Monday, July 24, 2017

In Re A.C. (Cal. Ct. App. - July 21, 2017)

Your usual parental termination appeal typically involves horrible facts.  If there's a jurisdictional dispute, it often involves technical stuff about ICWA (Indian Child Welfare Act) notice.

But this one's different.  And I learned a couple of interesting things that I definitely didn't know previously.

For one thing, this one involves notice not to an Indian tribe, but to Mexico.  Okay.  Didn't know about such a process.  Makes sense.  Just never seen it before.  Since the mother (and children) had lived in Mexico for a fair piece, you want to make sure that Mexico hadn't already entered any orders about the kids or already established jurisdiction.  K.

But here's another thing I didn't know -- and was somewhat surprised to see.  I'm used to seeing ICWA notices, and they're almost invariably sent by mail.  But here, the court communicates (or at least attempts to communicate) with Mexican authorities by e-mail.  I didn't know we did that.

Mind you, it doesn't work.  They never respond.  And that's only after Mexican authorities refuse to pick up the phone after multiple calls.  But the concept of a judge firing off "official" e-mails sent to judges from other countries was definitely something I hadn't seen before.

One last thing.  I've obviously read thousands of cases involving deportations, including but not limited to parents (and children) deported to Mexico.  But I'm pretty confident that this is the first opinion I've ever read involving a parent who was deported from Mexico to the United States.

I'm sure that makes sense as well.  I'm sure there are some U.S. citizens in Mexico that Mexico doesn't want.  So, of course, Mexico has the right to kick them out.

I've just never seen it before.

You've got your usual depressing facts, of course.  Though at least here the intervention by the authorities -- or at least the U.S. authorities -- was fairly prompt:

"On May 21, 2015, Mother, who was born in California, was deported from Mexico to the United States at the San Ysidro Port of Entry. Her two sons, A.C. and E.C., were with her when San Diego Police Department officers responded to a call regarding a female (Mother) who might be unfit to care for her two children. On their arrival, the officers found A.C., then six years old, and E.C., then 15 months old, sitting on the ground with Mother. Mother appeared manic and confused about her detention and expressed irrational beliefs (e.g., she could communicate telepathically). Based on their belief Mother was gravely disabled and unable to care for herself and her two children, the officers detained Mother pursuant to Welfare and Institutions Code section 5150 and transported her to a San Diego County mental health facility for evaluation."

Still.  Deportations from Mexico.  Definitely not used to seeing that.

Thursday, July 20, 2017

In Re R.T. (Cal. Supreme Ct. - July 20, 2017)

This seems fine.  I agree with the California Supreme Court that the relevant statute allows kids to be taken away from their parents even if the parent isn't at fault.  The text of the statute sort of says that, and the legislative history makes it clear.  If the kid's in danger, it doesn't matter whether the danger is "because" of the parent.  The state can intervene.

Okay.  That's indeed what the statute says.

But am I really the only one troubled by the consequences -- e.g., the constitutionality -- of such a statutory regime?

That was principally why the one Court of Appeal opinion below held (contrary to today's opinion) that the statute must require fault.  Because to do otherwise, the Court of Appeal thought, might well violate the Due Process Clause.  Can you really take a kid away from the parent when the parent isn't at all at fault?

Let's be clear.  That's precisely what's at stake here.  The minor at issue here is definitely a problem.  She's disobedient, has already had two kids of her own (at 17), throws things at her mother, stays out all night, etc.  Yeah, we want to stop that.

But it's not like the parent doesn't care.  Or doesn't try.  Her hardest, even.  From everything we read in today's opinion, she's trying super hard.  Doing all the things that we'd try as parents.  It's just not working.  (And those of us with children certainly can understand.  We don't have an 100% success rate at everything we try to instill in our children.  Even with respect to the most basic stuff.)

But the California Supreme Court says that doesn't matter.  You can still have your kid taken away from you -- and be declared an "unfit" parent -- even if it's in no way, shape or form your fault.

That's troubling, no?

At least to me.  Apparently not so much to the California Supreme Court.  Because the Court says very very little about that point.  Indeed, it's entire argument in that regard consists of a single paragraph at the end of the opinion.  When, in the context of distinguishing a contrary lower court opinion, the Court basically just concludes that the Due Process Clause isn't violated by taking a kid away from her parents since the statutory regime "includes many subsequent safeguards to ensure that parental rights and authority will be restricted only to the extent necessary for the child‘s safety and welfare" and "is a remarkable system of checks and balances."

That sentiment is small solace, I'd think, to any parent who had their kid taken away from them through what everyone concedes is totally no fault of their own.  As it'd be similarly small solace, I'd imagine, if any of the justices had their own children taken away from them in similar settings.

Which is not to say that I don't get the underlying motivation.  The kid's in trouble.  We need -- or at least want -- to do something.  So even if the parent's not at fault, we may well want to take the kid away.  Because that at least has the possibility of working.

But remember a couple of things.  The first of which is that taking the kid away is hardly a panacea.  Maybe if the results of the juvenile dependency system were uniformly positive I'd take a different view.  But they're not.  A lot of times, kids do worse in that system than with their parents.  And I'd imagine that's even more likely when, as here, the parent is totally trying and is not at all at fault for the minor's delinquency.  So don't for a second think that putting a kid in the "system" means that we are going to solve the problem.  Sometimes it stays the same.  Sometimes it gets even worse.  And the price for all this "progress" (or lack thereof) is inevitably the disruption (or destruction) of a basic and fundamental value:  the relationship between a parent and her child.

And, yes, the system contains a lot of checks and balances.  But, at least until today, one of the most basic of those checks and balances was that kids generally only get taken away when the parent is at fault.  I've read thousands of these cases, and when the kids get taken away, almost invariably, there's parental neglect (drug abuse, violence, etc.) that's a critical component of making that undeniably sad result morally palatable.  Take that way -- take away the need for fault -- and you're taking way what I'd have thought before today was one of the most fundamental of the relevant balances.

Now, I understand that we're trying to do what's best for the kid.  And that's a critical goal.  I too want to try to make every child reach his or her full potential.

But we've got to balance that between (1) the reality that, lots of times, we can't do better than the parents (and, I suspect, there's a darn good chance that the "system" will do no better for the child than her mother has done here), and (2) the devastating consequences to a mother when a child is forcibly removed from her by the state, without her consent, in circumstances in which even the state admits that the mother has done nothing wrong.

Those considerations, at least to me, are worth perhaps a little more than a paragraph of thought and brief platitudes about the "remarkable system of checks and balances" that is the existing dependency regime.

So I think, in short, that I'd take the Due Process argument a bit more seriously, or at least give it more weight, than I think the Court does here.  And maybe even expressly hold that it creates an outside limit on when the state can take children away when, as here, there's no fault at all by the parents.  Unless the state can show that it's likely to do a better job, with some reason to believe that it's efforts at discipline will be more effective than the parent's, I'm super reluctant to say that the Due Process Clause permits the government to take away someone's kid when the parent has done the exact same things that every single one of us would have done under the circumstances.

Food for thought.

Wednesday, July 19, 2017

People v. Roberts (Cal. Ct. App. - July 18, 2017)

Some things seem common, some things seem strange.

"Sharkey, who had ties to the West Coast Crips (WCC) street gang, was playing dice in downtown San Diego when Roberts, known as "Scrappy," shot her twice in the chest."  Do people really still play dice on the street these days?  And who shoots someone during a dice game for no reason?

"Sharkey claimed that Roberts pointed a gun at her face and said something to the effect of, "[k]eep my name out of your mouth." Roberts's act of pointing the gun at her infuriated Sharkey, who felt extremely disrespected by the act."  Really?!  You feel "disrespected" when someone points a gun at your face?  What an unusual reaction.  (Sarcasm alert)

Monday, July 17, 2017

Lewis v. Superior Court (Cal. Supreme Ct. - July 17, 2017)

I wonder why it is that I find myself agreeing with the California Supreme Court more than perhaps many other courts?  Similar disposition to the justices?  More cases that the court accepts for review that are important and yet often unanimous?  Some other reason?

(Or maybe the predicate's  untrue.  It's distinctly possible that I agree with an equal -- or greater -- number of Ninth Circuit cases, or cases from other courts, but simply read more opinions from those tribunals.)

Regardless, today's opinion is another one that seems spot on to me.  There's probably a fairly strong privacy interest in giving the authorities access to CURES (drug prescription) data.  But there's also a good reason for doing so -- to prevent drug abuse.  So the present regime is permissible.

Works for me.  Even though the ACLU would require more.

Thursday, July 13, 2017

U.S. v. Sierra Pacific Industries (9th Cir. - July 13, 2017)

"Nonetheless, this case is a cautionary tale about the possible pitfalls of judges engaging in social media activity relating to pending cases, and we reiterate the importance of maintaining the appearance of propriety both on and off the bench."

Well, I'm not exactly sure that it's an entirely cautionary tale, since the Ninth Circuit affirms the decision below notwithstanding the judge's (alleged) Twitter account and "forwarded" tweets about the case he was in the midst of adjudicating.

(I say "alleged" because the judge at issue doesn't sign his actual name to the Twitter account, so it's just "alleged" that it's his.)

Snyder & Assocs Aquisitions v. U.S. (9th Cir. - July 13, 2017)

The Ninth Circuit says today, in full:

"Plaintiffs-Appellants’ petition for panel rehearing (Dkt. # 38) is GRANTED. The opinion filed June 16, 2017, is amended as follows: (1) on page two, “millions of plaintiffs’ dollars” is replaced with “plaintiffs’ money”; (2) on page two, “into bankruptcy” is replaced with “out of business”; and (3) all uses of the word “privileges” on pages two, six, fourteen, and twenty are replaced with “authorization.” No further petitions for panel rehearing or rehearing en banc will be considered."

I'm not really sure that the money devoted by plaintiff-appellant to filing that motion was really worth it in retrospect, eh?

Wednesday, July 12, 2017

Association for LA Deputy Sheriffs v. Superior Court (Cal. Ct. App. - July 11, 2017)

This opinion should be taken up by the California Supreme Court.

It's a split opinion, with a dissent.  The deciding vote is cast (and the majority opinion written) by a superior court judge sitting by designation.  The underlying issue is an important one with widespread impact:  Whether the LA Sheriff's Department is allowed to tell prosecutors the names of officers in the department potentially guilty of serious misconduct, which in turn will help prosecutors to fulfill their Brady and related obligations in criminal cases.

The Court of Appeal says no; that this policy is impermissible.  Prosecutors, the Court of Appeal holds, not only have no duty to obtain this information, but the LASD cannot even voluntarily provide it to prosecutors.  Prosecutors instead have to file a motion.  A motion -- to be clear -- by one arm of the government (and prosecution) against another.

I'm skeptical of the result.  Very skeptical.  But even if the Court of Appeal is right on the merits, it's a critical issue, and one that should be decided by the California Supremes.

Tuesday, July 11, 2017

Stone Creek v. Omnia Italian Design (9th Cir. - July 11, 2017)

Tons of fun stuff in this tiny little trademark dispute.  Regarding, as Judge McKeown's opinion puts it (tongue in cheek), "the high-stakes world of furniture sales."

Some snippets:

"The facts are somewhat unusual: the alleged infringer, leather furniture manufacturer Omnia Italian Design, Inc. (“Omnia”), admits that it blatantly copied and began selling the same goods branded with the mark of its (now ex) business partner, retail furniture company Stone Creek, Inc. (“Stone Creek”)."

Well now.  That should make the case relatively easy, no?

Actually, no.  Since the district court below found in favor of the defendant.  Albeit in a decision reversed by today's Ninth Circuit opinion.


"To its credit, Omnia was candid. In an email from the Vice President of Sales, Omnia unequivocally admitted to selling furniture under the STONE CREEK mark. In a move not recommended when litigation is certainly impending, the email observed: 'In this day of internet shopping and surfing, it is unfortunate and probably a nuisance for you that your stores are receiving inquiries regarding these products due to the similar name.'”

Yeah.  Kind of unusual to see that type of honesty.  Refreshing.  But given that the honest party loses in the Ninth Circuit, that's not likely to encourage its repetition, I imagine.

Read the whole thing for a romping good time.  (If you're heavily into IP, anyway.)

Monday, July 10, 2017

Get Those Cases Out (9th Cir. - July 10, 2017)

The summer often sees a broad dump of published opinions.  Some may say that's a result of the excitement of working had over the summer.  Doubtful, for sure.  Others may more plausibly claim that the influx of new law clerks and the outflow of old clerks means that there's an impetus to finally get those lingering opinions done before the old clerks leave.

Either way, today sees not one, not two, not three, but eight different published opinions issued by the Ninth Circuit.  Opinions that run the gamut from the disputed ownership of paintings looted by the Nazis, whether used car dealers have to make their vehicles available for test drives by the disabled, and doctrinal issues involving forum non conveniens,(essentially) tribal sovereign immunity, and quasi-judicial absolute immunity.  Weighty stuff all around.  All alongside more pedestrian matters like whether a particular plaintiff is entitled to social security disability payments.

So there's something for everyone today.  Take your pick and read the one that you think might excite you the most.  It's a grab-bag Monday.

Friday, July 07, 2017

Espejo v. Copley Press (Cal. Ct. App. - July 7, 2017)

Darn it, darn it, darn it.  I was born in the totally wrong era.

The Court of Appeal decides a case today involving a class action brought against the Copley Press, which publishes the San Diego Union Tribune, in which the plaintiffs claimed -- and won -- that the U-T's newspaper delivery people were employees rather than independent contractors.  The Court of Appeal reverses a tiny bit of that victory and remands, but in large part, the merits are affirmed.

Which bums me out, because I too was an alleged "independent contractor" in my youth.  Albeit a newspaper delivery person for the Washington Post back in Virginia.  Back in the days -- and this demonstrates my advanced age -- in which we delivered newspapers by walking door to door, or by riding our bikes, rather than by driving our vehicles.  (Not that my brother and I were old enough to drive anyway.  We were probably twelve or fourteen at the time.)

I'd have been part of a successful class action!  Maybe, anyway.  I could definitely have used the money at the time.  Especially since I was the worst -- literally, the worst -- at the actual "collecting the subscription dues" part of the job.  I bet I worked for a year, getting up super early, and made a total of $10.  Because I had to pay for the papers, I had to collect from the subscribers, and to the degree there was any shortfall in the latter, that was my problem, not the Washington Post's.

Memories of a misspent youth in Virginia.

Thursday, July 06, 2017

Padilla-Ramirez v. Bible (9th Cir - July 6, 2017)

Today's Ninth Circuit opinion doesn't necessarily sound like a typical Judge Wallace opinion.

Sure, it reaches the result you'd expect from Judge Wallace.  It's a close immigration case involving a guy who's got a decent argument -- indeed, one that the asylum officer thought was right -- that he'll be tortured or killed if he's sent back to El Salvador.  The guy has nonetheless been kept in detention (read: prison) with no bond hearing, and he thinks that's wrong.  The Second Circuit agrees with him, and says that people like this are entitled to a shot to obtain bond.  But Judge Wallace doesn't think so, and authors and opinion explaining why.

The Second Circuit is left of center, and Judge Wallace most definitely is not.  Understandable.  And with Judge Bybee also on the panel, the result isn't all that surprising.

But the language somewhat is.

This is not a strident, take-no-prisoners opinion.  A type that Judge Wallace has definitely authored on multiple occasions in the past.  Today's opinion is instead downright moderate, at least in tone.  Take a look at Part III.D. of the opinion for a classic example in this regard.  There's tons of stuff in there about how the panel knows it's (allegedly reluctantly) creating a circuit split by disagreeing with the Second Circuit, how immigration law in particular is supposed to be uniform, how it reaches its result an understanding that the Supreme Court might want to take the case up to make the law in all the circuits the same, etc.

That's not what you see in most opinions by Judge Wallace.  Trust me.

Some might argue that, perhaps, Judge Wallace has somewhat mellowed with time.  Maybe that's true, maybe -- quite possibly -- that's not.

Personally, I think the better explanation is found by looking at the third name on the panel.  One who joins Judge Wallace's opinion in full.  Judge McKeown.

Part III.D. sounds exactly like something that she'd write.  Not that I'm saying that she did.  But on occasion, to attempt to persuade another member of the panel, you write stuff that you think will get that person on board.  Stuff that you might not otherwise say if someone else was on your panel.  On occasion even adopting as your own suggestions from that other judge that you'd normally reject (or not have thought worth mentioning) on your own.

I think it quite plausible that the tone of today's opinion is explained in part by such a dynamic.

Which sometimes makes for a much more powerful (and/or palatable) opinion than would otherwise have been issued by a single judge acting on his own.

Wednesday, July 05, 2017

Petrocelli v. Baker (9th Cir. - July 5, 2017)

It's an ugly case.  You can see why the jury sentenced Mr. Petrocelli to death:

"On March 29, 1982, Petrocelli went on a test drive of a Volkswagen pickup truck with James Wilson, a used car salesman, in Reno, Nevada. At some point during that test drive, Petrocelli shot and killed Wilson. . . .

Nearly a year before killing Wilson, in May 1981, Petrocelli had pleaded guilty in Washington State to kidnaping his girlfriend, Melanie Barker. He had received a suspended sentence conditioned on his completion of a drug treatment program. Petrocelli absconded from the treatment program twice and never completed it. Petrocelli shot and killed Barker in Washington State in October 1981, five months before he killed Wilson in Nevada."

Bad facts for the defendant, for sure.

But the panel unanimously reverses the death sentence due to the admission of an expert's testimony at the penalty phase.  And this is not an isolated occurrence.  As the penultimate paragraph of Judge Fletcher's opinion recounts:

"We have encountered Dr. Gerow before. He testified for the prosecution in Sechrest in very much the same manner he testified for the prosecution in the case before us. Gerow testified that Sechrest “was an incurable sociopath” who was “extremely dangerous and could not be rehabilitated.” Sechrest, 549 F.3d at 813. We held in Sechrest that the combined effect of Gerow’s testimony and an instruction identical to Instruction 5 “had a substantial influence on the jury’s decision to sentence Sechrest to death.” Id. We similarly conclude, in this case, that Gerow’s improperly admitted testimony, understood in the light of Jury Instruction 5, “had [a] substantial and injurious effect or influence in determining the jury’s verdict.”"

Judge Christen's position is perhaps even stronger than the majority.  She says in her concurrence:

"I agree that Petrocelli’s death sentence must be reversed. I write separately because, in my view, even if the State could show that the prosecutor’s tactics had not prejudiced the jury’s verdict, Petrocelli’s case is one of the very few in which deliberate prosecutorial misconduct and egregious trial errors warrant habeas relief. See Brecht v. Abrahamson, 507 U.S. 619, 638 n.9 (1993) (stating that a deliberate and especially egregious trial error, or one that is combined with a pattern of prosecutorial misconduct, might warrant habeas relief, even if the jury’s verdict is not substantially influenced). Brecht’s footnote nine is rarely employed, but the Fifth and Seventh Circuits have each relied on it one time in cases where an error (or errors) did not easily fit into either the “structural error” or “trial error” category. The errors in Petrocelli’s case were equally pervasive, flouted Supreme Court authority, and undermined the integrity of the criminal justice process."

Strong stuff.

Thursday, June 29, 2017

Sato v. Orange County Dep't of Education (Cal. Ct. App. - June 29, 2017)

A"Defendant Orange County Department of Education (OCDE) hired plaintiff Michael Sato as a Systems Database Architect in August 2014. Within a matter of weeks after Sato started working at OCDE, Sato’s supervisors informed him that he would be terminated immediately. OCDE offered no explanation as to why Sato was being terminated, and Sato insisted that he had performed his duties satisfactorily during his brief period of probationary employment with OCDE. Before he was fired, Sato received no oral or written notice of his termination, and he was given no opportunity to be heard at a pre- or post-termination proceeding."

Huh.  That happens.  I wonder why he was so summarily fired?  I guess we'll have to read more of the opinion to get the juicy details.

Hold on.  Scratch that.  The Orange County school system has immunity under the Eleventh Amendment.  So we're not going to find out anything.

Tuesday, June 27, 2017

Hardie v. NCCA (9th Cir. - June 27, 2017)

There's hard core and then there's hard core.

The majority -- Judges Tallman and Friedland -- hold that the NCAA is allowed to categorically bar felons from coaching at NCAA-certified youth athletic tournaments even if that rule has a disparate impact on minorities.

The concurrence -- Judge Faber, sitting by designation from West Virginia -- totally agrees, and would also go further and expressly hold that Title II doesn't even allow disparate impact claims in the first place.

And Judge Faber would do so even though the NCAA expressly abandoned this argument in its briefs on appeal, which was only raised by amici.

That's the hardest of judicial core.

Monday, June 26, 2017

Miranda v. Selig (9th Cir. - June 26, 2017)

Sometimes you file appeals (or even entire lawsuits) knowing full well that they're going to lose, but hoping -- sometimes without hope -- that the United States Supreme Court will eventually step in.

Almost always, you're totally right that you're going to lose, and your hopes for Supreme Court review are -- almost always -- similarly dashed.

All of these are thoughts that I had when I read this morning's Ninth Circuit opinion.

Of course the plaintiffs were going to lose in the Ninth Circuit.  Just as they did in the district court.  Just as they will (almost certainly) when they petition for certiorari in the Supreme Court.

Now, factually, are minor league baseball players underpaid?  Yes.  Potentially, criminally underpaid -- in a moral sense, anyway.  Absolutely.  Totally.  No question there.

(In this regard, some enlightening facts worth knowing from the opinion:  "Although MLB’s salary guidelines are not publicly available, the plaintiffs, a class of minor league baseball players [] allege MLB requires that all first-year minor league players earn $1,100 per month, Class-A minor league players earn $1,250 per month, Class-AA minor league players earn $1,500 per month, and Class-AAA minor league players earn $2,150 per month. The Players allege that most minor league players earn less than $7,500 per year, with some earning as little as $3,000. Minor league players receive no salary for spring training, during which they work fifty to sixty hours per week.")

Similarly, do the major league teams conspire to set those same salaries?  I'm totally confident (based on nothing) that they totally do.  Just like they control what team you play for in the minor leagues, how long you're bound to a given club once you're drafted, etc.  It's a business.  The teams conspire.

But does that violate the antitrust laws?

You know the answer as well as I do.  No.  Not at all.  Not according to precedent. Not only precedent, but longstanding precedent.  Precedent that might be crapola, but that Congress has not only never seen fit to change, but has affirmatively seen fit to retain (albeit in the context of making sure that the "baseball exemption" to the Sherman Act gets limited to baseball and not extended to other professional sports).

You can't file an antitrust lawsuit against baseball.  Period.  Including the one here.  If you want to change that, you need to persuade Congress.

And good luck with that.

Minor league baseball players strike out.

Thursday, June 22, 2017

Arias v. Raimondo (9th Cir. - June 22, 2017)

If you're an attorney representing a defendant in an employment-related case, sometimes you find out -- and have good reason to find out -- that the plaintiff employee is an undocumented alien and hence not allowed to work, or remain, in the United States.

There are definite strategic advantages to bringing that issue up with the authorities and having the plaintiff deported.

Just know this:  If you do so, you -- the lawyer -- can be sued for a ton of money under the retaliation provisions of the FLSA.

Definitely worth knowing.

Wednesday, June 21, 2017

Brewster v. Bick (9th Cir. - June 21, 2017)

I'm genuinely confused.

I'm incredibly sympathetic with the result reached in today's opinion by Judge Kozinski.  It's absurd that Los Angeles has a law that allows the city to impound a vehicle for 30 days -- a minimum of 30 days -- when it's driven by an unlicensed driver.  Sure, the City can impound the thing.  Sure, there's an interest in getting unlicensed drivers off the street.  But once (as here) the actual owner shows up, shows her valid license, and offers to pay all towing and impound costs, there's no doubt in my mind that the City should release the vehicle to her.  If she has to pay a subsequent fine as well, that's fine.  But the City says that even if all that happens, it has the right (and, under the law, a duty) to keep the vehicle in impound for the entire 30 days.  That's absurd, in my view.  Or at least incredibly unjust.

So when the Ninth Circuit today unanimously holds that this practice is unconstitutional, as a former vehicle owner in Los Angeles, I couldn't help but applaud.  Bravo.

Yet I seriously don't get the rationale behind the holding.

The City says that the seizure is an administrative penalty that's designed to stop unlicensed drivers, and also cites a plethora of cases that says that these sorts of things are permissible under the Fifth and Fourteenth Amendments.  Judge Kozinski's opinion, however, says that focuses on the wrong portion of the Constitution, and holds that the seizure here violates the Fourth Amendment because it's excessively lengthy.  Judge Kozinski says that the Fourth Amendment is simply different than the Fifth.

Judge Kozinski's definitely right that these are two different amendments.  He's also definitely right that there are indeed cases that say that an excessively long detention (of either property or a person) may well turn a valid search under the Fourth Amendment into an invalid one.

Okay, so they're different.  At least in part.

Let's put entirely to one side the fact that, in truth, as applied to alleged state misconduct (as here), both amendments are incorporated by the Fourteenth Amendment, so we're in truth actually only talking about the same amendment in both places.

Wholly apart from that, I just remain confused as to why the Fifth Amendment holdings aren't a substantive defense to the Fourth Amendment claim.

Judge Kozinski says that, sure, maybe the administrative penalty here is permissible.  Maybe it's okay under the substantive provisions of the Constitution (e.g., the Fifth Amendment) to punish someone who lets an unlicensed driver use her car by taking away that vehicle for thirty days.  That's an okay and legitimate way to deter such misconduct.  (In truth, you can tell from the footnotes that Judge Kozinski's not entirely sure that's right, but he concedes -- at least for purposes of argument -- that's perhaps true; he instead holds that it's irrelevant.  And the Fifth Amendment precedent here is indeed not so great for the plaintiffs, which likely underlies Judge Kozinski's argumentative concession.)

But, he says, just because you can validly seize a vehicle under the Fifth doesn't mean that a lengthy seizure is okay under the Fourth.


I gotta say, at least to me, it seems like the two inquiries have to overlap.  And I'm not exactly sure how Judge Kozinski's opinion deals with that overlap.

Let's take an easy example first.  A hypothetical.

Let's say that instead of saying 30 days', LA's ordinance is even harsher than it is, and says that if an unlicensed driver drives a vehicle, the City is allowed to take the vehicle.  It's forfeited.  Period.  That second and forever.  Let's also assume that such a seizure is permissible under the Fifth Amendment.  Then a plaintiff files a class action lawsuit (as here) that alleges that, regardless, that seizure violates the Fourth Amendment.

Well, geeze.  Plaintiff surely loses that one, right?  Because once the City grabbed the vehicle, it was theirs.  You weren't deprived of anything that was yours any more.  So the detention wasn't overly lengthy as far as you were concerned because the vehicle wasn't yours once the City seized it.  Seems to me that the City wins that case.

At a facial level, it would seem bizarre to me that a harsher ordinance that allowed a seizure forever (or for 1000 years) would be constitutional and yet a lesser ordinance that allowed a seizure for 30 days would suddenly become unconstitutional, no?

And the principle behind the hypothetical seems the same regardless of whether we're talking about pure ownership versus possessory interests.  The first thing one learns in Property class is that what we call "ownership" of a vehicle is really just a bundle of sticks.  Temporal possession is simply one of those sticks.  If the Fifth Amendment permits the City to punish you by taking away one of those sticks -- whether that stick is possession forever or for 30 days -- then once you commit the violation, you don't have that stick any longer.  So, to me, I'm not sure it makes sense to say that you've been deprived of that stick for an "excessive" period if we've already held that the City was entitled to take that stick entirely.  If they can seize the thing for 30 days as a penalty, then it's not yours (at least during that period), and you can't complain about that, under the Fourth Amendment or anything else.

So, if only as a doctrinal matter, I'm not entirely confident that Judge Kozinski's claim that the City's "focusing on the wrong Amendment" totally holds water.  Seems to me like there's huge overlap, and I leave the opinion -- even after thinking about it quite a bit -- wondering what the panel's response to this argument entails.

And then there's the additional little problem of precedent.

I don't want to get too much in the weeds here.  But the case that immediately came to my mind when I first read this opinion was Bennis -- a Supreme Court opinion that Judge Kozinski's opinion doesn't (I think) mention at all.  That's no only because that prior opinion squarely involved the analogous seizure of an automobile for (relatively) minor conduct, but also because the Supreme Court's holding in that opinion was memorably harsh.

The state in Bennis passed a statute that allowed the state to seize a vehicle -- forever -- if that car was used to pick up a prostitute.  Sure enough, a husband did just that, the state followed up on its statute and seized the vehicle forever, and the innocent wife, who co-owned the vehicle, claimed that seizure was impermissible.  Surely she hadn't done anything wrong, since she definitely didn't encourage her husband to pick up prostitutes in the car, and so even if you could punish her husband, she said, she thought that it was definitely impermissible to forfeit at least her half of car to the state.  Which was what the statute indeed did.

Pretty good argument, right?

No dice.  The Supreme Court held that it was perfectly okay to make the wife lose her vehicle forever.  The Constitution was completely okay with that.

Well, if a totally innocent person can lose her car forever if it's used for misconduct, I'd think that a partially culpable person (who deliberately loaned her car to an unlicensed driver) could lose her car for a lesser period of time (30 days), right?

Not according to today's opinion.  Which just seems odd to me.

Now, were he to mention it, I'm sure that Judge Kozinski would attempt to distinguish Bennis by saying that that was a case involving the Fifth Amendment, not the Fourth.  But two things would still stick out.  First, when you read Bennis, I think that every objective observer would be a thousand percent confident that a Fourth Amendment argument in that case would have fared no better -- and may even have fared worse -- than the Fifth Amendment argument that was rejected.  So it's a slender reed on which to distinguish a case if the Court itself would have definitely rejected that distinction.

Moreover, again, the rationale of Bennis just seems inconsistent with the Ninth Circuit's underlying holding.  The opinion in Bennis concluded by saying that the statute did not violate the Constitution because "the property in the automobile was transferred by virtue of that proceeding from petitioner to the State."  That underlying doctrinal rationale seems equally applicable to the 30-day possessory interest asserted in the present case; it was gone as a result of the underlying misconduct, so there's no constitutional violation.

Anyway, the long and short of all of this -- perhaps overly long, I admit -- is that I'm not sure that the Ninth Circuit's stark distinction between Fourth and Fifth Amendment claims in the present case is an obvious, or even tenable, one.  Seems to me that there's a darn good argument that if it's okay under the Fifth, it's okay under the Fourth as well.  At least in a case like this.

And that's from someone -- me -- who will freely admit that he'd be quite inclined to find that it violates the Fifth.

Tuesday, June 20, 2017

Jordan-Benel v. Universal City Studios (9th Cir. - June 20, 2017)

Claims that someone stole your screenplay and wrote the same thing are often weak.  This one may be otherwise, at least if you believe what's in today's Ninth Circuit opinion.

Here are the relevant facts:

"Around January 2011, Jordan-Benel wrote a screenplay entitled Settler’s Day about a family’s attempt to survive an annual, state-sanctioned, 24-hour period in which citizens are allowed to commit any crime without legal consequences. He registered the screenplay with the Writers Guild of America and the U.S. Copyright Office.

Around June 2011, Jordan-Benel’s manager, Adam Peck, emailed David Kramer, Managing Director of Feature Productions at United Talent Agency (“UTA”), about Settler’s Day. Kramer responded that Peck should contact Emerson Davis at UTA to discuss the screenplay. Peck then spoke with Davis and asked permission to submit the screenplay. Davis agreed and asked that Peck email the screenplay to both Davis and Kramer. On July 8, 2011, Peck submitted the screenplay.

Based on custom and practice in the industry and prior dealings between UTA and Peck, UTA understood that the submission was not gratuitous and was made for the purpose of selling the screenplay to a UTA client. Around July 13, 2011, Davis emailed Peck to confirm that he had read the screenplay but that he was going to “pass.” Nonetheless, someone at UTA sent the screenplay to UTA client James DeMonaco. DeMonaco and his partner, Sebastian Lemercier (also a UTA client), wrote a script entitled The Purge, which allegedly copies Jordan-Benel’s ideas from Settler’s Day."

That doesn't sound like an absurd claim, does it?  And there's a lot of money at stake, since there's not only the original movie, but also a couple of sequels.

Now, even with a decent claim on the merits, you need to make sure that you don't mess things up.  In the present case, there may well have been a strategic error, since the plaintiff not only sued to obtain damages, but also for declaratory relief that he was the owner of the screenplay and hence entitled to credit.

Two problems.  One, such relief is foreclosed by precedent.  Two, it potentially opens you up to an anti-SLAPP motion.

And an anti-SLAPP motion is precisely what the defendants file.

Plaintiff ultimately (and wisely) abandons the "credit" claim, but defendants press on with the anti-SLAPP motion, both below and on appeal.  And rightly lose.  Asking for money because someone stole your work doesn't arise out of free speech activity.  Judge Pregerson's opinion is spot on.

But it was still a strategic mistake to ask for credit.  One that might have cost the plaintiff on appeal (and still might cost them on remand, since the Ninth Circuit correctly notes that getting one SLAPP claim dismissed still might lead to a fee award even if the rest of the suit has merit.)

A reminder to be careful what you plead.

More is sometimes less.

Thursday, June 15, 2017

Rossdale Group LLC v. Walton (Cal. Ct. App. - June 15, 2017)

I often tell my students that capacity and standing are two different things, with different rules and procedures.  Justice Rushing amply highlights those differences in today's opinion.

The Court of Appeal's limited holding is that -- at least for standing purposes -- it's okay for a corporate entity to sue under a registered d/b/a, even if that's not its formal legal name.  But more broadly, the Court of Appeal also says that (again, for standing purposes anyway) it's even okay to sue under whatever name you'd like, even one that's totally fake.  So if I, Shaun Martin, want to sue as "John Doe", we know that's okay (fictitious names), at least in California.  But apparently I can sue under the name "Barack Obama" if I want to as well, as long as I'm asserting my own claims rather than this.  I can see some practical problems with that, but I concede I'm not exactly sure where they fall in the standing/capacity continuum, and, yeah, I guess it's not an actual standing issue since they are MY claims.  As long as I was the one who was, say, run over and injured, and that injury is what I'm indeed suing for, if I want to call myself Barack Obama, or the Tooth Fairy, in the complaint, I guess at least for purposes of today's holding, that lawsuit gets to go forward.

Interesting stuff.

It gets more complicated when, as here, the underlying corporate entity was dissolved.  Now, that is definitely an issue of capacity.  But there's a dispute about that; the plaintiff says that its assets and liabilities were taken over by another entity, the opposing party says that's not entirely true, etc. etc.

But that's not a standing issue.  That's something else.  SOMEONE was injured.  And SOMEONE is claiming to be that person.  Maybe they are, maybe they aren't.  When you're dealing with admittedly fictional entities like corporations and LLCs, that's maybe not so easy to tell.

So that's an issue.  Just not, as Justice Rushing explains, one that involves standing.

U.S. v. Hernandez (9th Cir. - June 15, 2017)

I seriously don't know how we expect juries to do their job competently.  Because I'm not a moron, and have also been an attorney for a quarter century now, and even I can't fully follow the Ninth Circuit's explanation today as to what it means (or what we have to tell a jury) when we say that someone who ships firearms from one state to another may be acting in "willful"violation of the law.

If even someone like me can't fully understand what we're saying, how in God's Green Earth can we expect a jury of laypeople with absolutely no legal training to figure it out on their own (instructed properly or not)?

I understand why there's sufficient evidence to convict here.  Mr. Hernandez drove a super long way to buy a ton of guns in Arizona that he couldn't have bought in California, and then drove back here and they ended up in the hands of others.  Yeah.  That may well be illegal.

But it's only illegal if it's willful, and, geeze, I'm just at a total loss to explain to a nonlawyer -- or even a lawyer! -- what the true dividing line is between willful knowledge of illegality and lack of such knowledge.  Even after reading the opinion.

Look, I understand, we have to do our best, and I appreciate the Ninth Circuit both caring deeply about the issue (it reverses the conviction here because the instruction, while admittedly "accurate", allegedly wasn't "clear enough") and trying their absolute best.

But lots of the opinion nonetheless reads like eleventh century theological analyses of how many angels can fit on the head of the opinion, and -- worse -- how to explain that reasoning to largely disinterested nontheologians.

Wednesday, June 14, 2017

Weil v. Elliot (9th Cir. - June 14, 2017)

The past decade of Supreme Court "jurisdiction" jurisprudence can largely be summarized as follows:

Every deadline you think is jurisdictional almost certainly isn't.

Yeah, sure, you could read a dozen Supreme Court opinions and literally hundreds of lower court opinions on that precise issue for the details.  But I'm just told you the basic scoop.  And my guess is that ninety percent of more of those opinions come to precisely that conclusion, and just gussy up the law a little bit.

That's not only the relevant law these days, but it's a principle that the judiciary is fairly eager to apply in cases like the one today.  In which a dude gets a bankruptcy discharge by fraudulently omitting his ownership of a home, and then the lower courts say, sorry, there's nothing we can do about that even though we discovered it only after he received his discharge.

Oh yes you can, the Ninth Circuit says.  The relevant motion may have been filed a bit late.  But that's not a "jurisdictional" bar.  The debtor didn't raise that defense at the time, so we're (thankfully) empowered to do the right thing and deny the guy a discharge.

Yep.  That's definitely the state of the law these days.  And you can see why.

Tuesday, June 13, 2017

U.S. v. Gila Valley Irrigation Dist. (9th Cir. - June 13, 2017)

For yet more evidence that water rights matter very much in our (increasingly) dry world, check out today's 44-page, single spaced opinion by the Ninth Circuit.

Even water rights over 1.4 acres of land in a scrubby portion of Arizona are worthy of expansive litigation, analysis, and discourse.  Not to mention all the other properties at issue.

Water.  It's a big deal.

Monday, June 12, 2017

People v. Sperling (Cal. Ct. App. - June 8, 2017)

This opinion, and the underlying facts, are definitely interesting.

Justice Yegan begins the opinion with:  "In this extremely aggravated sexual assault case, . . ."  Oh boy.  I have read some incredibly serious sexual assault cases in my time.  Really, really serious.  I can only imagine what this one is going to be about.  My mind's eye imagines a series of events that are indeed disturbing.

Next I read:  "The dismissed counts were one count of oral copulation and two counts of anal and genital penetration by a foreign object."  Yep.  This is going to be incredibly ugly and serious.

Next:  "Amanda, the victim, is chronologically 25 years old. She is developmentally delayed with an intelligence quotient (IQ) of about 50. “She is blonde and petite and looks and acts like a child.”  My goodness.  So it's going to be vicious, violent abuse of someone like that.  Disgusting.

But it turns out that there's no gun, or punching, or stuff like that, all of which I was expecting from the introduction.  It's instead one of your classic "nonconsensual touching during a message" cases.  Which are absolutely criminal, but I was expecting something else.

The victim apparently suffers from Prader-Willi syndrome, the effects of which cause mental retardation and an insatiable appetite.  “People with this syndrome always feel hungry; no matter what they eat they are never full.” So the victim was "on a strict diet of 850 calories per day."

Okay, I guess that makes sense.  But then I read:  "As a reward for good behavior and 'for following her diet restrictions,' Amanda received a massage each Saturday. Appellant was the masseur."  Uh, okay, I guess.  I might have invented a different positive reinforcement technique, but if people in the field think this is a better technique, I guess I won't disagree.

Next sentence:  "During the massage, she was completely naked, but covered by a blanket.”

Really?  You've got a totally vulnerable person, intellectually disabled, and you're getting her naked very week?  Does that really seem wise?  I was a little dubious about the message to begin with, and thought we might have come up with something better.  But now I'm affirmatively worried.  Even before (as here) I know where this is going to end up since the story is recounted in the California Appellate Reporter.

So nonconsensual touching transpires, and the defendant is convicted.  Good.  You can't do that.  You deserve to be punished.  Inexcusable.

Though defendant tries to at least mitigate his punishment.  And does so successfully.  Imagine in your head a picture of the defendant.  What he looks like, his facial features, his background, etc.

Is this who you were thinking of?  "Appellant noted that he is 68 years old and 'has lived a crime free life up until now.' . . . [He] has Parkinson's disease and suffers from back pain."  He says that what he did was caused at least in part because he “was influenced by the medication he was taking for his Parkinson's disease. A side effect of this medication, Carbidopa-Levodopa, is increased sexual urges. He was taking a high dose of the medication, which caused him to have more sexual impulses."

The trial court ultimately sentences this 68-year old man to 8 years in prison, which is what the prosecutor requested and that constitutes the middle term for the relevant offenses.  That was after the "prosecutor asked that '[appellant] be given the benefit of his early plea and the fact that he waived prelim. [i.e., waived his right to a preliminary hearing].'”  Appellant appeals, claiming that his sentence was excessive.

The Court of Appeal not only affirms, but as you can perhaps tell by the strongly-worded language used in the introduction, isn't sympathetic at all.  Indeed, it drops a footnote that says:  "The appeal is frivolous."  And then also says in the text that "Appellant is fortunate that he was not sentenced to prison for the maximum 10-year term" rather than the eight years he received.

A strong reaction to the facts of this case.  Beyond the reaction that you normally see even in very serious domestic violence and murder cases.

People v. Wilford (Cal. Ct. App. - June 12, 2017)

Here's a 10-page story that describes, in detail, domestic violence between a man and a woman who would not leave him.

It doesn't end as badly as it might.  But it ends badly enough.

Thursday, June 08, 2017

In Re Jesse S. (Cal. Ct. App. - June 7, 2017)

This is another awesome opinion.  One that you know is written by Justice Bedsworth even before you've finished reading the second page.

Great analysis, great thoughts, great caring.

The opening pretty much summarizes the holding, so I'll reprint those first four paragraphs in full:

"This is an unusual case. It is unusual in the nature of the relief sought and even more unusual in our inability to provide that relief, even though we think it warranted. We publish our opinion in the hope the Legislature will either change the law or – by reconsidering it and leaving it unchanged – reassure us that the present system is what they intended.

About four months before his 20th birthday in 2016, appellant Jesse S. filed, in propria persona, a request under section 388.1 of the Welfare and Institutions Code to return to juvenile court jurisdiction and the foster care system. His reason was that the couple who adopted him the day before his 18th birthday were no longer supporting him, even though they were receiving payments on his behalf from California’s Adoption Assistance Program (AAP). (§ 16115 et seq.). The judge denied the request, noting that under the literal language of section 388.1 the very fact the couple were still receiving AAP payments on Jesse’s behalf precluded Jesse from reentry into the juvenile dependency system.

We affirm, though reluctantly. Jesse has pointed out an anomaly in section 388.1 that the Legislature might want to address. The trial judge read current section 388.1, subdivision (a)(4), to mean exactly what it says: A nonminor between 18 and 21 is eligible for reentry into the juvenile dependency and foster care system only if his or her adoptive parents no longer provide ongoing support to that nonminor and also no longer collect AAP benefits on behalf of that minor. Since there was no question Jesse’s adoptive parents were still collecting adoption assistance program payments on Jesse’s behalf, the judge was forced to conclude Jesse was not eligible for reentry under the statute.

We agree with Jesse’s point that the Legislature probably did not intend a former foster youth’s reentry in the dependency system to depend on the glacial bureaucratic processes which govern termination of AAP payments to adoptive parents no longer supporting adopted ex-foster care youth. That said, while the literal application of the statute may yield an anomalous and unintended result in cases like Jesse’s, those results are not so anomalous that we can accept Jesse’s invitation to invoke the common law absurdity rule to delete what the Legislature plainly included when it drafted section 388.1. (See Code Civ. Proc., § 1858.) The problem requires a legislative fix if there is to be one."

Beautiful.  Extraordinarily well done.

I just want to add one tiny additional perspective.

When I first read those opening paragraphs, I thought that we'd be dealing with a case where Jesse was the good guy and the adoptive parents were total jerks.  They were getting paid by the state but not supporting Jesse, yet there was nothing Jesse could do to get back in foster care.  Those bastards!

But as I read the rest of the facts, I gotta tell you, the adoptive parents actually come off pretty darn well, and I had the exact opposite reaction to the parties as I had when I read the opening paragraphs of the opinion.

Justice Bedsworth ends the opinion by saying:  "This appears to be a case without villains," and then explains that both Jesse and the adoptive parents seem to be acting reasonably (or at least within their discretion).  Truth be told, Justice Bedsworth may be being -- in my view, anyway -- overly charitable to Jesse.  You'll have to read the full facts of the opinion to get the details, but suffice it to say that at least one way to interpret these facts -- albeit one that makes Jesse look not so great -- is that he's a kid with a keen sense of entitlement, who's happy to do drugs, leech off the system, would rather be homeless than stop smoking weed in his parents' house, totals cars he's given since he likes to text while driving them, and now just wants to get back at his "controlling" parents by taking away the little money they're given from the state to support him while he nonetheless keeps the cell phone, medical insurance, and other stuff he gets from his parents, all the while now seeking additional benefits from the dependency system as well.

Now, I'll freely admit, I could easily be reading these facts wrongly.  Maybe the adoptive parents are in fact to blame.  Maybe they're overly controlling.  Maybe Jesse is a hardworking, regular 20-year old who just wants what every kid wants.  Maybe my perspective on this comes too much from being a parent myself -- a parent of kids who, while generally awesome (and I truly mean that:  awesome), can rightly on occasion be accused IMHO of feeling entitled to their way a bit too much.

So, yeah, I can agree that there are no one's a villain here.  But it may also be case that at least one party might not be a saint as well.  And that person might potentially be the opposite of the one you thought if you only read the first four paragraphs of the opinion.

Wednesday, June 07, 2017

People v. Ruffin (Cal. Ct. App. - June 6, 2017)

The first couple of paragraphs of today's opinion make clear the problem of rushing through things like advising criminal defendants of their rights.  Haste makes waste, as it were.

"In the master calendar court, on the date set for trial, appellant exercised his right to represent himself under Faretta v. California (1975) 422 U.S. 806, after the court indicated it would find good cause to continue the trial because appellant’s appointed counsel was engaged in another trial. Before the court granted the Faretta request, appellant initialed and signed a written Faretta advisement form. Thereafter, appellant represented himself at trial before a different judge, and a jury convicted him of both counts. The trial court found the strike and prior prison term allegations true, struck one strike at sentencing, and sentenced appellant to total term of eight years in state prison.

On appeal, appellant contends that the master calendar court failed to adequately advise him of the dangers and disadvantages of self-representation. We agree. The court’s inquiry consisted of asking whether appellant initialed and signed the form (he did) and whether he had any questions (he did not). The court did not ascertain on the record that defendant read and understood the written Faretta form. The court also failed to inquire about ambiguities in appellant’s responses regarding his understanding of the nature of the charges against him. And nothing in the record—not the oral proceedings or the written Faretta form—advised defendant of the penal consequences of conviction—27-years-to-life in state prison. Considering all these circumstances and reviewing the entire record de novo, we conclude that appellant’s Faretta waiver was invalid, because the master calendar court’s inquiry about the Faretta form and the remainder of the record fail to adequately demonstrate that that appellant understood the dangers and disadvantages of representing himself consistent with established case authority. Therefore, we reverse the judgment."

So that's a lesson.  One worth noting.

But when I read the rest of the opinion, and got some more details, I think the lesson here is not simply about haste making waste.  Reading between the lines, we might also want to add to that lesson the principle that "anger makes waste" as well.  'Cause I get a sense that this whole thing may have gone down -- awry, even -- because the judge was a bit miffed.  And in "getting back" at the defendant by short shrifting things, the judge ended up making a mess of it.  As well as resulting in the need for an entirely new trial.

Here are the details.  See if you think I'm reading them correctly:

"On September 30, 2015, the last day for trial, appellant’s assigned alternate public defender was engaged in trial in another case. In the master calendar department, a substitute alternate public defender asked the court to continue the case until October 6, when appellant’s assigned attorney would be finished with the other trial. The court asked appellant, “You give up your right to go to trial today and agree to October 6 or not?” When appellant replied “no,” the court stated that it would find good cause to continue the trial.

The alternate public defender then informed the court that appellant wanted to start the trial and proceed in pro. per. The court responded, “You are not that stupid. You have one of the best lawyers in the county.” Appellant stated, “You can’t keep me in jail for allegations. I have rights. You are unconstitutionally keeping me in prison. You are violating my rights to a speedy trial.” The court told appellant, “don’t talk to me anymore. Put him back. Any family here?” Appellant’s father stated that he was present. The court said, “Maybe you can talk to him. He wants to commit suicide. He has a good lawyer. He doesn’t know how to be a lawyer. If he wants to, I will let him. If you want to talk to him, it’s up to you. You want to talk to him?” The father replied, “I can talk to him but he wants a speedy trial.” The court stated, “Okay. Thanks for helping me. We will pass this.” The court then took a recess."

[Okay. So far so good.  The judge wants to do the right thing.  Maybe is being a bit blunt.  And short, even.  But perhaps all in service of a good cause.]

"The court provided appellant with a copy of a document later described by the court as “the pro. per. policy memorandum of Local Rule 6.41,” as well as a written advisement and waiver of right to counsel form. . . . When the court reconvened, the following proceedings occurred:

“THE COURT: Recalling People vs. Ruffin. I have documents by Mr. Ruffin. You understand you are requesting to go to trial today and to represent yourself. Is that your wish?
“THE COURT: You had an opportunity to read the documents submitted to you. Those were the pro. per. policy memorandum of Local Rule 6.41. Did you read that?
“THE COURT: Did you understand it?
“THE COURT: I am holding a document entitled Advisement of Waiver of Right to Counsel of 4 pages. On the right-hand side it has initials E.R. Did you put that in there?
“THE COURT: That stand for Elijah Ruffin?
“THE COURT: Is that your signature?
“THE COURT: You have any questions about anything before I send you to trial forthwith?
“THE COURT: Okay. Sent to Department C, Judge Filer for trial today.”

"When the case was called that morning in the trial department, the prosecutor stated his appearance, and the trial court noted that appellant was representing himself. Appellant replied: “Really I don’t want to represent myself pro per. But I have no choice. I’ve been in prison. I wanted a speedy trial. . . . I really would like someone with some type of legal responsibility to represent me because now I have to ask for a couple days to go over this to build a defense for me.” The court replied, “All that should have been taken care of in Department D. Today is day ten of ten. . . . [¶] I’m confident you have been granted pro per status. So we’re here and ready to proceed with the trial, and I intend on going through with the trial.” Appellant stated, “I had no time to go over any paperwork, so if I can ask for some time to go over paperwork, and come back [at] a later date so I can have a defense. This is the first time I’ve seen paperwork regarding this case at all.” The prosecutor replied that appellant had “indicated he was ready today.” Appellant stated, “And what I mean by ready . . . I was ready to go to trial to defend myself with some type of legal help.” The court denied appellant’s request, stating, “No, this has already been litigated and you can’t play games with the court system. I have a waiver form that has been initialed by you and signed by you indicating that you have been properly advised and that you want to represent yourself. Once that determination was made by Judge Cheroske he granted you that right, so the case was sent here for trial.”

So, in short, the first judge had a guy who said he wanted to represent himself because he was not willing to waive his speedy trial rights.  Which was both stupid and created a bit of a hassle for the court.  So the first judge rushed through things.  And then, when it got to the second judge, we had a little of a repeat of the same thing.  A bit rushed.  Probably a bit miffed.  Forced to do a trial at the last minute of a case s/he knew nothing about.  So be it.  Don't really care about all the procedural details. Let's just do this.

Which I understand.  If only at an emotional level.

But it results in wastes like this.  An entire new trial.

To reiterate:  Haste makes waste.

Tuesday, June 06, 2017

Lowry v. City of San Diego (9th Cir. - June 6, 2017)

It's admittedly not an especially good en banc panel draw for Chief Judge Thomas.  But it's still sort of sad (for him, anyway) when the vote is 10-1 and the only person in the en banc draw who dissents is the person who's automatically on the thing -- the Chief.

A split three judge panel decides -- on April Fool's Day of 2016 -- that San Diego's "bite and hold" policy for its police dogs might potentially violate the plaintiff's civil rights in the present case, and on that basis reverses the district court's grant of summary judgment.  The case gets taken en banc in September, and then, today, wham.  10-1.  Summary judgment affirmed.

With Chief Judge Thomas as the 1.

Thursday, June 01, 2017

People v. Gonzalez (Cal. Supreme Ct. - June 1, 2017)

Appellate tribunals often resolve complex issues of constitutional and statutory interpretation.

But sometimes, even at the highest levels, the cases are relatively straightforward.

Take, for example, how the California Supreme Court begins the month of June.  The very first paragraph of today's opinion articulates very succinctly the question presented:

"Under Penal Code section 422, it is a crime to threaten infliction of great bodily injury or death on another "with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat . . . ." (Pen. Code, § 422, subd. (a).) The question here is whether defendant‘s conduct, which included a hand gesture unaccompanied by words or sound, qualifies as a "statement, made verbally.""

Yep.  That's the issue.  Whatchathink?

If it matters, the relevant "gestures" here were made to an off-duty police officer in Indio, and consisted of a gang member running his finger across his neck, making his fingers look like a "gun" and pointing them in the air, and making a "JT" hand sign (which stands for the Jackson Terrace gang in Indio).

The meaning of those gestures is pretty darn clear.  But the question is whether they constitute "statement, made verbally, in writing, or by means of an electronic communication device."

The California Supreme Court doesn't have a difficult time answering that question.

(1) They're clearly not "verbal" statements, because they weren't made verbally.  Nothing oral at all about them.
(2) They're definitely not statements "in writing" since, obviously, no one wrote anything.  And,
(3) They clearly weren't made "by means of an electronic communication device" since no such device was involved.

End of story.  Even if a better (or more comprehensive) statute might cover gestures, this one doesn't.

Not every opinion involves rocket science.

Wednesday, May 31, 2017

U.S. v. Sanchez-Gomez (9th Cir. - May 31, 2017)

By a single vote, the en banc panel holds unconstitutional the Southern District of California's routine practice of shackling every single defendant who appears in court for pretrial proceedings.

Judge Kozinski's majority opinion is, in my view, masterful.  He spends a lot more time on history -- Blackstone, etc. -- than I would, but that's perhaps understandable.  More impressive is that he writes incredibly well; almost lyrically.  In a way that demonstrates that he gets it.  That there's something here that transcends prejudice in front of a jury, inability to take notes, and other assorted practical consequences engendered by shackling.  Instead, he focuses on the dignity of the proceeding:  an intangible, and yet very real and critical, component of criminal justice.  One all-too-often ignored in the modern era of routinized pleas and factory incarceration.  A sample quote from his opinion:

"The most visible and public manifestation of our criminal justice system is the courtroom. Courtrooms are palaces of justice, imbued with a majesty that reflects the gravity of proceedings designed to deprive a person of liberty or even life. A member of the public who wanders into a criminal courtroom must immediately perceive that it is a place where justice is administered with due regard to individuals whom the law presumes to be innocent. That perception cannot prevail if defendants are marched in like convicts on a chain gang. Both the defendant and the public have the right to a dignified, inspiring and open court process. Thus, innocent defendants may not be shackled at any point in the courtroom unless there is an individualized showing of need."

Super impressive.  Made even more so, perhaps, by the fact that Judge Kozinski's vote swung the result.  It was a 6-5 decision.  When (and if) the smart, iconoclastic, libertarian Judge Kozinski is eventually replaced by a knee-jerk partisan, the circuit will be far the worse for it, in my view.

As for who's on the 6 and who's on the 5, it's pretty much what you'd expect.  Though Judge Graber (distressingly) joins the dissent, alongside the usual hardcore conservatives (Ikuta, O'Scannlain, and Callahan) and Judge Silverman, went senior six days after the opinion was taken en banc and hence was eligible to be drawn.

Still, a super close -- and important -- decision.

Tuesday, May 30, 2017

Ledezma-Cosino v. Sessions (9th Cir. - May 30, 2017)

Today's en banc opinion is worth reading in its entirety.  It's about whether it's permissible for Congress to distinguish between "habitual drunkards" and others, and deport the former.  You've got four different opinions on the point, articulating four different views.  They're all great reads.

(I can shorthand the answer for you:  Yes.  So holds a supermajority of the en banc panel.)

Without slighting the importance of the opinions as a whole, or the importance of the questions presented, I just wanted to isolate one portion of one opinion.  Something from Judge Kozinski's concurrence.  Something uniquely personal, and, in that way, perhaps particularly compelling.

Judge Kozinski writes:

"Untold masses were turned away at Ellis Island—or prevented from boarding ships for America—for medical reasons, my grandfather among them. This was a misfortune for those turned away, but excluding aliens for reasons Congress believes sufficient to serve the public welfare is a nigh-unquestioned power of a sovereign nation."

You can get from even this brief quote the tenor of Judge Kozinski's concurrence, in which he articulates his view that Congress (and the President) can do pretty much whatever they want to people who want to come to the United States.

Reading that quote made me wonder:

What would Judge Kozinski's grandfather think of his grandson's concurrence?

Would he agree?  Would he be proud?  Would he think it lacks compassion?

To be clear:  I'm positive that Judge Kozinski's grandfather would be immensely proud (in general) of his grandson and his accomplishments.  I'm only wondering about his (hypothetical) reaction to this particular opinion.

And the larger contextual background of the historical American treatment of Jewish immigrants and refugees only makes the question more salient.

None of which is to imply that the perspective of Judge Kozinski's grandfather is any more (or less) valid than Judge Kozinski's.

But I nonetheless wonder what the guy would think.

(And, were I to reference my own grandfather, when I did so, I'd probably have a fleeting internal thought about what the guy would think about my perspective as I did so.)

Friday, May 26, 2017

Miller v. Ford Motor Co. (9th Cir. - May 26, 2017)

This is one of those cases in which I'm not entirely sure why the panel decides to certify the state law question to the state supreme court.

More accurately, I know why the panel wants to certify the question.  It wants to make sure that it gets the answer right.

But, at least to me, I have a pretty darn good sense of what the right answer is anyway.

The relevant Oregon statute of limitations says that a products liability suit “must be commenced before the later of . . . ten years . . . or . . . the expiration of any statute of repose for an equivalent civil action in the state in which the product was manufactured."

So what if the state in which the product was manufactured has no statute of repose?  Does that mean that there's no limitations period; i.e., you can sue whenever you want?  Even hundreds of years later?

In my mind, it's fairly clear that the answer is "No."  If there's no statute of repose, then there's no "expiration of any statute of repose".  Which in turn means that the limitations period is ten years.

Straightforward statutory interpretation.  Plus it avoids the manifest absurdity of letting someone sue centuries later.

So I'm not sure the need to get the answer right necessitates the delay necessarily engendered by certifying the question to the Oregon Supreme Court.  Seems to me we can do that on our own fairly well.  (For good measure, if the Oregon courts disagree with our conclusion -- or if the Oregon legislature does, for good measure -- they can always interpret or change the relevant statute themselves.)

My attitude might be a bit different if, as is typically the case in these "certified question" opinions, the panel had highlighted various competing approaches by the lower state courts.  But I don't see anything like that at all here.  It doesn't look like there are competing state court opinions interpreting this statute.  It's instead just a straightforward "What does this statute mean?" issue.

So, unless there's something more here, I might well just have decided this case on my own, without the need to burden another court and engendering a delay in the underlying case.

Wednesday, May 24, 2017

EEOC v. McLane Company (9th Cir. - May 24, 2017)

The EEOC wants contact information from the defendant about those female employees the company required to take a strength test (their names, social security numbers, last known address, etc.).  The district court didn't allow the EEOC to discover this information.

The Ninth Circuit reviewed the matter de novo and reversed.  But then the Supreme Court took up the case and said, no, the standard of review is abuse of discretion.

So today, the Ninth Circuit revisits the case under the new standard.

And, in perhaps no great surprise, comes to the exact same conclusion.

Some of the panel's reasoning may also be useful for anyone who wants to obtain similar contact information in analogous types of cases.  Check this out:

"[T]he pedigree information is relevant to the EEOC’s investigation. Ochoa’s charge alleges that McLane’s use of the strength test discriminates on the basis of sex. To decide whether there is any truth to that allegation, the EEOC can of course speak to Ochoa about her experience with taking the test. But the EEOC also wants to contact other McLane employees and applicants for employment who have taken the test to learn more about their experiences. Speaking with those individuals “might cast light” on the allegations against McLane -- whether positively or negatively. To take but one example, the EEOC might learn through such conversations that other female employees have been subjected to adverse employment actions after failing the test when similarly situated male employees have not. Or it might learn the opposite. Either way, the EEOC will be better able to assess whether use of the test has resulted in a pattern or practice of disparate treatment. To pursue that path, however, the EEOC must first learn the test takers’ identities and contact information, which is enough to render the pedigree information relevant to the EEOC’s investigation."

And that's not all:

"McLane contends that, given all of the other information it has produced, the EEOC cannot show that production of the pedigree information is “necessary” to complete its investigation. But the governing standard is not “necessity”; it is relevance. If the EEOC establishes that the evidence it seeks is relevant to the charge under investigation, we have no warrant to decide whether the EEOC could conduct the investigation just as well without it. The EEOC does not have to show a “particularized necessity of access, beyond a showing of mere relevance,” to obtain evidence. University of Pennsylvania v. EEOC, 493 U.S. 182, 188 (1990). Congress has not left it to employers accused of discrimination to decide what evidence may be necessary for the EEOC to complete its investigation. Id. at 193."

What's true for the EEOC is presumably true for other plaintiffs (and their counsel) as well.

A potentially useful holding.

Tuesday, May 23, 2017

In Re Marriage of Janes (Cal. Ct. App. - May 23, 2017)

I think this is a darn good -- and equitable -- opinion by Justice Miller.  The separation agreement was signed in 2010 that says that Wife was entitled to $112,000 of Husband's 401(k) account.  That in turn means that Wife's entitled to that amount in 2014, plus whatever gains (or losses) transpired on those funds.  (As it turns out, gains.)  Because, as of 2010, it was her money.

I also thought the Court of Appeal was right that the relevant date was (probably) the date the agreement was signed, not the date of separation.  That too follows from the analysis.

So good job of the trial court changing its mind on the merits from its initial view.  And good job of the Court of Appeal affirming the correct part of what transpired below (the gains) but reversing the wrong part (the date).

I'd only make one change in the opinion, and it's an admittedly minor one.  Page 10, first paragraph:  "The instant case is distinguishable from Thorne. Wife is seeking the same amount of principle that was awarded to her on April 19—$113,392 of the 401(k) account. In Thorne, the wife was seeking to change the amount of principle she received."

I think those two words should be "principal", not -le.

But otherwise great.