compelling evidence that climate change has brought that eve nearer. A substantial evidentiary record documents that the federal government has long promoted fossil fuel use despite knowing that it can cause catastrophic climate change, and that failure to change existing policy may hasten an environmental apocalypse. 

The plaintiffs claim that the government has violated their constitutional rights, including a claimed right under the Due Process Clause of the Fifth Amendment to a “climate system capable of sustaining human life.” The central issue before us is whether, even assuming such a broad constitutional right exists, an Article III court can provide the plaintiffs the redress they seek—an order requiring the government to develop a plan to “phase out fossil fuel emissions and draw down excess atmospheric CO2.” Reluctantly, we conclude that such relief is beyond our constitutional power. Rather, the plaintiffs’ impressive case for redress must be presented to the political branches of government."

And, with similar, but more alarming, sentiment, the dissent by Judge Staton, sitting by designation from the Central District of California:

"In these proceedings, the government accepts as fact that the United States has reached a tipping point crying out for a concerted response—yet presses ahead toward calamity. It is as if an asteroid were barreling toward Earth and the government decided to shut down our only defenses. Seeking to quash this suit, the government bluntly insists that it has the absolute and unreviewable power to destroy the Nation.

My colleagues throw up their hands, concluding that this case presents nothing fit for the Judiciary. On a fundamental point, we agree: No case can singlehandedly prevent the catastrophic effects of climate change predicted by the government and scientists. But a federal court need not manage all of the delicate foreign relations and regulatory minutiae implicated by climate change to offer real relief, and the mere fact that this suit cannot alone halt climate change does not mean that it presents no claim suitable for judicial resolution.

Plaintiffs bring suit to enforce the most basic structural principle embedded in our system of ordered liberty: that the Constitution does not condone the Nation’s willful destruction. So viewed, plaintiffs’ claims adhere to a judicially administrable standard. And considering plaintiffs seek no less than to forestall the Nation’s demise, even a partial and temporary reprieve would constitute meaningful redress. Such relief, much like the desegregation orders and statewide prison injunctions the Supreme Court has sanctioned, would vindicate plaintiffs’ constitutional rights without exceeding the Judiciary’s province. For these reasons, I respectfully dissent."

Important principles -- and issues -- all around.

Thursday, January 16, 2020

Sachs v. Sachs (Cal. Ct. App. - Jan. 8, 2020)

Sometimes to recite the facts of the case is sufficient to explain why it should come out precisely the way it did in the trial court.

Like here.

"Probate Code section 21135 provides that transfers of property to a person during the transferor’s lifetime will be treated as an at death transfer to the person under certain conditions. All of these conditions require a writing. Here we decide that the transferor’s record of amounts he periodically distributed to his children is a writing that satisfies the requirements of section 21135. . . .

David L. Sachs had two children, Benita and Avram.2 David established a trust in 1980 when Benita was 20 years old and Avram was 12. The trust provided for small distributions to other beneficiaries, but most of the trust corpus would be distributed to Benita and Avram equally on David’s death. David was the original trustee.

In 1989 David began to keep track of money distributed to his children on papers he referred to as the “Permanent Record.” When a child asked for money, David would tell the child that the distribution would be reflected on the Permanent Record.

In June 2013 David began to experience cognitive problems due to a stroke. He hired Ronda Landrum as his bookkeeper to help manage his finances. At David’s instruction Landrum continued to make distributions to Avram and Benita. Landrum said David was adamant that she keep a record of the distributions. After a distribution was made David would often confirm that the distribution was on the list. Landrum kept a list for each child in the form of an electronic spreadsheet. David told Landrum on more than one occasion that keeping the list was important so that payments made to his children could be deducted from their respective inheritances.

In October 2013 David resigned as trustee and Benita became the successor trustee. Following her appointment, she found the Permanent Record among her father’s papers. The record consists of a separate file for each child. The entries were made entirely in David’s handwriting. The papers list the dates and the amounts distributed beginning when each child attained age 30. The entries were not all made with the same pen, and the papers were of different types and ages.

In September 2014 Landrum advised the children that expenditures for David’s residential care and payments to the children were depleting the trust at a rapid rate. Avram continued to ask Benita for distributions from the trust. Benita’s resistance caused friction between the siblings. In a series of emails Avram sought to assure Benita by repeatedly stating that the distributions would go on his record. One of the e-mails acknowledged that previous distributions made by David went on his record.

In October 2015 Benita learned that Avram was contending the Permanent Record did not exist or that he was not bound by it. By then, David’s mental condition had deteriorated to such an extent that he could not be asked about his intention in creating the Permanent Record.

After David’s death, Benita filed this petition for instructions to equalize the distribution of assets from the trust. She claimed that the disparity in lifetime distributions in favor of Avram should be deducted from Avram’s distributive share of the trust. The trial court granted the petition, and found that Avram received $451,027 more than Benita in lifetime distributions."

That's all I needed to hear.  I read the rest of the opinion, which examines at length why the trial court got it exactly right under the law.  But I was already there once I read the facts.  This seems pretty much the paradigmatic case of where an equalization is in order.  Why (Avram) Sachs and his counsel thought it was worth the money to appeal is fairly beyond me.  The facts alone made this a laydown.

Wednesday, January 15, 2020

Ellis v. Harrison (9th Cir. - Jan. 15, 2020)

You can tell a lot about the particular constituents of the federal legal justice system by today's en banc opinion.

It's a habeas case that originally progresses in the usual way.  Defendant's convicted at trial, his state appeals were unsuccessful, his state habeas petition gets him nowhere, and the federal district court denies his federal habeas petition.  Par for the course.

But then things get funky.

In the Ninth Circuit, the panel affirms.  But all three panel members join a separate concurrence to the per curiam disposition.  Every one of them says they'd vote to reverse if they weren't bound by an en banc opinion from 2001.  And the issue here is a sensitive one; whether a criminal defendant can get habeas relief when he can prove -- as defendant does in spades here -- that his defense counsel was a stone cold racist.  The concurrence was also a sensitive and very personal one, a memorable portion of which expressed the following:

"Lawyers today look very different than they did in 1991, when Ellis was tried. Within a generation, diversity among legal practitioners has markedly increased. On appeal in our court, of the three judges and two advocates at oral argument, four were people of color. These changes matter. Minority lawyers’ greater representation on the bar has led to a growing acknowledgment and intolerance of racial bias in the practice of law. But it has not ended racism, both subtle and overt. . . .

When examining the reasonableness of counsel’s performance, we extend considerable deference to strategic choices. This deference is predicated on the assumption that counsel is acting in the client’s best interest. For an attorney as deeply racist as Ames, that assumption is unfounded. It makes no difference that Ellis was unaware of his counsel’s beliefs. The deleterious effect of such racism on the outcome is usually impossible to prove and, under these circumstances, we should presume prejudice."

That was Judges Nguyen, Hawkins and Tashima.  And tells you something about them.

Not surprisingly, the Ninth Circuit takes the case en banc.  At which point the case takes several interesting turns that again tells us something about the people involved.

It's a high-profile case about racism in the criminal defense system.  All along the way, the California Attorney General's Office has been doing what that office does in virtually every single case:  defend the validity of the conviction.

But, perhaps -- and I'm just speculating here, but I think I'm right -- Xavier Becerra has learned a thing or two from Kamala Harris' contemporary presidential bid.  Which is that people like it when you're a legal officer of high standing, but simultaneously, that doing stuff that left-of-center voters don't like can hurt you in a primary.  And this is one of those things that could definitely come back to haunt you, since very few people like defending racists and convictions arising therefrom.

So, for the first time ever in this thirty-year old case, the Attorney General's Office now confesses error.  Something it hadn't done even at the federal appellate stage of the process a year earlier.  An event that tells you something about Xavier Becerra.

So now the en banc court has a confession of error, and as a result, not surprisingly, issues a very brief per curiam opinion that reverses the dismissal of the habeas petition based on this concession.

But there's still more to come.

Judges Nguyen, Thomas and Murguia aren't happy with not explaining why the case comes out the way it does.  The facts, the legal principles, etc.  So they begin their separate concurrence by saying: 

"I write separately because I strongly disagree with the majority’s refusal to explain its decision, particularly in the face of a vigorous dissent. No settlement is on the books. The State of California now agrees with Ellis’s interpretation of the law but does not agree to grant him the new trial he seeks. The parties have asked us, and we are obligated, to decide whether Ellis received the effective assistance of counsel guaranteed by the Sixth Amendment. To do so without a reasoned analysis in a case like this is a disservice to the parties, the victims’ families, and the public."

That tells you something about them.  At least in this particular context.

Judges Watford, Hawkins, Wardlaw, Hurwitz, and Owens also join a separate concurrence.  But theirs is very brief one.  They just want to deal with the dissent's legal contention, which argues that the confession of error shouldn't matter.  So their concurrence states, in full:

"I write separately to respond to the dissent’s contention that the court’s order granting relief is forbidden by 28 U.S.C. § 2254(d). That provision applies only when a claim has been “adjudicated on the merits” in state court. Id. It does not apply here because the claim on which the court grants relief was never adjudicated on the merits in state court.

As the district court correctly determined, Ezzard Ellis raised three distinct ineffective assistance of counsel claims in his federal habeas corpus petition: one based on Strickland v. Washington, 466 U.S. 668 (1984); another based on Cuyler v. Sullivan, 446 U.S. 335 (1980); and a third based on United States v. Cronic, 466 U.S. 648 (1984). Ellis never raised his Cronic claim in state court, and thus the state courts never adjudicated that claim on the merits. While Ellis’ failure to raise his Cronic claim in state court would ordinarily render the claim unexhausted, the State has waived the exhaustion requirement here, as it is permitted to do. See 28 U.S.C. § 2254(b)(3). As a result, § 2254(d) poses no barrier to the court’s granting relief on Ellis’ Cronic claim."

So that legally-focused concurrence tells you something about them.  Again, at least in this context.

Judge Callahan dissents.  She insists that the habeas petition should remain dismissed even though the state has waived the exhaustion claim and confessed error.  Her dissent is 18 single-spaced pages long, and no one else on the panel joins it.  Her dissent concludes with the following:

"The abhorrently racist statements of Ames, as evidenced by the record, makes this a difficult case. Ames was an offensive and abusive human being, even by the accounts of those who knew him best. To any extent that Ames’ racism rendered his representation of Ellis at trial prejudicially deficient, we certainly have an obligation under the Sixth Amendment to correct it. But where, as here, a habeas petitioner fails to show that his trial counsel’s racist beliefs adversely affected his performance at trial, as required under Sullivan—much less that it created a reasonable probability of a different result, as required under Strickland—we are bound under AEDPA and the Sixth Amendment to deny Ellis’ request for habeas relief."

That tells you something about her.

That leaves the rest of the panel.  Which consists entirely of Judges Bybee and Milan Smith.  They simply join the per curiam opinion, and don't otherwise explain their result.  Which, again, tells you something about them, at least (again) in this context.

So it's an interesting en banc opinion that gives a fair piece of insight into many of the individual participants in the process.

Tuesday, January 14, 2020

Altayar v. Barr (9th Cir. - Jan. 14, 2020)

I wonder if this would play out any differently today.

Bystander is at work talking with a female friend outside the shop at which he works.  Grabber walks by and nonconsensually touches the female friend on the buttocks.  Bystander is (not surprisingly) offended, calls Grabber a name, and then Grabber punches bystander in the face.

Bystander is armed (presumably to protect the store), and after being punched, pulls out a weapon.  Grabber then runs, and Bystander chases Grabber to a nearby gas station.  Grabber's brother and a friend see all of this, and go to confront Bystander; Bystander waves them away with his weapon.

A security guard eventually shows up and puts Grabber in handcuffs, mistakenly believing that Grabber has robbed the store (rather than sexually assaulting the woman).  Bystander puts his gun away and, frustrated, kicks Grabber in the head.  The gun, parenthetically, is never fired.

You can see why all this transpires the way it did.  Surely people could have acted differently.

What's the proper result for all of this?

Presumably Grabber could be prosecuted for sexual assault.  Grabber committed the offense, after all, though he's also already been chased with a gun and kicked in the head.

Presumably Bystander could be prosecuted for assault, and perhaps a weapons violation.  Bystander committed that offense, after all, and surely shouldn't have kicked Grabber after there was no threat.  But his friend had been sexually assaulted in front of him, and he had also been personally punched in the face.  You can perhaps see why he drew the weapon to prevent future assaults (and to detain the perpetrator of the sexual assault) and to prevent escalation by Grabber and/or his brother.

So if you're the District Attorney, who gets charged?  If you're the judge, assuming all of the above is true, what's the disposition?

All this, of course, is not a hypothetical.  It's today's opinion.  In the real world, as far as one can tell, Grabber doesn't get charged at all.  Bystander does.  With a Class 3 felony (in Arizona).  For which the sentencing range is between 2 to 9 years in prison, with a presumptive sentence of three and a half years.

The trial judge nonetheless sentences him to 48 hours in jail, and 5 years of probation.

The #metoo movement didn't start in earnest until two or three years after these 2014 events.  Had it gained traction earlier, I wonder whether the district attorney (or the public) would have viewed these events a little differently.  I think there might be a bit more sympathy now for someone who sees a friend become a victim of sexual assault and -- perhaps rashly, perhaps not -- pulls out a weapon in response.

That doesn't excuse kicking the guy when he's restrained, obviously.  But there might be a little more understanding for why things like that happen.

The trial judge's 48-hour sentence was likely founded upon similar concepts.  So maybe 2014 was not all that radically different than 2020 in that regard.

But still.  I wonder if the preliminaries might have played out differently.

Nonetheless, all's well that ends well, right?  No one seriously injured, at least.

Except for one thing.

You may have forgotten that we're talking about a federal case here.  One against William Barr.  You don't get that for a simple state law assault conviction.

One thing I (deliberately) didn't mention at the outset is that Bystander is a refugee from Iraq.  Who was lawfully admitted, and is a permanent (and lawful) resident here.  But since he's now convicted of a felony, the United States wants to send him back.  To Iraq.

Bystander files a plethora of requests -- for asylum, for protection under the Convention Against Torture, etc. -- because his life in Iraq would be, shall we say, less than enjoyable.  But the BIA says he categorically can't get any relief, and hence gets shipped off to Iraq, because he's committed an offense that involves moral turpitude.

And the panel today -- Judges Wallace, Bress, and Lasnik (sitting by designation) -- unanimously agrees.  Off to Iraq for you.  Maybe next time you'll think twice before running after a guy with a gun after he sexually assaults your friend in front of you and punches you in the face. 

Monday, January 13, 2020

In re Williams-Sonoma, Inc. (9th Cir. - Jan. 13, 2020)

First off, congratulations to the attorneys at Sheppard Mullin for getting the Ninth Circuit to grant a mandamus petition.  That's no small feat in any dispute, made even more significant by (1) the fact that it's a civil case, and (2) involves a non-privilege discovery issue.  Well done.  And that they win (albeit in a split opinion) is a bonus as well.

Second, the holding is a pretty important one.  Judge Fernandez, joined by Judge Choe-Groves (sitting by designation from the Court of International Trade), holds that plaintiffs in a putative class action aren't allowed to obtain precertification discovery of names of alternative class members in order to find a substitute for a named plaintiff who didn't work out.  (Here, the original named class plaintiff was from Kentucky, which bars consumer class action suits like the one here.)  Judge Paez dissents, but at least for now, the majority opinion rules.  That's bad for class action plaintiffs, but good for class action defendants.

Finally, even though they lose, it might well be possible for the plaintiffs to salvage practical victory from this unambiguous legal defeat.  The matter was not -- but became -- a high-profile dispute once today's opinion came down.  It's a case that will now be talked about repeatedly in the legal press, including (but very much not limited to) here.  Lots of people will read the underlying story for the first time.

Plaintiffs were looking for discovery so they could find the names of individuals (hopefully in California) who bought 600-count bedding from Williams-Sonoma.  Because the underlying class action alleges that the "600-count" sheets therefrom was actually way, way less than that.

There are more than a few lawyers (and others in the legal profession) who shop at Williams-Sonoma and who like to sleep on nice sheets.  I bet you a fair number of them either themselves purchased 600-count sheets from the place or know someone who did.  Any one of whom could read today's opinion and volunteer to be the missing class action plaintiff.  With ample incentive to do so.

All they'd need to do is to contact class counsel: Amber Eck in San Diego, or any of the other attorneys for the plaintiff listed on the caption.

Because if Williams-Sonoma really is selling 600-count sheets that are anything but, they should probably be held to account.  And, notwithstanding the legal holding from the Ninth Circuit today, that could definitely still happen.

People v. M.B. (Cal. Ct. App. - Jan. 13, 2020)

The Court of Appeal has previously held that you can't impose a criminal restitution penalty before you decide whether the would-be debtor has the ability to pay it; otherwise it's unnecessary (and useless) punishment.

The Court of Appeal decides today -- in an opinion that's only six pages long (including the concurrence) -- that this principle doesn't apply to identical restitution penalties in juvenile cases.

Two things about today's brief, but important, opinion.

First, it's obvious that this panel doesn't agree with the prior decision.  Fair enough.  Panels can obviously disagree, and aren't required to follow horizontal precedent.  Nor are they required to elaborate at length on this disagreement if there are other opinions that have already done so.

Nonetheless, I thought that Justice Yegan (who authors today's opinion) might have wanted to expound a little more, or a little better, than he did on why the prior opinion didn't apply here.

Justice Yegan's opinion basically says that regardless of whether the prior opinion is right or wrong, the present statute expressly says that a court doesn't need to examine ability to pay or to require a separate hearing on this issue.  Okay.  That's different than the adult restitution statute, for sure, since the latter is silent on the issue.

But as Justice Yegan recognized, the prior opinion by the Court of Appeal was based on due process and equal protection principles:  constitutional concepts.  If applicable, those trump -- very concretely -- what the statute says.  So I don't think it's quite right to just briefly state that the appropriate rule here is clear since the statute at issue is (as Justice Yegan twice says) "pretty straightforward."  The actual issue is whether the state and/or federal constitutions require something different than what the statue says.   And that's a difficult question, and one necessarily not answered by the statutory text.

Second, I appreciated Justice Yegan's concurrence to his own opinion, but wonder how far it goes, or which way it cuts.  He points out (correctly) that we're spending an awful lot of money arguing about (or "chasing down") tiny restitution awards, and thus suggests that even if the prior opinion achieved justice in the particular case in front of it (involving an indigent defendant with cerebral palsy who was obviously never going to be able to pay), it didn't make sense to make such a big deal about such a tiny issue, or to require in other cases all the appeals and hearings resulting therefrom.

That's indeed a consequence of making opinions retroactive (to cases on direct appeal, anyway) as opposed to purely prospective (for future restitution awards).  It's a classic and oft-repeated problem that's not unique to this particular dispute.

But Justice Yegan rightly notes that we're typically talking about tiny restitution orders here.  So asks (correctly) "How much time and money should the juvenile justice system spend to 'chase' this $100" restitution award?

But you can see that argument going exactly the other way, right?  Sure, it's a tiny amount, so for that reason, we presumably don't care all that much about it.  (It may not be tiny to the defendant, mind you, but from the state's perspective, it's insignificant.  As Justice Yegan ends his concurrence: "The latin phrase, 'de minimis non curat lex' comes to mind.")

But that's equally a reason not to impose the order in the first place, right?  And, similarly, not to care about wiping the slate clean for cases on direct appeal.  It takes two to fight.  If the government does not feel like an $100 order that's probably never going to be paid anyway isn't worth "a bus trip from juvenile camp to court for a hearing that may, perhaps, result in a lessening of a restitution fine" or "appointed counsel" therein, it can easily avoid all that with a stipulated reversal of the trifle about which the law does not care.

So, yes, it's silly to have huge fights about things that are systemically irrelevant.  (Though I think we still want to fight about things that are keenly relevant to individuals, even though less relevant to the system.)  But that includes the silliness of having the state fight about them.  Particularly when one should remember that the cost of the $100 order isn't just (on one side) the cost of the bus trip (which, yes, we'd like to avoid), but also, on the other side, the cost of actually trying to enforce the $100 order; the collection letters, the probation office record keeping and follow-up, etc.  Those are not trivial costs either.

So the real questions are (1) what the Constitution requires (not what the statute says), (2) what's the best policy, for the individual and/or the state, and (3) which procedure is most efficient; a system that routinely enters mandatory orders that few people will ever pay and that burdens people and the system with their enforcement, or a system that takes into account ability to pay but requires hearings for those defendants sentenced in the interim under the old regime.

Those critical questions aren't much answered in today's very short opinion.  So while I think the focus on this systemic issue is great, I'm not sure the arguments herein advance the ball much.

Or, at a minimum, to me, today's opinion raises just as many questions as it answers.

Friday, January 10, 2020

Villarreal v. DMV (Cal. Ct. App. - Jan. 10, 2020)

What the DMV did here was a crock.  But I agree with the trial court and the Court of Appeal that it doesn't justify an award of fees.

Villarreal gets a DUI in California in 2013, and in 2014, his commercial driver's license (!) is suspended for a year as a result.  Turns out that Villarreal also got a "DUI/DRUG" conviction in Arizona previously, so when he gets his California license back in 2015, Arizona reports the prior conviction, and pursuant to the automated system in California, that out-of-state conviction resulted in the computer spitting out an additional two-year suspension.

Villarreal doesn't like that, so challenges the new suspension.  The DMV agrees with him, so it reduces the new suspension to six months and purges the Arizona conviction from the computer records.

Then, in 2016, after the new (reduced) suspension is over, Villarreal renews his license.  But when you renew your license, the DMV's computer automatically checks for out-of-state convictions.  And since the old Arizona conviction has now been purged from the DMV's system, the computer sees that conviction and . . . spits out another automated two-year suspension.

Villarreal tells the DMV:  "WTF?"  And the DMV understands that this is a problem, so sets aside the new two-year suspension entirely.  But it also tells Villarreal:

“When we purged the Arizona DUI and the suspension order last September, we did not anticipate that a renewal application would result in the conviction being re-reported and another suspension action being generated. We can remove the Arizona DUI conviction and this recent two year suspension again; however, this same issue could arise when Mr. Villarreal renews his license in 2020. We cannot prevent other states from reporting their DUI convictions to California, which automatically update the DMV database and triggers the mandatory actions. The other option would be to leave the 2005 Arizona conviction and the two year suspension which has been set aside on [Villarreal’s] driving record, which would prevent Arizona from reporting the same offense in the future.”

So Villarreal files a petition for writ of mandate.  Which the trial court grants, ordering the DMV not to suspend Villarreal's license (again) based on the old Arizona conviction.

Makes sense.  Justice.  Too bad Villarreal had to endure all of this instead of the DMV just fixing some coding lines (or inputs) in some DMV computer somewhere.

Villarreal then moves for an award of his attorney's fees.  There's no special fee-shifting statute for things like this.  But he says that the lawsuit has resulted in a "significant benefit" to the public, so he's entitled to fees under Section 1021.5 of the CCP.

The trial court and the Court of Appeal disagree, as do I.

There's no good proof about how many people (if any) were in the same situation as Villarreal.  Sure, millions of California drivers could at some point face a similar conundrum, particularly if they (like Villarreal) are commercial drivers with multiple DUI convictions from different states (!).  But that many people "could" be affected doesn't create a public benefit if there's no showing the many people actually are affected.  And that's the big failure of proof here.

If there was substantial evidence that a lot of people (or even a fairly non-trivial number) had to go through what Villarreal went through, yeah, maybe I'd award fees.  And I'll admit that maybe if the requested fees here had been a fair piece smaller -- rather than asking for nearly a quarter million dollars for a case that was not hard at all (the facts largely speak for themselves) -- I might have been more sympathetic to the fee request.

But, in the end, Villarreal gets what he needs, his lawyer asks for a ton, and the Court of Appeal ends the case the way it should.

A decent way to end the week.

Thursday, January 09, 2020

Bom v. Superior Court (Cal. Ct. App. - Jan. 8, 2020)

Want to be incredibly depressed?  Read the first dozen pages of this opinion.

The case involves the criminal prosecution of four social workers with the L.A. County DCFS of allegedly falsifying records in a child neglect case.  Justice Rothschild ultimately holds, in a split opinion, that the defendants cannot be prosecution, and dismisses the charges.

The first twelve pages of the opinion examines in excruciating detail the facts of the underling child neglect investigation.  When you read the first ten or so, you're confronted with easily imaginable circumstances.  There are some serial claims and evidence of child abuse, and the social workers do a thorough investigation over a long period of time and regarding a large number of different claims as they arise.  What they find is contradictory.  Some evidence points to possible abuse, but there are consistently plausible explanations for the bruises, etc.  So there are unannounced inspections, family therapy, investigations, etc., but ultimately, the kid stays with his mother.

And you can see why.  You might come out the other way.  But you might come out the way it did as well.  Touch case.

Then you read the last two pages of the facts.  About finding the kid basically dead.

And you're horrified.  The stuff you discover then makes it crystal clear (to me, at least) that there was indeed abuse all along.  All the initial stories about abuse previously were spot on.  All of the excuses were total lies.  And the child dies as a direct result.

It'd be less depressing if the facts demonstrated a total lack of caring or competence on the part of DCFS or the social workers.  That we can solve (at least in the future) by hiring social workers who are competent and caring.

But that's not what I see here.  I see a close case, with disputable but arguably reasonable calls.

All of which result in the tragic death of a child.

I did a little background work after I read the opinion.  Apparently the L.A. Times called the underlying prosecution of the mother and her boyfriend "one of the most infamous and chilling child abuse cases in California history."  And, reading the Court of Appeal's opinion, you can totally see why.

Wednesday, January 08, 2020

People v. Venegas (Cal. Ct. App. - Jan. 8, 2020)

Sometimes a tangential item in an opinion piques my interest.  This was one of those opinions.

The holding doesn't especially matter (to me, at least).  Just the facts.  It's about a horrible case of mistaken identity an innocent bystander who gets killed.  Apparently, the Winter Gardens gang and the Fraser Maravilla gang were involved in a border war, so a couple of people in the Winter Gardens gang went out driving along the contested frontier to see if they could find a rival gang member to kill.

The opinion then says that the two gang members then spied a rival, with whom "[t]hey made eye contact, prompting Vargas [the intended victim] to flee towards a nearby casino. . . . Venegas rode to the casino’s entrance and gunned down a man he thought was Vargas but who actually was Acevedo [a bystander]."

So, according to the opinion, the victim was "gunned down" at "the casino's entrance."

As I read that, I wondered which casino the opinion was talking about.  Since apparently it's at a contested frontier between gangs.  So I tried to look up the areas controlled by the respective gangs (Winter Gardens and Fraser Maravilla).  I discover that both gangs are apparently Latino and in East Los Angeles, and that Winter Gardens' territory is basically Olympic to the north, the I-5 to the south, Atlantic to the east, and Arizona to the west.

Now, it just so happens that I've been in that location a fair amount.  (My kids often have sporting events in nearby Commerce and Montebello.)  It's actually a pretty small area; probably less than 20 square blocks total (10 by 2).  It's very close to where the I-5 and the I-710 meet; if you've driven on the I-5 in L.A., it's slightly to the northwest of the Citadel outlets - that big shopping mall that you see from the highway with the huge statutes that sort of looks like a fortress.

But here's the thing:

There's no casino there.

The victim allegedly gets shot at "the casino's entrance."  But then I look up news reports of the shooting.  The victim's actually found (according to the L.A. Times) "in the 1300 block of South Atlantic avenue."  Now, that's in an alley that's indeed right on the border between the gangs.  So it makes sense that that's where the guy was shot.

But there's no "casino entrance" anywhere near there.  The nearest casino is the one in Commerce, which I'm confident is the one to which the opinion intends to refer.  But the entrance to that casino is a mile and a half away from where the victim was found.  No way he crawls all that way after being shot; indeed, it takes half an hour for even someone who's not mortally injured to walk the thing, and you'd have to crawl right past the busy shopping mall etc.

Instead, I feel pretty confident that the guy was instead shot and killed right where he was found.  In the alley on South Atlantic, right at the contested border between the two gangs.

I tried to look up the briefs so see where the reference to the casino was made in the briefing, but I couldn't find them online.  I don't imagine that the Court of Appeal made up that part on its own, so imagine it originated in the briefs somehow.

Still.  I don't think the guy was actually shot at the entrance to the casino.  Seems like he was shot a mile and a half way.

At least as best as I can figure out.

POSTSCRIPT - An informed reader knows the scoop, and helpfully shared it with me.  (Thanks!)  Apparently the relevant place is not a casino.  It's a "casino."  There's apparently an illegal betting shop on the southwest corner of Union Pacific and Atlantic Avenues:  a place that's a known Fraser Maravilla gang hangout.  Now, why you need to have an illegal "casino" -- at which you risk getting arrested and, as here, shot -- when there's a legal (and presumably much more expansive) one just down the street is beyond me.  But there you have it.  That's why the victim was shot at the entrance to the "casino."

Maybe put that word in quotes (or put the word "illegal" before it) to make it clear to uninformed readers like me who aren't otherwise cognizant of the illegal betting place? 

(And thanks again for the reader follow-up.)

People v. Cornelius (Cal. Ct. App. - Jan. 8, 2020)

You read opinions about people shooting and killing a lot of different types of people.  Rivals.  Strangers.  Spouses.  Boy- and girlfriends.  Sometimes parents, even.

You see something here that you don't read about all that often.  Someone killing his brother after an argument.

It's a story as old as Cain and Abel, of course.  But nonetheless not something you see every day.

Of course, the punishments are different.  Cain gets marked and cursed by the Lord.  Here, Harold Cornelius gets 40 years in prison.

Tuesday, January 07, 2020

Park v. Barr (9th Cir. - Jan. 7, 2020)

I understand why the panel comes out the way it does here.  To do otherwise would seem clearly inequitable in the present case.

But I wonder if the panel's holding will make it worse -- substantially worse, even -- for the vast majority of people in similar situations.

It's an extremely sympathetic claim.  Ms. Park is a citizen of Korea, marries another citizen of Korea, and they come to the United States.  They overstay their visa, but after 11 years of marriage, they get divorced.  Since they're both from Korea (albeit in California at the time), they go to the consulate of Korea and jointly request a divorce, which is granted.  All this is fine under the law of Korea.

Ms. Park subsequently marries Mr. Park, a U.S. citizen.  There's no doubt that both Ms. Park's first marriage as well as her second marriage are bona fide.  She's not just trying to stay in the U.S.  Since she's now married to a U.S. citizen, she requests to become a citizen.  Which she's entitled to do.

But here's where it gets ugly.

The United States takes the position that even though her marriage to Mr. Park was a real one, she accidentally was never "really" divorced from her first husband.  Not because it was a fake divorce or anything.  But rather because since she resided in California, she couldn't "actually" obtain a divorce from Korea, even though both her and her husband were Korean citizens.  Accordingly, even though she indisputably tried (and intended) to get divorced, she never actually did.  Thereby making her second marriage invalid (since she was already married), which means she gets deported and can't become a U.S. citizen even though she legitimately loves and has married one here.

You get the inequity of that, right?

So the panel reverses that decision.  Holding that, nah, she was in fact validly divorced, and hence was validly married to her second husband.  Thus can stay.

You can see why you might well want the case to come out that way.  Deporting someone who's legitimately married to a U.S. citizen and has tried to do everything associated with her marriage properly just seems incredibly harsh.

The problem is precedent.  As well as the doctrine of unintended consequences.

The reason the U.S. thinks that Ms. Park couldn't validly get divorced at the Korean consulate was because she was in the United States at the time (specifically, California) and had been there with her husband for a long time.  That made them, according to the United States, California residents.  And if both you and your spouse are residents of California, guess where you have to get divorced?  You got it:  California.  Not the Korean consulate.  That's why the U.S. thought the divorce (and thus the second marriage) was invalid.  Because Ms. Park was a resident of California.

And there's totally good precedent for that position.  Since California has indeed squarely held that even if you're an undocumented immigrant, if you live in California and intend to stay here, you're a resident of California for family law purposes.  And hence can get divorced here.

You see the equity of that position, right?  Imagine how bad it would be if you're an undocumented immigrant living in California -- say, for 20 years -- and your spouse starts abusing (or even merely ignoring) you, and you fall in love with someone else and want to marry them.  It'd be super, super bad if California held that you couldn't get a divorce in California since you weren't a citizen here, so had to stay married until and unless you could go back to Cambodia or China or Mexico or whatever and get a divorce there.  Otherwise you're required to stay married to this person you don't love (and perhaps even affirmatively hate).

That's precisely why California has squarely said that, for divorce purposes, you can indeed be a resident of California even though you're undocumented.  And hence get divorced here.

But here's the rub.  If that's the rule -- and it certainly is the rule in California -- then Ms. Park's divorce was indeed invalid.  Because she was a California resident, and thus couldn't get divorced at the Korean consulate.

Which means the only way to obtain the "right" result here (i.e., the one that confirms her divorce and subsequent marriage) is to find these California cases inconsistent with federal law.  Which is what the panel does.  Meaning that Ms. Park is not a resident of California, so her divorce was valid, so her remarriage was valid, so she can stay.

Which is great for Ms. Park.  But affirmatively terrible for everyone else.  Since, under today's ruling, undocumented immigrants are not longer deemed "citizens" of California for purposes of requesting a divorce.  So they can no longer get divorced here.  Since federal law preempts California's law to the contrary.

And this from a panel of left-of-center judges.  Who have now articulated a ruling that, while good for Ms. Park, is almost certainly objectively bad for pretty much every other single undocumented immigrant.

And notice which way the parties lean.  The panel is holding that U.S. law preempts California law.  Yet it's the United States -- the DOJ -- arguing exactly the contrary.  Which says that federal law does not preempt California's law that deems unauthorized immigrants to be California residents for the limited purpose of obtaining a divorce.

Unusual.  To say the least.

To recall, it's understandable why the panel wants to hold the way it does, because it wants to help the sympathetic Ms. Park.  But in doing so, it needs to (1) overrule contrary California precedent, and (2) articulate a holding that's probably not especially persuasive.  Which perhaps explains in part why the opinion is per curiam and unsigned.

But it also makes for a decision that seems bad for everyone else.  And I'm confident that's not what the panel intended.

Which is probably why the opinion repeatedly says that the panel is holding the way it does "in the circumstances of this case."  That's likely the panel's way of trying to help future panels hold that the decision (read: precedent) here hopefully won't stop unauthorized aliens from obtaining divorces in their state of residence in the future.

The problem, however, is that there's no actual (or at least principled) way to distinguish today's case from those future cases.  If federal immigration law preempts California's laws about residence in the divorce context, and means that unauthorized immigrants are affirmatively not residents of California for purposes of divorce, then by definition they can't obtain a divorce here.  Because only residents can obtain a divorce in this forum.  There's no way out from today's holding.

So, yesterday, if you were an undocumented immigrant who wanted (or needed) to divorce your similarly-situated spouse, you could go to a court in California and validly obtain one, pursuant to state law.  That's bad for Ms. Park, since it's not exactly what she did (she went to the consulate for Korea).  But it's good for everyone else.

But after today, undocumented immigrants who want (or need) a similarly divorce cannot go to a California court.  Because the panel holds that federal law precludes such persons from being deemed "residents" of California for purposes of divorce.  Which means that Ms. Park's particular divorce is valid.  But also means that everyone else's divorce (from a California court) is not.  Which is bad for pretty much everyone other than Ms. Park.

Again, I get that the panel wants to reach the holding it does.  And that it tries to input subtle points to help distinguish this case from others.  But I'm not at all persuaded that those purported distinctions and limitations in fact accomplish their objective.  Either in a principled manner or at all.

Which in turn means that this opinion could turn out to be substantially bad for unauthorized immigrants in California.  Really bad.  Even though the panel's intent is clearly the exact opposite.

Which is the way things go sometimes when you're itching to achieve justice in a particular case.

Monday, January 06, 2020

Dalessandro v. Mitchell (Cal. Ct. App. - Jan. 3, 2020)

Part of this opinion I totally get.  But there's a part of it I don't.

I definitely understand the issue surrounding the third footnote.  Brief background:  The case involves a discovery sanction -- a whopping $3,456.70 -- against a party's lawyer.  The lawyer and the client then file an appeal.

Respondent promptly files a motion to dismiss the appeal on the ground that the client has no standing to appeal a sanction order against the lawyer.  True enough.  But basically irrelevant since the lawyer also joined the appeal.  Or, as the Court of Appeal puts it:

"We first address Mitchell’s motion to dismiss Dalessandro from the appeal for lack of standing to challenge a sanctions order issued only against Levine. We agree Dalessandro lacks standing to appeal from the sanctions order. (Calhoun v. Vallejo City Unified School Dist. (1993) 20 Cal.App.4th 39, 42.) However, this does not render Levine’s appeal ineffective. (Moyal v. Lanphear (1989) 208 Cal.App.3d 491, 497.) There is no dispute Levine has standing to appeal the sanctions order and is properly an appellant in this matter. We therefore deny the motion to dismiss."

Which in turn prompts this footnote.  Which seems entirely appropriate, IMHO:

"We thus question Mitchell’s need to separately file a 12- page motion to dismiss, which spawned an opposition and a reply, on an issue that could have succinctly been addressed in the opening brief, possibly in a footnote. We make this observation to highlight the intensely litigated nature of this case, which does not advance the cause for either party. In addition to the motion to dismiss, Mitchell has filed a motion for sanctions seeking $12,500 to reimburse this court for the costs of processing a frivolous appeal and $8,500 to reimburse Mitchell for defending the appeal. (Cal. Rules of Court, rule 8.276.) The sanctions motion merely repeats the respondent’s brief arguments regarding the weaknesses and technical deficiencies of appellant’s briefs. This has led to a counter request for sanctions from appellants for filing frivolous motions. We find the parties are approaching frivolity, but have not yet crossed into that territory. With that caution, we deny all sanctions requests."

Yeah.  Total unrestrained craziness involving an appeal worth less than $3,500.  Sometimes parties can't restrain themselves.  And when, as here, that's the case, a little public shaming in a published opinion seems appropriate.  Particularly when, as here, extremely lightly done.

So all that makes sense.

Here's the part I don't totally understand.

The Court of Appeal decides that (1) the discovery sanction was appropriate, since (2) the motion to compel was rightly denied, because (3) the underlying discovery (a post-judgment demand) was improper since it was sent via U.S. mail without postage attached to the envelope.  I get this from page four of the opinion.  ("We conclude the trial court did not err in denying the motion to compel. The trial court found service of the demand to be ineffective because there was no postage affixed to the envelope containing it. [Cites] Mitchell was not required to respond to a demand that was not served.")

Okay, I get that.  If someone propounds discovery to me, and I never get it, obviously, I don't have to respond.

Except it seems from the opinion like the recipient of the discovery did receive it. 

I get that from footnote four of the opinion, which notes "Mitchell’s counsel’s written admission that he received the demand."  So I read the underlying briefs.  Which, trust me, are not models of clarity, in the slightest.  From the opinion and from the briefs, it seems like what happens is that there's no postage on the envelope, which gets mailed, but (as far as I can tell) the post office delivers the thing anyway.  (Which I'm familiar with; on rare occasions, I receive an envelope in the mail even though the stamp was inadvertently omitted.  Sometimes, I figure, the post office doesn't care about getting its 50 cents.  Or enforcement just slips through the cracks.)

I'm also thinking that's what may have transpired given the basis of the Court of Appeal's ruling.  Justice Bigelow says that since there was no postage, service was improper -- even if the document was in fact received -- since Section 684.120(a) requires “postage paid” when the service of postjudgment “writ, notice, order, or other paper” is by mail, and citing precedent that “strict compliance with statutory provisions for service by mail is required, and improper service will be given no effect.”  Hence, according to footnote four, even if the document was mailed (as established in the proof of service), and even if it was received, the Court of Appeal says that "the presumption was rebutted by evidence that the envelope had no postage on it, rendering service improper."

Yes, that's what the statute and precedent says.  And if the facts of this case are that someone mailed and envelope, and that envelope wasn't received by the recipient, then I agree it doesn't make proper service just because the recipient got the enclosed document some other way (e.g., by e-mail, or in a subsequent letter, etc.).  You've got to actually mail the thing and have it received.

But if it was mailed and was received, even though a stamp was left off of it, I'm not on board for a holding that says that it's still not proper service.  In that situation, the absence of a stamp did not matter.  AT ALL.  Which means it shouldn't matter to the propriety of service.  At all.

And as support for that point, I could cite a plethora of different provisions of the California Civil Code.  Section 3528 would be one of them.  "The law respects form less than substance."  Section 3510 would be another.  "When the reason of a rule ceases, so should the rule itself."  And Section 3533 would seem on point.  "The law disregards trifles."  Whether a 50 cent stamp was placed on an envelope, fell off, or was inadvertently omitted doesn't matter at all if the post office nonetheless delivers the thing.  The purpose of the law -- effective notice -- has been achieved.  The only party harmed is the post office, which is out fifty cents.  And they're not the ones complaining.

I admit I can conceive of a more difficult middle ground.  What if the stamp was omitted, the post office delivered the mail, but charged the recipient 55 cents (as they sometimes do) for the missing postage in order to deliver it?  Well, then, maybe you could find improper service, since this actually harmed the recipient, albeit merely to the tune of 55 cents.  Maybe that's a "trifle" or not; I can see arguments both ways.

But if it's just an envelope that gets delivered in the exact same way as properly-stamped mail, I see zero reason why that should not be proper service.  Ditto if the sender accidentally puts an old 48 cent stamp on the thing (instead of a "forever" or proper 55-cent stamp) and the envelope gets delivered as usual.  That's not "proper postage" attached either.  But service is still proper.

And I can think of a thousand other variations on Section 684.120(a) that should also constitute proper service notwithstanding the (overly) strict construction that the Court of Appeal might intend for the thing via this opinion.  For example, that section also expressly requires the documents to be in a "sealed envelope."  What if the sender forgot to seal the thing, and left it open, but the documents never slipped out, and were delivered as packaged?  Or what if there wasn't even an envelope, and the documents were instead shipped inside a box (or a burlap sack)?  Seems to me that's totally fine, yet an overly strict reading of the statute would make that improper too.

Or what if you messed up the address and put "Suite 200" on the envelope even though the lawyer's office was actually in Suite 2100, but the postal carrier (as is fairly common) knew full well that the addressee was in Suite 2100 and so delivered the envelope there?  Improper service since 684.120 expressly says the envelope has to be "properly addressed" and it wasn't, and we "strictly construe" service even when the deficiencies are totally irrelevant and harm utterly no one?  I think not.

So if the papers at issue here weren't actually received in the envelope that was sent, I think the Court of Appeal needs to say so, and to modify the opinion so it's clear that hypertechnical deficiencies that are of zero consequence won't negate service.  Or if, instead, that envelope was indeed delivered in the usual way, and was merely missing a stamp, well, then, that seems proper service to me (though unnecessarily risky), and I wouldn't want an opinion that holds otherwise.  If only because I'm quite confident that lawyers (or their assistants) sometimes accidentally leave off stamps, forget to lick an envelope, or make typos.  If that error makes a practical difference, than so be it.

But if it doesn't, then it shouldn't make a legal difference either.  Because the law respects substance and purpose and overlooks trifles.

Including but not limited to omitted 55 cent stamps that the post office doesn't bother to require.

Thursday, January 02, 2020

Volkoff v. Jansenn Pharmacutica (9th Cir. - Jan. 2, 2020)

We begin the new decade with a single opinion from the Ninth Circuit.  One that demonstrates in spades how pedantic the Court of Appeals can be if it doesn't like you.

Alexander Volkoff files a qui tam complaint.  But, presumably in an attempt to shield Mr. Volkoff from liability in the event the complaint was unsuccessful, filed the lawsuit with "Alexander Volkoff LLC" as the plaintiff.

Defendants were not amused, and filed a motion to dismiss.  Mr. Volkoff did not oppose the motion; instead, he filed a first amended complaint that changed the name of the plaintiff to "Jane Doe."  He thought that way he could avoid the dismissal of the complaint; in particular, now the complaint was brought in the name of the person who was actually retaliated against (as opposed to an LLC that was not).

But the district court wasn't psyched.  It crafted its own form of pedantry by holding held that the amended lawsuit was now barred by the first-to-file rule because the initial complaint was filed by "Volkoff LLC" but the new lawsuit was filed by someone "different" (Jane Doe), so the "second" suit was improperly derivative of the first.  Even though we all pretty much know full well that Volkoff has really been the plaintiff the whole time.  Underlying all this is a sense that if plaintiff's counsel wants to play (what seems like) games, we don't like that, and will use those things against 'em.

Perturbed, plaintiff appeals.  The Notice of Appeal states that it's Volkoff -- the plaintiff -- who's the one appealing.

Now it's the Ninth Circuit's turn.  The Court of Appeals dismisses the appeal on the ground that the operative complaint was only filed by Jane Doe.  And "Jane Doe" isn't listed in the Notice of Appeal.  Even though, again, we know full well who's really the one who filed suit.  Plaintiff says that this is a hypertechnical detail, and cites a bevy of cases that hold that you shouldn't dismiss an appeal on the basis of a pleading defect, and that it's clear who's really filing the appeal.  But the Ninth Circuit says those cases don't matter.  There's "no evidence" that Jane Doe and Volkoff are the same.  So we are going to assume that only Volkoff wants to appeal, and he doesn't have standing.  Only Jane Doe does.

So, the Ninth Circuit holds since the fictitious name (represented, don't forget, by the exact same lawyers as the real person, in the exact same case) didn't appeal -- even though those lawyers, who presumably know,  strenuously argue that the fictitious name did intend to appeal -- the appeal is brought by someone irrelevant.  Hence dismissed.

All of which may perhaps be what the rules dictate.  That's the whole point of being pedantic, after all.  Obsessively follow the rules.  If only to achieve a result you want.  In this case, dismissing a suit brought by a team of creative lawyers who end up getting hoisted on their own petard.

So there you have it.  That's how we commence 2020 and beyond.

One final point.  I thought it fascinating that, in holding that Volkoff and Jane Doe were not one and the same (even though they obviously were), Judge Smith's opinion never once mentions the fact that we're talking about Alexander Volkoff and Jane Doe.  Presumably people of two different genders, and a fictitious name deliberately so chosen by counsel for the plaintiff (since "John Doe" would have worked equally well).  Traditionally, the fact that we're presumptively talking about a person of one gender in the original complaint, as opposed to the opposite gender in the amended complaint, would be used as at least some evidence that the two people are not one and the same.

But this fact receives nary a mention in today's opinion.  A fact that I'm reasonably certain would be mentioned in an opinion from, say, twenty years ago.

Another thing different between the new decade and previous ones.

Thursday, December 26, 2019

Mathews v. Becerra (Cal. Supreme Ct. - Dec. 26, 2019)

Hopefully this advice won't have practical significance for the vast majority of readers here.  Still, there's a lesson here from today's opinion, and it's a meaningful one for those to whom it applies.  So here it is:

Don't tell your therapist that you've ever viewed child pornography.  If you do, they'll be required to report you to the authorities, under penalty of losing their license and/or going to prison if they don't.

Admittedly, in a 4-3 opinion, the California Supreme Court holds that it's possible that this statute might violate the state constitutional right to privacy, at least as applied to those patients who are getting treatment and aren't likely to do it again.  But the dissent thinks otherwise.  And the Court -- weary of being perceived as coddling child molesters -- makes clear that it's just saying that the trial court shouldn't have granted a demurrer, and instead should take evidence about whether the statute indeed constitutionally advances a legitimate state interest as applied to that group of patients.

Nonetheless, as a practical matter, at least while the lawsuit's pending -- which practically means, for years -- unless you want to be turned in to the police, you'll have to be content with simply telling your doctor that you've done "bad things."  That's not going to be very helpful in getting you treated, of course.  But at least you won't go to prison for the rest of your life.



Carter v. Davis (9th Cir. - Dec. 26, 2019)

Reading this will definitely not keep you in holiday spirits.

It's got something for everyone to dislike.  A defendant who rapes and kills multiple people over a three-week crime spree, and for whom it's totally clear why multiple juries sentenced him to death.  Crimes that happen in 1984 yet the resulting legal proceedings take 35 years to reach the Ninth Circuit on habeas, notwithstanding the fact that there are no intermediate appellate reversals or grants of relief:  just your "standard" delay.  And a massive investment of resources that results in (1) two lengthy opinions by the California Supreme Court (in 2005 and 2006); (2) a 146-page opinion by the Central District on habeas, and (3) a 318-page opinion by the Southern District on habeas (in 2013).

And now, in 2019, another lengthy opinion.  Again denying relief.  All this to affirm a penalty that will never be imposed.

It's obvious that everyone's taking the issue seriously.  So that's good.  But still.  Those who support the death penalty will be irate that it's taken 35 years and counting and won't actually be imposed.  Those who oppose the death penalty will be irate that we sentence people to be killed and keep them on death row (with its corresponding limitations) forever.  Those who don't feel strongly either way will be irate that we're pouring so much money down the drain for no reason.

So something for everyone to dislike.


Friday, December 20, 2019

City of Desert Hot Springs v. Valenti (Cal. Ct. App. - Dec. 19, 2019)

I'm a little befuddled by the last line of this opinion.

There's a motel in the City of Desert Hot Springs that's an alleged nuisance, so the City files a suit against its owner to abate the thing.  There are a couple of different defendants (one with a lien, etc.), but all of them get dismissed fairly quickly, which left only the owner of the motel as a defendant.  And as far as I can tell from the docket and the Court of Appeal's opinion, the owner (Irene Valenti) never gets a lawyer, never appears in the lawsuit; basically, does nothing at all.  Which is consistent, I suspect, with letting the dilapidated motel fall into total disrepair.  Just ignore the thing.  Not worth it.

But the City wants to appoint a receiver to repair the motel and then sell it, which requires court approval.  So it files a motion.  Which, again, as far as I can tell, no one at all opposes.

But the trial court says (essentially):  "Hold on.  This falling-down five-room motel in the middle of the desert is a total craphole.  It doesn't make any sense to me to appoint a receiver, pay money to repair and refurbish the thing, and then try to sell it.  This One Star At Best Motel In The Desert would cost more to repair than it'd ever be worth.  Total waste of money.  Give me a supplemental brief, City, on why your proposal makes any sense at all."

So the City submits its supplemental brief trying to argue that its proposal makes economic sense.  And, again, no one files an opposition.  But the trial court's not persuaded.  It refuses to appoint a receiver and dismisses the lawsuit.

The City appeals.  The Court of Appeal concludes that, at this preliminary (appointment of the receiver) stage, the trial judge shouldn't have addressed the merits.  So reverses and remands.

Okay.  I'm fine with that.

But the last line of the opinion says:  "The City shall recover its costs on appeal."

I get that the City's the prevailing party.  And that, normally, the prevailing party is entitled to costs.

But the defendant never showed up.  She didn't argue against the appointment of the receiver below.  She didn't argue against the appointment of the receiver on appeal.  She was, apparently, totally fine with all of the above.  It was the trial court, acting on its own, that refused to appoint the receiver.  I know we're not going to impose costs against the trial judge.  But I really wonder whether it's fair to impose costs against someone for an appeal they had no role in creating.  When you don't oppose a lawsuit, or a motion therein, or the resulting appeal of the trial court's sua sponte denial of such an (unopposed) motion, I would think that the general equitable rule should be that the parties should typically bear their own costs on appeal.

Even if, under the rules, the Court of Appeal is permitted, in its discretion, to do otherwise.

I don't blame the City from wanting to tear the thing down (or make it habitable).  I don't blame the City for filing the motion for a receiver, or for appealing the trial court's refusal to do so.

But I also don't blame Ms. Valenti for the resulting appeal.  At least if I'm reading the docket right, and she didn't oppose the motion either below or on appeal.

All this may be practically irrelevant.  I suspect that Ms. Valenti is not Donald Trump, and that the motel at issue is not Mar-A-Lago, and hence there's not going to be enough money to go around to pay a cost award anyway.

But still.  No reason not to do the right thing initially.

I'd have the parties bear their own costs on the appeal.

Thursday, December 19, 2019

Stimpson v. Midland Credit Management (9th Cir. - Dec. 18, 2019)

Maybe the debt collector's letter here was a little bit tricky.  But it wasn't illegally -- or even all that much -- tricky.

Defendant buys up stale debts (for an incredibly tiny fraction of their face value).  Since the debts are so old, it can't sue on 'em.  But it can send letters and make calls and try to persuade the debtor to pay.

So it sends the plaintiff here one of those letters.  Telling him that the benefits of paying are (1) Save $458.24 if you pay by 04-27-2017; (2) Put this debt behind you; (3) No more communication on this account; and (4) Peace of mind.

Now, since the defendant knows full well he can't sue, you might think that sending such a letter is at least a little bit deceptive.  But then there's this (extremely important) disclosure in the letter:

"The law limits how long you can be sued on a debt and how long a debt can appear on your credit report. Due to the age of this debt, we will not sue you for it or report payment or non-payment of it to a credit bureau."

That pretty much tells the debtor, in my view, most (if not all) that he needs to know.  He's not going to be sued or reported if he doesn't pay the debt.  So the only reason for him to pay is basically if he's had a serious religious conversion or the like and now feels like paying his time-barred debts.

But the plaintiff sues, claiming that by saying that the defendant "will not" sue, it's implicitly saying that the defendant could sue if it wanted.  But the Ninth Circuit rightly finds that argument too cute by half.  Even unsophisticated debtors can understand basic sentences.  The sentence at issue doesn't stand for the proposition that plaintiff claims.  It just says they won't sue, which is right.

(And the fact that states like California require precisely this type of statement on time-barred debts is only further evidence of this fact, in my view.  The case should come out the same way even without the existence of those statutes.  But they nonetheless help prove the point.)

Even though it's not deceptive, the letter is a little bit tricky.  First off, I suspect that the only people who pay in response to these letters are in fact people that (1) are confused by (or don't read) the "we won't sue or report you" disclosure, or (2) just want to stop the harassment (via letter or otherwise) of the debt collector, and don't realize that they're entitled to simply say "Stop talking to me" and have it end.  So it's tricky -- and effective -- in that way. 

And it's potentially tricky in another way.  Since although the debt is time-barred, defendant can't sue on it.  But in at least some states, if the letter effectively persuades the debtor make even a tiny little payment on the debt, the statute of limitations may restart, and allow 'em to sue on the whole thing.  Big money.

It's unclear if that's really what the defendant was trying to do here, or even if it'd work in practice (in this particular state for this particular debt).  But still.  If that's indeed the law, I'd bet good money that there are debt collectors out there adopting that strategy.  And there's little the law can do about that, because as the Ninth Circuit holds here (correctly, I think), that's not "deceptive" because defendant didn't actually say anything that was untrue or misleading.  They're just taking advantage of the law and the lack of knowledge by unsophisticated debtors.

And that, my friends, the law allows.

Monday, December 16, 2019

Loeb v. County of San Diego (Cal. Ct. App. - Dec. 16, 2019)

One of the things I try to do when I read cases is to make sense of them.  By that, I mean I try to understand the internally consistent legal doctrine that underlies the problem and how that doctrine affects the outcome of the case.

You'll notice that I used the words "internally consistent" in that last sentence.  That's important.  To me, anyway.  A big part of what makes "law" reasonable, predictable, and different from a mere expression of internal judicial preference is the ability of a legal principle to make sense:  to be an internally consistent and hence rational explanation of how we elect to predictably order our world.

Which in part explains why law is worth following.  As well as understanding.  If cases were merely decided according to our (often internally inconsistent) instincts about what's right or wrong, we both wouldn't have an externally predictable rule of law -- because particular moral instincts and values are not universally shared -- and we also wouldn't have a need for legal "doctrine" other than "We'll know the right result when we see it."  It's for these reasons that I spend a lot of time and intellectual energy trying to figure out the internally consistent principles that rationally explain how we order our legal world.  Further, if a particular legal doctrine is not internally consistent, or is incompletely so, that's a huge flaw.  It suggests that the way we're deciding cases needs to change.

All of these thoughts were highlighted when I read this opinion from earlier today.

The case does not reach a particularly surprising result.  It's an opinion about what's called "trail immunity" in California, which (for policy reasons) makes the owners of recreational "trails" immune from liability even for their allegedly dangerous conditions, on the theory that to do otherwise would discourage people from making property available for recreation.  The case holds that a particular (allegedly uneven) concrete pathway located in the GuajomeRegional Park is indeed a "trail" and hence the County of San Diego (which owns the Park) is immune from liability.  Fair enough.

But underlying that opinion is the core legal question:  What counts as a "trail" for purposes of the statute (and hence immunity)?

Again, we could say that we know it when we see it.  But that's not good enough.  Instead, we want to know what the characteristics are of a trail that create the resulting immunity.  We know that trails under the statute are those that are typically used for recreational pursuits; hiking, riding bikes, etc.  The concrete pathway at issue here connects a roadway and parking lot in the park (which includes handicapped parking spaces) to a restroom in the park.  We know that pathway is used by some people going from the parking lot to the bathroom.  We also know (from pictures) that the pathway is used by some people on bikes, some people on skateboards, some people walking dogs, etc.  Indeed, the facts about how this pathway is used are largely undisputed.

So, under the law, is it a "trail" or not?

There's a substantial fight between the parties to the litigation about whether the trail needs to be "used" for recreational purposes or, instead, "designed" for such purposes.  In the end, the Court of Appeal comes out extraordinarily heavily on the former of these principles.  It holds that as long as a pathway is indeed used for recreational purposes, it doesn't matter at all whether (1) it was designed for such a purpose, or (2) it is even only secondarily used for such purposes.  (See pages 16 and 17 of the opinion, including the conclusion:  "While Loeb asserts the pathway was designed for the sole purpose of providing bathroom access, she stipulated that it was also used for recreational purposes. Thus, under Burgueno (and the cases cited therein), the County is entitled to immunity.") (emphases in original).

Okay.  I get it.  If a pathway is even secondarily used for recreational purposes, there's immunity.  Even if the plaintiff wasn't using it for that purpose, and even if most people use the path for non-recreational purposes.  That's a rule.

And that rule is also an internally consistent one.  Indeed, it's one that's also consistent with the underlying purposes of the statute.  If you really want people to make their property available for recreation, then go ahead and give them immunity whenever a nontrivial number of people use the thing for recreation.  That'll advance your purposes.  Even if it has the ancillary effect of precluding compensation for people injured on that property and also fails to discourage people from repairing dangerous conditions therein.  Perhaps that's a policy choice that you want to make.

Mind you, that leaves open the question:  How much recreational use is sufficient?

To take a concrete example close to home (literally):  I've got a driveway on the front of my property.  Most of the time, it's used by people (including me) to park their cars, or to access my front door, all of which are non-recreational endeavors.  But on exceptionally rare occasions, I've seen people walk their dogs through my driveway and have seen a skateboarder or two ride through the thing (it's a semicircle that abuts the sidewalk and roadway).  Does that mean that if I have a huge pothole in the thing, which I refuse to fix, and a person trips and injures themselves coming to my doorway, I'm entitled to "trail immunity" because it was used for recreation, albeit not here and not primarily?  Under the Court of Appeal's categorical holding, I'd say the answer is "Yes."  Yet I strongly doubt the Court of Appeal (or any other court) would actually come out that way.

Now, maybe you can say that, albeit unexpressed in today's opinion, there's an exception for trivial recreational uses.  Okay.  Seems to me you need to express that point, since it's unclear in the present case whether the recreational uses were indeed trivial or not, and the actual words in today's opinion repeatedly say that all you need to do is to show "use" rather than a particular quantity of use.  So I would still find the holding of the opinion overbroad and potentially troubling.

But let's put that particular problem entirely aside.  And give another concrete example that comes to mind from today's opinion; this time, right outside of (rather than in) my own home.  When you leave my property, you hit (in order) (1) the sidewalk, (2) a two-lane roadway, (3) on the other side of the road, a dirt pathway, and then (4) the ocean.  That's true, by the way, all along my street, which runs for about a mile.  Every day, there are tons of people who use those locations for recreation.  You've got bicyclists, joggers, dog walkers, sunset-viewers, photographers, surfers, etc.  In short, you've got a ton of recreational use.

And that's true on both the sidewalk in front of my house (on my side of the roadway) as well as on the dirt path that's on the other side of the roadway and that parallels the ocean.  Most people on the sidewalk are walking or jogging for recreation, and enjoying the natural beauty of the location.  Ditto for the people on the parallel dirt trail.  If it matters, both the dirt pathway and the concrete sidewalk are also about the same size; a couple of feet wide.  And on both the dirt pathway and on the concrete sidewalk, people occasionally get hurt.  Sometimes seriously.  People have tripped on the sidewalk, have crashed into obstacles, and have fallen off the dirt pathway (which is on the top of a cliff) to the beach below, sometimes to their death.  These injured people could definitely allege that there were purportedly dangerous conditions on the sidewalk and/or dirt pathway that resulted in their injuries.

Is there trail immunity for dangerous conditions located on either of these locations?  Both?  Neither?

If the only question is whether these properties are "used" for recreation, the answer is crystal clear:  Both locations engender trail immunity.  And the fact that one of these "trails" is paved (and the other is not) is definitely irrelevant; today's opinion expressly so holds, and also involved a concrete path to which trail immunity was applied.

Fine.  So both locations are immune.  Good to know that I don't have to worry about any dangerous conditions on the sidewalk subjecting me to liability (even though homeowners are, for good reasons or not, generally liable for defects on the sidewalks fronting their property).  That's at least a doctrine that's consistent, even if potentially unwise.

But wait.  The Court of Appeal also says (on page 18) that you're not entitled to trail immunity if it's a paved path that parallels a street, citing precedent that "paved paths in public parks have . . . been distinguished from sidewalks if they were not located on or adjacent to a street or highway."  Which turns an otherwise internally consistent (if wise or unwise) approach into one that's both uncertain as well as seemingly unprincipled.  That caveat suggests that the sidewalk in front of my house is not, in fact, subject to trail immunity, since it's a "paved path . . . adjacent to a street or highway."  But why not?!  I thought the critical issue was only, as the Court of Appeal expressly held, whether the path was in fact "used" for recreation, as it indisputably is?!  Where does this new made-up exception for concrete sidewalks adjacent to streets come from?  And why doesn't that same exception for concrete pathways adjacent to streets apply equally to (as here) concrete pathways leading to bathrooms?  The Court of Appeal nowhere explains.

Nor does the Court of Appeal explain whether this exception applies only to "concrete" pathways adjacent to streets or, instead, to any pathway adjacent to a street.  Which definitely matters to those people injured or killed on the dirt pathway across my street, as well as many other.  That pathway is unpaved and in a park (Sunset Cliffs Natural Park).  But it's directly adjacent and parallel to a street, just like the concrete sidewalk across the street.  Trail immunity or no?

As I said when I started this post, the point of legal doctrine is to not only accurately reflect norms, but also to predictably advise people of their liability and to consistently (and for articulable reasons) treat similar situations identically.  I can understand a holding that says, for example, that sidewalks that parallel streets aren't subject to trail immunity since they're not typically designed or used for recreation.  But if that's the rule, then that same principle would suggest that the nonsuit in today's case was improperly granted, since the same might be true (under the facts) for the concrete path here, and the relevant inquiry thus not limited to solely whether the path is ever used for recreational purposes.  I could also find a holding to be internally consistent (albeit likely unwise) were it to say that anything adjacent and parallel to a street was categorically unable to avail itself of trail immunity, yet I suspect that most people would think that the dirt trail across the street from my house should be entitled to trail immunity, lest it not be made available to the public for recreational purposes.

In short, I'm not persuaded that the Court of Appeal's focus in today's opinion purely on the "use" of a trail entails an internally consistent (or wise) interpretation.  I'm not sure you can square that holding with precedent that says that sidewalks adjacent to streets aren't immune.  Nor can it likely be squared with what I suspect would be otherwise easy holdings about why I'm not entitled to trail immunity for dangerous conditions in my concrete driveway, or similar "trails" that are only exceptionally rarely used for recreational purposes.

So, again, I get why the Court of Appeal comes out the way it does in this particular case.  But I'm not sure that the doctrine it applies is a consistent or predictable one.  And that matters.  At least to people, like me, who care about such things.

Thursday, December 12, 2019

People v. Vivar (Cal. Ct. App. - Dec. 12, 2019)

It's a criminal case involving someone who wishes to withdraw his plea to possession of materials with the intent to manufacture methamphetamine.  The defendant's attorney is . . . Munger Tolles, with Gibson Dunn as amici.

Not counsel you're used to seeing in criminal cases of this type.

Three cheers for pro bono work by big firms.

Even when, as here, it's unsuccessful.

Physicians Committee for Responsible Medicine v. LAUSD (Cal. Ct. App. - Dec. 12, 2019)

I guess you could bring this case purely as a means of publicizing your cause.

But does anyone really and truly think that contemporary courts will find that existing law creates a "clear, mandatory, statutory duty" to get rid of processed meats in school lunches?

No way.  Not now, and not in the near future, I suspect.

Does heavily processed meat contribute to heart disease and the like?  I suspect it does.  Might the world be a better place if our kids didn't chow down on bologna?  Probably.

But these are policy choices.  No way a court's going to do it on its own.  Because current law, for better or worse, does not require such a course of conduct.  As the Court of Appeal rightly holds.

P.S. - It actually might be a neat (albeit illegal and unethical) way to drum up legal work to have some friends create a "public interest" group and have 'em sue your governmental clients with drummed-up public interest litigation like this one.  You get some legal fees, they get to "fight the good fight," and maybe you illegally split some fees with 'em.  So many ways to get rich, as long as you're willing to bend the law a little (or a lot).


Wednesday, December 11, 2019

Cuviello v. City of Vallejo (9th Cir. - Dec. 10, 2019)

Many lawsuits are unavoidable. A driver rear-ends another driver, or hits a pedestrian. A contract gets breached. A house accidentally burns down. There's more than likely going to be a lawsuit in such circumstances, and apart from trying to resolve the thing beforehand (or settle it expeditiously), there's not much one can do.

And then there are cases like this one.

I totally understand why the City of Vallejo didn't want people to use bullhorns all the time.  It's no fun to have 'em blasting outside your residence, or (as the panel notes) cranking out some jams at a hospital at 2:00 a.m.  People often want quiet, and bullhorns are the opposite of that.

Plus, it's the City of Vallejo.  That's where Six Flags is located.  An amusement park that contains some animal attractions, and hence occasionally attracts protesters.  Including but not limited to protesters who's like to use bullhorns.  I suspect that Six Flags has more than a little bit of influence with the City Council in the small municipality in which it is located and in which it's one of (if not) the largest employers.

So, again, I get why the city wants to regulate bullhorns.

But precisely because these things are used in protests -- and are used as part of (and hence protected by) free speech -- you've got to be careful in such regulation.  Lest you violate the First Amendment and get yourself dragged into a federal lawsuit in which you might well be liable to the other side for its attorney's fees.

And, if you're being careful, the mechanism that you most definitely do not deliberately employ is a permitting scheme.  We generally don't like requiring advance "permits"  for speech.  Because there's a long history of prior restraint jurisprudence that's very much protective of speech.  Do we allow 'em sometimes?  Sure.  But rarely.  And we're pretty darn skeptical of them.

It's not like the City of Vallejo didn't understand all of this.  It got sued by Mr. Cuviello, who alleged that restricting his use of a bullhorn was unconstitutional in a variety of ways.  Which prompted the city to -- smartly -- amend its municipal code in response, thereby mooting a number of the claims that the plaintiff had made in his lawsuit.  Smart.  There's generally no "catalyst" theory of attorney's fees in federal court.  So if you're a city, and you get sued, and there's a problem, go ahead and solve it.  Or at least make it extremely more difficult for the plaintiff to win by putting your best statute forward, unlike the one you initially passed.

When the City of Vallejo amended the statute, it had a ton of options.  But the one it elected retained the basic "permitting" scheme of its initial approach.

And that's the problem.

The city could have done a ton of things that I'm quite confident would have passed constitutional muster.  Most directly, it could have just regulated the core "noise" problem directly; for example, by saying that anyone could use a bullhorn, but wasn't allowed to amplify voices, say, more than 20 decibels (or whatever) over the existing ambient noise level.  That would have more than solved the problem, and would even have accomplished Six Flags' objective in not letting protesters at its park to excessively disturb its patrons.  All without creating the constitutional problems engendered by a statute that contained a permitting scheme and a prior restraint.

But, nope.  That's not what the city did.  Ergo the result of this lawsuit.  Which reverses the trial court's refusal to enter a preliminary injunction against the ordinance.

Sometimes municipalities are smart.  But this time, the City of Vallejo was smart to amend the statute under attack, but not nearly smart enough to do it correctly.

Monday, December 09, 2019

U.S. v. Exxon Mobil Corp. (9th Cir. - Dec. 9, 2019)

Do you know how hard it is to get a federal district court to focus in detail on the legitimacy of your discovery requests?  Incredibly hard.

Do you know how hard it is to get the Ninth Circuit to focus in detail, and resolve, the permissible scope of particular interrogatories and document requests?  Impossible.

Yet here's proof positive that the impossible is sometimes possible.  An appeal that's entirely about whether five particular discovery requests were permissible.

The district court thought they weren't.  The Ninth Circuit disagreed.

One of the rare discovery fights you'll see in the Court of Appeals.

Friday, December 06, 2019

City & County of San Francisco v. USCIS (9th Cir. - Dec. 5, 2019)

It's a hot-button topic.  The Trump administration issued an executive order that bars people who have previously received non-cash public benefits (e.g., SNAP and Section 8) from immigrating.  That doesn't really affect people who seek to come to the U.S. from other countries; those people haven't typically gotten non-cash benefits, since they haven't even been here.  It instead primarily stops people who are in the U.S. (e.g., undocumented aliens) from legalizing their status, even if they're otherwise eligible.

The district court entered a preliminary injunction against the order.  The Ninth Circuit stays that injunction -- thereby letting the executive order go into effect -- in a split opinion.

Not surprisingly, the majority opinion is a long one.  Seventy-three pages long.  When you know something's high-profile, you're typically going to spell out your reasoning at length.

The other thing that's not surprising is how the case comes out.  In the majority are Judges Bybee and Ikuta.  Dissenting on the merits is Judge Owens.  This is exactly as one would have expected once the panel was drawn.

What's a little bit surprising is nonetheless the brevity of Judge Owens' dissent.  As I said, Judge Bybee's majority opinion is super long.  Yet I can quote Judge Owens' dissent in full; it's that short.  He says:  "While I concur with the majority’s jurisdiction analysis, I otherwise respectfully dissent. In light of the: (1) government’s heavy burden due to the standard of review, (2) opaqueness of the legal questions before us, (3) lack of irreparable harm to the government at this early stage, (4) likelihood of substantial injury to the plaintiffs, and (5) equities involved, I would deny the government’s motions to stay and let these cases proceed in the ordinary course. See Nken v. Holder, 556 U.S. 418, 427, 433-34 (2009) (holding that a “stay is an ‘intrusion into the ordinary processes of administration and judicial review,’” and “[t]he party requesting a stay bears the burden of showing that the circumstances justify an exercise of [judicial] discretion” (citation omitted))."  Okay then.  I assume we'll see more once the merits are addressed (rather than merely the stay), but for now, that's all that Judge Owens feels the need to say.

What's only a little bit surprising is that Judge Bybee not only authors the majority opinion, but also a brief concurrence of his own.  As I've often said, Judge Bybee is often smart and insightful, and while I'm not a huge fan of concurring in one's own opinions, I think it sometimes makes sense, particularly in high-profile cases in which you want to make a specific or non-legal point.  So I was interested in Judge Bybee's particular take.  Was I particularly excited that he labeled his concurrence "BYBEE, Circuit Judge, concurring, perplexed and perturbed"?  No.  I was not.  Those types of labels aren't especially compelling to me.  Particularly when you're responding to your own opinion.  You won.  Being "perplexed and perturbed" seems especially unusual in such a setting.  There's no real need, in my mind, to add these adjectives.  They detract rather than add.

But whatever.  Go ahead.  It's just sort of a lame start to the thing.

I was more interested in two particular components of Judge Bybee's very short (five-page) self-concurrence.

Judge Bybee's central point therein is his reminder that things that you think might be political aren't always political.  That sometimes, including here, things are actually based on law, and aren't purely naked ideological preferences.

I thought that entirely appropriate, as well as beneficial.  Of course everyone's going to think that this decision is purely political.  You've got two extremely conservative Ninth Circuit judges, appointed by a Republican president, in the majority in an opinion that reaches a conservative political result on a hot-button topic (immigration), and a lefty judge appointed by a Democratic president dissenting.   It's not a surprise that people might -- indeed, assuredly will -- view this as a politically-based result.  So it makes perfect sense to me for the author of that opinion to confront the elephant in the room head on.  And to do so in a concurring opinion.  Good job.  That's at least an effort at transparency, and one that adds rather than detracts.

And Judge Bybee makes that argument concisely, which is another bonus.  Whether you find that claim persuasive, of course, is another matter.  But I'll leave that for others to decide.  All that I want to mention in that regard is the exceptionally narrow claim that Judge Bybee elects to make.  He goes out of this way to point out that a judge's political and ideological preferences don't uniformly map on to the legal outputs of that same judge.  He says:  "Oh, I am not so naive as to think that a simple declaration of judicial neutrality will quell inquiry into judges’ backgrounds, prior writings, and opinions. The battles over judicial nominations provide ample proof that our generation of lawyers bear a diverse set of assumptions about the nature of law, proper modes of constitutional interpretation, and the role of the judiciary. These are fair debates and they are likely to continue for some time. We can only hope that over time our differences can be resolved by reason and persuasion rather than by politics by other means. But I don’t know of any judge—at least not this judge—who can say that every opinion and judgment she issued was in accord with her preferred policy outcomes."

The limited nature of that last line seems telling (and somewhat surprising) to me.  Judge Bybee merely says therein that the judges he knows can point to at least one opinion in their career that does not align with their political preference.  ("I don’t know of any judge—at least not this judge—who can say that every opinion and judgment she issued was in accord with her preferred policy outcomes.") (emphasis added)  Well, yeah.  I'm sure that's true.  But what an incredibly limited claim to make:  that in the hundreds or thousands of opinions one has written or joined, we can point to one that would not reflect a judge's naked political preference.  If that's the best defense one can make to the claim that judges decide cases politically, rather than legally, then that's fairly telling.  Particularly when articulated in a high-profile case that came out exactly on preexisting political lines.

Personally, I'd go further.  I honestly believe that judges routinely issue lots of opinions that are not in accord with their preferred policy objectives.  Not just one or two.  And would be happy to say so.

Do judges issue lots of opinions that are in accord with their preferences?  Of course.  Are those desires or pressures greater, perhaps, in high-profile cases on hot-button topics?  I suspect they are.  So I wouldn't make an overly strong (or absurd) claim that political preferences are meaningless, at least as a descriptive (as opposed to normative) matter.  There are tons of cases in which I think the correct legal result is X even though my ideological desire is Y.  That's what it means to engage in legal analysis rather than merely articulating (or justifying) one's political preference.

So I thought that Judge Bybee's defense in this regard was a little damning with faint praise.

The other thing that I thought was unusually soft was how Judge Bybee ended his concurrence.

After making several salient points about the non-ideological nature of judging etc., Judge Bybee concludes his concurrence with the following paragraph:

"By constitutional design, the branch that is qualified to establish immigration policy and check any excesses in the implementation of that policy is Congress. See U.S. CONST. Art. I, § 8, cl. 4. And, so far as we can tell from our modest perch in the Ninth Circuit, Congress is no place to be found in these debates. We have seen case after case come through our courts, serious and earnest efforts, even as they are controversial, to address the nation’s immigration challenges. Yet we have seen little engagement and no actual legislation from Congress. It matters not to me as a judge whether Congress embraces or disapproves of the administration’s actions, but it is time for a feckless Congress to come to the table and grapple with these issues. Don’t leave the table and expect us to clean up."

I get that point on multiple different levels.  For one thing, when you've written an opinion that will hack off a ton of people and will have them calling it unjustly political, it makes sense to blame someone else.  And who better to blame than a "feckless" Congress, one of the least trusted American institutions?  So as a matter of pure deflection, ending the concurrence that way makes sense.  Plus, Congress really does pass a lot of totally ambiguous (or confusing, or contradictory) statutes and leave it to the judiciary to "clean up the mess."  So, as a general matter, I get that point as well.

But, dude.  In this case, we're dealing with the validity of an executive order.  Something that the President did.  On his own.  That expressly went around Congress.  And that was promulgated only in August 2019, a mere four months ago.

What the heck does a swipe at Congress have to do with the validity of the executive order at issue here?!  If there's a problem with that order, it's a problem that was generated by the President, not Congress.  Full stop.  It's not that Congress left the judiciary with a mess to clean up.  It's that the presidential decision to bypass Congress made a potential mess.  The alleged ire seems to me to be directed at exactly the wrong party.

So when the concurrence says that Congress "left the table" here, it's me that's left "perplexed and perturbed."  What exactly did Judge Bybee want Congress to do here?  Instantly pass legislation that overruled the executive order?  Yeah, that's going to happen.  We have a split Congress, half of which (the Senate) is controlled by the President's party and who's likely in favor of the executive order at issue and the other half (the House) that goes the other way.  What the heck do you want a political institution of that nature to do here?  And let's say they did make it easy for the judiciary; say, both the House and Senate passed a bill that said that non-cash benefits couldn't be counted.  Do you have any doubt whatsoever about whether the President would veto such a bill?  A veto that no way gets overruled by two-thirds.

Whenever people complain about "Congress" not doing something, they constantly ignore the fact that Congress alone can do extraordinarily little, and that a failure to act is often the direct result of presidential obstruction and/or lack of initiative.  It generally takes the approval of Congress and the President to pass a statute.  Blaming the former while ignoring the latter is classically just a way of ignoring the role of the person you like while putting the onus on a diffuse body virtually no one respects.

And, again, we're dealing with an executive order here.  Whatever your views on executive power -- too strong, not strong enough, just about right -- whatever problems exist in the present case arose because the President exercised that power.  He was the one who not only "left the table" and told the judiciary to "clean up," but who excluded Congress from the table in the first place.  For the same reason Judge Bybee shouldn't blame me for any mess arising from a dinner at his house to which I was not invited, so too, in my mind, should Judge Bybee not blame Congress for any mess arising from an executive order that in no way, shape or form was the doing of Congress.

So I get the expression of frustration at Congress.  Both politically and on the merits.  But not here.  And, to me, it makes Judge Bybee's concurrence end with a whimper rather than a bang.  He saves the worst argument for the very end, and one that (in my mind) again detracts rather than adds.  At least as applied here.