Thursday, July 21, 2016

Martin v. Yasuda (9th Cir. - July 21, 2016)

The Ninth Circuit concludes today that the defendant waived its right to arbitrate.  And it's exactly right.  This is, indeed, a pretty classic -- and easy -- example of how to waive your rights.

It'd almost be enough itself to mention that the defendant litigated the case in federal court for seventeen months before moving to compel arbitration.  But, as the opinion reflects, there's even more than that.

If you want to cheaply and easily arbitrate -- or, as here, to use arbitration to stop a class action -- then you need to do so quickly.  Otherwise it ain't so cheap and easy.

And definitely not as effective.

Wednesday, July 20, 2016

Kaur v. Things Remembered, Inc. (9th Cir. - July 20, 2016)

Well now here's a strange one.

I was wondering when I read it why the Ninth Circuit published the order.  It's an incredibly short thing.  It basically just says (1) we hereby grant you permission to file a reply, and (2), sure, we've decided to hear your Rule 23(f) (denial of class certification) appeal.

That's not a decision on the merits.  That's a routine thing.  That's why this just a decision for the motions panel.  That's a funny thing to publish.  (Especially when, as here, the order is so incredibly short.)

Nonetheless, once I read the fifth sentence of the order, I understood why the Ninth Circuit published the thing.  And it's sort of cool.

The district court denied class certification.  Plaintiffs asked permission to appeal, and today's order granted permission.  But the district court denied apparently certification based at least in part on its feeling that class counsel might not be a "vigorous" advocate for the class, and the motions panel is keenly interested in whether that's a permissible basis upon which to deny certification.

So the panel drops a sentence that essentially says so, and instructs the parties:  "In addition to all other issues the parties may wish to raise in this appeal, the parties shall brief the issue of whether the district court should have considered less drastic alternatives before denying class certification based on concerns with the vigor of class counsel’s representation."  Then drops a citation to make crystal clear what the panel's talking about:  "See, e.g., Busby v. JRHBW Realty, Inc., 513 F.3d 1314, 1323-24 (11th Cir. 2008) (“In the event that class counsel does act improperly, the ordinary remedy is disciplinary action against the lawyer and remedial notice to class members, not denial of class certification.”) (internal citation omitted)."

But the motions panel doesn't stop there.  And that explains why the order's published -- and also why someone out there might potentially be interested in following up on it.

The motions panel then tells the world that it's sufficiently interested in the topic that it's happy to hear opinions on the subject.  Entering the following order:  "The court sua sponte grants any individual or entity leave under Federal Rule of Appellate Procedure 29(a) to file an amicus curiae brief addressing the above-stated issue in this appeal. The brief(s) shall comply with Federal Rule of Appellate Procedure 29(c) and (d); the due dates are governed by Rule 29(e)."

End of published order.

So there you have it.  If you're interested in the subject -- and it's an interesting one -- feel free to file a brief.  Judges Kozinski and Paez, at least, are happy to hear your views.

For what it's worth, I'm probably leaning the same way I think these judges are.  Though I might be a bit more conflicted than they are.  (Though I admit I'm reading tea leaves here, at least on their end.)

I get that if you've got a problem with the lawyer, maybe the right remedy is to lean on the lawyer rather than deny the class a remedy by denying certification.  Seems right.

At the same time, it's hard to lean on the lawyer.  At least effectively.  They can do a lot of things that you can't see.  Particularly if they lack "vigor".  And, sure, you can report them to the bar, as well as deny approval of any settlement that you don't like.

But, truthfully, this sort of supervision not only takes time and effort, but is, I think, not likely to be supremely effective.  You can only do so much.  And what a district court may well be worried about in a particular case is that the lawyer will be manifestly incompetent, but rather that he will simply be exceptionally subpar.  Which in turn will hurt the class.

It seems to me that the best remedy in such cases, to be honest, would not be to rely upon discipline or other supervisory remedies to solve the problem -- since I don't think they (typically) will -- but to instead adopt or incentivize a system that'll address the issue directly.  What a district judge may well want in such a setting is to have a different class counsel, and they're trying to get at that by denying class certification in the hopes, perhaps, that someone else will step forward.

Now, if there's already a parallel class action pending filed by another lawyer, maybe denying class certification in the present case -- and doing so expressly based on counsel concerns -- solves the problem.  That way the other class action can go forward, and everyone wins.  So, in that setting, I think denying certification would actually be legitimate.  Perfectly fine.  And I would not want to do what the Eleventh Circuit potentially says to do:  grant certification in the present case and just rely on discipline.  I don't think that'd either solve the problem or be the best of the available alternatives.

In most cases, however, there's probably not a parallel class action pending.  And while I'd understand it if a district court thought "Hey, I'll deny certification here for class counsel reasons, and hopefully a different class action lawyer will pick up on my order and file a new (identical) class action," that may be a pipe dream in a lot of cases, and there may be statute of limitations or other problems with such an approach as well.

So, in the typical case, I lean towards agreeing that the judge shouldn't just deny certification on the hope that there might be a better lawyer out there.

But, to me, that's not the end of it.

Instead, rather than rely on discipline and the like, if I held (as I think the Ninth Circuit will) that the alleged "lack of vigor" of class counsel shouldn't typically be a legitimate basis upon which to deny certification, I'd also expressly mention other perfectly permissible alternatives that district judges may well want to consider when confronting such a setting.  For example, I think that, while granting certification, the district court could permissibly -- and perhaps should -- "invite" intervenors or other class counsel to join the litigation.  Not by name, of course, but make it clear that there are concerns here, and that we're more than happy to look favorably upon someone else coming in and trying to take over the role as lead class counsel.  My guess is that, most of the time, that'll do the trick, and that there are more than enough "aggressive" class counsel out there who'd pick up on the suggestion and be willing to take on that role.  The district court need not conduct a "reverse auction" or any of the other fancy procedures that are sometimes suggested in competing class action counsel cases.  A mere word may be sufficient.  That, when combined with approval of class certification, should in all but the most extraordinary cases do the trick.

But, to be honest, if all the district court did was to approve the class, and/or no one came forward to "help out" the existing (potentially lazy) counsel, to tell you the truth, I'd have problems with that.  A lazy class counsel can do a lot of damage.  A lot.  Sure, the class may get some relief.  But the class may also lose, sometimes solely due to the attorney.  And, in other cases, the class may get pennies on each dollar to which they're legitimately entitled; again, solely because of the attorney.  And approving classes headed by lazy counsel also systemically encourages and incentivizes continued litigation of this type, and that's a bad thing as well.

So, in an appropriate case, I think that'd be a sufficient reason, if no one else stepped forward, to decertify the class even after having originally certified it.  Or, at a very minimum, to try to prevent such a problem in the first place by inviting intervenors and/or suggesting that existing class counsel obtain co-counsel.  Those things, unlike the largely-hypothetical threat of discipline, may actually solve the problem, while simultaneously permitting the class (and the judicial system) to obtain the relief that we want.

So, were I to write an amicus brief, that's probably what I'd say.

Though, having now said it, I'll probably dispense with actually filing a brief.

But if you disagree, or think there's a better approach, I strongly encourage you to take up the Ninth Circuit's opening today and file a brief of your own.  'Cause it's an important issue.

And the Ninth Circuit wants to hear your views.

Tuesday, July 19, 2016

Barrientos v. Lynch (9th Cir. - July 19, 2016)

The Ninth Circuit holds that the "mailbox rule" applies to petitioners who seek relief from deportation and who are in detention at the time they file their appeal, and that the required declaration that states that the petitioner is indeed in detention and placed the appeal in the facility's outgoing mail system on X date may, but need not, be filed with the original papers, and instead may potentially be filed later.

The Ninth Circuit's opinion in this regard seems entirely right to me.

The Ninth Circuit cautions, however, "the court has discretion to reject or to give less weight to a declaration or affidavit that does not accompany the inmate’s legal filing."  It does so on the basis of the reasoning of the Eighth Circuit that "[a]n affidavit filed long after the events in question have occurred tends to be less trustworthy than a promptly-recorded statement because the passage of time dulls memories."

That's true.  To a degree.  Memories about precisely what day it was when you did Y may indeed fade over time.

But there's another reason to credit early-filed declarations as well.

Sometimes, you only realize that a filing was due on Day X after the court, or your opposing party, files papers that say that your petition should be dismissed because it wasn't received until Day Y.  It may potentially be only at that point that you realize that, crap, it was due on Day X.  You at that point discover the mailbox rule, and -- now cognizant that your mailing needed to be on Day X -- submit a declaration that says, yep, that's exactly when I mailed it.  You have a large incentive to so recall.

By contrast, if you originally submit a declaration that says you mailed it on Day X, that may not prove that you mailed it on that day.  But it at least helps to establish that at the time you filed your petition, you likely knew at the time it was due on Day X, and that your declaration wasn't merely a response to someone belatedly telling you that it was due on that day.  And if you knew it was due on Day X at the beginning, that's some evidence that you likely in fact filed it by that day.

So it's not just "faded memories" that an early filing may help with.  It's also any alleged fabrication.

So a good rule here.  For multiple reasons.

Monday, July 18, 2016

Louisiana Municipal PERS v. Wynn (9th Cir. - July 18, 2016)

Opinions like this one today seem to me the twenty-first century equivalent of trying to figure out how many angels can dance on the head of a pin.

The dispositive question is whether the ostensibly independent shareholders of Wynn Resorts are sufficiently independent that they could be expected to decide to sue Steve Wynn, alongside other board members, on behalf of the corporation.  The truth, for anyone who knows this industry, is obvious.  Of course the board members aren't going to authorize such a lawsuit.  Were there infinite numbers of parallel universes, in none of them do these board members vote to bring such a suit.  Zero.  The hand-picked members of the board simply aren't going to do that, and to pretend otherwise is silly.

Yet the federal courts nonetheless go through a facile exercise of trying to ascertain whether these board members are "really" independent and "could" decide to bring a lawsuit such that a demand on the board would be futile.  I understand that such an inquiry is required by doctrine.  But it's as silly as the angel/pin dispute.  There's no real "there" there.  It's an utterly artificial inquiry.  Entirely divorced from the practical realities of many -- if not most -- modern board of directors.  Especially in situations like this one.

So, sure, Judge O'Scannlain's opinion makes sense.  Plus has a neat little stateless-citizen-federal-diversity-jurisdiction issue thrown in there for good measure.

But I nonetheless can't help thinking that it's the equivalent of an opinion that says that exactly 48.6 angels can fit on an average-size pin manufactured in the eastern seaboard of the United States.  It really is that far divorced from reality.

Even though I fully understand that, yes, if the relevant precedent says that it's dispositive whether 45 or more angels can fit, we indeed are required to go through this entirely silly exercise.

Thursday, July 14, 2016

Janice H. v. 696 North Robertson LLC (Cal. Ct. App. - July 13, 2016)

"Plaintiff went to Here Lounge to wait for her friend. At the time, Here Lounge was a very popular West Hollywood dance club and bar. On Sundays, as many as 500 people patronized the club. To attract customers, Here Lounge hired promoters who used social media to encourage attendance at special events with sexy themes. For example, the theme when Plaintiff visited the bar was 'size matters.' Here Lounge also fostered a sexually charged atmosphere by permitting bartenders to wear nothing but underwear."

Welcome to West Hollywood, as it were.

"Here Lounge designed the bar to have a common restroom area accessible to both men and women. On busy nights, a long line of patrons waited to use the restrooms. The restroom area included four adjacent lockable unisex restroom stalls, an open area behind the stalls with a urinal trough, and two larger Americans with Disabilities Act (ADA) compliant stalls off to one side. Unlike the four unisex stalls, the ADA stalls had lockable, full-length doors. Though each ADA stall was assigned a gender and the men’s ADA stall was adjacent to the urinal trough, patrons treated the ADA stalls as unisex and used them interchangeably."

Unisex bathroom.  No biggie.  Consistent with the West Hollywood theme.

"On a nightly basis, Here Lounge hired as many as 12 security guards to check identification at the door and maintain order in the club. On Sunday nights, it posted eight to 10 guards throughout the club including one or two stationed on either side of the four adjacent unisex stalls in the restroom area. The restroom area security guards were instructed to prevent more than one patron from entering a single bathroom stall at the same time. If a security guard saw two or more people entering a stall, he would stop them. If more than one person entered a stall before the security guard could intervene, he would knock and demand that they exit. The guards routinely took action to prevent sexual activity, drug use, and conflicts among patrons in the restroom area."

Exactly right.  You know full well that there are potential problems in the bathroom.  Sex, drugs, etc.  That's a problem whether the bathroom's for one gender or for all of 'em.  So good job here.  Indeed, I was somewhat surprised to hear that of the dozen or so security guards, a full two of 'em were often in the bathroom.  That's a well-guarded bathroom.

"On that Sunday, Plaintiff arrived at around 11:39 p.m. Feeling intoxicated, Plaintiff drank water and sat on the patio. Some 15 to 45 minutes later, Plaintiff went to the restroom area, where no guards were present. Although the club’s policy was to have one or two guards in the restroom area, the guards had discretion to leave their posts in the restroom area and roam the club when there were only a few dozen patrons in the club and very few in the restroom area. While roaming, they periodically checked on the restroom area."

Oh.  Yeah.  Well, that's probably not a good idea.  If you're worried about the bathroom, you need to stay worried about the bathroom.  Not just sorta-maybe-check-it-out-on-occasion worried.

You already know there's a lawsuit (and appeal).  You've now read the background.  So you probably know already what transpired.  Here are the gory details:

"Plaintiff went into an ADA restroom stall and shut the door. As was common among patrons of Here Lounge, Plaintiff did not lock the door. While Plaintiff was turning and sitting down, a man she had never seen before entered the stall. . . . . When Plaintiff stood up to adjust her clothing, [the man] grabbed her shoulders and pushed her against the wall [and] forced Plaintiff to orally copulate him and forcibly had vaginal intercourse with her."


Two more terrible details.  First, "[b]ased on DNA evidence, the man was later identified as Victor Cruz, a bus boy at Here Lounge."  Not some random patron.  An employee of the bar.  Second, "the assault, which caused Plaintiff to lose her virginity, lasted about five minutes and ended with Victor ejaculating on Plaintiff’s dress."  Double and triple ugh.

Oh yeah.  "Plaintiff, bleeding and shaken, fled the bar and contacted the police with the assistance of a stranger on the street. Although Here Lounge security found a large puddle of blood in an ADA stall, it did not connect it to the sexual assault until days later when police investigated the incident. Victor’s DNA sample matched the sample of DNA taken from semen on Plaintiff’s dress at the rape treatment center."

What?!  There's a rape, the bar's security "finds a large puddle of blood" in the stall in which the rape transpired, but that's sort of par for the course, and they don't "connect it to the sexual assault until days later?"  Wow.

Anyway, there's a lawsuit.  As you might expect, a darn big one.  Against the bar.  At which "[t]he jury awarded a total of $5.42 million in damages," apportioning "40 percent responsibility to Here Lounge and 60 percent to Victor."

The damage award is huge, but understandably so.  As for the apportionment, no surprise there either, and you can figure out why.  In no universe but our own would a rational factfinder say that the actual rapist was only "60 percent" responsible in this setting, with the bar owners 40 percent liable.  Moral culpability in any rational, real sense would be apportioned far differently.  But the bar has money, the rapist has none, and there's joint and several liability anyway.  So there you have it.

And the Court of Appeal affirms.

There's a lot of bad in the world.  Just read the newspaper.  Today or any other day.

But you can definitely add this rape to the list.  Not good stuff.

Lyons v. Michael & Assocs. (9th Cir. - June 8, 2016)

I'm not sure how anyone could reasonably disagree with Judge Nguyen's opinion here.

The Fair Debt Collection Practices Act says that you can't file a debt collection lawsuit in the wrong forum.  Defendant did so.  That filing transpired on Date X, but the debtor only learned about it on Date Y, which was the date on which she was served with this improperly-filed lawsuit.

When does the statute of limitations start running?  Date X or Date Y?

Prior Ninth Circuit precedent on the point is a little unclear and contradictory.  But Judge Nguyen's opinion definitively holds that the limitations period starts on Date Y -- the date the plaintiff found out about the lawsuit (via service), not merely the date it was filed.

That seems obviously right to me.  The Discovery Rule.  Spot on.

The district court held to the contrary, but its decision in that regard is (IMHO) what happens when you read appellate court decisions too broadly.

I understand why the district court erred.  It thought the Ninth Circuit had answered the question -- maybe not in an actual "holding," but nonetheless in language that's clear.  And it didn't want to be reversed.

But sometimes, faced with unclear precedent, the right thing to do is to do the right thing.  The better rule is the one that starts the limitations period on the date the violation was discovered.

And that's in fact, the rule the Ninth Circuit articulates here.

Wednesday, July 13, 2016

Lkhagvasuren v. Lynch (9th Cir. - July 13, 2016)

I feel bad the guy.  Otgonbayar Lkhagvasuren came to the United States from Mongolia on a vistor's visa in 2010 and subsequently applied for asylum.  He didn't want to go back to Mongolia.  Perhaps understandably.

But he doesn't have an actual claim.  He says he was a whistleblower in an alcoholic beverages company that he though was corrupt.  But that's not going to cut it.  As the Ninth Circuit as well as the immigration tribunals below squarely held.

So Mr. Lkhagvasuren will have to go back.

I've got no reason to believe that he wouldn't be a fine citizen.  And it's not like the United States is being swamped with citizens from Mongolia -- a country that only has three million of 'em in the first place.

But we've got limits.  This is one of them.  So back to Mongolia for Mr. Lkhagvasuren.

In Re Grand Jury Subpoena (9th Cir. - July 13, 2016)

The Ninth Circuit today issues an opinion that decides important issues about a grand jury subpoena issued for e-mails sent to and from a public official and kept by that official on a private e-mail server kept separate from that person's "official" e-mail account.

Yep.  You heard me right.  A very well-known public officer.

The former governor of Oregon, John Kitzhaber.

Wait.  You were thinking of someone else?

Tuesday, July 12, 2016

People v. Ranlet (Cal. Ct. App. - July 11, 2016)

Usually I'm impressed with how adult investigators can trick pedophiles into incriminating themselves by pretending to be someone they are not.  It's typically pretty good police work.

Not so much, however, in this case.

An FBI agent is trying to crack an online child pornography/exploitation group.  The group is forced to change its names at various times to avoid scrutiny, and in its current iteration, ostensibly pretends to be a group that's interested in PT Cruisers, with the title “ptcruzer".

That's a play on words, however.  The title really means "pre-teen cruiser"; i.e., cruising for preteen child pornography or child molestation.  But group members post messages that pretend to be talking about cars.

Anyway, the FBI agent infiltrates the group, and locates defendant's profile.  "Defendant's user profile for the Yahoo account included: the nickname “M.D. DADDY,” location of central California, an age of 35, male gender, marital status of divorced, and occupation of '[f]reelance gynecology and photographer.' Hobbies were listed as, 'Relaxing, chatting, looking for that one female who has very few limits . . . my only limits are scat, bloodplay, and permanent damage.' A favorite quote was listed as, 'Will you shut the fuck up!!! It doesn't hurt that bad!!!'"

Seems like a guy you might want to investigate.  Especially if he's in a "pre-teen cruiser" chat room and sends a message -- which he did -- that says:  "Just wondering if any females out there are near Sacramento, Cali who wanna play with me and my 7-year-old daughter.”

As an FYI, defendant is allegedly molesting his 7-year old daughter at the time.  Apparently he's trying to get others in on the deal as well.  The sick bastard.

So then he sends out another group message.  You'll see what I mean about the group pretending to talk about cars.  The message reads:  "Hey all . . . I am a single male with a 7-year-old almost 8-year-old model. [¶] I have been doing lots of maintenance on my cruzer (lube jobs, engine play. . . et cetera) but haven't 'opened' it up yet that much. [¶] I am looking for a female passenger to be with me when I do. And she can do some driving if she wants. [¶] I am in the Sacramento, Cali area and so should you be too. [¶] I am looking for a long-term relationship as . . . Well having a cruzer of your own is not necessary but it is a plus . . . lol.”

So now the case gets referred to the California Department of Justice.  And an agent for the California DOJ follows up on this lead, creates a Yahoo! account, and writes to the defendant, saying:

“Hi. It's Janette. I‟m not sure if you remember me. I used to be a member of the ptcruzer but my computer crashed and I am just now back up. [¶] I live in Sacramento area and if I remember correctly you do too. [¶] I have a 12-year-old daughter Hope. It's just she and I and we [have] a very open and loving relationship. [¶] You and I spoke of having things in common but I don‟t want to share too much unless you remember me. [¶] We can talk more. Janette.”

Defendant takes the bait.  He responds the very same day.  He says:  "Hi. . . Yes, I am a member of the ptcruzer group. . . I don't remember chatting with you before but would love to chat sometime. I'm usual[ly] on in the evenings at 8 p.m.'ish. Just p.m. me. Would love to talk about you and your daughter and me and mine.”

Okay, so now the agent tries to reel him in a bit.  She responds the next day.  And it's a very good response, I think.  She says:  "Hi. I'm so glad you‟re interested in talking more. It's so hard to find like minded people that share the same interests, especially with a daughter who's close in age to mine. [¶] Can you tell me a little bit about yourself? I'm Janette and have a 12- year-old daughter Hope. She is a beautiful daughter and very curious. I was taught about my body at an early age and have done the same with Hope. Associate doesn't seem to agree with this so I must be very discrete. [¶] Hope is my life and I must be very careful. Obviously, not being a man, I don't have all the tools to help in Hope's teaching. [¶] I work a lot so it's difficult to be online around 8:00. I will definitely check for you when I am. Are any other times good for you?”

Defendant's hooked.  The next day, he responds:  "Hi Janette. I myself also started at a very young age. My daughter is also as curious as I was when I was her age. Excuse me, but before we go on, maybe I should let you know a little of what I am looking for/not looking for. [¶] Not looking to cyber, looking to chat. Not looking to C2C/looking to meet. Looking for long-term commitment and not just a one-time thing. Someone into the same interests as me. [¶] If this is the same for you, then by all means p.m. me or email me back. LOL. [¶] Also, do you have any pics? Mine are in my photos if you want to go there.”

So he's not looking to have cybersex.  He wants actual contact.  Mutual molestation, or whatever else he's into.  Maybe share some child pornography as well.

Sounds like a guy definitely worth catching.

Good job getting this far.

But at that point, the California DOJ agent, in my view, massively drops the ball.  She waits four days to respond.  And when she does respond, she says that Yahoo! seems "difficult to use," so wants to switch their conversation to AOL.  Which he presumably finds strange, if only because she's on the Yahoo! forum already.  And what's so hard about it anyway?

So he never responds.  And continues to allegedly molest his daughter until he's eventually caught and charged some many years later.

I understand that even the police don't necessarily work on weekends. And that guys like this may well be suspicious.

But still.  I thought that this could have gone much better than it did.


Monday, July 11, 2016

People v. Yang (Cal. Ct. App. - July 11, 2016)

Justice Hoch begins today's opinion by the Court of Appeal by saying:

"In this case, we conclude the death of a structure's inhabitant renders that structure uninhabited within the meaning of the arson statute."

Well, yeah.  I think that's clearly right.  If someone dies, say, in his sleep in his bed, and you burn the house down while he's dead, and he's the only one who "inhabits" -- or, more accurately, "inhabited" -- the thing, then, sure, you're guilty of burning down a building, but not an "inhabited" building.  Because the guy is dead.


But then there's the next sentence:

"This is so even where the arsonists murder that inhabitant before setting fire to the structure."


Now, look, there's a part of me -- a huge part -- that totally gets where Justice Hoch (and the rest of the panel) is coming from here.  A dead guy's a dead guy.  If burning down the house of the dead guy in the bed isn't burning an inhabited building (because the guy's dead), then it doesn't matter how the guy died; e.g., that you killed him.  He's still dead.  Dead guys don't "inhabit" anything any more.

Ergo, by necessity, the same result.

Ditto for the statutory language.  The statute says the house has to be "currently" inhabited.  When the criminals torched the place, it wasn't "currently" inhabited.  Indeed, they made sure of that.  By killing the guy.  At the time of the torching, there was no one alive.  Hence the Court of Appeal's result.

I get it.  Makes total sense.  Linguistically, even.

And yet.

There's a part of me that's not willing to go that far.  Part of me thinks:  "Yeah, you could definitely so hold.  Such an interpretation of the statute makes linguistic sense.  Yet if it's possible to articulate a plausible interpretation of the statute that goes the other way, you know what, I'm down for that.  As I really, really don't like the idea that you get a 'bonus' on the arson count for killing someone first."

Plus, I feel darn sure what the Legislature would think about this fact pattern.  Beyond a shadow of a doubt.  They definitely want stuff like this covered under the "inhabited" arson statute.  (And even the Court of Appeal, I think, knows that, saying:  "[I]f the Legislature is troubled by the outcome of this case, it can amend the statute.")

So is a contrary interpretation of the statute plausible?  I'm leaning to thinking so.

True, "currently" usually means "now", and "now" would typically mean at the time the structure was burned.  But maybe we can legitimately stretch it a bit.  Maybe we can reasonably say that in the rare circumstance where the arsonist is the immediate cause of the decedent's death, "currently" may mean at the time of entry into the home.  And, if so, in this case, the guy's guilty.  Since he entered the house, killed the guy, then burned the thing down.

Seems okay to me.  I recognize that this might be a bit of a stretch of the term "currently".  But, you know what?  We stretch terms a least a tiny bit all the time.  If it's a plausible interpretation -- and I am of the slight view that it is -- and it's a better one (which I definitely think is true), then I may be on board for it.

Not only do I think this is what the Legislature would have intended had they thought of this exact fact pattern, but this alternative interpretation also avoids some crazy line-drawing absurdities.  What if the arsonist shoots the guy in the house, burns the thing down, but we're not sure whether the guy died seconds before or after the fire got started?  (For example, we know he died of the gunshot, since there's no smoke in his lungs, but maybe he bled out before -- or after -- the fire was first started, and had -- or hadn't -- reached his particular room.)  I can't fathom it matters in the slightest whether the dude had bled out before or after the exact second of the fire.  Yet under the Court of Appeal's holding today, it totally does; it's a dispositive difference.  That's definitely not a a statute that I would pass, or one that I want to adopt if I have any other reasonable alternative.

My mind keeps going back, for some reason, to the inheritance cases.  Where you don't get to benefit (i.e., inherit the guy's estate) if you were the one who killed the guy.  Same deal here.  (And, yes, I know there's a specific statute for that.  But even before that, it was part of the common law.  Why not so here?)

The case also reminds me of the old yarn about the defendant who kills his parents and who pleads for sympathy because he's an orphan.  Same here:  "You can't find me guilty because I killed the guy first.  Ha!"

Again, I recognize that there are definitely legitimate arguments to the contrary.  As well as what I think are, in fact, pretty decent analogous precedent the other way.  The Court of Appeal says, for example, that if you kill someone before you rape them, and then have sex with them, you're not guilty of "rape" of a live person, but only of the lesser offense of sex with a dead person.  And I must admit that such a result seems right to me, and that it's also pretty darn close to what we have here.

Yet there's still part of me that rebels at the resulting conclusion.  And still thinks that it might well be reasonable to say that arson's different, and that the defendant is in fact guilty of the greater crime in the present case.  And that the statute would be better read in the manner I describe.

I readily concede that, on a practical level, it probably doesn't matter much.  The Legislature will, I think rapidly amend the statute here.  Why wouldn't it?  There's not much of a constituency for the select group of people who kill someone and then burn down their house.  By contrast, here's a very easy way to look "tough on crime" and reverse those "crazy liberal judges" on the Court of Appeal.

Plus, even in an individual case, the dude's sentence won't matter much.  You've already got him, at least most of the time, for an actual murder charge.  Plus, even under the Court of Appeal's holding, an additional arson charge as well (just not of an "inhabited" structure).  Permitting a conviction on the greater arson count really won't matter much at all in your run-of-the mill cases.

Nonetheless, there's still a part of me -- a big part -- that wants to allow a conviction here.  It seems a plausible interpretation of the statute.  It's surely the Legislature's desire.  It's probably a much better practical result.  So maybe go ahead and do it.  Yeah, the Legislature could do it instead.  But why wait?  We can do it now ourselves.

That's my current take, anyway.

Even though I totally understand where the Court of Appeal is coming from, I might well have gone the other way.

ESG Capital Ventures v. Venable LLP (9th Cir. - July 11, 2016)

This morning's opinion definitely doesn't reflect the best transactional work that Venable ever did.

The opinion itself contains some of the details of the underlying scam.  And a complete scam it was.

Here are some more details about the fraud.  The Ninth Circuit reverses the district court and says that almost the entire lawsuit against Venable can go forward.

The relevant partner at Venable is now at Arent Fox.  But Venable still gets stuck with the suit.

Friday, July 08, 2016

Aguayo v. Hayes (9th Cir. - July 8, 2016)

There are several things that seem unseemly about this case.  Including but not limited to the one that the panel articulates at the end of its opinion; i.e., that "[i]n reaching our decision, we recognize with regret that Plaintiffs will suffer severe and significant consequences from losing their membership in the Pala Band. It is also plausible that Plaintiffs were disenrolled unjustly. . . ."

There's also the overall unseemliness, at least in my view, of retroactively deciding whether 150 people get a share of casino revenues (which is largely what's at issue here) based on multiple different determinations over a series of decades at to whether a particular person born in 1856 -- Margarita Britten -- was "was a full- or half-blooded Pala Indian."

There's still something that strikes me the wrong way about counting the "quantum" of racial blood in a particular person.

Even if, as a matter of judicial doctrine, I understand where this comes from, and also why the panel here decides the case the way it does.

Thursday, July 07, 2016

Brooks v. Clark County (9th Cir. - July 7, 2016)

I'm reading Judge O'Scannlain's otherwise unremarkable opinion this morning -- he says that bailiffs don't have absolute immunity when removing a spectator from the courtroom, but may well (as here) have qualified immunity -- when I come across this sentence:

"Brooks and his two compatriots were intent on taking Reed and Lourcey into custody, apparently at the behest of AIA Surety, a bail bond insurance company, because the ladies had allegedly failed to keep the company apprised of their whereabouts."

That struck me as slightly odd.  On the one hand, it's sort of humorous; low-key, witty.  Didn't say they "skipped bail" or anything.  "Failed to keep the company apprised of their whereabouts" instead.

But there's also that "ladies" part.  That's not the way we usually use that term.  At least in the modern era.  I think most people would say that "the women" (or "these women") had allegedly failed to . . . . "Ladies" seems, at a minimum, archaic.

Now, obviously, I understand that Judge O'Scannlain is nearly 80 years old.  And can write in whatever style he wishes.

But I did wonder whether I'd ever seen other Ninth Circuit judges use the term "ladies" in this same way.  So I went back and checked all of the published Ninth Circuit opinions during the last decade to see whether that same term appeared.  (Ignoring quotes from witnesses, etc.)

And, sure enough, it's definitely a rare occurrence.  But, during the last decade, there is indeed a precedent.  Exactly one.  Only one other time in the last decade has a reported Ninth Circuit opinion used that term in the same way.  The relevant sentence in that opinion being:  "They walked away from it for about a mile, with Mr. Boardman in the rear protecting the ladies with his stick, but the goat would not go away."

The author of that prior opinion?  None other that Judge O'Scannlain.

Wednesday, July 06, 2016

U.S. v. Phillips (9th Cir. - July 6, 2016)

Everyone on the panel agrees that defendant's arguments are meritless.  So much so that the panel doesn't even need oral argument; the case is submitted on the papers.

However, Judge Bybee, joined by Judge Kozinski, are somewhat excited by defendant's Second Amendment claim.  He writes an opinion that waxes poetic for a half-dozen pages about what he perceives the limitations to be on the government banning firearms possession by felons.  All this despite the fact that he ultimately agrees that precedent clearly forecloses defendant's claim.

Judge Christen concurs, and takes a different approach, saying:  "I also agree that our prior precedent and Supreme Court precedent foreclose Phillips’s argument that use of his prior conviction as a predicate offense for his § 922(g)(1) conviction violates the Second Amendment. Because binding precedent forecloses Phillips’s Second Amendment argument, I would not engage in further analysis or discussion of it."  And then drops a citation and quote to make clear that everything else that the majority said was dicta.

Two competing visions.

Tuesday, July 05, 2016

People v. Trevino (Cal. Ct. App. - July 5, 2016)

Today's holding by the Court of Appeal holds that a "house car" by any other name still qualifies as a castle.  And hence qualifies as the burglary of an inhabited dwelling.

POSTSCRIPT - A reader sends along this snippet from Breaking Bad, which seems right on point.

Friday, July 01, 2016

Brooks v. Mercy Hospital (Cal. Ct. App. - July 1, 2016)

Some appeals are hard.  Some are absurdly easy.

This is an example of the latter.

I'm not even sure how the trial court gets this one wrong.  I suspect that the fact that plaintiff is an incarcerated prisoner and pro se litigant has something to do with it.  But still.

CCP 352.1 tolls the statute of limitations for a maximum of two years for anyone who's incarcerated "for a term less than life."  There's a longstanding, express holding of the Court of Appeal that says that the phrase "for a term less than life" includes prisoners sentenced to life with the possibility of parole.

Mr. Brooks is one of those people.  Yet the trial court grants defendant's demurrer, holding that since Mr. Brooks was sentenced to life, he's not entitled to tolling.

Nope.  That's wrong.  Reversed.

I'm not even sure why defendants bothered to make this argument below.  Or to defend the grant of demurrer on appeal.  It's obviously wrong.  Just a waste of time and money, I'd figure.

But c'est la vie.  Their call.  In any event, the Court of Appeal easily disposes with this one.

Were all appeals so easy, eh?

Thursday, June 30, 2016

Cuero v. Cate (9th Cir. - June 30, 2016)

Relatively harsh words from the Ninth Circuit this morning.

The majority -- Judge Wardlaw, joined by Judge Silverman -- believe that there was a plea deal (and that the state breached it).  Judge O'Scannlain, dissenting, believes that there was no deal.  The three judges are looking at the same documents and the same transcripts, yet come to starkly different conclusions.

Judge O'Scannlain's dissent starts by saying that he "respectfully" disagrees with the majority, and repeats this same word throughout his opinion.  Judge Wardlaw's opinion, by contrast, does not use that same word -- or even similar words -- when describing Judge O'Scannlain's dissent.  Instead, here's a fairly typical passage from Judge Wardlaw:

"Absurdly, the dissent attaches the very document that the court and both state and defense counsel identified as the written plea agreement as purported proof that there was no agreement. The dissent’s analysis reads like the caption 'This is not a pipe' below Magritte’s famous painting of a pipe. Even more mystifying, the dissent disregards the entire plea colloquy, transcript of proceedings, and the written plea agreement itself to reach this convenient conclusion. The dissent stands alone in its erroneous conclusion—not even the state disputed the existence of the plea agreement, until oral argument, and it waived that argument by failing to raise it in the answering brief."

Tell us what you really feel, Judge Wardlaw!  Wow.

You can read for yourself the competing options, which attach the underlying documents and transcripts as exhibits, to see which side you think is right.

But in the Ninth Circuit, it's Judge Wardlaw's view that prevails.  And she's not shy about telling everyone that she's darn confident that she -- not Judge O'Scannlain -- is correct.

Wednesday, June 29, 2016

U.S. v. Lindsay (9th Cir. - June 28, 2016)

I have two related comments about this opinion by Judge Gould.  One small, one larger.

Both involve the same issue:  materiality.  To be convicted of wire fraud, your false statement needs to be "material".  That's a pretty important element.  If you say something that's meaningless, even if it's untrue, that doesn't put you in prison for a couple of decades.

According to the Supreme Court, here's the relevant test for when statements are material:  “In general, a false statement is material if it has ‘a natural tendency to influence, or [is] capable of influencing, the decision of the decisionmaking body to which it was addressed.’”

Makes sense.  To be clear:  The false statement doesn't have to be the main thing that the victim relies upon to be tricked.  The false statement just has to have  "a natural tendency to influence, or [is] capable of influencing," the victim.

Now let's apply it to the present case.  One of many in the modern era.

Borrower applies for a mortgage.  He submits documents.  Some of the statements in those documents are allegedly false.

He wants to say that the statements at issue weren't "material" for a couple of different reasons.  First, he says that they weren't material because the lender was super happy -- indeed, wanted -- them to be false.  There's a ton of evidence (seriously: a ton) that lenders during the real estate boom didn't care at all that "liar loans" were full of lies since that way they could fund the loans, sell 'em off, and thus profit regardless of the underlying lies.  In short, the lender was an active participant in the fraud, knew that the statements were false, didn't care in the slightest (indeed, wanted 'em to be false, since otherwise they couldn't sell the loan), and hence the statements weren't material.

That's a decent defense, in my view.  With the added bonus that it happens, in a ton of cases, to be entirely true.  If I tell you "Give me your car, I'll give it back to you tomorrow," all the time winking at you, but you know full well that I'm going to rob a bank with that car and actually return the car to you in a week -- with a bundle of cash from the bank robbery "accidentally" left in the back seat -- my view is that, sure, my statement to you was "false", but there was no actionable wire fraud, because my "lie" to you wasn't material:  you knew full well it was false but didn't care in the slightest.

In many areas, that was the mortgage industry in the go-go 2000's.  Different only in form, not in content.

The Ninth Circuit nonetheless holds that a statement can be material even if the lender was totally in on it.  Judge Gould's opinion says:  "[T]hat does not mean that lenders can be victimized by intentional fraudulent conduct with impunity merely because the lenders were negligent, or even because the lenders intentionally disregarded the information in a loan application."  I agree with the former clause, but the latter seems far more dubious.  I understand Judge Gould's intuition that "Two wrongs do not make a right, and a lender’s negligence, or even intentional disregard, cannot excuse another’s criminal fraud."  But I'm not persuaded that it's in fact fraud if the lender wasn't actually defrauded -- doctrinally, if the lender's in on it, and knows/wants your statements to be false, then those statements aren't material.

Or at least it seems to me.  So "negligence" I agree doesn't cut it.  But actual fraud by the lender?! That doesn't count either?!  That seems a little off.  At least to me.

That's related to the second thing.  Where Judge Gould's opinion goes, I think, far too broadly; and, on this point, way too broadly.

Judge Gould ends his opinion by saying, essentially, that everything is by definition material.  Here's the relevant quote from the final paragraph:  "[We] hold, as a matter of law, that when a lender requests specific information in its loan applications, false responses to those specific requests are objectively material for purposes of proving fraud."

What?!  Really?

So I take out a loan application and, where it asks for my name, I write "Shaun Pat Martin," even though my middle name is actually "Patrick".  Or they ask me how long I've lived in my current house, and I write "20 years, 1 month," even though the truth is that it's been 20 years and two months.  Let's assume that none of those statements matter in the slightest to the lender:  let's say the evidence is undisputed that the lender doesn't even use my middle name when it pulls my credit and other reports (and I gave them my correct social security number anyway), so shortening my middle name couldn't make a whit of difference.  Or the missing one month of the 20 years wouldn't at all affect whether the lender would give me a loan -- which, in fact, is totally true.

The Ninth Circuit has now held that I can nonetheless be found guilty of wire fraud and sent to prison for years (if not decades), and that these meaningless statements are nonetheless "material".  On the theory that any blank that the lender puts in front of me is necessarily material "as a matter of law".  So if the lender asked me my favorite color, and I said "red" when it was really blue, that's fraud too, even though the lender put the question on there purely on a lark.

That just seems crazy to me.  As well as in stark conflict to the Supreme Court's express holding that "material" statements are only those that have a natural tendency to (or are capable of) influencing the victim.  There's no way that "red" or "Pat" has a natural tendency to influence someone, and if there's evidence -- as there would be in these situations -- that those answers in fact mean nothing to whether or not the lender makes the loan, then I honestly don't understand how these statements can at all be found to be "material" without violating Supreme Court precedent.  As well as common sense.

So, look, I understand that Judge Gould adopts his "bright-line" rule -- everything that someone asks is by definition material as a matter of law -- from an analogous case from the First Circuit that may seem to adopt precisely such a test.  But, as Judge Gould says, two wrongs don't make a right.  This test seems clearly wrong to me.  And if the First Circuit adopted it as well, so much the worse.  We shouldn't make the same mistake.

That's my view, anyway.

Tuesday, June 28, 2016

People v. Olivas (Cal. Ct. App. - June 28, 2016)

"A jury convicted defendant Jose Rodriguez Olivas of 17 felony counts related to his continuous sexual abuse of M.M. (minor) between 1995 and 2003."

Oh boy.  That's a serious offense.  I wonder how much time he's going to get in prison?

"The trial court imposed a 78-year determinate prison sentence for the continuous sexual assault and the forcible lewd act counts. It also imposed a consecutive indeterminate term of 75 years to life for the aggravated sexual assault counts."

That's a lot of time.

Monday, June 27, 2016

People v. Becerra (Cal. Supreme Ct. - June 27, 2016)

Defendant is representing himself (with the court's permission) for a while, but then the trial court relieves him and appoints counsel, finding that the defendant has been dilatory.  The defendant then tells the court:

"I haven't done nothing to take this privilege away from me. You‟re taking my constitutional rights from me and that is a reversible error in [sic] your part. And I‟m going to take this on a writ. And if this is all you have to say, this is all I have to say. I'll take this . . . up on a writ. You‟re not going to take my constitutional rights when I have the rights to represent myself. This is my life, your Honor. You're dealing with my life. . . . You want to fuck with me, I'll fuck with you."

Now, I know what you're thinking.  It's not good to threaten a judge.  Doesn't work.  Rarely, if ever, productive.

All true.

But you know what the weird part is here?

Defendant turns out to be right.

He gets sentenced to death, but today, the California Supreme Court reverses.  Unanimously, no less.  And in an opinion (1) by Justice Corrigan, that's (2) less than a dozen double-spaced pages.  Wow.  (Compare that opinion, by the way, to the other unanimous death penalty opinion that the California Supreme Court published today, which tops out at 162 pages.)

Mr. Becerra was correct.  There were, in fact, insufficient grounds for the trial court to relieve him of his pro per status.

Death penalty reversed.  Retrial.  After nearly twenty years in the California Supreme Court.

Crazily enough.

U.S. v. State of Washington (9th Cir. - June 27, 2016)

It's hard to argue with Judge Fletcher's opinion in this case.  It's an exhaustive opinion, topping out at 59 single-spaced pages.  It's exceptionally well reasoned.  And it's unanimous.

You could perhaps raise some issues about timing.  The district court caption starts with "01-", which means that this single matter has taken 15 years to get through the district court and the Ninth Circuit.  That's a lot of time.  Plus, the appellate caption starts with a 13-, so that's a heady amount of time in the Ninth Circuit alone, and the case was argued and submitted back in October of 2015.  That's a fair amount of time for a unanimous opinion.

Still.  The opinion is long, comprehensive, and articulate.  As well as important.  So you can see why the Ninth Circuit might want to make sure it gets this one right.

This is another one of those "Pacific Northwest Salmon" cases.  The U.S. entered into treaties in the nineteenth century with various Indian tribes.  They ceded tons of land to us and we promised in turn that we'd respect their rights to fish.  Needless to say, we promptly violated those treaties, repeatedly, but we're trying at this point to comply.

When we negotiated the treaties, we told the tribes that, yeah, we'd take a ton of their land, but we'd make sure they were still able to fish.  The basic scoop was something like this:  "Governor Stevens repeatedly assured the Indians that there always would be an adequate supply of fish. Professor White wrote that Stevens told the Indians during negotiations for the Point Elliott Treaty, 'I want that you shall not have simply food and drink now but that you may have them forever.' During negotiations for the Point-No-Point Treaty, Stevens said, 'This paper is such as a man would give to his children and I will tell you why. This paper gives you a home. Does not a father give his children a home? . . . This paper secures your fish. Does not a father give food to his children?'”

The problem is -- as you might expect -- that the salmon population has substantially collapsed.  In no small part due to human intervention.  So how do we comply with our promises?

Well, one problem is that we -- and by that, I mean "Washington State" -- keep making it harder for the salmon to breed.  One way we do that is at issue here; namely, there are lots and lots and lots of culverts over streams, and many of those are built in a way that make it too tough for salmon to swim up 'em.  Easy for us to drive over, and cheaper than more expensive culverts (or actual bridges), but this whacks the salmon.  Hence resulting in fewer promised fish for the Indian tribes.

So the district court orders lot of 'em to be replaced, albeit over a 17-year period and/or when the normal lifespan of these culverts expires.  Washington State doesn't like that, so files an appeal.  But the Ninth Circuit affirms.

Judge Fletcher's analysis seems spot on.  At least most of it: there's something that seems messed up in the transition from pages 9 to 10 of the slip opinion; like there's a paragraph (or more) missing.  So hopefully that'll be worked out.  But otherwise, definitely solid, and a persuasive resolution of the appeal.

Judge Fletcher also does something relatively unusual, and something that you rarely want to see when you're on the losing side of an appeal:  He quotes from the oral argument.  Here it is:

"Washington contended that it has the right, consistent with the Treaties, to block every salmon-bearing stream feeding into Puget Sound:

The Court: Would the State have the right, consistent with the treaty, to dam every salmon stream into Puget Sound?

Answer: Your honor, we would never and could never do that. . . .

The Court: . . . I’m asking a different question. Would you have the right to do that under the treaty?

Answer: Your honor, the treaty would not prohibit that[.]

The Court: So, let me make sure I understand your answer. You’re saying, consistent with the treaties that Governor Stevens entered into with the Tribes, you could block every salmon stream in the Sound?

Answer: Your honor, the treaties would not prohibit that[.]"

Yeah, that's a tough question.  And the answer is indeed something that hoists the state on its own petards.  Since I strongly doubt that was the contemporaneous understanding of the Indian tribes as to what they were giving up under the deal.  So you can see why Judge Fletcher responds to this claim in the opinion with the line:  "The State misconstrues the Treaties."

More salmon for Native Americans.  More salmon for everyone.  But roads that are a bit more expensive.

P.S. - Washington State's best argument is, perhaps unfortunately, blocked by doctrine.  The state says that the United States is totally wrong about the culverts being a violation of the treaty because the U.S. itself has placed a plethora of the exact same types of culverts under its own (federal) roads, thereby blocking salmon.  It'd be totally unfair, Washington says, to let the U.S. successfully sue us, and make us take out our culverts, when the U.S. gets to keep its own identical culverts over the exact same streams (in violation of the exact same treaties).  To which Judge Fletcher says, essentially:  "Maybe.  But welcome to the wonderful world of sovereign immunity."

Which is almost surely right as a matter of doctrine.  But if there were an affirmative defense of "Manifest Hypocrisy," Washington State might well crush on this one.

Thursday, June 23, 2016

People v. Sanchez (Cal. Supreme Court - June 23, 2016)

Justice Liu writes a concurrence that, as usual, raises a variety of fascinating doctrinal points.  It's definitely worth a read.

The facts of the California Supreme Court's opinion are also worth review, but for an entirely distinct reason.  It's an incredibly depressing story of various "takeover" robberies and, ultimately, murders.

That people brutalize and kill people purely for money is a telling feature of our society.  Sadly.

Wednesday, June 22, 2016

People v. Willover (Cal. Ct. App. - June 21, 206)

I am indeed reluctant to sentence juveniles to life in prison with absolutely no possibility of parole, ever.

Yet I fear the day -- if it ever comes -- that this person gets released from prison.

Horrible, utterly senseless murders.

Tuesday, June 21, 2016

People v. Young (Cal. Ct. App. - May 26, 2016)

Some cases are extraordinarily hard.  Some are fairly easy.

This is an example of the latter.

California law provides that if you're on parole, and have finished up a year, you're required to be discharged from parole within 30 days.  Here's what the statute says:

“(a) The county agency responsible for postrelease supervision . . . shall maintain postrelease supervision over a person . . . until one of the following events occurs: (1) The person has been subject to postrelease supervision pursuant to this title for three years at which time the offender shall be immediately discharged from postrelease supervision. . . . [or] “(3) The person who has been on postrelease supervision continuously for one year with no violations of his or her conditions of postrelease supervision that result in a custodial sanction shall be discharged from supervision within 30 days.”

Mr. Young had been on parole for one year and one day when the police searched his home (and found child pornography) pursuant to a parole condition.  He says that this was impermissible since he was entitled to be off parole after a year.

Nope.  The statute says that after a year, the authorities have 30 days to take you off.  That 30-day period had not yet expired.

Hence the search was valid.

Exactly right.  The statute means what it says.

Monday, June 20, 2016

Butler v. LeBouef (Cal. Ct. App. - June 20, 2016)

In a non-trivial number of cases, an appeal is not only unsuccessful, but also results in a published opinion that makes the appellant look bad.

This one may take the cake.

There are so many findings in here that West Hollywood attorney John F. LeBouef would not want publicized.  You can get the slightest glimmer of them from the first paragraph of the published opinion from the Court of Appeal:

"An ethical estate planning attorney will plan for his client, not for himself. (See Estate of Moore (2015) 240 Cal.App.4th 1101, 1103.) A license to practice law is not a license to take advantage of an elderly and mentally infirm client. As we shall explain, the factual findings of the trial court compel the conclusion that appellant used his license to take advantage of an elderly and mentally infirm person to enrich himself. The trial court factual findings are disturbing, fatal to appellant's contentions, and suggest criminal culpability."

The remainder of the opinion contains the disturbing details.  Go ahead and take a gander if you'd like.  Suffice it to say that it's not a story that Mr. LeBouef would probably like circulating around for all to see.  Yet there you have it.

Justice Yegan ends the opinion by not only awarding costs and attorney's fees against LeBouef, but also enters the following:  "The clerk is directed to forward a copy of this opinion to the California State Bar (Bus. & Prof. Code, § 6103.6) and the district attorney for the County of Santa Barbara."

We'll see where things go from here.  Regardless, I think we can confidently say that the appeal did not go as Mr. LeBouef hoped it would.

Friday, June 17, 2016

People v. Garrett (Cal. Ct. App. - June 15, 2016)

Ryan Garrett drives a red BMW to a QuikStop convenience store at 2:00 a.m., grabs a number of gift cards, and approaches the register.  He's got a wallet belonging to Julie Skelton and a credit card that bears her name.  Before he can make the purchase, however, he spots some police officers, who have an arrest warrant for Mr. Garrett, who've been looking for him (and his red BMW), and who have just rolled up on the QuickStop.  Mr. Garrett ditches the wallet and credit card in the trash can, looks to get out of the QuickStop through a back door, but is ultimately arrested.

The wallet and credit card were stolen from Julie Skelton's car.  In Mr. Garrett's BMW "police found three canisters of pepper spray, a large pair of metal bolt cutters, and a punch tool for breaking windows."  On Mr. Garrett's cell phone "the police found text messages discussing the sale of a $300 Macy’s gift card for cash or drugs."  On Mr. Garrett "police found a half-gram of heroin."

Needless to say, Mr. Garrett gets charged with a series of crimes.  Rightly so.  "On March 5, 2014, the prosecution charged defendant by information with six counts: Count One—Commercial burglary (Pen. Code, § 459); Count Two—Receiving stolen property (Pen. Code, § 496, subd. (a)); Count Three—Possession of heroin (Health & Saf. Code, § 11350, subd. (a)); Count Four—Misdemeanor identity theft (Pen. Code, § 530.5, subd. (c)(1)); Count Five—Possession of burglary tools (Pen. Code, § 466); and Count Six—Possession of tear gas by a felon (Pen. Code, § 22810, subd. (a))."

The case gets resolved like you think it would.  Especially since they've got Mr. Garrett largely dead to rights.  He's a felon, so he's got a prior strike.  So they pick a charge, let him plead to it, and then negotiate a sentence.  "On June 12, 2014, defendant pleaded no contest to Count One (commercial burglary) and admitted the strike allegation in exchange for 32 months in state prison and dismissal of the remaining counts."

One might argue whether two and a half years is the appropriate sentence for Mr. Garrett.  Maybe it's too short.  Maybe it's too long.  But it's a deal.  He gets 32 months.  Off to prison he goes to serve his time.

But not so fast.

Because two weeks after Mr. Garrett pleads guilty, initiative supporters turn in enough signatures to get Prop. 47 on the ballot.  And, that November, they pass the thing.  At which point Mr. Garrett promptly moves to be released.

He says that the crime he actually pled to -- Count One -- was in fact shoplifting. (with the value of the gift cards around $50).  And that's a misdemeanor.  Hence he's eligible for resentencing under Prop. 47.  Sure, he was charged with other crimes.  But he wasn't convicted of those.  He solely pled guilty to the one charge, which was admittedly charged as a felony, but was actually a misdemeanor, so he's eligible for relief.

The Court of Appeal agrees.  Reverses and remands.

The Court of Appeal's reasoning is fairly solid.  I don't have a huge problem with that.  The rules and laws appear to indeed be what Justice Marquez says they are.

Yet there's still something about this case -- and presumably others like it -- that bothers me.

I think what's gnawing at me is that this was a deal.  It was essentially random which count people like Mr. Garrett plead to.  Sure, they want to plead to the facially least serious count.  But what the prosecutor really cares about -- understandably enough -- is the sentence.  So as long as the guy gets 32 months, in truth, the deal's probably based a lot on some more serious charges (e.g., possession of tear gas by a felon), but if he wants to plea down to burglary/shoplifting, that's fine.  As long as the guy does the 32 months.

But then along comes Prop. 47.  Which upends things.  If the prosecutor knew about that pending initiative, and its potential application, no way this deal gets made.  They'd make Mr. Garrett plead to a more serious charge, one to which Prop. 47 clearly doesn't apply.  Of that I'm certain.  So it seems somewhat untoward -- random, even -- that Mr. Garrett doesn't have to serve the sentence to which he agreed merely because of the happenstance of the particular charge that was selected for the plea.  My reaction is also especially strong in the present case because of the very short time between when the plea was taken (June) and when the initiative qualified for the ballot (later than month) and passed (in November).  If the timing was just a little bit different, no way Mr. Garrett gets relief, since there's no way the prosecutor would have made this particular deal.  S/he would instead have insisted on a plea to a more serious charge, and Mr. Garrett would have to do the full 32 months (minus, of course, the various good time credits, etc.).

I understand that, in other cases, the Court of Appeal has held that Prop. 47 is indeed retroactive, that it applies to negotiated pleas as well as convictions after trial, etc.  All of that seems fine to me.

But there's nonetheless something about this particular cases -- and ones like it -- that still seems to me to be wrong.  If only because I feel confident that voters (including me) who voted for Prop. 47 may not have intended for people who in fact may have committed "serious" crimes, but who just-so-happened to plea to a lesser crime in turn for a particular negotiated sentence, to get relief.  There's an element of randomness here that just doesn't seem right.  Or intended.

In this particular case, admittedly, maybe everything turns out "okay" in the end, due to intended and/or unintended consequences of the system.  For example, here, the Court of Appeal remands for further consideration of whether Mr. Garrett is ineligible for Prop. 47 relief because he's a danger to society.  Okay.  If he is, then yeah, he does the full 32 months.  Moreover, even if he's not a danger, the reality is that Mr. Garrett is likely to serve all (or nearly) all of his original sentence anyway.  He pled guilty in June of 2014, so presumably has been in prison since then.  His Prop. 47 petition was denied in the trial court, and his appeal took the usual amount of time. so it's only now that he is potentially eligible for relief.  And there's still time for the state to petition for review, the necessary Prop. 47 proceedings on remand, etc.  The net result of all of which is that Mr. Garrett will almost certainly end of being in prison from 2014 to 2017 -- essentially, is full sentence.

But that particularized randomness (and potential injustice) hardly makes up for the systemic randomness (and potential injustice) of the underlying holding here.  Maybe it eventually "works out" for Mr. Garrett in some cosmic sense of karma:  he may end up having to serve his full time anyway.  But other people may end up spending too long, or getting out too early, in analogous settings.  The application of Prop. 47 in some of these cases just doesn't seem to me like it was necessarily how the voters intended.

That happens sometimes with statutes as well, of course.  And text matters.  Still.  There's something about cases -- or at least situations -- like these that seems a bit off.  At a very minimum, that it's not the best of all possible worlds.

Thursday, June 16, 2016

People v. Endsley (Cal. Ct. App. - June 16, 2016)

I think I know what's going on here.  But I do wonder how cases like this will be viewed in 100 years.

And maybe how the underlying statutory scheme should be viewed now.

Over twenty years ago, Mr. Endsley killed his father while he was insane.  His jury so finds.  So he gets committed to Patton State Hospital.

He stays there, getting treated, for a long, long time.  Eventually, Mr. Endsley believes that he's now better, so he files a petition for a judicial declaration of the restoration of his sanity.  The trial court, after hearing a recommendation from the hospital staff, decides that, yeah, he's better.

Which doesn't mean that he immediately gets released.  Rather, under the statute, it just means that he gets conditionally released to an outpatient program first.  Then, if he's "successful" in the outpatient program, he can then seek unconditional release into the community.

Here, after around a year of Mr. Endsley's participation in the outpatient program, "the trial court revoked [Endsley's] outpatient status based on reports that he was not processing his anger issues with his group home staff."  So he gets sent back to Patton.  Not an especially nice place.

What strikes me about this process is just how completely subjective and arbitrary it is.  Mr. Endsley gets recommitted to Patton because he "was not processing his anger issues" adequately.  Really?  He wasn't perfect in "processing his anger issues"?  Who exactly amongst us is?  I'm confident that I've had plenty of times that I didn't "process my anger issues" in the manner that's most psychologically productive.  Should I be involuntarily committed to a state hospital as well?  Plus, it's such a vague and amorphous thing.  Okay, he gets angry.  Okay, he should deal with it better.  Ditto for all of us.  How exactly does one draw the line between "not okay, but tolerable" expressions of frustration versus "not processing" one's anger so well that it justifies another decade or so in an institution.

Now, if Mr. Endsley is punching people, or smashing lamps, or knocking holes in the wall, look, I get it.  That's a bad sign.  But I'm not sure that inadequate "processing of anger issues" -- which is all the opinion says he did -- really gets me to the ending point here.  Is that really all it takes?  If so, I'm a bit worried.  For people like Mr. Endsley as well as for everyone else.  It seems like we should expect more from our criminal justice system than for your liberty to be based upon whether or not any one particular person feels like you're "processing your anger issues" in an optimal way.  And, at least until today, I thought it did.

Of course, I get it.  Mr. Endsley shot and killed his father.  He's clearly got -- or at least had -- serious problems.  We want to make sure he doesn't reoffend.  And I'm certain that there's conduct short of punching someone that would make me conclude that, uh, yeah, that dude has serious anger issues and needs to be put back in the hospital.  Pronto.

But I'm not sure that mere recitation of suboptimal "processing of anger issues with his group home staff" cuts it for me.  For me, I'd need to hear a lot more.  Otherwise it may sound like we're willing to send people back to a state hospital merely because some staff members think that someone is not "processing" things to the subjective satisfaction of others.  Which I would find troubling.

I hope Mr. Endsley gets better.  And I hope that we've got more definite rules -- standards, even -- for when people get deprived of their liberty rather than a mere inadequate "processing of anger issues".

Wednesday, June 15, 2016

Hyan v. Hummer (9th Cir. - June 14, 2016)

The Ninth Circuit is exactly right here.  So right that it doesn't need oral argument, nor more than a week after the date the case was deemed submitted to publish its opinion.

It may well be (and in fact is the case) that, in California state court, when the trial judge grants an anti-SLAPP motion that dismisses the claims against two of three defendants, that order is subject to an immediate appeal.  But, under the Erie doctrine, the same rule doesn't apply in federal court.  Rule 54(b) expressly says that such orders in federal court are not "final" orders and hence are not subject to immediate appeal.  You've got to wait until the end of the case.  That rule is dispositive here.

Technically, the Ninth Circuit's per curiam opinion leaves out one (important) step.  The opinion says that because there's a federal rule of civil procedure that governs the issue, federal courts follow that rule.  But in truth, the Ninth Circuit would also have to conclude, under Erie, that this rule is also arguably procedural and does not abridge, modify, or enlarge any substantive rights.  That's the test.

I'm certain that that's what the panel was implicitly thinking anyway.  Though, again, technically, they might have wanted to actually say it.

Still, the result is definitely right.  Appeal dismissed for lack of jurisdiction.

Tuesday, June 14, 2016

U.S. v. Christie (9th Cir. - June 14, 2016)

One of the problems with openly flouting federal drug laws is that, eventually, you may draw some interest from the federal government.  As Roger and Sherryanne Christie find out here.

Things were going swimmingly for a while.  Roger opens up the "Hawaii Cannabis Ministry" in Hilo, Hawaii in 2000.  Many sheep, seeking spiritual communion via marijuana, join his flock.  He says he has two to three thousand converts in Hawaii and 62,000 members of the church worldwide.  So many members, so much need for marijuana.  He's distributing half a pound of marijuana to his flock every day, and lines sometimes form out to the sidewalk in front of the church in order to receive his special sacrament.

Word of mouth and promises from Mr. Christie that church members will be free from arrest eventually prompt a federal investigation and, thereafter, an indictment.  And after pleading guilty (after some adverse pretrial rulings from the district court), Roger is sentenced to five years in prison and Sherryanne, his "assistant manager" (and eventual wife), receives a little over two years.

The Ninth Circuit affirms.  There's a legitimate state interest in stopping diversion of marijuana from religious facilities.  So the Religious Freedom and Restoration Act doesn't preclude Mr. and Mrs. Christie's convictions.

I'm certain it was good while it lasted, though.

Monday, June 13, 2016

U.S. v. Davis (9th Cir. - June 13, 2016)

You may perhaps recall Marks from your old law school days.  At least if you (1) took a course in Federal Courts, and (2) did so after that opinion was rendered in 1977.  That case involved the vexing, and difficult, issue of what controlling precedent is created when no particular opinion by the Supreme Court commands an absolute majority; e.g., 4-4-1 or 4-3-2 opinions.

The federal courts have struggled with interpreting and applying Marks for nearly the past four decades.  It hasn't gotten any easier.  The Ninth Circuit's no exception.

Last year, a Ninth Circuit panel decided a particular case (involving a motion to retroactively change a crack cocaine sentence) and held that circuit precedent precluded the relevant motion.  The panel was right -- a Ninth Circuit case from 2012 had involved the identical issue, and has expressly so held.

But Judge Berzon concurred, stating that although she agreed that circuit precedent dictated the result, the prior panel had gotten the issue wrong, and urged that the case be taken en banc.  She said that the prior panel had erroneously applied Marks to the issue when it elected to apply Justice Sotomayor's concurrence (in that 4-4-1 case) as the controlling legal principle despite the fact that all eight of the other justices expressly disagreed with her view.  So Judge Berzon thought the Ninth Circuit should take the case en banc and correct the error.

Later that year, the Ninth Circuit indeed took the case en banc.  And today, the Ninth Circuit decides the case.

The en banc court again agrees with Judge Berzon.  It overrules the prior panel precedent from 2012.  And the only judge who dissents from this decision to overrule that 2012 opinion is the author of that prior precedent:  Judge Bea.

But fear not.  Disputes about the proper interpretation of Marks nonetheless continue unabated.  Judge Paez's opinion for the Ninth Circuit decides to adopt the plurality opinion in the underlying Supreme Court case (rather than Justice Sotomayor's concurrence) as the controlling legal principle, but states that he's not deciding -- for now -- whether the reasoning of the dissenting justices in that case can be evaluated when deciding which rule to follow under Marks.  Judge Christen, by contrast, adopts that same controlling principle -- the plurality's -- but nonetheless writes separately to state that dissenting opinion should never be evaluated when deciding which rule to follow under Marks.

So there's still a fight about how to interpret the case.

Oh, and in a neat little coincidence, guess how many judges on the Ninth Circuit panel agree with the approach articulated by Judge Paez, and how many agree with the approach articulated by Judge Christen.

Five.  Each.

So it's a 5-5-1 on that point.  (And I'm not going to even address the additional complexity of Judge Bea's dissent on this issue, or whether you're permitted to evaluate the dissent's reasoning in a case with no majority opinion that involves the issue of whether you're permitted to evaluate the dissent's reasoning in a case with no majority opinion.)

Fear not.  There's still a ton to fight about with respect to how to read plurality opinions.  Both in the Ninth Circuit and beyond.

Plenty of work for lawyers.

Friday, June 10, 2016

In Re A.G. (Cal. Ct. App. - June 10, 2016)

Let's end the week with just one of the many depressing cases that all-too-regularly appear in the California Appellate Reporter.

This one, published earlier today, isn't even all that bad, really.  It's not vicious abuse.  It's not rape or murder or anything like that.  It's just totally mundane.

And maybe that's why it's so scary.  Just a ho-hum, run-of-the-mill story that's repeated thousands of times every year that generates little to no hope:

"E.G. was born in 2015 while his then 22-year-old mother, K.K. (mother), and 34-year-old father, R.G., were incarcerated. After his birth, mother arranged to have an unrelated female take E.G. home from the hospital. About two months later, SSA received a welfare report concerning the state of this woman’s home. SSA substantiated the report—the home was extremely unsafe and unsanitary—and SSA took E.G. into protective custody.

Shortly thereafter, SSA filed a dependency petition that alleged mother failed to protect and provide for E.G. According to SSA reports, mother started using methamphetamine in 2008, around the time of her 16th birthday. She was a daily user of methamphetamine until she became pregnant in 2010 with E.G.’s half sibling, B.G. Mother said she stopped using early in her pregnancy with B.G., and she was able to stay away from it for a couple of years. However, in 2012, mother returned to regular methamphetamine use, and B.G. went to live with his father.

In April 2012, mother was arrested for possessing drug paraphernalia. The court ordered her to attend an 18-month deferred entry of judgment program pursuant to PC1000. Mother reported being 'ordered to PC1000 three times,' and she said that she had enrolled in a program, but failed to attend.

In late 2012, mother was arrested for a probation violation after she missed an appointment with her probation officer. In 2014, she was convicted of evading a peace officer and driving under the influence of alcohol, and the court ordered mother to complete a three-month first offender alcohol treatment program.

By early 2015, mother was pregnant with E.G. and in jail with pending felony charges for possession of fictitious checks, stolen access cards, stolen property, and drugs."

Just another day in the Big City.  Orange County, this time.

Nothing to see here.

Thursday, June 09, 2016

Peruta v. San Diego (9th Cir. - June 9, 2016)

The long-running dispute about restrictions in California on "concealed carry" of firearms has come to an end.  At least temporarily.

Back in 2010 and 2011, a district court held that limiting concealed carry permits to those who have "good cause" for 'em was permissible under the Second Amendment.  But in 2014, a divided panel of the Ninth Circuit reversed, holding that these policies (in San Diego and Yolo) were unconstitutional.

Today, the en banc court reverses.  The Second Amendment doesn't protect concealed carry.

The vote's a bit complicated, with five separate opinions.  But the basic scoop is this:  7-4.  Seven judges say the restrictions are fine, four say they aren't.  The seven win.

Judge Fletcher's majority opinion is very impressive.  He definitely crushes on the point -- which he proves at length -- that concealed carry prohibitions were always thought to be okay:  in England, in the colonies, in the early United States, when the Fourteenth Amendment was adopted, etc.  Some of the dissenting judges try to take on this point, but it's really no contest.  Judge Fletcher wins.

But the best argument of the dissenters is that California doesn't just heavily restrict concealed carry, but heavily restricts open carry as well.  So, they argue, in combination, that's an overall prohibition that violates the Second Amendment.

Judge Fletcher goes out of his way to say that the majority isn't deciding anything about open carry, which is a different case, and which may, or may not, be protected.  It's just that concealed carry is not protected, and that's the end of this case.

As a purely doctrinal matter, my own view is that Judge Fletcher's view on this issue is the right one.  If a plaintiff is challenging X, and X is constitutionally permitted, the fact that Y might exist but be unconstitutional -- and X plus Y even worse -- doesn't mean that X somehow becomes a violation of the Constitution as well.  If Y is unconstitutional, the remedy is to invalidate Y, not X.

So if open carry limitations violate the Second Amendment, then a court is free to say so.  But those aren't the limitation at issue in this litigation.  This one's about concealed carry.  And, at least in my view, the ample historical evidence gives a pretty clear answer to that question.

Here's the analogy I'd draw.  Imagine that a law says that you're not allowed to conduct your protest march in the middle of a military base.  That's X.  A different law also says that you're not allowed to conduct your protest anywhere outside a military base either.  That's Y.

Now, it's true that X + Y is unconstitutional.  Because even though time, place and manner restrictions are permitted, it's not okay to have a policy that completely bans a category of speech.  I get it.

But if someone in such a setting brought a challenge to X -- to the law that banned protests in the middle of a military base -- they'd lose.  The right remedy in such a case would be to allow speech outside the military base -- to strike down Y -- not to somehow hold that since X + Y violated the First Amendment, the First Amendment now gives you the right to protest on a military base.  That's not how it works.  And what doesn't work for the First Amendment, or the Fourth, or any other Amendment doesn't work for the Second either.

I won't comment much more about today's opinion, as I'm sure it'll get a lot of coverage in the more mainstream press anyway -- if only because the list of amici alone is several pages long.  Plus, this will not be the last word on the subject:  I'm almost certain that plaintiffs will petition for certiorari, and there's at least a non-zero chance they'll get it (though, at the same time, definitely a non-zero chance that they won't).

For now, though, concealed carry laws like the one in San Diego are okay.  Open carry?  That's another question.  Maybe even a harder one.

For for closed carry, we have an answer.  Seven to four.

Wednesday, June 08, 2016

Erler v. Erler (9th Cir. - June 8, 2016)

When you sponsor someone to immigrate to the United States, you promise (in a binding document) to ensure that the person you sponsor won't become a "public charge" -- i.e., will at least have an income that's 125% above the federal poverty line.  That way a sponsor can't bring someone into the United States, abandon them, and then burden the state with his support.  If you're a sponsor, you're a sponsor.  You're responsible for that person's welfare.  Until they leave the U.S., become a citizen, work for 10 years, or dies.  That's the rule.

Yashar Erler sponsors his future wife, Ayla Erler, and Mrs. Erler immigrates to the United States and marries him.  Mr. Erler's worth $4.6 million, so he easily qualifies as a sponsor.  No problem.

The Erlers ultimately divorce.  At which point, pursuant to a prenup, Mrs. Erler gets no alimony or support.  Absolutely nothing.  She's totally on her own.

So now Mrs. Erler is, at least metaphorically, out on the streets.  She tries but fails to get a job, and she's living off food stamps.  That plus the charity of her adult son.  He's making less than $40,000 a year -- hardly a princely sum -- but lets his mother move into his apartment, pays her expenses, etc.

Has Mr. Erler violated his support obligations under the agreement?

He says no, because she's "making" $40,000 a year in a "household of two," since she's in the same "household" as her adult son once he takes her in.  That's above the poverty line.

She says yes, because she's "making" nothing, and is living off the charity of others -- her son and the state -- and her income (of essentially nothing) as a "household of one" is under the poverty line.

Who's right?

The district court said that Mr. Erler is right.  So does Judge Schroeder, who says that "[i]n my view, the district court got this difficult case right."

But the majority opinion in today's opinion says that Mrs. Erler's approach is the correct one.  The majority says that Mr. Erler "asks the court to adopt a rule allowing sponsors to escape their support obligations by withholding payments and waiting for charitable third parties to pick up the slack," and doesn't find such a rule persuasive.

I agree.  As between the majority opinion and Judge Schroeder, I find the majority opinion far more persuasive.

But I wonder if even the majority opinion gets it entirely right.

The majority says that you don't count support from others who pick up the slack, and I think that's correct.  That rule essentially disposes of the current case, or at least makes the district court's task on remand exceptionally clear.  Very good.

But the majority opinion says that, as a matter of law, a sponsor always is simply agreeing to support a "one-person" household -- i.e., the immigrant herself (assuming the sponsor doesn't also expressly sponsor someone else) -- at 125% of the poverty line.  As the majority opinion puts it:  "At the time a sponsor signs an affidavit of support for a single intending immigrant, he or she would reasonably expect that, if the immigrant separates from the sponsor’s household, the obligation of support would be based on a household size of one. . . . The sponsor would not reasonably expect the obligation of support to be based on a household that includes the sponsored immigrant or immigrants plus anyone else with whom the immigrant might choose to live."

I'm not so sure about that.  Not so sure at all.

It seems to me that when you sponsor an immigrant, at least in some cases, you should reasonably expect that you might well end up supporting others.  And, as someone who thought long and hard about sponsoring someone at one point, I'm fairly confident that a reasonable observer might well, in fact, reasonably consider their agreement as permissibly taking on precisely such a burden.

The classic example of this, in my view, arises precisely from circumstances similar to those that transpired here.  Mr. Erler sponsored someone whom he intended to be his wife.  What's one thing that could potentially happen once the parties get married?  I don't know the details of Mr. and Mrs. Erler in particular -- their ages, their intentions, their sexual practices, etc. -- but I can nonetheless give a general answer that will apply in lots of such "sponsor-my-wife" cases:  Kids.

The immigrant and her sponsor may well pound out a kid or two before getting divorced.  And, last I checked, it's pretty darn hard for a newborn child to support himself.  In my view, when you agree to support an immigrant and to make sure s/he doesn't become a public charge, that includes the duty to whomever that immigrant might reciprocally have a duty to support; e.g., their children.  So if that immigrant has kids -- let's say, two -- and then your duty is to make sure that the immigrant has an income that's 125% above the poverty line for a household of three.  Otherwise, the immigrant is precisely what we don't want her to be (and what you promised she wouldn't be):  a public charge, because even if she's making 125% of the income for a household of one, that's not what she has, and she's in fact receiving public assistance etc. since she can't support herself and her three children.

Admittedly, one advantage of the Ninth Circuit's rule is that it's a nice, bright-line rule:  Sponsors are always merely agreeing to a household of one.  That avoids uncertainty about extreme circumstances that I agree shouldn't extend the sponsor's burden; e.g., when an immigrant decides to support fifty unrelated individuals in her household, etc.

But we can resolve unusual cases on their own merits.  The advantages of a bright-line rule in avoiding silly extremes don't outweigh the benefits of a rule -- like mine -- that's generally right, albeit with the need to resolve some difficult cases at the margins.

I think that a sponsor agrees to provide sufficient income for a household of the size that might reasonably be expected under the circumstances.  For most people, that means their kid.  And that's true regardless of whether the immigrant's a man or a woman and whether the kids are biological or adopted.  When you sponsor someone, you're agreeing that you're going to support that person at 125% of the poverty line of whatever size their household ends up being.  If it turns out they have six children, well, you know what, these things happen.  You promised that you wouldn't be creating a social burden; e.g., making a public charge.  And if the immigrant has six kids (!) that need support, then s/he needs to make an income of 125% of the poverty line for her household of seven -- $46,000 a year -- then that's the deal you struck.

So I'm on board for the majority's resolution of the present case.  But I'd backtrack on the "you're only ever agreeing to support at a household of one" dicta.  I think that'd be bad law.  Bad law that a district court would nonetheless follow, and that would result in both inequitable consequences -- e.g. a guy worth $4.6 million being able to keep an ex-wife and her kids in poverty and on food stamps -- as well as an increase in social expenditures for public charges.

That's bad for everyone.  Or at least everyone but the one guy who gets to avoid the obligations that he voluntarily undertook.