Sunday, December 25, 2005
Wednesday, December 21, 2005
I strongly criticized the panel opinion when it came out earlier this year (in March), aruging that it stretched both the facts and the law in an attempt to reach a particular result (namely, whether reasonable suspicion is required to search a parolee). I predicted, among other things, that this opinion "was not long for this world," and argued that this was a good thing, since both the majority opinion as well as the concurrence made their authors look pretty bad.
Apparently, in the end, everyone agree with me. Because the panel elected to withdraw the opinion and issue in its place a new one that properly (and, this time, unanimously) resolves the case on narrow, fact-specific grounds. Good job, Judges Tashima, Pregerson, and Clifton. Belated. Very. But good. The earlier opinions were not your finest hours.
Monday, December 19, 2005
Anyway, if you like circuit splits, you'll like this opinion by Judge Tashima. Here's the scoop. Section 1692g of the Fair Debt Collection Practices Act (FDCPA) requires debt collectors to inform debtors of certain things, including their right to dispute the debt. Lots of the rights in the FDCPA are expressly activated by "written" disputes, but Section 1692g(a)(3) doesn't make any reference to the need for a "written" dispute -- rather, any form of dispute (e.g., an oral communication) would seem to suffice. So, pursuant to that statutory language, does a debt collector violate the FDCPA when it tells the debtor (as Bridgeport Financial did here) that it will presume that the debt is valid unless the debtor notifies it "in writing" that the debtor disputes the debt?
Back in 1991, the Third Circuit, in Graziano v. Harrison, said "No." But, now, the Ninth Circuit, in a unanimous opinion by Judge Tashima, says "Yes."
There's your circuit split. Ordinarily, I'd predict intervention by the Supreme Court at some point to resolve the issue. But, here, I think that Congress will actually get into the act first and change the statute to overrule the Ninth Circuit's rule legislatively. Which I'm sure Judge Tashima would be fine with. But that's my guess as to what will (at least eventually) happen. We'll see.
Thursday, December 15, 2005
Yes, yes, I know. I've repeatedly complimented Judge Kozinski (see, e.g., here), both on his writing and on his analysis, in the past. So do a lot of other people. But that doesn't mean it's not true. Plus, I'm hardly a (total) whore, and I'm happy to slam him when I think it's appropriate (see, e.g., here and here).
But not here. This one is a great opinion. It's a death penalty case, and Judge Kozinski begins his opinion in a typically breezy (and smile-inducing) fashion with the sentence: "Cal Brown is not a nice man." He then goes on to describe Brown's horrible crimes, and does so in two brief paragraphs that give the reader a fully accurate measure of the man -- and his offenses -- without overdoing it. And, as usual, Judge Kozinski gets in some (entirely appropriate) pop culture references, including a discussion (in footnote 4) of precisely what it means when someone make the contemporary gesture that says "Talk to the hand."
What's most impressive, however, is how quickly and persuasively Judge Kozinski deals with the merits. One really needs to read the opinion to see what I mean. And that's not hard; it's a short one, and tops out at 11 pages. And every page is a masterpiece.
Judge Kozinski holds that Jurors X and Y were properly dismissed for cause based upon their expressed reluctance to impose the death penalty, but that Juror Z was improperly dismissed on those same basis. His analysis is concise, accurate, and ruthlessly persuasive. Yes, one could write a 50 page opinion that says that same thing. But Judge Kozinski's is better. Again, I wish I had his (and his law clerk's) literary talent in this regard.
Finally, what's also striking about Judge Kozinski's opinion is how obviously, obviously right he is -- that the proper resolution is so clear that it even satisfies the strict AEDPA habeas requirements -- alongside the fact that every single court below found the other way. The trial court in Washington, the Washington appellate courts, the state habeas courts, and the federal district court all upheld the exclusion of Juror Z. And yet, in 11 short pages, Judge Kozinski demonstrates that these holdings are uniformly erroneous. And does so in a manner that leaves -- at least for me -- utterly no doubt.
Which not only demonstrates Judge Kozsinki's talents, but also the critical importance of having smart, hard-working, and interested judges on the bench. When you do, you get opinions like this one. Impressive.
Wednesday, December 14, 2005
Interesting stuff, all. Neat. Worth a gander.
The other interesting thing is something that seems to entirely escape Judge Callahan's attention, since it's not mentioned anywhere in the opinion. Judge Callahan recognizes that the strongest argument on Clare/Disney's behalf is the "movement of freedom" argument based on Section 304(c)(6)(D), and that her/its position is one that is squarely supported (and advanced) by Professor Nimmer's seminal copyright treatise. Judge Callahan ends up saying, basically, yeah, that's his view, and he's smart all right, but there's actual precedential support for that position, so we're not going to adopt it. Which is fine. But she might also have mentioned -- or at least I'll mention here -- that Professor Nimmer also isn't entirely a stranger to the litigation, since the counsel of record for Clare/Disney is none other than David Nimmer, who's Professor Nimmer's son and who continues to maintain his father's treatise. So, basically, Clare's best argument amounts to "Well, my lawyer wrote a book that says that I should win, so I should win." Not something you see every day!
Anyway, Clare loses, Disney loses, and Nimmer loses. Affirmed.
You filed a lawsuit against your employer. The federal district court dismissed your suit with prejudice. You appealed. The Ninth Circuit affirmed.
While the first suit was on appeal, you filed a second lawsuit against the same employer, raising claims that were related to the first suit. Indeed, you tried to add these very same claims to the first lawsuit, but couldn't because the district court denied you leave to amend. And the district court promptly dismissed your second suit as well.
So now you're appealing. Yet again. To the Ninth Circuit. On issues of res judicata. In a situation identical to those that confronted the First, Second, Third, Fifth, and Eight Circuits. All of which affirmed a res judicata dismissal.
Oh, by the way. You're representing yourself. Great. What are the odds you're going to win your appeal?
Exactly. Zero. Affirmed.
Monday, December 12, 2005
You'd think that people would learn. Especially attorneys. But I guess not.
Remember the whole Trevor Law Group scandal? Well, this is an attempt by Harpreet Brar, an attorney from Brea, to follow in the footsteps of that esteemed firm. It seems that Brar -- like the Trevor Law Group -- filed a plethora of shakedown suits against small businesses, which in turn prompted the Attorney General to file a 17200 action against Brar. Pretty routine, actually.
What's perhaps most interesting is how Brar defended that suit. Talk about being a bad lawyer. Wow. It's one thing to stink when you're defending a client. Happens all the time, I'm sure. But doing a totally incompetent job when you're defending yourself. That takes skill.
But Harpeet Brar accepts this impossible mission. And performs admirably. Admirably in an incompetent sort of way, anyway. He files an anti-SLAPP motion to the complaint against him, which buys him time, but the motion is so meritless that it's not only denied, but his appeal from the denial is summarily dismissed by the Court of Appeal since it's "frivolous at a glance". Then, on remand, when it's time to answer, Brar neglects to do so. Oops. So the Attorney General asks for a default. And Brar doesn't get it together to respond to even that request for over three months. Then there's another couple of months of delay thereafter. Check out the sequence of events at the top of page three of the opinion. Yikes. Not really the kind of lawyer I want working for me.
And it serves Brar well. Not. The court ends up imposing a default judgment of $1.79 million in civil penalties against him, plus a permanent injunction. Not exactly a resounding win for Mr. Brar. His excuse, by the way, for not answering the complaint. "Someone must have been stealing mail from my home mailbox." Which, of course, even if true doesn't explain many many months of delay. He'd have been equally successful with "My dog ate my answer." Affirmed.
P.S. - The Court of Appeal's opinion notes that Brar was put on probation by the State Bar for two years as a disciplinary measure. Pretty impressive, given that Brar was only admitted to the Bar in April 2000. The State Bar's web site, however, doesn't have a record of the imposition of such disclipline. Interesting. For a counterexample, take, for example, Harbhajan Brar of Fresno, whose short career in the law consisted of being admitted in December 1988, being publicly reproved two years later (in February 2001), incurring a criminal conviction (and interim suspension) exactly a year later (in February 2002), and resigning from the Bar with charges pending couple of months later. An impressive three year career. Not exactly Pepperdine Law Schools finest graduate.
Thursday, December 08, 2005
In other words, an important holding. But let's all just take a guess at how it comes out. Not by the nature of the testimony or the law, but rather merely by reference to the underlying crimes.
The defendant, Patrick Paul Prince -- "PPP", as I like to call him -- was convicted of breaking into the homes of five different children in the middle of the night and sexually assaulting each of them. PPP allegedly sexually assaulted EK, a 10-year old girl, in October 2001, by threatening her family and then forcibly assaulting her. PPP ran off when EK's mother returned to the house, and EK came running out of her bedroom screaming "Mommy, run, get out, he has a knife and he'll kill you!" Yikes. Then, two months later, PPP allegedly broke into the house of KS, a 12-year old girl, and threatened her and her family with a gun, and started to sexually assault her. When PPP put down his gun to get duct tape to wrap up the girl, KS picked up the gun and fired off two shots at him. Okay, maybe not the smartest thing for her to do. Since PPP grabbed the gun from her and could have killed her in response. But didn't; instead, he fled. Which made me smile. Good for KS. Too bad she didn't hit him. (Interesting, KS then went to her mother's bedroom and woke her up, crying hysterically and screaming that someone had tried to rape her. The mother told KS that she was dreaming. To which KS responded that she wasn't -- that this was real, and that she had fired shots at her attacker. At which point the mother went to KS's bedroom and saw the bullet holes. No dream, Mom. This one's real.)
Ten months later, PPP breaks into the bedroom of a 16-year old girl and sexually assaults her, holding an ice pick. Then six months later, PPP breaks into the bedroom of an adult woman (in her 30s), carrying a knife this time, and sexually assaults her as well. Then, five short days later, he breaks into the home of a 12-year old girl, presumably to sexually assault her as well. Anyway, in toto, five burglaries and many, many sexual and other assaults on young girls. All committed in the same small town in rural California: Wofford Heights.
PPP gets convicted on all counts. His sentence? 75 years to life. Plus 23 years and 4 months.
Not someone that anyone wants to let out. To sexually assault their own -- or anyone else's -- children.
And Justice Ardaiz doesn't disappoint. Convictions on a couple of minor counts are reversed for insufficient evidence (as is not particularly unusual in child molestation/assault cases), but the remainder are affirmed, notwithstanding the somewhat troubling DNA testimony. So it's life in prison for you, PPP. Enjoy.
Wednesday, December 07, 2005
There are perhaps many things to be learned from this 57-page opinion, in which the California Supreme Court again unanimously affirms the defendant's death sentence. But I'll limit myself to the following:
Here are four places I'd strongly consider avoiding in the Los Angeles metropolitan area. Since they're the places at which the defendant, Abelino Manriquez, allegedly committed four different murders. None of them sound like places I'd particularly like to visit:
(1) The Las Playas restaurant in Paramount (at 8335 Rosecrans Avenue). That's where Manriquez shot and killed Miguel Garcia at 4:40 a.m. If, however, you visit, feel free to leave a review of the restaurant here.
(2) Fort Knots in South Gate (at 9015 Long Beach Boulevard). This is a strip club, and is where he shot and killed the doorman, George Martinez, after Manriquez was thrown out of the club for touching one of the dancers (Daneen Baker) on her thighs. Fort Knots is now known as "Club Oz", after being bought by the owner of another strip club, "The Classic Lady of Oz". Two pool tables and lap dances for $10 at Fort Knots. If you're interested.
(3) The Rita Motel. The opinion (by Chief Justice George) says that that the Rita's in Compton, but I actually think that it's in Lynwood (at 12112 Atlantic Avenue). Everyone seems to think that murders always happen in Compton, for some reason. Nope. Lynwood. 2.7 miles away. Anyway, the Rita Motel is where Manriquez and his girlfriend, Sylvia Tinoco, were drinking beer and doing coke, after which Manriquez decided to shoot and kill Efrem Baldia. I'd especially try to avoid the motel parking lot (where the killing transpired) as well as Room 23. The latter is the scene of Manriquez' pre-murder coke party, as well as -- I'm sure -- a wide variety of unhygenic acts performed by various other patrons.
(4) The Mazatlan Bar. The opinion again says that this is in Compton. But the only reference I can find to this bar is the one in East Los Angeles (at 3800 Hammel Street). Again, maybe the presumption is just that every murder in Los Angeles is in Compton. Or maybe there's -- shockingly -- more than one "Mazatlan Bar", or that the one in Compton closed after a sufficient number of murders. Whatever. Just to play it safe, try your best not to fall asleep at the bar at anyplace in Los Angeles called the Mazatlan. Because that's what Jose Gutierrez did. And Manriquez shot and killed him as a result. So play it safe. At least buy a Red Bull alongside your many shooters to try to stay awake.
So Manriquez has been convicted of four different murders. Oh, he also allegedly forcibly raped a woman at gunpoint as well. Nice. Anyway, the guy's (shockingly) sentenced to death. And I doubt he'll be getting off of death row any time soon.
Tuesday, December 06, 2005
Perhaps it's needless to say, but I'll say it anyway: Justice Rylaarsdam's opinion then goes on to repeatedly and mercilessly slam the attorney for appellant. Here's a brief sample of some of the highlights: calling one argument/citation "so oblique as to be meaingless"; writing that "We decline the implied invitation that we review the 1,839 pages of the arbitration transcript to find such testimony" when appellant didn't reference a particular page; "The rules themselves demonstrate the frivolous nature of the plaintiffs' contention."; and ending the substantive discussion with the following bot mot: "Because of the lack of organization and the improper format of plaintiffs' briefs, arguments in addition to those we have discussed may have been alluded to or raised in other than the discussion section. To that extent or to the extent plaintiffs raised other issues without fully or properly briefing them, they are waived."
And all of these comments were the nice ones. The last section of the opinion, regarding sanctions, is where the Court of Appeal gets really harsh. I'll spare you (and the appellant's counsel) from a recitation of those. But they're funny, and really insulting, so I encourage some light reading on your own. Ouch ouch ouch. It hurts so, so bad.
Plaintiff's counsel, by the way, is Randall Waier, a graduate of Loyola Law school whose office is in Newport Beach -- indeed, a couple blocks from John Wayne airport. Mr. Waier has been disciplined previously, and was given a private reproval back in 2000. This time the sanction is going to hit him in the pocketbook as well.
Friday, December 02, 2005
I previously commented on the panel's opinion in this case, noting that it was a difficult case and that I couldn't entirely figure out which side I agreed with -- Judge Rawlinson's opinion or Judge Bea's dissent. Which is pretty darn rare for me. So I called it a "toughie". (The issue is basically about the proper remedy for an undisputed ineffective assistance of counsel. In a case that really, really looks bad: a homeless person who shoplifts a bottle of vitamins, gets offered a five-year deal that's rejected by his incompetent lawyer, and then is sentenced to a mandatory 25 years to life. Do we keep the dude in jail for 25 or give him the 5 year deal?)
Anyway, I apparently wasn't the only one who thought this was a toughie. The Ninth Circuit voted to take the case en banc. So we'll see how this one comes out down the road. Should be interesting.
Thursday, December 01, 2005
A close case. Basically the issue is whether the police have to knock before they enter a house in which they suspect the occupants are selling drugs. The actual facts are more complicated, and the majority tries to somewhat limit its holding. But the import of the opinion is pretty darn broad. And the answer, FYI, is "No". Someone inside might destroy drugs. Which will, quite frankly, presumably almost always be the case.
So you better hope that the police don't think you're selling drugs. 'Cause if they do, they'll be coming in, and they won't be knocking. Politely or otherwise. "Exigent circumstances". That's the basic holding.
Wednesday, November 30, 2005
Nope. None whatsoever. Conviction affirmed.
Two points about this not-so-hypothetical opinion beyond its opening sentence and result. First, Justice Elia holds that the abortion itself can constitute "personal infliction of great bodily injury." Second, he also holds that it's okay to sentence Cross -- who has no criminal history, who was "in love" with his stepdaughter, and whom the jury acquitted of all charges of threats and force -- to 15 years to life. Not cruel or unusual.
Not that he's necessarily wrong. But still. Interesting. Certainly worth reading.
Tuesday, November 29, 2005
Twenty? Fifteen? Thirty? Somewhere in between?
Well, here's a hint. The California Court of Appeal has rendered thirty-one published opinions during this period. Does that help?
Unfortunately, no. Because the answer is this: Two. Two published opinions in 11 days. Two.
31 to 2. Impressive, eh? Guess the 9th Circuit was really busy preparing that turkey dinner. And then digesting it.
Get cranking, federal dudes and dudettes. Thar's work to be done.
That's my overall reaction to this case. For everyone involved. From the relevant attorney who's conduct was at issue -- Debra Koven -- to the relevant Justices on the Court of Appeal (Justices Gilbert, Yegan, and Perren).
Ms. Koven first. That part's easy. Whoa, Nelly. You just gotta read the opinion, which recites at length the various things she said in her brief. To say that Ms. Koven insults the court is an understatement. A big, big, big understatement. There's about a dozen pages of superfun stuff in the opinion that's a fun fun read. The overall reaction to which has got to be: "What were you thinking?!" Accusing the Court of Appeals of having the "fix" in?! Goodness sakes. And you've got to read 'em yourself to believe the twenty or so other allegations she makes. Oh boy.
Anyway, the Court of Appeal holds her in contempt. Even though Debra apologizes and basically throws herself on the mercy of the court. Now, they don't punish her much: They fine her a couple of grand, and refer the matter to the State Bar. But they also publish the opinion. Which -- particularly when combined with the other penalties -- is certainly punishment enough. Not undue punishment, mind you. But enough.
Just one more thing, though. The Court of Appeal itself has got to mellow out as well. I'm not referring to the punishment they impose, which seems reasonable (even though an argument could well be made that there was no reason to affirmatively find Ms. Koven in actual contempt in light of her apology). Rather, my view is that the language that the Justices employ in their opinion is way too defensive, a bit excessive, and way too touchy. So Koven calls you incompetent and thinks the fix is in? Big deal. It's not the end of the world. We're all adults here. They're just words. Sticks and stones, remember?
My strong sense is that I would have had much, much thicker skin than is demonstrated by Justices Gilbert, Yegan, and Perren, who jointly author the opinion. Just because you wear black robes doesn't mean that you are immune from critique. Sure, the particular language here was contemptuous, and rightly punished. But let's not get too high and mighty. People -- even attorneys -- get excited, and use words they shouldn't. We'll punish them for that. But when we do so, we should perhaps also remember that the attacks on us probably get our gander up as well. So perhaps we should mellow out as well. Which is my -- very slight -- critique of the opinion here.
Take a look at it and see if you agree.
P.S. - Debra Koven is a Western State graduate who joined the Bar in 1990. Here's her registered address, which is in Brentwood. I feel a bit bad for her. But she surely brought it upon herself. Sorry about that, Debra.
Monday, November 28, 2005
That said, I was fairly surprised to see this opinion. If only to learn that Adidas is actively selling sneakers made of -- get this -- kangaroos.
Uh, dude. I do not need my shoes to be made of kangaroo. Maybe leather is fine; or maybe it's not. But kangaroo leather?! That just seems wholly unnecessary. I'd have the same reaction to panda leather, polar bear leather, baby elephant leather, etc. I just don't get it. Do we really need shoes made out of a kangaroo?
Well, if the market's always right -- which of course it is (yay capitalism!) -- I guess we do have a desperate need to wear kangaroos on our feet. And thank you, Adidas, for bringing this burning need to our attention. Still, I was darn surprised to see that we apparently needed to kill kangaroos because our regular sneakers just aren't good enough. I can see the upcoming Adidas ads now. "Phi Slamma Jamma. You too can jump as high as a kangaroo. 'Cause you're wearing one on your feet. Adidas." Can't wait.
You'll be happy to know that California -- and I love ya, baby, I really do -- prohibits importation of products made from, inter alia, dead kangaroos. So sayeth Penal Code Section 653o. Ditto for whales, leopards, tigers, cheetahs, cobras, sea turtles, dolphins, sea otters, and a wide variety of other animals that, quite frankly, I don't particularly want to see killed just because they might look cool on my sneakers. But Justice Marchiano holds that this statute is preempted by federal law. Notwithstanding a fairly broad saving provision in the Endangered Species Act that expressly allows state regulation in this area.
Maybe Justice Marchiano is right. But I definitely think the California Supreme Court should take this one up. It's an important issue. And Justice Marchiano may also, in fact, be wrong.
Friday, November 25, 2005
The issue is whether criminal defendants can uniformly be forced to appear before the magistrate in shackles. That's what the U.S. Marshal's Office in the Central District decided to do; as a result, in their first appearance before the magistrate, everyone's in leg shackles -- regardless of their crime and without an individualized determination (by anyone) regarding whether it's necessary.
Judge Schroeder holds that this policy is unconstitutional. At least under this -- virtually nonexistent -- record. But expressly leaves open the possibility that it would be okay if the Marshal's Office attempted to actually justify the policy beyond basically some speculation from a single source that the policy might be a good idea. Whereas Judge Clifton -- who's also somewhat disturbed by the lack of a real record here -- dissents, and would uphold the practice, his central argument being that there's no real harm to leg shackles in front of a neutral magistrate, who (unlike a jury) won't be swayed by their presence.
It's a tough call, I think. Both sides make pretty darn good points. I could definitely see reasonable people going either way.
Wednesday, November 23, 2005
Or at least there were. You don't see nearly as many of them nowadays. Not like, as Michael would say, "back in the Good Old Days" like the 1800's. (Why one would think that the 1800's were the "Good Old Days" remains unclear to me -- for, inter alia, reasons you might well imagine -- but I digress.)
So when I ran across this opinion, I had to at least mention it. A railroad liability case. In November 2005. Which answers the following question: When you walk on a pedestrian walkway that crosses a railroad bridge, and when a train blows by you at 50 miles per hour and either hits you or blows you down, can you survive summary judgment in your lawsuit claiming that the railroad had a duty to warn you not to use the walkway?
The answer, you ask? Well, according to Justice Sims, it's "No." Summary judgment for the railroad affirmed.
Why this case meets the standard for publication is beyond me, since the analysis is both very fact- and case-specific as well as doctrinally superficial. But, hey, it's a railroad case. So let's publish it and hence give Mike one more case with which to work. Enjoy!
Tuesday, November 22, 2005
Judge Reinhardt describes in this opinion the business ethics of various notarios in federal immigration proceedings who pretend to be attorneys and prey on legally unsophisticated immigrants. He also describes what a bang-up job one of them -- Abad "Nork" Cabrera -- did here, as well as the various actual attorneys who worked alongside (and were seemingly employed by) Cabrera. Who, for the record, were Xavier Vega, a Santa Clara law grad who works out of a tiny office on Sixth Street in Los Angeles, Ronald Peake, a University of West Los Angeles grad who holds forth two blocks from the ocean on Catalina Street in Redondo Beach, and Ramin Ghashghaesi, another U. W.L.A. grad and who's office is in mid-Wilshire.
Worth reading are some of the not-very-nice things said in the opinion about both Cabrera and various of the actual lawyers in the case. Interestingly, although the opinion doesn't mention it, it's a reasonable inference that the involvement of Mr. Peake alongsides Mr. Ghashghaesi may not be coincidental, since they graduated from the same law school and were admitted to the Bar on the same day, and hence may well know each other and work on various cases together. Which I'm obviously fine with. But they really need to stop working for a notario like Cabrera. And also probably do a better job than they did here. As this opinion is not how I'd like to see my name in print.
A statute (here, a municipal ordinance) that allows public participation during proceedings of governmental bodies (here, the San Francisco Public Library Commission) provides that "each person wishing to speak on an item before the body at a regular or special meeting shall be permitted to be heard once for up to three minutes." Question: Can the governmental body, consistent with this statute, permit each public speaker to be heard for only two minutes, rather than three?
Follow-up Question: Does your answer to the previous question change if the predecessor statute to this one stated that each person who wished to speak on an item be heard "for not less than three minutes"? What if an early draft of the current statute contained this same language? Which way (if any) does that cut?
So what's your answer? Is it permissible under the statute to give everyone two minutes, rather than three?
Needless to say, this isn't a hypothetical. And Justice Rivera (a Smith College graduate, like my friends and Smith alums Judybeth Tropp and Piper Kerman) says . . . . It's fine. Agree?
Monday, November 21, 2005
Why, you might ask? Because of opinions like this one. Which is really good, and which cogently engages in a sophisticated and persausive synthesis of various competing lines of federal and state precedent. It's the type of opinion that never fails to impress. And it's definitely worth a read.
Among other things, this case is about an important issue: When can a plaintiff file a Section 1983 suit based upon conduct that transpired during the course of an arrest which he was convicted of resisting? As you can imagine, such lawsuits are filed somewhat frequently. As a result, there's a large body of precedent about when such suits are cognizable. Particularly after Heck, in which the Supreme Court held that Section 1983 claims can't be brought when doing so would essentially constitute a collateral attack upon the validity of an underlying criminal conviction. So, for example, you can't file a Section 1983 claim asserting that the police set you up in order to convict you; absent first vacating the conviction, you're boned. ("Boned" -- of course -- being a formal legal term for a particular typical of res judicata.)
The basic rule in this regard makes total sense. The problem is that lower courts have sometimes been a bit aggressive -- in part relying upon fairly broad language articulated in footnote 6 of Justice Scalia's opinion in Heck -- in their application of that case. For example, courts routinely apply Heck to bounce Section 1983 claims alleging excessive force during an arrest. The theory being that if you were convicted of (or pled guilty to), say, resisting arrest, you can't bring a Section 1983 claim against the police, since your claim that the police used excessive force is inconsistent with your conviction, since if they used excessive force, you were entitled to resist. Which we know you weren't, since you were convicted.
This is a facially appealing argument, and in some cases, is totally correct. However, in the real world, this theory often doesn't work. For example, imagine that the sequence of events transpires this way: (1) you resist arrest, (2) they handcuff you and put you in a patrol car, and (3) then, while you're restrained, the police beat the crap out of you. The fact that you're convicted of (1) is no way inconsistent with a Section 1983 claim for (3). But lower courts often misread Heck to preclude Section 1983 claims in precisely such cases. Moreover, in practice, the categorical rule articulated by Heck is hard to apply because (1) and (3) are often close in time; moreover, the actual events that underlie your conviction for resisting are often unclear, particularly in cases involving a guilty plea.
The great thing about Justice Butz is that she -- unlike many lower courts -- can tell the difference between these competing concepts. She does a great job explaining why certain cases make sense, why others don't, and how the various competing principles are properly resolved and applied. Mind you, the rationale that I've articulated above is my own, and she explains the theory a little differently. But they're two sides of the same coin. Plus, as a bonus, she also explains and agrees with Smith v. Hemet, a Ninth Circuit case which I discussed here and in which I also agreed with the majority (rather than the dissent). So I'm totally on board with everything that Justice Butz says.
Finally -- and I know this post is already a bit long -- this particular case also exemplifies precisely why the collateral estoppel principles articulated in Heck can't be categorically applied, regardless of what Justice Scalia inartfully said in footnote 6. Here, the plaintiff resisted arrest, and (in an attempt to subdue him) was subsequently tasered, handcuffed, and put in restraints by the police. So far so good. But then, after he was restrained, he started to struggle a bit more. So one of the police officers grabbed for his taser in an attempt to stun him once more. And pulled the trigger. One problem: instead of grabbing his taser, he accidentally grabbed his gun. And hence shot the plaintiff with his nine millimeter. Oops!
Plaintiff's conviction for resisting arrest is obviously not inconsistent with a claim for excessive force based upon such events. And yet, relying on Heck and other authorities, the trial court entered judgment for the defendants on that basis. Justice Butz knows that this is wrong, and cogently explains why. A good opinion.
P.S. - Memo to all police officers: Please make sure that's actually a taser in your hand before squeezing the trigger. It's not a difficult task. And definitely worth the effort. Plaintiff wasn't killed here. The next time we might not be so lucky.
Friday, November 18, 2005
Of course, the mistake was caught only after the statute of limitations had run. But no matter. Justice Mosk holds the statute was tolled. Becasue O'Melveny acted competently -- and in a same manner as other major Los Angeles law firms -- when it made a totally stupid mistake that even a paralegal could (and did) catch. Yep. Definitely.
Thursday, November 17, 2005
The prosecution messes up a criminal complaint and the court grants defendant's demurrer. Section 1007 of the Penal Code says that in such settings, the court can grant the prosecution a maximum of 10 days to amend the complaint, and Section 1008 states that if no such amendment is made within this period, the complaint must be dismissed.
So, here, the court grants the demurrer, but its order -- contrary to Section 1007 -- granted the prosecution 33 days in which to amend. So when no amendment was made within 10 days, pursuant to Section 1008, the defendant moved for mandatory dismissal of the complaint.
But Justice Mallano holds here that no such dismissal was required, because defendant "by her silence" waived the protections of Section 1007. What?! Remember, defendant properly and timely requested dismissal. Her only "silence" was her failure to jump up and down at the hearing itself and scream that the court's order violated Section 1007. But since when does that count as a waiver? Is it a waiver when the trial court grants a summary judgment motion and I don't say "Hey, that's wrong" at the conclusion of the hearing? Is it waiver when the court improperly sets a trial to be heard in Santa Clara County if you don't orally object immediately after the court orally issues its order? Since when?
Yes, it's waiver when you don't make a timely objection. But, before this case, we didn't require an objection at the actual hearing itself -- an objection that you'd not even necessarily know to make, as it might well be an error (as here) that you didn't anticipate and the legal invalidity of which you were unaware. Add to all of this the fact that Sections 1007 and 1008 are mandatory provisions anyway, and hence ones which might well be incapable of being waived.
In any event, at a minimum, we shouldn't stretch to find waiver. Which, with all due respect, Justice Mallano does here.
P.S. - Full disclosure. I personally know the defendant, Randa Osman. She's a partner at the law firm at which both my wife and I once worked, and was a co-worker for a time. And I also like and respect her. But -- and I'm being totally honest here -- I didn't even realize that this was her case until after I was halfway through writing this post. My reactions have nothing to do with the fact that it's Randa. They're instead my honest reactions to the Court of Appeal's holding.
Wednesday, November 16, 2005
Second, there's actually a double jeopardy claim here of a type I've never seen before. The jury begins to deliberate, and these deliberations last a long time. The jury eventually reaches a verdict on some (but not all) of the counts, but then there's a death in the family of one of the jurors, and she's excused. At which point the judge instructs the jury to rip up the verdict forms they've already completed and start anew. Which they do, and then convict the defendant on a ton of counts. In response to which the defendant argues that this procedure (in which he acquiesced) violates double jeopardy, since once the jury reached a verdict on the counts on which they agreed, jeopardy attached. So the post-ripping-up verdicts were impermissible.
Justice Hollenhorst rejects this claim, which seems right, though I might have articulated different reasons than his. Which actually puts it favorably, since I think that he doesn't really have any actual reasons, but instead merely discusses and distinguishes precedent, rather than expressing any actual policy or doctrinal arguments. My sense is that the verdicts are final only once they're accepted by the judge, or at least read in court, and hence the ripped-up verdict sheets don't count. Still, it's an interesting double jeopardy argument. And if the jury had indeed found the defendant not guilty in these initial verdict sheets, I'd have a tough time arguing that double jeopardy didn't attach, even though that still seems the right result. This case, however, doesn't present such a pristine and difficult case. Still, it's an interesting -- and novel -- issue. One I hadn't even thought about before, much less confronted in the real world.
One other thing. Does anyone really believe -- honestly -- that juries even pretend to follow instructions to begin deliberations anew once an alternate is seated? Come on. You know that it's pretty much a total fiction that they start deliberations all over. And if you didn't know it before this case, definitely go ahead and check out what happens here. The jury deliberates for eight full days without reaching a verdict, asking for some testimonial readbacks and the like. Then the alternate comes in and the jury instructed to deliberate anew. At which point the jury takes all of three and a half hours to reach a verdict on ten-plus counts. Oh yeah. I'm really sure they totally started over. Definitely. But Justice Hollenhorst doesn't care. It's a black box. Which means we just pretend that they follow our instructions. Even when we know that's a total lie.
Anyway. Enjoy prison, Mr. Sanborn. Good luck on your eventual habeas petition. Assuming, of course, you can find someone to do it for you. Without screwing it up. And without getting iced in prison first.
Tuesday, November 15, 2005
Omar Rains was (indeed, according to the State Bar, still is) a California attorney. Things apparently do not go well for him, so he decides to go BK. There's an adversary bankruptcy proceeding that goes to mediation, and that process lasts all day. It's a tough negotiation, but eventually, at the end of the day, the parties enter into a settlement agreement. The contract requires Rains to pay $250,000 -- no small amount -- to the trustee, but Rains agrees to do so, and signs the settlement agreement.
Which sucks for Rains, of course. But things are going to get much, much worse for him. Because immediately after the mediation, Rains -- whose head is pounding -- drives himself to the emergency room, at which point he's promptly admitted to the hospital and diagnosed with a ruptured cerebral aneurysm, sub-arachnoid hemmorage, and stoke. Yikes. He undergoes surgery the very next day and is in the ICU for a month before eventually being discharged. Guess he should have skipped the mediation, eh?
Thereafter, Rains tries to get out of the settlement agreement. Claiming -- quite plausibly, in my view -- that he was actively having a stroke during the negotiation and execution of this agreement. And he backs up this claim with the testimony of various medical professionals that, given what was medically going on in his head at the time, Rains would have been "without the mental capacity to engage in business affairs on September 23, 2002 [the date of the mediation] . . . and for a number of days on each side of that date." Which, again, I find fairly plausible. Let me say, for the record, that if I'm ever having a stroke, I hope to God that I'm not doing so during a day-long mediation, much less one at the end of which I'm going to agree to spend a quarter million bucks. This may come as a shock, but I may not be thinking entirely clearly during such a process.
What I think, of course, doesn't matter. Because the bankruptcy court concludes that Rains had the mental capacity to understand and enter into the settlement agreement notwithstanding his stroke, the district court agrees, and the Ninth Circuit -- probably rightly -- concludes that such a factual finding is not "clear error".
Still. What a crappy day for Rains. Makes my own very worst days sound like an utter cakewalk.
Monday, November 14, 2005
Just kidding. Actually, the more I think about it, the more I'm pretty sure that, in my absence, these courts simply continued to churn out published opinions that -- maybe 90 percent of the time -- I agree with, and even more unpublished opinions that I'd agree with as well if I could somehow find the time to read them all. Sure, maybe the opinions could occasionally reason things out a bit better, or be written more persuasively. But, honestly, I probably find myself smiling and nodding my head in agreement much, much more than I find myself screaming at the computer screen at what I'm reading. It's just that the ten percent or so of cases in which I think someone's made a horrible error -- or the five percent of cases that are really impressive -- make for more interesting reading than the remainder. So those are the ones about which I generally post.
Then there are cases like this one, which are really neither bad nor good, but merely interesting. The panel is Wallace, Rawlinson, and Bybee. Not exactly a dream panel if you're a criminal defendant, eh? No. Not at all. But the first paragraph of Judge Rawlinson's opinion quickly summarizes the panel's decision, which reverses one of the defendant's convictions on the ground that his confession was insufficiently cooberated.
What?! A panel like this reversing a criminal conviction on insufficiency grounds?! When there's been a confession?! You might well ask: What sort of apostasy has suddenly overcome these members of the panel? Since when do they reverse on such grounds? Is the conviction in this case really so egregiously wrong that even these three can unanimously agree to reverse on insufficiency grounds?
Well, maybe. Perhaps. Though the panel also upholds the defendant's other two convictions, and also does so in a manner that slyly (and, honestly, with a fairly lame amount of differentiation from precedent) undercuts Miranda. Check out, for example, how quickly and obliquely the panel talks about the "polygraph" issue -- the central argument in the case, in my view -- at the end of Section A. Plus, I don't think that I'm overly cynical to think that the panel is perhaps more willing to reverse one of the defendant's three convictions here in light of the underlying sentence issued by the district court: concurrent 15-year terms (for child molestation) on each of the three counts. Which means that even with one of the convictions gone, on remand, the panel can be pretty sure that the defendant is likely to receive the exact same -- very long -- sentence. That helps, eh?
P.S. - What took so long on this one?! The opinion deliberately reads like it's a very simple case, and one with obvious answers. And it's a fairly short one: only 13 pages. But the oral argument in this case was all the way back on February 7, 2005, and the opinion issued over nine months later, on November 10, 2005. Not what you typically see in cases like this. Don't see why the opinion took longer to gestate than an entire person.
Monday, November 07, 2005
Thursday, November 03, 2005
But Justice Perluss is right, in my view, that this wasn't the case here. And, as a result, that a remedy less than granting summary judgment was appropriate. The trial court could have granted a continuance and made the nonmoving party refile a proper separate statement. It could even have sanctioned the party as well. But we have (rightly) come a long way (, baby) from the type of procedural pitfalls that proved fatal in the 1800s. We prefer adjudication on the merits. When we can solve pleading or motion or related problems with judicial remedies shorter than civil death, we should generally prefer them. So I found Justice Perluss' decision in this case particularly persusasive and reasonable.
It's an important case on an important and recurring topic, and also a good example of the kind of common sense judicial reasoning that I increasingly appreciate. Just what you'd expect from any former member of the Harvard Law Review, eh? (*wink*)
Wednesday, November 02, 2005
Anyway, as you might imagine, after this opinion, Jackson Daniels is no longer on death row. Indeed, this is a somewhat unusual case because the lower court had made the traditional anti-death penalty move -- affirming the conviction but reversing the death sentence -- but the Ninth Circuit here does something different (and more rare), and both affirms the reversal of the death sentence as well as reverses the underlying conviction. Not something that you see every day. Even from this panel. Especially in a case involving the murder of two police officers. So, for only for those reasons, the opinion is worth reading.
Monday, October 31, 2005
But not this time. Here, Judge Kozinski dissents to an opinion written by Judge Bybee. But, this time, Judge Bybee's opinion is both more persuasive and better written and then Judge Kozinski's dissent. Judge Bybee essentially out Kozinski's Kozinski in this one.
So this one is definitely worth a read. Sure, Judge Kozinski's dissent is well-written, and in his usual colloquial (and easy to read) style. And, as usual, he doesn't shy away from directly attacking the majority opinion. But, this time, Judge Bybee's opinion is even better, and does the same things that the dissent does, but does them more cogently and more persuasively. It's really quite a good opinion, and all the better for how it directly and powerfully responds to the dissent.
So an impressive performance by Judge Bybee. And, by the way, a strikingly smart panel: Judges Bybee, Willie Fletcher, and Kozinski. Thar's some darn sharp tools in that shed.
P.S. - Yes, yes. I know. On occasion, I'm sure I sound like a hack. Here I am saying how impressive Judge Bybee is. Just as I did here and here. And, yes, maybe my compliments of Judge Kozinski (see, e.g., here and here) are a similarly well-worn refrain as well. But the truth's the truth. Plus, it's not that I like (or agree with) everything these two conservative jurists do; for example, here. I merely call them as I see them.
Thursday, October 27, 2005
But I'll nonetheless mention that this case is worth reading. Really. Okay, maybe only for people who really, really, really, really, really like fed courts issues. Really. But for that select group -- yes, probably the same people who once dressed up as their favorite Dungeons and Dragons character -- it's a case that's definitely worth the investment. For everyone else: Well, it's true for them as well, but I ain't gonna beat my head against a wall. Much. Sure, they should maybe read it too. But good luck with that. Easier to sell snowballs to Eskimos, as my father would sometimes say. (He had a lot of other euphemisms as well. I feel bad for him, however, as he can no longer use the "Is the Pope Polish?" line. Ah, the death of a classic.)
Here's my one-paragraph summary of the case to wet your interest. It's a case with both an opinion (by Judge Clifton), a concurrence (by Judge Silverman), and a dissent (by Judge Reinhardt). So no one fully agrees with anyone else. The dispute matters: It both revolves around a $509 million class action settlement as well as the propriety of a subsequent $29.6 million jury verdict against Louisiana Pacific. And I thought as I began to read Judge Clifton's opinion that I was totally going to agree with him and disagree with my former boss (in dissent), but it turned out, by the end, that the contrary was true. Plus there are super-long footnotes in the opinion (oh boy!) and a ton of direct interchange between the majority and dissent. Finally, the concurrence by Judge Silverman contains the following bon mot that humorously summarizes his main point with a thinly-veiled reference to Las Vegas' contemporary advertising slogan: "What happens in state court stays in state court." Funny!
That's the best I can do to convince you that it's a page turner. It was for me. But the day I claim that I'm representative of any class is the day I formally institutionalize myself. Enjoy the opinion if you so choose!
Wednesday, October 26, 2005
But first glances can sometimes be deceiving. Sure, it's mostly the same group, as Callahan, O'Scannlain, Kleinfeld, Tallman, Bybee, and Bea each join both dissents. But, somewhat surprisingly, the dissent in this case includes Judge Gould, who didn't join the dissent from the refusal to rehear Musladin. Weird, since my sense is that Musladin is the somewhat weaker case on the merits. Perhaps Judge Gould was spooked by the fact that the Supreme Court previously GVR'd this case, which shouldn't matter, but which sometimes creates a perception of future reversal. (Shameless self-promotion: Cf. Shaun P. Martin, Gaming the GVR, 36 Ariz. St. L.J. 551 (2004)). Perhaps even more significantly, guess who joined the dissent in Musladin but who doesn't join the dissent in this one? Judge Kozinski.
I found that fact particularly interesting because (1) I think that it reaffirms my belief (which I've previously discussed) that Alex is not a knee-jerk jurist, and (2) in light of the fact that his stock as a potential Supreme Court nominee -- on the assumption that Meirs gets tubed -- is (at least according to some) on the rise, and is (again, according to some) much higher than the super-long-shot status he previously held. Now, even the little birdies who're chirping on the subject basically put him at 25-1 or so. Still, that's a fair piece higher than many, and much better odds than he previously had. So interesting to see his take on this one, as well as to ponder how his reactions to cases like these would play with the public in the event he were nominated to the Court.
Tuesday, October 25, 2005
Why make this concession now? Well, quite frankly, because it's not looking particularly great for our hero. Back in April, I posted that this opinion -- written by my respected prior employer, Judge Reinhardt -- was one that "may be one of those classic Ninth Circuit cases that just doesn't have staying power." And I said, in my classicly cocky know-it-all fashion, that people should "read this one while you can" because it was exactly the type of case that the Supreme Court and the en banc court like to reverse, and hence it was "far from clear that it'll still be precedent a couple of years from now."
Bold words. Here's the thing, though. The Ninth Circuit didn't take it en banc. Sure, the conservatives tried, and called for a vote. But didn't succeed. Yeah, they got Judge Reinhardt to slightly modify his opinion, and he issued a new one that appears here. And yeah, they got several votes to take the case en banc, and seven of the judges expressly joined a lengthy dissent from the denial. But didn't have enough votes. As a result, the basic holding of the panel opinion persists. Notwithstanding my somewhat contrary prediction.
Okay. So I'm apparently not the Nostradamus of the legal profession. Sue me. (Don't really.) Plus, the Supreme Court still has the opportunity to save me from my shame and to step in -- as I somewhat predicted -- and reverse this bad boy. We'll see if they do. But, if not, I hereby apologize to my former employer. If I was wrong and you were right, I'm sorry that I doubted you. My bad.
P.S. - Sure, I've got my excuses. After all, I wrote my potentially erroneous post on April 15 -- the day on which I filed my tax return, so my mind was undoubted both jumbled (thank you, tax code) and elsewhere. But I'm forced to admit -- to my undying shame -- that the real culprit is that, until six days ago, I hadn't made a recent count of precisely which judges remain to vote on en banc petitions. I should have been smarter and have relied less on my failing (and imperfect) memory. I needed to be less old. If I had been, I perhaps could have seen this vote coming. Damn. I'm about to turn 40. I hate being reminded how old that is. Oh well.
Monday, October 24, 2005
Both the majority and dissent make darn good points. It's a tough issue. The nature of the dispute assures it. But one should definitely have an opinion.
It's a good review of the existing contours of the Supreme Court's race-based Equal Protection jurisprudence. And a fine example of just how difficult it is to resolve the disputes arising thereunder.
Thursday, October 20, 2005
Let me apply this general principle more concretely; for example, in this case. The majority opinion is written by Betty Fletcher. Now, whatever one might think about Judge Fletcher, she's definitely not a jerk, much less a manipulative bastard. Rather, she's assuredly one of the nicest and most reasonable members of the bench, and I think pretty much everyone would agree with that assessment. Can she be wrong? Sure. Can you think her judicial philosophy is misguided? Of course. But she's undeniably doing what she thinks is right, and her thoughts in that regard are sufficiently straightforward and right down the middle that you just can't think of her in really derogatory terms. You just can't. And everybody knows that.
Which is why Judge Bea's dissent here -- and Judge Fletcher's reaction to it -- are pretty unusual. You often see marginally testy exchanges between opinions, or at least it's hardly a surprise when you do. But I don't ever recall seeing someone get into it like this with Judge Fletcher, of all people. Nor do I recall a previous opinion of hers that was so pointedly responsive to the dissent. This is a much, much, much more personal exchange that I've heretofore seen from Judge Fletcher. Which says something, I think.
The entire dialogue between Judge Fletcher and Judge Bea takes up 65 whole pages, and you really have to read the whole thing to get a flavor for what's going on. Plus, even if you do, there's a fair amount of superficial courtesy expressed by both sides, so it's easy to overlook the overall tenor. But if you're used to reading the typical opinion by Judge Fletcher, you definitely notice the difference here. Take a look at footnote 4, for a very slight example, where Judge Fletcher says that Judge Bea "accuses us of taking these responses out of context." Or, more significantly, on page 14247, where she includes the following -- somewhat striking (especially for her) -- paragraph in the text: "Before concluding, we feel that we must briefly respond to the dissent's accusations that we are distorting the facts, introducing a subjective and 'rudderless' standard into the law, and inviting 'volumes of litigation' by encouraging defendants to concoct conspiracy theories about their defense attorneys." Yikes. One gets a keen sense that Judge Fletcher is not typically confronted with such bold critiques, and also doesn't particularly like it. And, after all, who would? And, thereafter, when she responds to these objections by arguing that Judge Bea attacks a "straw man", that his accusations "rel[y] on a highly selective reading of our opinion," and that he has "ignore[d]" and "mischaracterize[d] the opinon, she is using language that is much, much, much harsher than what I'm used to hearing from her.
Now, on Judge Bea's end, as you can probably tell from Judge Fletcher's response, he's hardly pulling punches here. Sure, he ends his dissent with a superficial paean to his colleagues -- one that could actually be read as a backhanded slam anyway -- but that's only after about three dozen really harsh comments. Which, again, we are completely used to seeing in response to, say, a Judge Reinhardt or Judge O'Scannlain opinion. But Betty Fletcher?! Come on.
The exchange you see her is not something you're going to see every day. Or even every year. Or even every decade. So if only for that reason -- as well as, perhaps, the importance of the underlying holding -- it may well be worth slogging through this very long and detailed opinion. I was glad I did.
Wednesday, October 19, 2005
Pretty bold. Not necessarily wrong, of course. But reasonably bold. Especially since the murder in question occurred over 24 years ago and the petitioner has been on death row for over two decades now. Not exactly the type of person for whom the Supreme Court is typically expected to have a lot of sympathy. This is also precisely the kind of case that conservatives scream about when they complain about liberal justice. The guy's a murderer and has been sentenced to die. So kill him, already. So sayeth some.
Since this is the anticipated reaction by at least some observers, I was somewhat surprised at not only the result (a reversal), but also the vote. 10-1. Pretty unusual. Especially for a post-remand case such as this, in which you've got to be at least a little bit worried that the Supremes are itching to spank you back down if you again reverse the death sentence on remand.
Admittedly, the en banc court is granted a little freedom since the decision in the Supremes the first time the case went up was 5-4. So it's not like what transpired before was one of those bench-slaps that the Supremes occasionally give the 9th Circuit. Still, you gotta be a little worried, don't ya? At least enough to stop it from being 10-1?
As a result, my initial reaction was that this must be a pretty strong case; one in which the death penalty really was imposed improperly. Since that's the only way they'd get 10 votes. But then I saw who was on the en banc draw. Wow. Three Carter appointees (Schroeder, Pregerson, and Reinhardt). One Reagan (O'Scannlain). And the entire remainder Clinton. No Bush I. No Bush II. And guess who's the 1 in the 10-1? You got it. Diarmuid. So it lines up exactly as one might expect. It's just that, this time, that means a 10-1.
Which in turn generated several thoughts. First, how often is the en banc court really that politically skewed? Statistically, it's gotta be pretty rare. Second, did this skew in this particular case have anything -- anything at all -- to do with the decision by the 9th Circuit two weeks ago to increase the size of en banc panels to 15 (from 11)? You gotta admit that the timing is, at a minimum, pretty fortuitous. Third, and finally, where the hell did all the hard-core conservatives go? You almost always see a pack -- sometimes a pretty big pack -- of them on the en banc panels, and you definitely see them all the time on three-judge panels. Where are they now?
Their absence from this draw made me go back and look at the composition of the court, which I haven't actually counted for quite a while now. Amongst the actives, one-third are Republican appointees (2 for Regan and Bush I and 4 for Bush II) and two-thirds are Democratic appointees (3 Carters and 13 Clintons). This is a quite a bit more skewed than I would have thought for the relevant years in question. Which in turn made me ponder why that's the case. Did Clinton appoint younger judges? I don't think so. Did the judges appointed by Reagan and Bush I decide to go senior (and hence be ineligible for an en banc draw) faster than their Democratic counterparts? I was interested enough in the latter query to actually start pulling data to try to figure it out. It'll take a while: There are a lot of judges out there. But I'll keep you apprised.
Anyway, a weird one. Interesting. But weird. Not a case where I'd have predicted a 10-1 just looking at the underlying issue and procedural posture.
Monday, October 17, 2005
But that's precisely what happens here. To Judges Hall, Brunetti, and Graber. They're each on the panel that, back in October of 2004, decides that an immigration petitioner's appeal is so easy that they can dismiss it on the merits in a per curiam opinion and without oral argument. Oopsies. Apparently the rest of the court isn't equally convinced that the panel correctly resolved the case. So they take the case en banc. And decide -- in a unanimous opinion -- that the panel shouldn't have decided the case on the merits, and instead get rid of the case on procedural grounds.
I can't recall the last time I've read a case in which the en banc court was unanimous in deciding that the panel had gotten it wrong. I am certain that I can't remember the last time an en banc court decided an immigration case that garnered the uniform assent of such disparate jurists as (as here) Pregerson, Reinhardt, Kleinfeld, Tallman, Bybee and Bea. When all those dudes -- and, notice, that they're indeed all dudes -- are arrayed in a uniform line against you, you've probably made a mistake. As indeed the panel did here. And got smacked down -- albeit very nicely, and sub silentio -- for it.
Admittedly, it could have been worse. At least luck spared Judges Hall, Brunetti, and Graber from being chosen for the en banc panel, and hence were spared the indignity of either (1) trying to lamely support their panel opinion, or (2) having to vote against the result they previously reached. It's unclear which of these two options would have been more embarrassing. Thank goodness for small favors, eh?
Thursday, October 13, 2005
I'm not going to complain much about the result in this case, which I think Judge McKeown gets right. It is a classic case where removal was indeed likely proper. Judge McKeown also does a good job of providing some reasonably persuasive justifications for her adopted rule.
But easy cases sometimes make bad law, and I think that this somewhat happens here. Judge McKeown's rule properly resolves the case before her, and this case also exemplifies the problems of any rule that would start the 30-day clock based upon constructive knowledge of various jurisdictional facts. But, in my mind, Judge McKeown has to -- or at least should -- do a little more than that. Because her rule has definite downsides of its own, and rather than address them, she instead ignores them. Which makes me wonder whether she didn't even consider them, doesn't have a response, or thinks that they involve a different rule.
For example, Judge McKeown holds that the 30-day period only begins to run when the complaint itself contains the jurisdictional facts; further, that the defendant's "knowledge, constructive or otherwise," of the possibility of removal doesn't start the clock. Really? So let's say I (a resident of California) sue IBM (a Delaware corporation with its PPB in New York) in state court, but my complaint only alleges that I'm a California resident and doesn't say anything about IBM's residence. Does IBM's 30-day clock for removal really not start running from the day of service?! After all, my complaint itself doesn't allege the necessary jurisdictional facts. And Judge McKeown has expressly held that the subjective knowledge of IBM -- which surely knows its own residence -- is irrelevant, and has also provided policy reasons (bright line rule, etc.) why that should be the case. So she'd seemingly hold that IBM can remove anytime it wants (within, of course, the year-long deadline) since the 30-day clock didn't start ticking yet. So IBM can remove once it learns who the state court judge will be, once the state court judge has issued a tentative decision on a motion for summary judgment, once various discovery stages are approaching or have transpired, etc. In other words, pursuant to Judge McKeown's rule, IBM can engage in precisely the type of manipulative and abusive removal that the 30-day clock was designed in large part to avoid. Ditto for post-filing and amended complaints that create the possibility of removal; e.g., the 30-day clock starts whenever IBM wants it to start when Shaun initially sues IBM and Sandy (another California resident) and then subsequently dismisses Sandy. The fact that IBM knows that the case is removable immediately upon Sandy's dismissal is irrelevant. It gets to wait and remove whenever it feels like it.
Now, I'm not saying that the rule that Judge McKeown adopts in this regard isn't a possible interpretation of Section 1441. You could adopt such a rule (though I think it'd be a little bit hard to square with the text). But it'd nonetheless be a bad rule. And that's essentially the one that Judge McKeown adopts. At the very least, she needs to articulate why these untoward results of her rule won't occur, won't matter, or are somehow distinguishable. But, in all honesty, without amending her opinion, I don't think she can. Once she holds that the subjective knowledge of the defendant doesn't matter, she's got to bite the bullet on some extremely bad consequences. Sufficiently bad, in my mind, that they clearly outweigh the benefits of her holding, especially since the downsides of her rule will transpire much more often (since they're much more common) than the downsides (e.g., disputes over "what and when defendant knew X") she discusses in her opinion.
I like Judge McKeown. She's smart and fair. But she goes a bit overboard on this one, and lets a bad case make bad law.
Wednesday, October 12, 2005
Then there are cases like this one. About which I'm conflicted. As to which both sides make some darn good points. And with respect to which I'm forced to say: "Jeeze, I just don't know." Which in turn makes me ponder whether I'm missing something, whether other informed people would feel the same way, or whether it's simply just a darn tough issue. Which obviously happens. And this may be one of those cases in which the proper resolution of the dispute is just very much unclear.
Now, I hesitate to say that, because it might encourage you to actually read the opinion. Because it's a long one. 62 pages. Yikes. That's more than just a little bit of work in order to satisfy one's intellectual curiosity.
But, hey, we're all superstars here, right? We're all legal studs. We can read, comprehend, digest, analyze, and deeply critique 62 pages of prosaic text in, what, five minutes, right? So let's do it! (Okay, maybe not.)
Let me at least pique your interest. Because the basic facts are both brief and somewhat interesting. Sherry Corder meets Raymond Corder in August 1999, he proposes to her four months later, and they marry. Then, as luck would have it, eight months after they get married, Raymond gets whacked in a construction accident. Now, you notice I say "as luck would have it" but don't say whether it's good luck or bad. Because whether it's good or bad depends very much on both your interpretation of the facts as well as whose luck we're talking about. Sure, it's bad luck for Raymond. He's dead. That's rarely, if ever, an undiluted good. But what about the other folks?
Here's the thing about Sherry. Sure, she just lost her husband. Of eight months. But, according to a ton of the evidence, she's about to "lose" him anyway. Because -- and here's the interesting (or at least salacious) part -- she just can't seem to stop hooking. Apparently Raymond thought that marriage would "change" her whoring ways. But it ain't happening. And Raymond isn't happy about it. So Splitsville may be about to gain another resident. He hasn't seen a lawyer yet, but he tells lots of friends that it ain't looking good. That her cheating ways -- although bringing home the bacon (!) -- just ain't what he had in mind when he married his prostitute wife. Ah, the trials and tribulations of middle America.
Recall, though, that Raymond conveniently gets out of this difficult dilemma regarding what to do about his whoring wife by winding up dead. And winding up dead not just in some meaningless way (heart attack, etc.), but rather in a way ("construction accident") that gives rise to a lawsuit. So Sherry -- his surviving spouse -- and Lisa, who's Raymond's surviving adult daughter, sue. And end up with a settlement of $1.1 million. And promptly then fight about the appropriate split. Who should get what share?
Here are the basic arguments, distilled down to their basics (from 62 complicated pages of analysis). Lisa says that she should get the lion's share because Raymond was about to divorce Sherry, and hence Sherry's "loss of support" from Raymond was virtually nothing; e.g., the alimony she'd get for a grand total of eight months of marrige (say, $25,000). But Sherry says that Lisa should get almost nothing because she's an adult daughter who's essentially on her own, and the "loss of support" that one typically gets from the loss of a father by such a person is basically nothing (say, $25,000 as well).
The thing is, in my mind, they're both somewhat right. They both probably should get very little at trial. But they didn't get very little; rather, there's this $1.1 million settlement that needs to be split up. So who should get it? That's a toughie. Plus, there are various potentially dispositive legal arguments as well. Justice Sills argues that the fact that Raymond and Sherry might have been "about" to get divorced should be irrelevant, both because they weren't in fact divorced and because to allow such evidence -- particularly evidence about the reasons why they were allegedly going to get divorced -- would turn "no fault divorce" in California on its head. Plus, Sherry argues that the $1.1 million settlement was a figured almost assuredly reached because the defendant thought that she would receive roughly that amount at trial as "lost support", and even if defendant was wrong (because it didn't know about the potential divorce, inaccurately assessed the law, etc.), she should get most or all of that amount because she (not Lisa) "generated" it, or at least it was "allocated" to her in terms of the defendant's own assessment. But Lisa responds that this would just grant an illegitimate million-dollar windfall to the whoring, about-to-be-ditched-by-her-husband Sherry, and that these sums should actually be recovered by the person (Lisa) who actually both was loved by and lost the continuing companionship of her father, rather than the person (Sherry) who didn't really lose anything she wasn't already going to lose. But Sherry responds that giving Lisa this money would be a windfall to Lisa, since there's no freaking way that any jury would award a million dollars to an independent adult daughter like Lisa who lost her adult parent. And Sherry's got some pretty good evidence (typical Orange County jury verdicts, etc.) to prove it.
So who wins? What do you think? Now, mind you, I've summarized all this stuff very briefly, and think that the issue becomes even harder to resolve once you read the compelling -- and competing -- analysis of both the majority and dissent. The trial court awarded 90% of the $1.1 million to Lisa (the daughter) and 10% to Sherry (the wife). Is that the right call?
The Court of Appeal, in an opinion by Justice Ikola, says "Yes". Whereas Justice Sills dissents and concludes "No". And, again, both articulate great arguments in support of their position. A toughie. Read the opinions (if you dare!) and see if you're as equally conflicted as I am. At the end of the day, I just don't know who's right and who's wrong.
Tuesday, October 11, 2005
You can't read the first three pages -- which have utterly nothing to do with the law, and instead recite only the facts -- and not know where the panel's going to come out. And for those who are confident that the INS only moves to deport those people who totally deserve it, indeed take a gander at those facts. It's not pretty.