In Re Wagner (Cal. Ct. App. - February 24, 2005)

This case is worth at least brief mention for two reasons. First, Justice Rylaarsdam holds (at pages 10-11) that although several California statutes (including Section 1203.097 of the Penal Code) permit judges to require a defendant to make payments to various charities as a condition of probation, the California Code of Judicial Ethics precludes the sentencing judge from designating the particular charity to which that payment must be made. Which seems right to me, for the precise reasons Justice Rylaarsdam cogently explains.

Second, Justice Rylaarsdam's opinion slams the trial judge, Judge Pamela Iles, fairly hard, particularly for her overly personal involvement in this matter. And again I pretty much agreed with him. It looks like Judge Iles has received a fair number of awards, and may well be a talented jurist. But sometimes judges let emotions get the better of them, and this appears to be one of those times.

CMNI v. United States (9th Cir. - February 24, 2005)

I'll admit it. Before I read this case, I knew nothing about the paramountcy doctrine. What's that, you say? The paramountcy doctrine? As we all (now) know, that's the set of legal principles applied to the dominion of the United States over submerged lands off the shores of states that were created from former territories. Oh, yeah. That paramountcy doctrine. I was confusing it with the other paramountcy doctrine. Silly me.

I'll keep you in total suspense about how the paramountcy doctrine is applied by Judge Beezer here to the unique status of the Commonwealth of the Northern Mariana Islands. But here's a hint:

United States: 1. CMNI: 0.

People v. Cross (Cal. Ct. App. - February 24, 2005)

Different people will likely have different reactions to this case. The issue is a simple (and fact-intensive) one: whether Earl Cross should be released from a state hospital and given outpatient status.

I was initially quite dubious. Cross killed a man with a knife in 1991, and was found not guilty by reason of insanity in 1995. My presumption -- based on utterly nothing, mind you -- is that you've got to be pretty darn insane to kill another man, and that crazy people that kill once may just be crazy enough to kill again. Plus -- and I know that this technically shouldn't matter -- but Cross was only in the hospital for a dozen or so years. This seems a pretty short "punishment" (and, yes, I know it's not supposed to be), and, on the merits, a dozen or so years of treatment may not always do the trick. Crazy enough to kill may stay crazy.

But I gotta admit that it made a difference to me once I read that Cross is now 82 years old and can only move around in a walker. Not your stereotypical killer, right? It similarly made a difference that every witness at his hearing (on both sides) -- and every psychologist, psychiatrist, social worker, and nurse at the hospital -- unanimously concluded that he was amenable to outpatient treatment. Those are pretty persuasive facts.

I don't think that the case is black-and-white. The trial judge overruled these witnesses and denied outpatient status. Justice Boland (joined by Justice Rubin) reversed. Justice Flier dissented. (The UCLA and USC law graduates outvoted a graduate of the University of San Fernando Valley College of Law.)

This is always a tough call, I think. You've got to figure out how much of a risk you're going to take that an insane person might kill again, since it's always -- always -- a risk. And balance that risk against the certainty that keeping an 82-year old man with a walker in a state hospital is essentially a death sentence. Tough call.

People v. Butler (Cal. Ct. App. - February 24, 2005)

A witness claims at trial that she didn't see anything on the day of the murder, but her testimony in this regard is impeached with several prior inconsistent statements that she made to friends and co-workers in which she allegedly said that she saw the defendant shoot the victim but would refuse to so testify. Does the admission of these prior inconsistent statements violate the Confrontation Clause of the Sixth Amendment under Crawford?

The Court of Appeal in this case concludes that it does not. I agree. The defendant is fully able to cross-examine both the witness -- who will presumably either deny that she made these prior statements or attempt to explain why those statements (rather than her current sworn testimony) were untrue -- as well as each of the individuals to whom these alleged statements were made. That's what the Confrontation Clause requires.

Tangentially, the other interesting thing about this holding -- which the Court of Appeal doesn't mention, but which is nonetheless worthy of comment -- is that, as a practical matter, it may well provide an oft-employed means through which witnesses can avoid retribution for their testimony. Especially in gang-related and other such cases, witnesses are often worried that if they identify the defendant at trial, they will incur the wrath of the defendant (or his associates). This holding means that as long as you've told a plethora of your friends that you did indeed see the defendant commit the crime, even if you recant at trial, the jury will hear your prior inconsistent statements and -- most likely -- vote to convict, on the theory that you had no reason to lie then but perhaps substantial reason (e.g., fear of the defendant) to lie now.

That's hardly a great outcome, of course. For one thing, it's perjury; for another, the jury might erroneously belief your recanted testimony; finally, a defendant facing serious charges who knew a lot about the law might decide to whack you as a means of precluding the introduction of even your prior inconsistent statements. That said, you can see why some people might nonetheless elect this option, and not only recant at trial, but perhaps even let it be known to the defendant in advance that you intend to recant.

The upside of the holding in this case is that, at least in certain cases, the admission of the prior statements may help the jury get at the truth -- and convict a guilty defendant -- notwithstanding the failure of the witness to incriminate the defendant at trial. But one downside of this holding is that it might diminish the willingness of a witness to actually testify against the defendant, as smart witnesses (or their counsel) may increasingly say "You don't need me: Just use my prior statements." Or, additionally, that the police or prosecutors might be satisifed with such inconsistent statements and hence not put forth the necessary efforts (e.g., persuasion, police protection, witness relocation, etc.) that might be necessary in order to accomplish what would be best for all involved -- the truthful testimony of the witness at trial.

Wentland v. Waas (Cal. Ct. App. - February 22, 2005)

Justice Morrison seems clearly right to me when he holds in this case that the litigation privilege does not bar a claim for breach of contract when a party allegedly violates the confidentiality provisions of a settlement agreement in various submissions to a court.

Justice Morrison perhaps should also have mentioned that the litigation privilege is also not necessary to protect zealous advocacy in such situations because parties are always free -- regardless of any settlement agreement -- to seek a court order that permits them to disclose information made confidential under any agreement. You can't contract around such an order, as any such attempt would conflict with public policy. So parties that think that disclosure of confidential information is necessary to the proper resolution of an existing litigation are always free to advise the court of that fact and seek permission to disclose the necessary facts. If, instead, they elect simply to violate the conflidentiality agreement without obtaining such an order, absent any similar legal compulsion, they make such disclosures at their peril.

People v. Gonzalez (Cal. Ct. App. - February 23, 2005)

For a detailed -- and fascinating -- discussion of the sophisticated procedures through which the Mexican Mafia orchestrates the killing of particular inmates, read the first five pages of this opinion. Wow.

Oakland Raiders v. National Football League (Cal. Ct. App. - Feb. 23, 2005)

I'm not a particularly huge fan of the Raiders, partly due to geography (as I currently reside in the land of the San Diego Chargers) and partly on the merits of the team. As a result, part of me was pleased to read this case, in which the NFL essentially prevails on every single issue. Justice Doi Todd not only rejects all of the Raiders' claims of errors regarding the six-week trial that led to a 9-3 verdict on behalf of the NFL (as well as the prior entry of summary judgment in favor of the NFL on various claims), but also reverses the grant of a new trial that had been entered by the trial court on grounds of juror misconduct. So a complete win for the NFL. And a 57-page drubbing of the Raiders.

My wry smile at seeing the Raiders lose, however, is somewhat diminished by my firm belief that the Court of Appeal has somewhat done them wrong. It's not that the Raiders didn't have good counsel; they clearly did (as, of course, did the NFL). But I had the very strong sense as I read the opinion that the Court of Appeals went out of its way -- and stretched the law -- in order to exercise its own independent judgment about the proper resolution of this high-profile litigation. Instead of acting like an appellate court, Justice Doi Todd made sure that the "right" party prevailed. And in doing so, she made the law a lot worse.

You'll have to read the entire opinion to see if you agree with my overall assessment in this regard, but I'll mention two fairly brief examples. First, in Part A(1), Justice Doi Todd discounts the trial court's grant of a new trial because it failed to adequately specify the reasons for the grant. I actually agree with her in this regard; the trial court's explanation is a bit too general -- and, at one sentence, way too short -- and I'd expect a lot more, especially in a case like this. But Justice Doi Todd also founds this conclusion in part by arguing (on page 12) that the order did not reflect "mature and careful reflection on the part of the judge" because "the order was issued 12 days after the hearing on the new trial motion," which "makes it appear as if the decision to grant a new trial was 'hasty or ill-considered.'" I agree that the length of the order makes it suspect, but completely disagree with respect to its timing, which I don't find suspicious at all. Rendering a short decision within two weeks after very full briefing and a hearing seems entirely fine to me.

Justice Doi Todd's argument in this regard is also curious given the Court of Appeal's own dubious temporal treatment of the appeal. This case was scheduled for oral argument on February 17, 2005. Three days before this argument, on February 14, 2005, the NFL sent the Court of Appeal a letter saying that it was in "serious negotiations" with the Raiders and requesting a continuance of the oral argument. The Court of Appeal denied this request the same day, oral argument transpired three days later, and then Justice Doi Todd issued her 57-page published opinion a mere six days after the oral argument concluded. If a decision 12 days after oral argument partially reflects hasty judgment, a decision in half that time is doubly worse, no?

In a similar vein, I am also somewhat troubled by the rapid turnaround in the Court of Appeal, especially given the contemporaneous settlement negotiations and request for delay. The rapidity here makes crystal clear both the reliance by the Court of Appeal on their pre-argument materials -- essentially, draft votes and complete drafts of an opinion -- and the corresponding reality that oral argument in many California appellate cases is merely pro forma. It's not that we all didn't know that already. But it's still somewhat depressing, and to see it in a high-profile case such as this -- with quality counsel on all sides -- only furthers one's distaste for the means through which the California Court of Appeal often resolves its workload.

On the merits of the appeal, I also think that in the haste to "do what's right" and slam the Raiders, Justice Doi Todd makes bad law, particularly in the new trial/jury misconduct portions of the opinion (Parts (A)(3)(a) and (b)). She essentially holds that the Court of Appeal should exercise independent review of new trial orders in cases like this, and that even when (as here) serious allegations of juror misconduct are made (and have ample evidentiary support), a new trial is unwarranted when the party that opposes the new trial submits substantial affidavits that contradict those of the moving party. That just seems flatly wrong to me. Sure, the trial judge can properly deny a new trial if she finds the responsive affidavits to be more credible, or qualitatively better. But she is also perfectly entitled to grant a new trial if she finds the contrary.

To hold -- as Justice Doi Todd does here -- that contradictory affidavits essentially preclude the grant of a new trial as a matter of law is both wrong and improper. Jurors may often submit conflicting affidavits: the jurors in the majority in a civil case may often naturally submit affidavits that support the verdict (and either deny that misconduct occurred or, as here, claim not to recall it), and the jurors who were outvoted often have an incentive to do the opposite. That's why we have trial courts; to resolve these evidentiary conflicts, to assess the credibility of the evidence and the possible impact of any misconduct, and to make the correct ruling based upon both the facts and their familiarity with the trial and the jurors. That's their job.

There is no reason to create a rule that in the face of substantial conflicting affidavits, it is error to grant a new trial -- and great reason to prefer a contrary principle. And precedent in no way compels the conclusion reached by the Justice Doi Todd. To say that a trial court does not err by denying a new trial in the face of conflicting affidavits is far, far different than saying -- as Justice Doi Todd does here -- that conflicting affidavits essentially cannot justify a new trial.

The Court of Appeal should have remanded the case back to the trial court to specify its reasons and resolve the conflict. But Justice Doi Todd presumably knew what would then happen: that the trial court would give reasons for its previous decision to grant a new trial, and those reasons would not be an abuse of discretion. But the Court of Appeals didn't want a new trial. Hence the decision on the merits here.

That's my read, anyway. It's always difficult for appellate judges to take their roles to heart and to let potentially erroneous judgments stand as a result of the general principle that we do not want the Court of Appeal to resolve a case on its own. But that's part of the job. And it's a part of the appellate role that I don't think got much respect in this case. To the detriment of both the Raiders and the law.

Titus v. Thomas (Cal. Ct. App. - February 23, 2005)

A minor point about a minor case. The trial court in this case grants summary judgment to the defendant on worker's comp exclusivity grounds because he was a "fellow employee" of plaintiff as a matter of law since defendant didn't have the required contractor's license (and hence wasn't an independent contractor). Justice Scotland reverses because Business and Professions Code sect. 7049 creates an exemption from the licensing requirement for people who clear land for fire purposes in "rural districts". (You can read the rest of this short case for a fascinating discussion of what a "rural district" entails and the particular demographics of Siskiyou County. Unless you have something better to do. Which you do.)

Justice Scotland admits -- albeit in the unpublished part of the opinion (lame!) -- that the only reason defendant obtains a reversal is because he makes a completely new argument on appeal (e.g., the Section 7049 point) that he never raised in the trial court. Okay, fine; maybe this is indeed a purely legal issue that can be asserted for the first time on appeal. But don't then conclude the opinion by ordering the defendant to pay costs. The only reason an appeal was even necessary was likely because plaintiff failed to make the correct argument below. Defendant shouldn't be made to pay for that error.

Bockting v. Bayer (9th Cir. - Feb. 22, 2005)

The opinions in this case are classic products of their respective authors.

At issue is basically whether Crawford v. Washington, in which the Supreme Court held that the testimonial statements of absent witnesses are generally not admissible in the absence of prior cross-examination by the defendant, applies retroactively on habeas. Judge McKeown writes a smart, persuasive, and well-reasoned opinion for the majority that contains deep and innovative explications of Supreme Court precedent, and she reaches a result -- that Crawford is retroactive -- that advances the constitutional rights of the defendant. Judge Noonan concurs, and writes an opinion that is much less focused on the law (though his opinion still contains a healthy dose of legal analysis) and focuses a fair piece more on what's right, and he reaches a result that's consistent with his view of the proper result (here, that the conviction of the defendant in this case is pretty questionable and that he might in fact be innocent, and hence that applying Crawford retroactively might achieve the correct result). And Judge Wallace dissents, writing a smart, persuasive, and well-reasoned opinion that interprets (already conservative) Supreme Court habeas precedent in a conservative fashion and reaches a result (that Crawford is not retroactive) that he both finds attractive and that may well command the views of similarly-situated judges, including -- perhaps -- a majority on the Supreme Court.

This is a great case to read, both on the merits and because it contains good exemplars of the types of opinions written by some of the more interesting judges on the Ninth Circuit. It's a classic.

United States v. Osife (9th Cir. - February 22, 2005)

This opinion may be the best one that Judge O'Scannlain has written in a long while. It's scholarly, incisive, none-too-long, and keeps things moving. Ultimately, Judge O'Scannlain holds that the police can search an automobile incident to an arrest even if the arrestee is outside of the vehicle and there's no chance that the search is either necessary for the officer safety or that the search will lead to evidence relevant to the arrest (here, the defendant had been arrested for public urination and was handcuffed in the back seat of a police car at the time of the search of his vehicle).

You can agree or not agree with Judge O'Scannlain's holding on the merits. Regardless, he does a masterful job of explaining both the contemporary Supreme Court precedent on this issue as well as -- and this is the important part -- the role of federal appellate courts in following and interpreting evolving Supreme Court holdings in a particular field. It's not that Judge O'Scannlain says anything particularly new. He doesn't. But he explains the issue concisely, fairly accurately, and in a way that I think would make sense even to those unfamiliar to the field. It's the Supreme Court's job to overturn its own precedent, even when -- as here -- the Supreme Court has (fairly clearly) indicated that it is indeed inclined to do so and the federal appellate court is of the opinion that such a change would be wise.

The opinion is a good read on an interesting topic that can easily start a conversation about the appropriate role of precedent in the federal system.

People v. Rhodes (Cal. Ct. App. - February 18, 2005)

I am incredibly predisposed to write overly long missives that incorporate far too many quotes. So you know it's bad when my reaction to an opinion is: "That's way too long, and has far too many quotes."

But that was indeed my reaction to Justice Swager's opinion in this case. I can't complain about the result. Justice Swager is right that it doesn't violate equal protection to punish second degree murder of a police officer through the use of a firearm more severely than certain forms of first degree murder. But the single paragraph at the end of Section I is about all that he needed to say on that point. The six pages that preceded this paragraph -- the vast majority of which were simply long quotations from other cases -- merely distracted from the central focus of the piece.

I'm a big fan of proving that you're right by using precedent. But you can go too far. This is an example.

Sporn v. Home Depot (Cal. Ct. App. - February 17, 2005)

Home Depot's slogan is: "You can do it. We can help." This description is indeed accurate in this case -- and, here, the "it" is "obtain a massive $930,000 default judgment against us." Plaintiff did indeed obtain such a default judgment here, and Home Depot -- and its counsel -- certainly did offer plenty of help.

Home Depot's conduct is seemingly inexplicable. Home Depot's agent for service of process is served with a copy of the summons and complaint, and it is forwarded to Home Depot's corporate counsel. But no one at Home Depot bothers to respond. So plaintiff obtains a default, and, at the prove-up, obtains a $930,000 judgment. Home Depot responds to this judgment only after plaintiff starts to execute upon it, which is a fair piece too late. So holds Justice Rylaarsdam, who affirms the refusal to vacate the default. Plus, adding insult to injury (plus a little more injury), he sanctions Home Depot and its counsel -- Pillsbury Winthrop attorneys Richard Ruben, Kevin Fong (the chair of Pillsbury's appellate practice department), Ralph Blakeney, and Damon Eisenbray -- for filing a frivolous appeal. Which Justice Rylaarsdam justifies with the following parting shot: "The utter lack of merit renders the appeal frivolous and, combined with the unnecessary attacks directed at plaintiff and his lawyers, calls for an award of sanctions in favor of plaintiff." Ouch.

Beyond the obvious lessons, the only other component of this case that deserves special mention relates to the clearly excessive size of the default judgment entered at the prove-up -- a far-too-common result. Sure, since you've got no one opposing you, it shouldn't be too hard to prevail. But that doesn't mean that the court should entirely abdicate control of the case. It's a prove-up, after all, not merely an "allege-up". Here, plaintiff has filed an entirely piddley case that may well be meritless -- essentially, that some unnamed party stole his identity and that Home Depot compounded the problem by making monthly inquiries about plaintiff to Equifax. Okay, it's a default, so we give plaintiff some leeway, and let him prevail. But no way this case is worth $930,00. Sure, maybe you can allege that you were damaged to this degree, and perhaps even testify to it. But come on. Judges at prove-ups aren't required to -- and shouldn't -- ignore reality. This ain't a $930,00 case. It just isn't.

Of course, it worth that now. Indeed, now, it's worth $930,000 plus sanctions. Thanks, Home Depot. You did indeed help.

People v. Benavides (Cal. Supreme Ct. - February 17, 2005)

When you read ten or twenty cases a day for a decade or so, you can't help, I think, but become fairly jaded -- perhaps even slightly insensitive -- to facts that demonstrate even stark brutality. Your reaction to a single murder case, I think, can't help but be tempered by the fact that you've previously read hundreds of other similarly egregious cases. Your emotional reaction is tempered by experience. Maybe that's good. Maybe that's bad. But it's undeniably true.

I say that as a preface to noting that I've only read two appellate cases over the past decade that literally made me sick to my stomach -- that made me physically nauseous as I read the facts. The first of these was People v. Anderson, a depublished case previously found at 77 Cal. App. 4th 368 (2000). This case is the other.

I'll spare you a recitation of the facts, which essentially involve the (alleged) sexual abuse of a 21-month-old baby girl -- abuse that directly caused her death after a period of horrible suffering. I literally took three steps outside my office after reading the first four pages of the opinion because I really thoughtthat I was going to throw up. Maybe it's because I have a three-year old daughter and a one-year old son. I couldn't believe how deeply -- and how physically -- my reaction was to the manner in which this child was allegedly injured and killed. Horrible. Beyond horrible.

My only intellectual reaction to the opinion -- beyond noting that the California Supremes unanimously uphold the death penalty here (surprise, surprise) -- was that the case concretely demonstrated to me how impossible it is for a jury to "rationally" choose between life and death: to decide who lives and who dies on anything approaching a coherent basis. And also how the facts (and photographs, etc.) of a particular case may well affect not only the jury, but also the appellate courts. This is a defendant who gets sentenced to death even though he doesn't have even a single criminal conviction or any prior history of violence, whereas far more dangerous and vicious people get sentenced to life. Why? Purely because of the nature of the crime, I think -- particularly given the utter absence of any other evidence at the penalty phase. And he gets selected to die even though, notwithstanding the barbarity of the crime, my firm sense is that he didn't intend at all to kill the child. So deliberate, premediated killers with a history of lifelong violence live but this guy dies.

Not that I don't understand why the jury imposed the death penalty, of course. Look, if just reading about the case makes me sick, I can understand how the jury must have felt to actually be there. So it's not that I don't understand what transpired. But that doesn't necessarily make it -- or the system that produced it -- right. I was also somewhat distressed to see how the barbarity of the facts seemingly affected the Supreme Court as well. Justice Brown holds (in Part III.B) that the evidence against defendant was extremely strong and hence that the admitted error in admitting certain prejudicial evidence against him was harmless. But this was a much, much closer case on the facts that the vast majority of other death penalty cases; indeed, there were utterly no witnesses here against the defendant, and the entire issue basically revolved around the cause of death (i.e., what conclusions one drew from the medical evidence in light of the testimony of the starkly contradictory medical experts at trial).

Do I think that Benavides is guilty? Yeah, he probably is. Is it totally and completely clear? Nope. Is it so completely and utterly clear that there's no way that the jury could have found the other way. No way. But I have a firm sense that, given the facts of the case, the California Supreme Court -- like the jury -- wants the guy who perpetrated this horrible crime to pay the ultimate price. And when you have that reaction, and believe that this is indeed likely the guy, concepts like "reasonable doubt" and "evidentiary error" and "equality of treatment" tend to get ignored. That's life, I know. But when someone's life hangs in the balance, it strikes me as even more unjust.

Gator v. L.L. Bean Co. (9th Cir - February 15, 2005)

I really enjoyed reading this case. The issue before the en banc court was whether the Ninth Circuit still had jurisdiction to resolve the appeal (e.g., whether there was still a valid Article III case or controversy) after the parties settled the underlying dispute. The general rule, of course, is that a settlement moots the case, but the parties here had simultaneously made a $10,000 bet on the outcome of the appeal: Gator would have to pay L.L. Bean that amount if the case was affirmed (in addition to the other static payments required by the settlement agreement), whereas no additional money would be exchanged if the case was not affirmed. So the issue was whether that side bet continued the case or controversy that existed when the case was filed.

The majority held that it did not, and accordingly dismissed the appeal. The majority opinion, the concurring opinion, and the dissent each made important and persuasive points, and I enjoyed reading all of them. I did not approach the case thinking that the proper resolution of the matter was at all clear, even though this is an issue that somewhat interests me. Indeed, as I progressed through the various opinions, I was persuaded by each of them, seriatim. My initial reaction was that side bets shouldn't create jurisdiction, consistent with the majority opinion. Thereafter, upon reading Judge Tashima's concurrence, I thought that side bets at least should not create jurisdiction when the bets concerns (as here) merely whether or not personal jurisdiction exists. But then I found Judge Willie Fletcher's dissent perhaps the most persuasive of them all; that the side bet here could well be related to the merits -- e.g., could easily be viewed as the equivalent of a cost award on appeal to which L.L. Bean would otherwise be entitled -- and that a live case or controversy accordingly still existed.

My ultimate take on this dispute ends up being a melange of each of these views, albeit one that none of the judges have themselves expressed. I think that Judge Fletcher is right -- indeed, fairly clearly right -- that the side bet here entails a legitimate case or controversy. The more I thought about it, the more I disbelieved Judge O'Scannlain's conclusion that Article III standing fails to exist in cases like this. That can't be right. For example, imagine that Congress passed a statute that granted federal jurisdiction over side bets. I can't fathom that the judiciary would strike the statute down as a violation of Article III. Moreover, I would think that Article III jurisdiction exists over such disputes in the same way that ancillary jurisdiction exists over fee, cost and sanction awards. As long as the dispute is concrete, as long as the parties still care, and as long as (as here) the dispute is at least marginally related to the original controversy, I don't see that Article III really prevents adjudication. It's still a live case or controversy.

So I actually think that Article III isn't the problem. Rather, I think that the proper resolution may arise instead from something that none of the judges discuss: prudential standing concerns. Even if there's Article III jurisdiction, the court can clearly bounce cases on nonconstitutional standing grounds. And both the majority and Judge Tashima (in his concurrence) do a pretty tolerable job of explaining why we might well want to bounce cases like this one -- where the concrete interests of the parties, as a result of the side bet, is fairly low. My reaction as I initially read the case is that I'm loathe, as a general matter, to allow parties to craft their settlement agreements (e.g., by including side bets) as a means of manipulating standing requirements, since this would allow (as here) the parties to engage in strategic behavior in order to obtain favorable precedent. So I might well dismiss the appeal on such prudential grounds, in part for the reasons explored by Judge Tashima. Especially, again, when the side bet only concerns issues like whether or not there was personal jurisdiction in the underlying matter below.

This is especially true, as here, when the underlying case is a declaratory relief action. I don't mean to say by this that I buy Judge O'Scannlain's incredibly lame attempt to distinguish the various Supreme Court cases on the standing issue by claiming that this case is distinguishable from those because it's a claim for declaratory relief. Judge Fletcher entirely crushes the majority on this issue: it's not even close. But in declaratory relief cases, it seems to me that we already have a wide variety of bases for discretionary dismissal, and that recognizing another one for cases like this would be entirely appropriate.

I don't like the thought that parties can create jurisdiction through manipulative side bets. So usually I might dismiss such claims on either prudential standing grounds or, as here, as a common law limitation on claims for declaratory relief. But sometimes, the side bet is somewhat -- perhaps very closely -- related to either the merits or the underlying controversy. In such cases, both in order to encourage creative ways of narrowing the appellate issues or to ensure the resolution of an existing dispute, I'd let the appeal go forward. I'm fairly confident that Article III allows such an approach, and think that this view of the standing issue -- as a matter to be resolved on a pragmatic, case-by-case basis -- is preferable to the position advanced by any of the views expressed by the Ninth Circuit. It'll let legitimate side bets be resolved while dismissing the remainder.

Lease & Rental Mgmt. Corp. v. Arrowhead Central Credit Union (Cal. Ct. App. - February 14, 2005)

Okay, so Justice Gaut busts his streak here. This opinion I'm much less psyched about, and think that he may well get it wrong. (And yes, I read and post seriatim; I had no idea this was going to be "Justice Gaut Day".)

The proper resolution of this case is fairly fact-specific, but can be briefly summarized. Basically, defendant gives good credit references about a third party to plaintiff, when in fact third party's credit is (at least sort of) pretty darn far from good. Justice Gaut upholds the grant of summary judgment to defendant, holding that, on the facts of the case, defendant's representation that plaintiff had "good credit" was fairly subjective, and should not properly subject it to liability.

But my reaction was a bit different. I thought that this was somewhat clearly a jury issue, and hence improperly resolved on summary judgment. Sure, maybe you could say that defendant's representations of good credit were subjective. But there were a lot of objective facts to the contrary, none of which were disclosed to the plaintiff. Like the fact that the third party had over 2400 NSF checks even though defendant wrote "N/A" on the form about how many NSF checks defendant had. Or that defendant (admittedly) misstated the third party's credit line. Or the fact that defendant evaluated the defendant's history as "satisfactory" even as the Vice President of defendant was saying that she was "very concerned" about the account and threatened to close it. Or the legions of other stuff explored in the opinion.

At some point, even a subjective evaluation of creditworthiness has to be made reasonably and in good faith. For every line, of course, someone has to draw it. Here, I thought that the issue was close enough that a jury -- not the judge -- was entitled to make the call. (Justice Gaut's related claim that defendant didn't necessarily know what the credit check was for is a fairly lame argument. Obviously you're doing a credit check to see if you're going to extend credit. Duh.)

So I think Justice Gaut gets this one wrong. Not horribly or anything. I'm not going to start screaming for impeachment hearings. But wrong is still wrong.

Beckett v. Mastercraft Boat Co. (Cal. Ct. App. - February 14, 2005)

Two published opinions by Justice Gaut in one day. And both of them entirely correct (at least from my point of view) and worth at least a quick read. Not bad, Barton. Not bad at all.

The interesting thing about this case is principally that it reaches a result that I wouldn't at all have intuited: namely, that the Rio Hardy River in Baja California, Mexico (a tiny river south of Mexicali that empties into the Colorado before it ends at the Gulf of Mexico) is probably part of the "high seas" pursuant to the federal Death on the High Seas Act (and hence preempts state law remedies). I thought, naively enough, that the high seas were really the high seas. You know, as in, "the ocean". But Justice Gaut writes a short, cogent, and well-reasoned opinion that indeed disabuses me of that notion. Apparently the "high seas" includes a tiny inland river in another country. My uninformed intuition to the contrary was apparently wrong. Good to know.

It's nice to see a brief, six page (double spaced!) opinion that does everything that an opinion should do. Not too long, not too short. Just right for the case at hand. Admittedly, I feel sorry for the Becketts, who lost their fifteen-year old daughter and who, as a result of the opinion, have to settle for the $100,000 they got from the boat owner and operator. But Justice Gaut convinces me that that's apparently the law; that the relevant California law doesn't extend extraterritorially, and that even if it did, it would probably be preempted.

Readylink Healthcare v. Cotton (Cal. Ct. App. - February 14, 2005)

This is perhaps the paradigmatic case in which an employee can be legitimately enjoined from unlawfully competing against his former employer, even in the very employee-friendly Great State of California.

Brief summary: Jerome Cotton allegedly -- and I hesitate to use that word (since the facts seem crystal clear) -- steals tons of stuff from his employer, even though he signed multiple nondisclosure, noncompete, non-please-don't-steal-my-stuff agreements. He tries to use this material to open his own competing business, gets preliminarily enjoined by his former employer, and then appeals the injunction. Justice Gaut carefully and rightly affirms the injunction (after modifying several incredibly minor portions of it).

Given the allegations, Cotton's should be glad he's not in jail -- apparently, the police investigated but decided not to prosecute -- rather than worried about the scope of the injunction. Especially since Cotton is now out of the relevant business. You'll be happy to know, however, that Jerome still has his real estate license, and is apparently currently working for EB Investments in Palm Springs. (Feel free to buy its fascinating book, "Unlocking the Mystery of Foreclosures". Parenthetically, EBI's schlocky web site that promotes the book -- complete with breezy american flag and horribly gauche rotating green dollar signs -- is here.) There's a guy I definitely want to hire to help me make critical financial decisions. He's done so well for himself, after all.

Cotton's lawyer -- David Lynch -- also doesn't make out very well in the opinion. The first footnote characterizes one of Lynch's descriptions as "disingenuous and misleading" (as indeed it appears to be). And the Court of Appeals' reaction to Lynch generally goes downhill after that, as Justice Gaut describes a variety of choices -- including not answering arguments in the reply and, most importantly, failing to appeal a portion of the injunction whose premises largely doom the parts that are appealed -- that don't appear very wise. It's not a good day, overall, for either Cotton or his counsel.

On the upside, Justice Gaut does order both sides to bear their own cost. Which is somewhat weird to me. It's clear that Readylink won everything important. It seems like they should get their costs as well. Admittedly, I'm sure that Readylink is hardly complaing. But the last sentence was the only part of the opinion with which I might marginally disagree.

Blumhorst v. Jewish Family Services (Cal. Ct. App. - February 14, 2005)

Appopriately enough on Valentine's Day, you can feel the (lack of) love for the plaintiff in this case. But, sadly, I think that the court's (very understandable) lack of love for this plaintiff might well generate a very bad (and wrong) result -- and one that is very much not worth the limited success achieved by defendants. This may well be a classic example of good intentions gone (horribly) awry.

Blumhorst is a man who's not (really) the victim of domestic violence. But he's upset that shelters for abused women only admit women. So he calls up a variety of them pretending to be a victim, and when they won't admit him (because he's a man), he sues them for discrimination under Government Code 11135. (Which he can do because they're state-supported). Defendants are represented by a bunch of do-gooder organizations (O'Melveny & Myers, California Women's Law Center), and also enlist the aid of interested do-gooder amici (DLA Piper Rudnick Gray Cary, California Alliance Against Domestic Violence, etc.). Since plaintiff wasn't really looking for shelter -- he just wanted to sue -- defendants move to dismiss for lack of standing. Judge Mayeda (who I think is a fairly conscientious judge) agrees. And the Court of Appeals -- speaking through Judge Kriegler (an LA judge sitting by designation on the Court of Appeals) -- affirms.

Look, I'm hardly going to cry for Blumhorst. I also think that Judge Kriegler is right that Blumhorst's prior (alleged) status as a domestic violence victim doesn't give him standing. Nonetheless, I think that in getting the lawsuit dismissed on standing grounds, the defendants have done more harm than good for the causes they espouse. They convince the Court of Appeals that "testers" like Blumhorst -- and that's exactly what he is -- shouldn't have standing. Okay, I admit that gets your client off. For now. So you win something.

But you don't win much. This isn't going to stop the lawsuit; not only aren't the shelters going to change their policies, but Blumhorst shouldn't have a major problem in finding a single male domestic violence victim to make a couple of calls and thereby bring the same suit with an actual victim. This kind of "phone call" testing is fairly easy, so you'll face the same suit soon enough. By contrast, by provoking -- indeed, advocating on behalf of -- a published opinion that categorically denies testers standing, you've created exactly the opposite doctrinal principle that would help your cause: a broad rule that precludes the type of testing that's been so useful in federal housing discrimination cases from rooting out similar discrimination under Section 11135.

So to bounce a single suit that's going to be brought anyway, defendants have made it much, much more difficult to bring organized claims that allege discrimination based upon "race, national origin, ethnic group identification, age, sex, color, or disability." Yeah, that's what we want. Make those claims much harder to bring. And don't think that just because Blumhorst can easily find an actual victim that you can too. It only takes a single phone call from an actual victim to set up Blumhorst's suit ("Q: I'm a man; can I crash at your shelter? A: No.") or -- even lacking that -- a reference to the shelter's express policies. Claims that a state-supported agency discriminates against blacks, women, or the disabled are much, much harder to prove, and its precisely in those types of cases that testers are often so necessary.

It's not that you couldn't agree with Judge Kriegler and hold that testers shouldn't have standing. Admittedly, you'd have to do a lot more work than Judge Kriegler does to prove the point. The Court of Appeals' analysis on this issue is extremely perfunctory, and entirely fails to address the plethora of arguments that have been routinely accepted by the courts in support of tester standing -- arguments that are facially equally applicable to Section 11135. See, e.g., Tandy v. City of Wichita, 380 F. Supp. 3d 1277 (10th Cir. 2004). Maybe you could nonetheless come rationally to such a view; indeed, you might be fairly excited about such a conclusion if you were either very conservative or in favor of weakening anti-discrimination laws. But does this description really apply to either the do-gooder counsel or defendants themselves? I certainly hope not.

You could perhaps take a slightly sophisticated view of these efforts, and claim -- as Judge Kriegler somewhat attempts to argue in the last substantive paragraph of his opinion -- that the rule against tester standing may only apply when men like Blumhorst attempt to subvert programs designed to benefit women. But that's the only part of the opinion that I'm quite positive is clearly wrong: a rule that held that male testers don't have standing when they complain about discrimination but women testers would have standing would not only be an implausible reading of the statute, but would also -- in my view -- be clearly unconstitutional.

Overall, I'm just not pleased with how this litigation progressed. What's wrong with a simple defense on the merits? If you think you can permissibly discriminate because there's a state interest in excluding men, so be it. That's what you argue. What you don't do is to diminish the efficacy of the entire antidiscrimination regime in a shortsighted (and entirely temporary) effort to save your own arse. You are, of course, perfectly entitled to make such a choice; I'm not saying that you aren't. But you're not a good public interest group if you do. And aren't a good public interest lawyer, either.

That's my view, anyway. Perhaps reasonable minds might disagree.

LATER P.S. - One of the lawyers from O'Melveny contacted me to (very helpfully) mention that only one of the defendants -- represented by separate counsel -- actually made the standing argument in their brief. Which I was glad to hear. There's a very brief (one-sentence) tester standing argument made on page 25 of the brief of the principal defendants, but it's arguably on a distinguishable standing issue.

HLC Properties, Inc. v. Superior Court (Cal. Supreme Court - February 14, 2005)

You can be star-struck even if you're on the California Supreme Court.

Here's a case about whether particular documents remained privileged. The only complicated part of the case is that the client is dead but conducted most of his business operations through a loose association of personal assistants. So the issue is whether the privilege is waived because the client-holder is dead or whether, on the facts of this particular case, the loose association of assistants was the holder, in which case the successor to that loose association still holds the privilege.

The case revolves almost entirely around its unique facts; whether the individual was really the holder or whether the loose association was the holder. This is not a case of general importance. It does not involve facts that happen all the time. It is not a matter that has split the Court of Appeals. The case was so important that it generated no amicus briefs, either below or in the California Supreme Court. The issue was that critical.

So why did the case go up? Besides error-correction -- and if the California Supremes want to start getting into that business, they better start canceling their vacations -- the only explanation for granting review is the title of the case; particularly, "HLC Properties." Which stands for "Harry Lillis Crosby". A.k.a., Bing Crosby. Who happens to be the particular dead holder at issue.

Maybe I'm wrong. Maybe the Cal Supremes would have taken this fact-specific, unpercolated case up even if it involved someone who wasn't rich and famous. Just like they did when they previously took up those many other fact-specific, unpercolated attorney-client privilege cases. Like, uh . . . . well, I'm sure they exist somewhere. Just sure of it.

Always good to see a little thumb on the scale for the rich and powerful. Especially the rich, powerful, and dead. They definitely need a little extra help.

Stockton Petroleum Co. v. Hendrix (Cal. Ct. App. - February 10, 2005)

I usually don't discuss unpublished opinions, in part -- quite honestly -- because, unlike the published ones, I don't necessarily read every single one of them. There are simply too many. Reading all the published ones is a difficult enough task itself!

But I thought that this one deserved at least brief mention. Within the first two paragraphs, Justice Sims (HLS '68) insults the "poor lawyering" of appellate and trial counsel. The opinion then continues to highlight the inadequacy of the lawyers throughout. By my count, Justice Sims insults the attorneys sixteen separate times; indeed, virtually every footnote -- and there are fourteen of them -- contains a slam on counsel.

They aren't absurdly mean insults, and for the most part, the critiques appear well-founded. Plus, not only does Justice Sims not publish the opinion, but he also never even names the attorneys. So Justice Sims is hardly as harsh as he could be. (Of course, I'll do exactly the opposite, and both publish and name names. Donald Stevenson is the attorney for Hendrix, and Mark Thiel is counsel for Stockton.)

My only additional comment is that at least some of the inadequacy of the lawyers here may well be due to the low amount in controversy. Both the appeal and the underlying dispute at trial concern only $20,000 or so in unpaid fuel bills. Many attorneys won't take a dump for $20,000, much less litigate a case both at trial and on appeal. Given that only $20,000 was at stake, it's not surprising that the lawyers might -- indeed, perhaps should -- attempt to cut some corners in an attempt to litigate the matter efficiently.

Admittedly, that's no excuse for violating various appellate rules (like having to cite to the record). Much less it is an excuse to (as Donald Stevenson allegedly did) use out-of-context quotes (here, from Witkin). That said, I slightly wish that Justice Sims had expressly recognized the underlying systemic problem here. It's virtually impossible in our legal system for parties to competently litigate $20,000 disputes. The candle simply isn't worth the wick. (Less colloquially, the recovery generally isn't worth the transaction costs, at least when the case isn't likely to settle.) So parties who have such disputes are forced to settle for less-than-stellar counsel, who in turn are compelled to litigate the matter in an overly efficient manner, lest their fees alone swamp the substantive amount at issue. That's a pervasive problem with the American civil system: the inability of mid-sized (to most Americans, at least) disputes to justify employing any counsel, much less competent counsel. A phenomenon worthy of mention.

Hambleton Bros. Lumber Co. v. Balkin Enterprises, Inc. (9th Cir. - February 11, 2005)

Anyone familiar with the typical practice of amending deposition testimony pursuant to Rule 30(e) will want to read this case. Judge Noonan therein substantially limits the ability of paties to edit their deposition testimony as a means of avoiding summary judgment -- a fairly common practice. Judge Noonan holds that such changes are indeed subject to the "sham exception" that has previously been applied to affidavits, and that these changes can, in appropriate cases, be ignored in ruling on such a motion. The opinion also discusses -- and, critically, highlights the importance of -- a plethora of other procedures that, in my experience, many litigators routinely ignore, including (but by no means limited to) the requirement that the basis for any testimonal edits be explained. It's an important case for anyone actually practicing law in federal courts.

This is also an interesting -- and difficult -- case for textualists. The result reached by Judge Noonan is hardly surprising, and it's largely consistent with the holdings of some other circuits and a variety of district courts. But none of these cases do a very good job of justifying their holdings to formalists. There are ample policy bases upon which one might rationally preclude a party from altering his own deposition testimony as a means of avoiding summary judgment. So if you're not much constrained by text, you'll almost certainly agree with Judge Noonan.

But here's the problem. Rule 30(e) expressly allows parties to make "changes in form or substance" to their deposition testimony. It is almost impossible to rationalize that clear authorization with the holding that these changes can effectively be ignored. Judge Noonan argues that ignoring sham deposition changes is just like ignoring a sham affidavit. Perhaps. But sham affidavits are expressly addressed -- indeed, subjected to sanctions -- in Rule 56(g), whereas the response to sham deposition changes lacks any similar textual basis. Moreover, nothing in the FRCP expressly authorizes sham affidavits (indeed, Rule 56(g) is directly to the contrary), whereas Rule 30(e) does indeed expressly authorize substantive deposition changes.

Now, I'm no hard core textualist. Far from it. So a lot of Judge Noonan's opinion rings true to me. But, to me, the text does indeed constrain the judiciary's response. For this reason, entirely failing to address that text -- like Judge Noonan does -- is not only unwarranted, but substantially weakens the persuasive effect of the holding. You gotta confront the weak parts of your proposed result. Ignoring 'em doesn't make 'em go away.

People v. Long (Cal. Ct. App. - February 10, 2005)

Ouch. Michael Long allegedly punches his girlfriend -- now wife -- in the face and gets charged with corporal injury on a cohabitant. Nine months later, the prosecution offers a deal: plead guilty in return for five year's probation and 120 days in a batterer's treatment program. Not bad, right? But Long tells 'em to stick it. One month later, a new prosecutor comes in, and Long decides he wants to take the offer. But now it's off the table. The new prosecutor's offer: 10 years in prison, no less. Long again says no. Gets convicted and sentenced to 15 years. Appeals claiming prosecutorial vindictiveness. Conviction and sentence affirmed. So Long's got 15 years to think about the probation deal that he far-too-quickly rejected. That's gotta hurt.

Justice Robie gets the case right; there's no impermissible vindictiveness. Still, I'm not too psyched about the randomness of a system in which the difference between probation and 15 years in the clink depends upon the spin of a prosecutorial wheel.

P.S. - There certainly aren't many active lawyers are out there who graduated -- as Long's appointed appellate counsel (William Parks) did -- from the New College of California School of Law. The school has been around for 30 years, and typically less than a dozen of its graduates pass the Bar every year.

Galvan v. Alaska Dep't of Corrections (9th Cir. - February 9, 2005)

This is the kind of opinion that seems fairly sleazy to me. Judge Kleinfeld holds that the defendant hasn't exhausted her federal habeas claim because she only raised state claims in her state proceedings. Since the defendant clearly raised federal claims before the Alaska Court of Appeals, Judge Kleinfeld has to do some fancy footwork to argue -- fairly lamely -- that maybe counsel deliberately chose not to raise a federal claim in the petition for review before the Alaska Supreme Court. This seems pretty darn implausible to me, especially given the nature of the underlying claim (ineffective assistance). Why would counsel raise federal claims below and then suddenly shift gears and intentionally waive them in the petition for review (especially since the petition for review is unlikely to be granted, and hence the only real result of such a decision would be to waive federal habeas!)? Judge Kleinfeld's rationalization here just doesn't make sense.

But let's assume -- and it's possible -- that even if the attorney had intended to assert a federal claim, it wasn't in fact properly asserted. This portion of Judge Kleinfeld's opinion is indeed plausible; after all, the defendant only cited a single federal case in the petition for review. If Judge Kleinfeld had ended the opinion there, I wouldn't have a big problem with the decision.

But here's the sleazy move -- one that's fairly common by particular judges on the court, but that nonetheless seems wrong. In the last paragraph of the opinion, after reciting the (entirely applicable) general rule that you have to exhaust your federal claim by raising it in all levels of the state system, Judge Kleinfeld says: "Briefing a case is not like writing a poem . . . . Poets may use ambiguity, but lawyers use clarity. . . . It has to be clear from the petition filed at each level of the state court system that the petitioner is claiming [] violation of the federal constitution." (emphasis added); see also the last sentence of the opinion (holding that the petitioner must have "explicitly alerted" the state court to the federal claim).

Okay, you could have such a rule -- that the petition has to "clearly" raise the federal claim. But that's not, in fact, the law; indeed, precedent is quite to the contrary, and repeatedly finds exhaustion when the federal claim is far, far from clearly asserted. Judge Kleinfeld makes an oblique reference to this precedent when he says that raising the federal claim "may not take much," but the sleaze move nonetheless exists; he's already made sure to include in his opinion a sentence that expressly says that the federal claim has to be "clear" in order to be exhausted. The point of doing so is to change the law; indeed, to change it in a manner that's not noticed at the time, but that nonetheless can be quoted and relied upon by both litigants and similarly-inclined judges in the future.

One could have the view that this is merely an innocuous, off-the-cuff sentence. But that's definitely not my take. Especially in a case like this.

People v. Stankewitz (Cal. Ct. App. - February 9, 2005)

Hmmm. Stankewitz and Lewis are both undeniably drunk. They're speeding along, three sheets to the wind, when they run a stop sign and smash into another car, killing the victim. Lewis is thrown from the car, and Stankewitz runs from the car to call for help (and then hide from the police). Someone's clearly going to be charged with -- at a minimum -- gross vehicular manslaughter, and, if convicted, spend a ton of time in prison. The critical question, of course, is: Which one? Stankewitz or Lewis? Which one was driving, and which one was the passenger? On that issue, a ton of prison time -- as it turns out, 30 years to life -- hangs in the balance.

The police obviously know that this is the critical issue. And, on this issue, there are no (living) witnesses other than Sankewitz and Lewis, each of whom will obviously want to point the finger at the other as the driver. Looks like a job for "CSI: Madera County" (!), right? The police will see whose blood is on the driver's seat and whose blood is on the passenger's side. They'll take hair samples. They'll take prints. They'll see where the seat is positioned (up front, for the smaller Lewis, or further back, for Stankewitz). They'll see which seat belts were engaged at the time of the accident, since Lewis probably wasn't wearing one (since she was ejected). They'll see how the seats lean. The physical evidence will solve the case. It'll show who's the driver. Right?

Uh, no. How about this instead: The police will take a couple of pictures of the accident, do utterly nothing to obtain any real evidence from the vehicle, let the smashed car rot in the elements of an outside junkyard for two months, and then sell the car to a dismantler, who (inter alia) will cut off the entire front end of the car and throw the severed vehicle (with other choice alterations) on top of another junked car. In other words, the police will take sufficient care of the car just enough to make sure that there's absolutely no physical evidence left that might help to either convict -- or acquit -- Stankewitz.

It's not like this is a open-and-shut case. It takes the state three trials to finally convict Stankewitz; the first jury hangs, the second jury's verdict gets tossed for ineffective assistance, and it's only the third time that's a charm (for the State, anyway -- not Stankewitz). Justice Wiseman upholds this conviction, holding that the failure to properly preserve the car wasn't reversible error.

I'm admittedly conflicted about this case. Some of what Justice Wiseman says makes sense; by contrast, some of what she says -- particularly her claim that there's no real proof that examination of the car might possibly have helped the defense -- seems incredibly weak. All I know is that the state-controlled handling of the evidence in this case leaves me far from confident that justice was done to Mr. Stankewitz. Yeah, he might well be guilty. But, then again, maybe he wasn't. The only thing I know for sure is that what the police did makes it impossible for us to be confident in the result. And that's a problem. A big one.

Troppman v. Gourley (Cal. Ct. App. - February 8, 2005)

The California Supreme Court has got to take this case up.

The issue is basically this: When you're drunk and slumped over your steering wheel, if you refuse to take a blood or breath test, can the state take away your driver's license even without proving that you ever drove drunk? The California Court of Appeals has been divided on this issue for -- by my count -- seventeen years, with multiple published opinions supporting both sides of this dispute. One set of cases holds that you can't have your license pulled for refusing such a test if you haven't, in fact, been driving drunk (e.g., if you merely pulled into a parking lot, shut off the car, got loaded, and passed out). Another set of cases -- including this one -- holds that your license is indeed properly revoked in such settings because even if you haven't driven drunk, the statute requires (and you've validly consented to) taking a test if there's probable cause to believe that you're driving while intoxicated, so if you refuse, they can properly revoke.

It's an important issue. It's divided the Courts of Appeal for a long, long time. There are multiple published opinions on both sides. The issue arises all the time. What better case for certiorari can you have?! Indeed, why hasn't the California Supreme Court already resolved this dispute?

Whether you're forced to consent to a breath test under penalty of getting your license pulled shouldn't depend upon what county you're in. Much less should it depend upon what panel of the Court of Appeals you happen to draw. Right now, it does. This case calls -- indeed, screams -- for resolution by the California Supremes.

City of San Diego v. D.R. Horton San Diego Holding Co. (Cal. Ct. App. - February 7, 2005)

Here's a local case with local flavor on a topic close to my heart. It involves a jury verdict of approximately $5.6 million in favor of a local developer in an eminent domain action arising out of the City of San Diego's taking of 12.69 acres of Horton's land in order to extend State Route 56. Horton thought that this verdict was too low, and filed a motion for (and eventually obtained) a new trial on the ground that the jury's special verdict was inconsistent. Judge Amos granted the new trial because in deciding one portion of the verdict, the jury appears to have used the City's expert's valuation of $445,000 per acre, while on another portion of the verdict, the jury appears to have used Horton's expert's valuation of $850,000 per acre. Horton's argument is that because these two components are inconsistent, a new trial was warranted. Justice O'Rourke agreed, and affirmed the grant of a new trial.

The problem of inconsistent jury verdicts is one that has interested me for quite some time. Early in my academic career, I wrote a law review article on the subject (Rationalizing the Irrational: The Treatment of Untenable Federal Civil Jury Verdicts, 28 Creighton L. Rev. 683 (1995)). More recently, I argued a case in the Ninth Circuit that involved a multimilliondollar jury verdict that had been tossed by the district court on the precise grounds at issue here (inconsistency), and persuaded the Ninth Circuit to reverse the grant of the new trial and reinstate the verdict (Duk v. MGM, 320 F.3d 1052 (9th Cir. 2003)). So I have fairly considered views on the subject, even beyond reading the opinion of the California Court of Appeals.

I'm not a guy who believes that jury verdicts are sacrosanct; indeed, my law review piece argues that in many realms, inconsistent verdicts should indeed be tossed. But this case isn't one of them. Justice O'Rourke -- who's a fellow Harvard Law graduate, and is hardly a dummy -- cogently demonstrates that it looks like the jury applied two different valuations to the two different components of the verdict. But it might well have done so rationally.

The main portion of the verdict -- and the part I'm quite certain the jury focused on -- was the straightforward "value of the land the City took" portion, and on that central issue, it used the City's valuation. (Which is why, of course, Horton wants a new trial.) True, on the second part -- the severance portion -- it looks like the jury used Horton's valuation. But why not? Why should it bother to do anything else? The critical portion of this part of the verdict simultaneously concluded -- against consistent with the City's expert -- that the severance resulted in over $5.4 million in benefits to Horton, which was more than the damages that even Horton's expert claimed the severance caused. So regardless of which valuation you used, the jury was holding that Horton was entitled to no severance damages. It's entirely plausible that the jury, in its deliberations, simply said "look, we all can agree that even if we use Horton's valuation, Horton's not entitled to severance damages, so we all can easily agree on the following result . . ." This part of the verdict is just like dicta in an appellate opinion. We utterly don't care what we say, since it doesn't matter, so let's just say the easiest thing and get it done.

In a case like this, where the jury has done something entirely consistent with the evidence, and has issued a verdict that almost uniformly rejects the testimony of the losing party's expert (on both parts of the verdict), the fact that the jury includes a (meaningless) portion of its verdict that favors the losing party is not properly grounds for the losing party to complain. There's a more complicated waiver issue as well here (for example, why didn't Horton request redeliberation to clarify the ambiguity? Answer: Because it definitely did not want the jury to explain -- quite rationally -- what it had done), but that's just more reason to uphold the verdict.

So I think Justice O'Rourke gets this one wrong. And this from no fan of inconsistent verdicts.

P.S. - I was also somewhat surprised to see the City of San Diego using counsel from Oakland in this case. Do we really have no good appellate lawyers on this issue in San Diego?

Carnes v. Superior Court (Cal. Ct. App. - February 7, 2005)

I enjoyed Part I of this opinion, which consisted almost exclusively of an -- entirely justifed -- slam on Judge Baker (in Placer County) for simply rubber stamping findings of fact and evidentiary rulings prepared by the prevailing party on a motion for summary judgment. There are several judges who do this on occasion, and it is always distressing. I was glad Justice Robie took the time and effort to gracefully, yet forcefully, condemn the practice in a published opinion.

People v. Valdez (Cal. Ct. App. - February 4, 2005)

I'm somewhat surprised that there were no amici in this case given the controversial nature of the principal appellate issue. Maybe no one was interested; more likely, none of the counsel got the word out.

In any event, Justice Scotland holds here that the defendant can be convicted of murder (of a fetus) under Penal Code 187(a) (the general murder statute) even if (1) the fetus was not viable (here, was 16-17 weeks old), (2) the defendant did not know the fetus existed, and (3) the fetus would have perished in utero even without the defendant's conduct. The California Supreme Court has already held that (1) and (2) are irrelevant. This case adds (3).

I won't get too heavily into the debate surrounding the legitimacy of murder charges based upon the death of a fetus. That's an incredibly controversial topic -- there are dozens of law review articles devoted entirely to this issue. I'm also sure that people both will and should debate at length whether the killing of a fetus that will never be born alive (due to preexisting medical complications) properly justifies a criminal conviction for murder, including (1) whether the statute properly covers such conduct, and (2) whether such punishment is constitutionally permissible (or, in a particular case, perhaps constitutionally excessive).

I just wanted to make one brief point. What's the principled dividing line here? Justice Scotland holds that it is still murder because even a terminal fetus that will never be born alive is still (definitionally) a fetus. True enough. But does this mean that terminating a fetus with anencephaly -- a medical condition in which the fetus lacks a brain -- also counts as murder? (This isn't that uncommon; around 1 in 60,000 pregnancies.) What about the -- even rarer -- case of acardia, where the fetus doesn't have a heart? The fetus is still a "fetus" in both of these cases, after all. Does this still count? What about a fetus that is already "dead"? Still murder? (And, parenthetically, is it still constitutionally permissible to punish the termination of such fetuses as severely as murder of a person who has already been born, perhaps even imposing the death penalty?)

The Court of Appeal places its exclusive emphasis on the definition of "fetus", which it correctly notes is a fairly broad term (which, according to the California Supreme Court, pretty much covers everything after seven or eight weeks). But the statute also requires the "killing" of a fetus, and Justice Scotland doesn't once talk about that term. Presumably "killing" requires that the fetus already be "alive", and what the latter term entials is -- it seems to me -- the core dispute. Would one really would say, for example, that a fetus that is already dead is "alive" and hence capable of being "killed"? What about fetuses with severe anencephaly; are they "alive"? When the fetus isn't viable and isn't ever going to be viable, what exactly counts as being alive? What does a "living" entity that is capable of being "killed" entail? Is having a single living cell enough, or do we require more -- and, if so, precisely what is the "more"?

Reasonable minds can indeed disagree about this issue; obviously, some people are going to argue that even a zygote is "alive", while others will argue that nonviable fetuses aren't "alive" (because they don't actually entail potential life) and hence capable of being killed. I don't have any original insight as to the proper resolution of that issue. But it does seem to me that this is at least one of the points that the Court of Appeals needed to discuss, rather than focusing exclusively on the mere definition of a "fetus" under the statutory definition of murder.

People v. Beck (Cal. Ct. App. - February 3, 2005)

I don't understand why Justice Vartabedian didn't initially publish this opinion, and was glad he changed his mind. It's not only the right result, but is also helpful to trial courts.

This is one of a number of cases in which the trial court erroneously uses implied malice instructions (e.g., CALJIC 8.10 & 8.11) in an attempted murder case. CALJIC 8.66 currently articulates the right rule: that to prove attempted murder, the defendant has to harbor the specific intent to kill another person. But courts nonetheless often either read CALJIC 8.10 instead -- or read it alongside CALJIC 8.66 (as the court did here) -- which instructs the jury that they can convict based upon implied malice instead; namely, the commission of an act (e.g., shooting a gun) that is inherently dangerous to human life, even if no specific intent to kill exists.

This is error; however, the courts usually find it harmless. This time, it wasn't, particularly given the facts of the charged offense, the prosecutor's arguments during closing (which included a focus on implied malice), and the jury's repeatedly articulated confusion about the intent instructions. So Justice Vartabedian rightly reverses the conviction. (Not, parenthetically, that this matters at all to the defendant, who's sentence -- 128 years -- doesn't change in the slightest even after the reversal of this count!) And properly publishes as well.

P.S. - Here's a random portion of the facts, which hardly inspire confidence: "[Officer] Guffney landed on top of defendant and stayed on top of him, calling out for the others to shoot defendant because Guffney was losing his grip on defendant's gun. . . . [Officer] Rea approached defendant and placed his gun against defendant's temple. He pulled the trigger but the gun failed to fire. He then kicked defendant a couple of times. Eventually, Rea shot defendant in the spine and defendant collapsed." Yikes.

James F. O'Toole Co. v. Los Angeles Kingsbury Ct. Ass'n (Cal. Ct. App - February 3, 2005)

Here's my bet. I wager that you can correctly guess the result that is (correctly) reached by Justice Vogel in this case through mere intuition -- without any reference whatsoever to the underlying statutes.

Here's all I'll tell you. A condominium complex is damaged by the Northridge earthquake. The condominium association hires a public adjuster (O'Toole) to deal with the insurance company, and agrees to pay him 10% of any money he obtains from the insurer on the association's behalf. As a result of O'Toole's efforts, the condo association gets $1.4 million, but refuses to pay O'Toole. O'Toole then sues the Association, and successfully obtains a judgment of $140,000 plus an extra $60,000 in prejudgment interest.

But the Association still refuses to pay, and also (not surprisingly) refuses to order a special assessment on the condo owners in order to obtain the money to pay the judgment. So O'Toole obtains an order that appoints a receiver for the Association and compels the Association to levy a special assessment on the owners to pay the judgment.

The Association appeals, contending that the court is powerless to enforce the judgment against it because there's a California statute that says that any regular assessment is exempt from execution if that money is necessary to pay for essential services (e.g., utilities, insurance, etc.). The Association contends that since all of the income from regular assessments goes towards essential services, as long as the Association refuses to impose a special assessment to pay him, O'Toole can never enforce his judgment.

John Kunath, a graduate of Loyola Law School, represents O'Toole. Michael Rapkin, a graduate of the University of LaVerne College of Law, represents the Association.

Who -- entirely rightly -- wins in the Court of Appeals: the Association or O'Toole?

Walker v. Los Angeles MTA (Cal. Supreme Ct. - February 3, 2005)

More sense from the California Supreme Court, which holds here that an appellate court should liberally contrue technically improper notices of appeal (e.g., as here, notices that purport to appeal from an order denying a new trial, rather than properly noticing an appeal of the resulting judgment), at least when it is reasonably clear what the appellant was trying to do and there has been no prejudice to the respondent.

Exactly right. We've come a long way -- deliberately and rightly so -- from the snare-ridden procedural pitfalls that confronted litigants in the common law tradition. This case continues the evolution of California procedure. It is precisely the kind of result that you would hope for from a modern, enlightened judiciary that is (properly) more interested in advancing justice than in upholding procedural hypertechnicalities that serve no function in a particular case. Good job.

People v. Carson (Cal. Supreme Ct. - February 3, 2005)

It's farily rare that I agree with every single word of an opinion of the California Supreme Court. It's rarer still for me to agree with every word written by Justice Brown. But this is one of the rare exceptions.

Justice Brown holds that under certain circumstances, a defendant's right to represent himself can be taken away based upon conduct that occurs outside of the courtroom. The opinion contains measured, temperate language, with important caveats. I completely agree with Justice Brown's analysis, including her decision that -- on the (incomplete) record before her -- it was unclear whether defendant's conduct was sufficiently severe to justify termination of his right to represent himself, thereby justifying a remand.

This is the kind of nuanced, careful analysis that I wish was a bit more prevalent from the Cal Supremes.

United States v. Charley (9th Cir. - February 3, 2005)

A mother kills the eldest three of her six kids on the morning of New Year's Day, 2002. Even after reading the facts of this case, I still don't have a clue why she engaged in this horror. Incredibly depressing facts.

People v. Baker (Cal. Ct. App. - February 2, 2005)

Here's a case that could easily have been rendered in 1855 rather than 2005. It's entirely about what the proper amount of restitution is for cattle rustling. Does the court calculate merely the value of the cows themselves, or does it also include the value of the calves that were likely born from these cows during the period in which the cows were stolen?

I'll leave you in suspense about the result reached by Justice Wiseman.

Just when you think that California appellate law has radically changed over the past 150 years. . .

LATER NOTE: Actually, after I posted, I had an additional thought. So I'll leave the original but add a subsequent comment. I actually think that the case may well have been decided differently were one to utilize 21st century economic principles rather than treating the case as if it were still 1855. For example, under any modern economic theory, the monetary value of a cow should already include the present discounted value of any anticipated calves, so adding a value of the calves would entail double-counting. Plus, in any era, isn't it a crock that Justice Wiseman apparently holds (in the last paragraph of Section I) that -- in any case (not merely those involving cows) -- a court can order restitution for the full value of the stolen property even if that property is recovered and returned to the owner? Why should the owner get paid twice?

Sparling v. Daou Systems, Inc. (9th Cir. - February 2, 2005)

For a look at the type of pre-lawsuit investigation and pleading that it currently takes -- after passage of the PSLRA -- to survive a motion to dismiss a securities class action complaint, take a gander at this case.

The complaint here is incredibly exhaustive and detailed, and even then, the district court -- Judge Lorenz -- repeatedly dismisses the whole shebang. The Ninth Circuit (via Judge Brunetti) eventually lets a fair amount of the action go forward, and I think gets the case right. Those -- and there are many out there -- who think that securities class actions are a bunch of hooey that simply extort money from law-abiding corporations should take a look at what it takes to get past even the pleading stage. I think the case is fairly insightful in that regard.

Also interesting is how long it took the Ninth Circuit to decide the case -- almost a full year, even though there's no dissent. So the degree of private and judicial scrutiny of these things is fairly expansive.

An even more off-topic note. The (very capable) attorney who argued the case on behalf of Lerach Coughlin -- Eric Issacson -- may want to update his information with the State Bar, since his address still refers to Milberg Weiss, even after the split. It's not a violation of Section 6002.1 (or the Bar's rules), but probably nonetheless a good practice to keep this stuff up to date. (Parenthetically, Eric's not alone in this regard. A quick glance reveals that virtually all of the names at Lerach Coughlin still have a bar address that refers to Milberg Weiss, including -- and I'll just pick on some of the big San Diego partners here -- Lerach, Stoia, Robbins, Hodges, Solomon, Bull, and Sweeney. Only the P's (Park and Pintar) seem to be proud of the new name. And, of course, Len Simon, who also let the Bar know about his new "lerachlaw" e-mail address. Way to go, Len.)

Millenium Corporate Solutions v. Peckinpaugh (Cal. Ct. App. - February 1, 2005)

Talk about adding insult to injury. In this opinion, Justice Boland not only sanctions two attorneys -- Caroline Malloy and Solange Ritchie -- over $24,000 for filing a frivolous appeal, but then subequently changes the opinion from unpublished to published. Ouch. That's gotta hurt.

Justice Boland somewhat lessens the blow by imposing the sanctions against the law firm (Callahan & Blaine) rather than the individual attorneys, and also by not mentioning the names of the lawyers. Which I actually was fairly happy to see. While I'm generally pretty harsh on lawyers who file frivolous appeals, and also agree that the appeal here was likely frivolous, I noticed -- and perhaps Paul did as well -- that both of the lawyers on the brief appear to be associates (not partners) at the firm. Which makes a difference to me. Plus, the appeal was sufficiently close to being non-frivolous that I really didn't want the individual lawyers dragged through the mud. (Though you'll notice that I nonetheless mention their names here. Sorry about that, Caroline & Solange.)

Parting words before I put my sick and coughing three-year old back to bed: I bet you won't see this case listed the "Reported Decisions," "News and Articles," or (especially) "Judicial Victories" sections of Callahan & Blaine's web site! (P.S. - You can also click through Callahan & Blaine's site to get a more detailed background on both the firm and Malloy & Ritchie. No individual hyperlinks, though; sorry.)

Visher v. City of Malibu (Cal. Ct. App. - February 1, 2005)

Lest one believe that filing an anti-SLAPP motion is an unadulterated good, here's an opinion that affirms both the denial of an anti-SLAPP motion to dismiss as well as an award of $35,000 in sanctions against the City of Malibu for filing a "frivolous" anti-SLAPP motion.

I actually think that Justice Rubin gets the sanctions part wrong; although I agree that the anti-SLAPP motion was unmeritorious, I don't think it was frivolous, but instead was based upon an arguable -- albeit unfounded -- interpretation of the (very broad) definition of an "act in furtherance of a person's right of petition" in Section 425.16. But obviously the Court of Appeals disagreed.

Food for thought before filing an aggressive anti-SLAPP motion, eh?

U.A. Local 342 v. Babcock & Wilcox Const. Co. (9th Cir. - February 1, 2005)

Judge Kozinski writes an incredibly short (three well-spaced pages) opinion here that affirms the district court. The underlying issue in the appeal is incredibly fact-specific, doesn't seem important to anyone but the parties, and doesn't really involve any dispute at all about the law; indeed, the entire opinion contains only five case citations, all of which concern incredibly general issues (e.g., standard of review and the like).

The only reason I can figure why this thing gets published is because Judge Kozinski begins the opinion with a quote from a showtune from "The Pajama Game" -- a marginally strained reference, at that.

Alex: You're funny. You know it. I know it. We all know it. Stop trying so hard.

Moran v. Murtaugh, Miller, Meyer & Nelson, LLP (Cal. Ct. App. - January 31, 2005)

Justice Aronson puts a fair amount of bite back into the "Vexatious Litigant" provisions of the California Code of Civil Procedure (sects. 391 et seq.) when he holds here that the judge can weigh the evidence when deciding whether the plaintiff will be required to post security as a vexatious litigant.

This holding by the Fourth Appellate District disagrees with the Second Appellate District's decision in Devereaux, which held that the court was instead required to assume the truth of the factual allegations of the Complaint when deciding whether or not there was a reasonable probability that plaintiff would prevail in the action.

It's a fairly important issue, particularly given the relatively broad definition of who constitutes a "vexatious litigant" under Section 391. The California Supreme Court should take it up and resolve the split. In the meantime, we should expect -- and lawyers would be wise to file -- a substantially higher number of Section 391.1 motions.

People v. Young (Cal. Supreme Ct. - January 31, 2005)

Here's a 90-page opinion in which the California Supreme Court -- surprise, surprise -- unanimously upholds a death sentence. The only reason the opinion is particuarly memorable is because Justice Brown concurs (to her own opinion) and argues that African-American women may well not be a cognizable group for purposes of Batson, and that judicial recognition of this group may actually strengthen pernicious stereotypes.

I don't have any particularly insightful thoughts about either the opinion or the concurrence. I just wish that I didn't have this overrarching sense that the motivations for both are far from pristine: that the members of the Court approach death penalty cases with a keen eye on the risk of becoming the next Rose Bird, and that Justice Brown has a separate agenda of her own as well. That these cases -- perhaps more than all the others combined -- get decided with a very jaundiced eye, far from entirely on the merits.

Rivera v. Phillip Morris (9th Cir. - January 28, 2005)

The Ninth Circuit here partially reversed a grant of summary judgment to Phillip Morris in a tobacco liability case, holding that the plaintiff may well be entitled to a trial under Nevada law. It's a case that's clearly worth mention. Among other things, the opinion basically articulates a roadmap of both the law and facts that may well entitle legions of other plaintiffs to file similar tobacco liability claims. It's obviously an important case.

For some reason, as I read the case, I found myself uniquely distressed about the competing ways in which various courts have addressed nearly identical tobacco liability cases. Obviously, absent a definitive ruling by the Supreme Court on each of the various types of claims that are raised in these cases, each state -- and each federal circuit -- can take (and has taken) its own approach. That doesn't usually bum me out. I recognize that it's somewhat of a problem when like cases get treated differently, but I generally accept such a result as a necessary (albeit deleterious) byproduct of the unique structure of our federalist government and judicial system.

But with a problem that's this widespread, this pervasive, and this damaging to individual people, it seems starkly unfair that one plaintiff should potentially receive millions while another -- in a virtually identical situation -- should receive nothing. They both were treated the same way. The tobacco companies acted identically towards each. It seems powerfully wrong that one group -- for reasons of resources, geography, luck, or whatever -- should become millionaires (albeit typically in death), while another group is compelled to die with ne'er a penny. Yeah, that's our system. But for some reason, it grates on me here much more than in does in most other areas. It seems wrong.

United States v. Antelope (9th Cir. - January 27, 2005)

I find it entirely plausible -- and it seems borne out by emperical research -- that sex offenders are substantially less likely to reoffend if they confront and admit their past misconduct. For this reason, I'm not especially troubled by sentencing conditions that require sex offenders to participate in treatment -- including giving honest answers to their therapist -- and the imposition of negative sanctions to a failure to engage in such treatment.

But requiring treatment is one thing. Telling an offender that he has to admit all of his past crimes -- including those for which he hasn't been charged -- even though the state might well prosecute him based upon those same admissions is entirely another thing. You can't compel an offender to admit past offenses when his statements may well be used to bring additional criminal charges against him. So Judge McKeown seems entirely right here when she holds that the repeated incarceration of Lawrence Antelope based upon his refusal to admit past offenses as part of his treatment violated his Fifth Amendment rights.

Antelope was sentenced to probation. The only reason he served any time -- and he was eventually sentenced to 30 months in jail (indeed, had already completed his sentence by the time this appeal was decided!), plus 10 more months after resentencing -- was because his probation was repeatedly revoked for his refusal to reveal to his counselor all of the sex offenses that he ever committed. But his counselor expressly told Antelope (and testified) that he routinely revealed to authorites any confessions of past uncharged sex offenses by his patients, and Montana law would also compel the counselor to reveal such offenses if they involved minors. No wonder Antelope refused to talk!

I admit that it's hard to figure out precisely what the Supreme Court's fractured opinion in McKune suggests in a case like this, since it essentially involves guessing how Justice O'Connor would view these particular facts. That's never an easy call. But, purely as a matter of precedent, it seems like Judge McKeown gets it right; that this is impermissible punishment under McKune. More importantly, regardless of what McKune holds, it just seems wrong to me that the state can force an offender to talk and simultaneously prosecute him for those compelled statements. That's the whole point of the Fifth Amendment, right?

I have no problem with the state compelling Antelope to talk. Antelope should indeed get the best treatment possible, and both he and society benefit from such a result. So give the guy use immunity. Or cloak his conversations with privilege. Either way, he can indeed talk freely, and everyone wins. But you can't force a guy to talk by throwing him in jail if he doesn't incriminate himself. That's the way the English did it to us in the 1700s. That's what the Fifth Amendment is designed to prevent.

Gammoh v. City of La Habra (9th Cir. - January 26, 2005)

They'll be no more lap dancing in La Habra, and many other jurisdictions will presumably follow suit now that the Ninth Circuit here upheld a ban on the practice against a multifaceted constitutional challenge.

My only real complaint about Judge Tallman's opinion is that he tries mightily to hide what is (in my mind)undeniably true: That the purported justifications for banning lap dancing are an utter crock, and that what's really going on here is that cities ban lap dancing because it's a profitable practice and without it, lots of strip joints will close. Judge Tallman says that there's no "evidence" of that fact -- even when a city employee says that he overheard someone admit it at a staff meeting -- but come on, it's clearly true. Oh, I'm just sure that the real reason the City banned lap dancing is because dancers may be passing drugs or getting money while they're grinding away. Yeah, that's the reason. That's why the City also banned salsa dancing. Oh, wait. The statute only applies to strip clubs. Damn.

Look, maybe you can constitutionally prohibit strip clubs, and maybe you can't. To pretend that the City is doing something it's not as a way of rationalizing the statute seems just wrong. I'd much prefer that the court call it like it is and let the chips fall where they may. Let's at least be honest about what we're doing, right?

Side note. I played critical -- but often overlooked -- role in this case. Among the evidence relied upon by the City to substantiate the deleterious consequences of strip clubs was the 1986 Meese Commission Report (the formal title of which is the Attorney General's Commission on Pornograhy, Final Report). I had the critical job -- as a 20-year old college student hired by the Meese Commission from a temporary service -- of (ta da!)physically typing the report. Now, admittedly, I didn't type all 1960 pages. But I did type a fair amount. I have vivid memories, for example, of typing the transcriptions of "Deep Throat" and "Debbie Does Dallas" that appear in the report. (For a sample of my stellar work in this regard go to the end of the text here. Be sure to pay particular attention to the striking absence of typos!)

Parenthetically, I also distinctly remember that virtually everyone walking around the office -- regardless of their role -- had a gun strapped to their side. I remember thinking: We're the Attorney General's Commission on Pornography, for Christ's sake. Do we really need everyone to be packing heat? But FBI guys are FBI guys, I guess; even when they're just watching dirty movies and writing down what they see so I can type it up.

But let's not miss the important point. That I was critical in the fight against lap dancing. Feel free to reward me with 5's and 10's placed discreetly on my person.