People v. Lee (Cal. Ct. App. - Aug. 16, 2005)

Here's the real benefit of pervasive gun ownership: So you can shoot at stray dogs who happen to approach you. Thank goodness it's so easy for retired police officers to carry a gun around all day. 'Cause you clearly need to fire a gun randomly in a crowded commercial area to scare off two strays who are playing together near you. That 100 pound Rottweiler you're walking definitely doesn't provide any safety at all. You clearly need a firearm as well. And to use it. Definitely.

Pamela Lee had best be glad that I wasn't on her first jury, as I'd have likely convicted her on several of the counts on which she was acquitted. Or on her second jury either, which convicted her of gross negligence in the discharge of a firearm. A fair result, in my view. Ditto for the sentence: 180 days working for the Humane Society, an animal shelter, a tree farm, or Cal-Trans. Don't shoot your gun randomly -- and strike a car, by the way -- just to scare off some animals who want to play with your dog. Duh.

That said, I think that Justice Flier is right to reverse her conviction. She was entitled to an instruction on self-defense, which the judge refused to give. Self-defense doesn't just apply to people. It applies to animals as well. There's a higher-level argument here that Justice Flier doesn't get into regarding why instructions on the necessity defense might be adequate in this regard, but I think that, even applying self-defense to animal threats doesn't mean -- as the lower court held -- that the doctrine must not apply thereto. That's why we do this fancy thing called "legal reasoning". There's always got to be a first case that does something. And legal reasoning is, my dear jurist, how we decide those cases. We don't just say "Well, there are no cases on point that say what you're saying, so you must be wrong." Rather, we reason it out.

A good law review topic, by the way. Whether the self-defense topic applies to animal attacks (or, to put it somewhat differently, "forces of nature") and, if so, what kind. Bears? Sure. Dogs? Why not. Cats? Getting silly. Germs? Viruses? Rocks? Storms? You get the point of those last four examples, right? At what point does the self-defense doctrine collapse into the necessity defense, and what line do we draw between when the two doctrines apply?

By the way, for those law students out there, this case is also a good one to read if only to disabuse you of the notion that professors use the Socratic/hypothetical method in class just to torture their students for fun. Here's Justice Flier's description of the oral argument in the lower court regarding whether the requested self-defense instructions were proper: "Parts of the discussion resemble hypothetical discussions at law school. Green argued that self-defense applied to an attack by 'any living being, whether it be [a] mountain lion, a bear, a dog, a shark, whatever it would be.' The judge responded by asking if the risk of imminent attack by a dog would entitle a person to detonate an atomic bomb."

P.S. - I hope our hypotheticals are a lot better than that one. Which is totally easy. Like I'm really going to say that an attacking dog justifies setting off an atomic bomb. Which is a point about proportionality anyway, not at all about whether the self-defense doctrine applies to animal threats. You can't set off a nuke to stop a dog for the same reasons you can't set off a nuke to stop a person. It's not a proportional response. So that's the right answer, albeit to a query that doesn't at all highlight the proper answer to the dispositive issue faced by the lower court.

Sears, Roebuck & Co. v. National Union Fire Ins. Co. (Cal. Ct. App. - Aug. 15, 2005)

Lest anyone think that the Court of Appeal lacks the capacity to see through typical litigation bullshit, definitely take a gander at this opinion by Justice Rubin. It brought a smile to my face. (And sorry, dear readers, for the not-so-family-friendly obscenity. But it accurately expresses my reaction to the underlying conduct.)

Geoffrey Mousseau is an attorney in Glendale and represents various nonparties in discovery proceedings, and is also subpoenaed himself, and doesn't particularly want to comply with the requests propounded by Sears. Fair enough. Who really voluntarily wants to produce discovery? Not me, that's for sure. So he tells Sears to pound sand. And not in a nice way; rather, in the typical asshole way that far too many lawyers think is clever or cool. Which is: by being a jerk. (Sorry again for the obscenity. Can't help myself.)

Like many lawyers, Mousseau is comfortable being a jerk (and, for support for this description, even a brief review of the content and tenor of his communications with the other side, which Justice Rubin describes on the third and fourth pages of the opinion, will be sufficient) both because (1) he -- rightly -- thinks that most disputes never go before a judge, and that, even when they do, most of the time, most judges don't care that one side (or both) has acted like a child, and (2) he's got a hypertechnical defense to the production. Since the lawyers for Sears, inter alia, accidentally typed in the subpoena that Mousseau was supposed to deliver the relevant documents to "Mousseau", rather than (as obviously intended) to the document custodian. So Mr. Mousseau (eventually) tells the other side: "Hey, I did comply with your request. I produced the documents to myself. And now the deadline for your motion to compel has expired. Ha ha ha ha ha!"

Except the joke's on him instead. Because the discovery referee (retired California Supreme Court Justice Malcolm Lucas) imposes over $20,000 in sanctions on Mousseau for his conduct. And the Court of Appeal unanimously affirms. Plus, makes sure to end the opinion by awarding costs to Sears.

"Tricks of the trade" are good. Using knowledge of procedure to your advantage is good. But being a jerk is not, particularly when combined with thinking that you're better than you are. Which many, many lawyers do. So it's nice to see Mousseau get his comeuppance here. And, by the way, to also see him blow several appellate deadlines of his own as well, which Justice Rubin is more than willing to seize upon as a means of failing to reach several of the issues that Mousseau asserts on appeal.

I don't at all think that most attorneys who act in bad faith are caught or punished or have their efforts go for naught. Far from it. But the relative rarity of such an event makes it all the more sweet when it happens. As here.

People v. Carter (Cal. Supreme Ct. - Aug. 15, 2005)

Death penalty cases usually don't particularly get to me, or at least don't get to me more than one might naturally expect as a result of the the often-gruesome nature of the crime. But this one did.

Maybe it's because many of the deaths were here in San Diego (even though I hadn't heard of them before, since they were back in 1984), and, as a result, I recognized many places and street names. Which made the disturbing events much more real for me. Or maybe it's because of the nature and extent of the crimes: eight rapes and murders of in the span of three short weeks: a spree that you can't help but think must be the product of a total psychopath. Or maybe it's because many of the victims were young women who were raped or murdered in a setting that I know strikes fear in the hearts of many of our female students; by befriending -- or simply not being mean to -- a seemingly strangely interested suitor.

The fact that the existence of even one person like this -- and, of course, there are in fact many more -- drastically changes the lives and freedom of every young woman, who often have to live in rational, continuing fear for their potential safety, is incredibly depressing.

Which is all just to say that this one struck home for me in a way that few other criminal cases do.

People v. Mitchell (Cal. Ct. App. - Aug. 11, 2005)

Mitchell robs a restaurant, carjacks a car for his getaway, and leads police on a chase before being captured (and fires a random shot at them while driving). He gets 191 years in jail. That's a lot. Particularly for a spree in which no one was seriously harmed.

That said, I'm glad that Mitchell will be off the street. But compare the 191 years that he gets with some of the other sentences given to people who've stolen similar (or much more) amounts. Or white collar criminals. The disparity is pretty high.

But, again: I'm glad Mitchell is off the street.

Adams v. Thomas Helicopters (9th Cir. - Aug. 23, 2005)

Here's a case for the statutory intepretation (and "plain language") folks out there. The Dictionary Act (Section 1 of Title 1) states that the term "person" as used in federal statues includes corporations unless the context of the statute indicates otherwise. The Federal Torts Claims Act allows "persons" acting on behalf of the US to be certified as covered under the FTCA. Does that include corporations?

Judge Thompson says: "No." It's an interesting (and hardly facile) issue whether the policy analysist hat he employs legitimately establishes that the context of the FTCA provides sufficient support for this conclusion, particularly given the relevant statutory language. But that it's a tough issue only makes the opinion more worth reading.

Hirschfield v. Payne (9th Cir. - Aug. 22, 2005)

Here's a cautious, balanced, and sage opinion by Judge O'Scannlain, both in substance as well as in form. The type of opinion I like to see. Ditto, by the way, for the opinion by Judge Tallman in Doe v. U.S. Sometimes you gotta do what you gotta do. Even if you don't particularly like it. See also Judge Reinhardt's concurrence in Diaz v. Parks.

U.S. v. Stewart (9th Cir. - Aug. 23, 2005)

Two lessons from this case. First, don't threaten to kill a federal judge. Second, don't ask a fellow inmate to arrange the hit. Because he'll almost unquestionably roll on to you. And the FBI cares. Duh.

Robert Stewart didn't learn those lessons, and he'll spend an extra 20 years in jail as a result. Even though he was in jail and in utterly in no position to carry out his threat. 20 years. That's a lot of time. 20 years to think about your abject idiocy in electing to engage in a-bit-more-than-idle-speculation about killing the judge who sentenced you. Hardly worth it.

P.S. - How psyched was Stewart's inmate "friend" when Stewart first hypothesized about killing the judge? You just know the guy must have almost peed his pants at the suggestion. Because you know -- know -- that you're going to earn from being a snitch on that one. Just know it. And earn lots.

Kourtis v. Cameron (9th Cir. - Aug 15, 2005)

Here's another opinion that's perhaps only interesting to people with an abiding interest in sophisticated civil procedure matters. So feel free to skip it if you're not one of them. But since the panel misses the mark, in my opinion, so deeply, I feel compelled to comment.

The issue here involves collateral estoppel and virtual representation. Not the most thrilling issues to most, I admit. That said, the underlying dispute does involve an issue about which the public might be the tiniest bit interested; namely, whether James Cameron ripped off Filia and Constantinos Kourtis (and hence violated their copyright in the film treatment The Minotaur) in order to make Terminator II: Judgment Day. But I'll only talk about the boring civil procedure issue, of course, not the merits.

Here's the problem with the panel's opinion. The screenwriter for The Minotaur -- a guy named Green -- already sued Cameron (and others) for copyright infringement on the same basis and lost on summary judgment. So when Filia and Constantinos Kourtis sued, why aren't they bound to this result? Sure, they weren't parties, and the Due Process Clause generally precludes binding nonparties, since they're typically entitled to their own day in court. But why aren't the Kourtis sufficiently related to Green (whom they hired to write the screenplay) so that we bind them, either through traditional notions of privity or through the fancier doctrine of virtual representation?

Judge O'Scannlain concludes that they're not bound because they weren't adequately represented by Green, citing (among other cases) Hansberry and Martin v. Wilks. Sure, adequate representation is indeed a central limitation on the privity and virtual representation doctrines. But I don't think it at all applies here. Judge O'Scannlain holds that Green didn't adequately represent Kourtis because Green claimed that he held the copyright whereas Kourtis claimed that he owned it, so there was a conflict. But Judge O'Scannlain, with all due respect, misses the boat here. Sure, they had a conflict on this issue. So if we were trying to bind Kourtis to a finding in Green's lawsuit that Green owned the copyright, that'd be a nonstarter. But that's not what the defendants are trying to do. They're trying to bind Kourtis on the finding of infringement. And on that issue there's utterly no conflict between the interests of Green and Kourtis; they both have an interest in proving infringement and liability.

You don't fail to bind someone on adequate representation grounds because they have conflicting interests with you on a different issue. You refuse to bind them -- as in Hansberry and Wilks -- because their interests conflict with yours on the matter on which we're trying to bind the nonparty. If they adequately represent you on the issue on which you're to be bound, you can't complain just because on a different issue they might not have argued on your behalf.

It's a relatively simple -- and straightforward -- concept, albeit on an issue that admittedly confuses a lot of people. But it shouldn't have confused the panel, who should have been fairly informed about the contours of the adequate representation doctrine. As a result, the (unanimous) result here is, I think, definitely wrong.

K.M. v. E.G. (Cal. Supreme Ct. - Aug. 22, 2005)

A trio of California Supreme Court decisions issued today about lesbian couples and children, all of which are interesting and each of which will undoubtedly attract much press. For the record, I agree with two of them and tentatively disagree with the third. (Also for the record: the cases were actually decided yesterday, and while I started the post then, I didn't finish it for today. Slacker, I know.)

The first of the Court's opinions is Elisa B. v. Superior Court, which holds that a lesbian partner can have parental obligations -- and hence be liable for child support -- even if she is biologically unrelated to the child. (You'll note that at the very top of the Supreme Court's opinion, the Court instructs the reporter to issue the decisions in a particular sequence, with Elisa B. as the first. Interesting.) This one is unanimous, even though Justice Kennard authors a separate concurring opinion. And, perhaps indicative of my status as a Californian, I agree with it. When, as here, two partners deliberately and intelligently decide to have a child together, and elect (as here) to raise that child jointly and as a family, you're a family, at least in my view. Which means that each parent has corresponding rights and responsibilities. Regardless of whether the parent is biologically related to the child or not. I don't have a problem with that at all; indeed, that's the way it should be. So I'm on board for this one.

The third of the Court's opinions is Kristine H. v. Lisa R., which holds that when a lesbian couple deliberately enters into a stipulated judgment that's approved by a court that concludes that each partner is the parent of the child, the parties are estopped to later attack the validity of that judgment. I'm on board for this one as well, for approximately the same reason. When one deliberately undertakes to be the parent of a child, one is bound to that decision. Particularly when it's enshrined in a judgment. Admittedly, I don't think that this decision is perfect; for example, the California Supreme Court fails to express any opinion regarding whether the stipulated judgment here was properly entered into, which means that parties who attempt this route may well be frustrated by a recalcitrant lower court that refuses -- sua sponte -- to enter the stipulated judgment. But I agree that if they somehow get the lower court to approve, the parties are bound. And, like the decision in Elisa B., the California Supreme Court is unanimous on this one.

Perhaps not surprisingly, the decision as to which I'm much less comfortable -- and probably disagree -- is the one that was not unanimous: K.M. v. E.G. This opinion holds that a woman who donates an egg to allow her lesbian partner to bear a child has the rights and responsibilities associated with being a parent -- including visitation and other rights -- even if the parties intentionally and expressly agreed that the donor would be a "pure" donor and have no rights as a parent. This seems wrong to me; indeed, potentially discriminatory. Men who are sperm donors have no parental rights, and women can use those services to bear a child without letting this "parent" into their lives or the lives of their child. My intuitive sense is that the same should be true for egg donors, including lesbian couples in which one of the parties is the donor.

What's important to recognize about K.M. is that the fact that the trial court found (and, even upon reading the cold record, it seems entirely right to me) that both parties deliberately intended the donor to have no parental rights to the child. And for good reason: the woman who bore the child had already made 13 attempts with anonymous egg donors, wanted to be a single mother, had seen too many lesbian couples break up and then fight about custody, and would agree to let her partner donate an egg only if it was clear that she would not thereby gain any parental rights. This seems entirely rational to me. Why should the woman be forced to continue using anonymous donors -- including the (large!) expense associated with this practice -- if there was a person whose genetic traits she knew and liked and who was willing to be a (much less expensive) donor? Why shouldn't we respect her wishes to be a single parent, just like we're willing to recognize nearly identical rights of women who use sperm donors?

Sure, there's a real argument to the contrary, and one that's articulated by not only most of my friends (all of whom, by the way, are not only wicked smart, but also potentially much more informed and sophisticated than I am on the subject) but also by Debra Back Marley (a former student of mine) and Bob Fellmeth in the amicus brief that the Children's Advocacy Institute here at USD filed in the case. It may well be in the best interest of the child for them to have two parents rather than one. Perhaps that's why we want to compel the parties to undertake parental responsibilities even when they expressly agree not to: because if you're in a relationship (of whatever form) and bear a child, you've got parental rights and responsibilities, even if you don't want them.

That's a substantial, and intelligent, position. But I don't think that it's ultimately persuasive, at least to me. We deliberately do not find that argument compelling in a wide variety of other contexts, and allow women to use sperm donors without compelling them to share custody of their children with the biological father. We also allow anonymous egg donation as well, again finding the desire for "two parent" families to be trumped. I don't see that the situation involving a lesbian couple should be any different. Yes, the state may well prefer, as a general matter, two parent couples to one. But I think that this preference is outweighed by the right of individuals to create a family unit as they see fit. If they want to be single parents, I don't think that the state should stop them. Nor should it basically say, as here, to the woman who wants to bear a child with the egg of her lesbian partner: "You have to choose. Either don't have a kid with this woman's egg, or break up with her. Otherwise she's a parent -- and you'll have custody rights -- regardless of what you do." That just doesn't seem right or fair to me.

There's much more to be said here, obviously. But this is already way too long. (Now you see why I didn't finish it the day of the opinion!) Plus I've got a pretrial practice class in 10 minutes. Which I'm still not ready for. So I'll leave it for now. But I think that the dissent in this one probably has it right. Justices Kennard and Werdegar express their thoughts in a different way than I do. But they conclude -- I think rightly -- that when a lesbian donates her eggs to her partner, and intentionally and knowingly agrees to be a pure donor, that's indeed what she should be.

P.S. - I wish I could say more about the resurrection in this opinion of Justice Mosk's awesome term "casual inseminator". Which I love. Because, among other things, it brings a smile to my face to imagine any particular person being identified by that term. "Look, Ma, over there by the fire hydrant: A casual inseminator." But I totally have to run to class.

Kaur v. Gonzales (9th Cir. - Aug. 11, 2005)

I always love it when students (or lawyers) write absurd "Questions Presented" that are so obviously tilted that they dont' really advance the ball. So how about this one:

"The question presented here is significant: Must an IJ [Immigration Judge] ignore repeated and blatant inconsistencies throughout an alien's hearing testimony and applications, simply because, when viewed individually, each inconsistency actually served to weaken her eligibility for relief?"

Hmmm. I wonder. What side do you think the speaker comes out on this one?

What's funny is that this doesn't come from an advocate's brief; rather, it's the opening salvo in the panel's opinion. Ho ho ho.

If you haven't hit the link yet, take a guess. The panel who penned this "Question Presented" is: (A) Reinhardt, Pregerson, and Hawkins; (B) Nelson, Silverman, and McKeown, or (C) Bybee, Rawlinson, and Wallace.

A toughie, huh? Really tough. Ho ho ho.

Admittedly, tougher to figure out who the actual author is. But, here, it's Judge Bybee.

Ventura Packers v. F/V Jeanine Kathleen (9th Cir. - Aug. 11, 2005)

I don't like the smell of this one. Ventura Packers (no, not THOSE Ventura Packers) files an admiralty action alleging unpaid debts and arrests three fishing boats, and subsequently agrees with the owners to accept a cash deposit as security and accordingly release the vessels. The agreement says that the cash security will be held by Ventura's counsel, Bright & Powell, until the parties agree or there's a judgment or order of the court and the time for appeal has expired.

Ventura later loses a summary judgment motion. It hires new counsel and, two days before filing its Notice of Appeal, fires its current counsel -- Bright & Powell -- and substitutes new counsel, Denise Brogna of Lascher & Lascher. The same day he's fired, Michael Damen -- Ventura's former lawyer at Bright & Powell -- sends the owners of the ship a check for the security, allegedly pursuant to the "order of the court". But, again, the time for an appeal hasn't expired. And isn't it a bit suspicious that this happens the same day he's fired? Pique? By the way, counsel for the owners says that she never asked for this check, and was totally surprised when Damen sent it to her in the mail. Makes one wonder.

Of course, thereafter, the case gets reversed on appeal. And on remand, the ship owners now make a new argument: that in rem jurisdiction was lost once Damen sent back the checks. And obtains a dismissal in the district court on that basis. But Judge Pregerson reverses. Again. So back to the district court for a third time.

I wasn't there. I don't know all the facts. But from what I read in this opinion, I have an instinctive reaction to what Mr. Damen (a graduate of the Santa Barbara College of Law -- don't see way many of these) did here. And it's not a good one. And I'd be much less displeased if it were a mere error -- which would still have resulted in Ventura having to endure multiple unnecessary proceedings -- than one of the alternatives. Which include a potentially deliberate attempt to get back at the client who just fired him. But I hope, hope, hope that's not the case. I really do.

U.S. v. Beck (9th Cir. - Aug. 10, 2005)

Sure this is the guy? There are surveillance photographs and three eyewitnesses -- all of whom appear to have had a pretty good look -- to a bank robbery. The first eyewitness describes the perpetrator as white and in his mid-thirties. The second describes him as white or Native American and 25-30. The third describes him as Hispanic or Filipino and in his mid-twenties. Makes you pretty confident in eyewitness identifications, no?

Seems like the only evidence they have against Beck is that he looks like the suspect. At the pretrial photo array (which is arguably suggestive, but Judge Gould holds it's not), two of the eyewitnesses pick out No. 5 -- which is Beck -- as the one. But the third says that No. 2 -- someone else -- is the one. Makes you even more confident, huh?

The first jury deadlocks. Can't find enough certainty, or at least can't find it unanimously. At the second trial, the district court allows Beck's probation officer -- who's met Beck all of four times -- to testify that he's looked at the surveillance photo and thinks that Beck's the one. And the jury convicts. And the panel (Judges Gould, Wallace, and Berzon) say that's fine. So Beck gets 8+ years.

Sure that's the guy?

U.S. v. Dorsey (9th Cir. - Aug. 10, 2005)

When you're not a student, are impermissibly (and seemingly for no reason) hanging out at a high school, and are kicked out by school security and ordered not to return, don't come back later and deliberately drive in an out-of-control manner in the school parking lot. And, if you do, try not to be obviously stoned when you do so. And, if you nonetheless ignore my counsel , for God's sake, don't keep a loaded Glock with hollow-point bullets and bags of crack in the front seat. Because if you do, they are going to throw you in jail.

Which is what happens here. But what else do you expect, I guess, from a guy who claimed -- when he was confronted by school security -- that he was there to see a ficitious individual called "Stephon Livingood"? Really? Why not add that you're simultaneously supposed to meet his best friend, "Bong Stonerdaily"?

Come on. You gotta be able to think up a better name than that. "Livingood". More like "Livininthepokeyforthenextseveralyears".

Bochting v. Bayer (9th Cir. - Aug. 11, 2005)

You knew this was going to happen. When the panel opinion came out, I commented that the three opinions in the case were classic (and very good) products of their respective authors. You knew there'd be an en banc call, and you knew it'd be relatively close.

Turns out the lefties won the vote, and the righties dissent from the denial. (Oh, wait. Ideology doesn't matter. Forgot.)

As I noted in my post from February, I thought that Judge Wallace's dissent might well express the views of a majority on the Supreme Court. Ball's in it's court, now.

U.S. v. Ware (9th Cir. - Aug. 5, 2005)

I've always found it somewhat strange that there are all these cases that reverse (or almost reverse) federal bank robbery convictions on the grounds that the prosecution didn't properly establish at trial that the bank was FDIC insured when we all know that all banks are FDIC insured. Yes, I know that the government still has to prove it at trial, and that if it doesn't, a reversal is technically proper. And yes, I know that perhaps the bank's FDIC insurance might possibly have lapsed, or maybe the "bank" is something weird and uninsured, or something like that. And, yes, I know the bank's insured status is also a jurisdictional predicate for a federal conviction. But come one. The bank is always FDIC insured. We know it. The jury knows it. The banks that people rob are FDIC insured. If they robbed it, they're guilty. That we make the government elicit "magic words" to prove this basic fact -- and reverse on insufficiency grounds if they don't, with no ability to retry (given double jeopardy) -- is at least somewhat troubling. Particularly given the large number of cases about what exactly have to be in those "magic words". I've probably read 100+ cases about this exact issue.

Make that 101+. The interesting this about this one is that Judge Callahan obviously doesn't like the result of those prior cases either, so she goes to great lengths to "distinguish" them and hence uphold a conviction. The distinction here is somewhat tenuous, in my view. Ninth Circuit Cases X and Y say that trial testimony that the bank "is" FDIC insured isn't enough because it doesn't show that they "were" insured at the time of trial. But she holds that this case is different because the "is" here was uttered only months after the robbery, plus there was "testimony" (albeit lay and unsupported) by the bank teller that all banks are FDIC insured. So X and Y do not apply. And -- though she doesn't say it, but definitely cares -- that means that the vast majority of other "magic words" cases don't require reversal either. Hence the result we want to reach.

The distinction seems weak to me. And I don't think that it'd have been one that would have been bought by the panels in X and Y. But the thing about tough law that reaches results that judges don't particularly like (e.g., letting criminals go free on insufficiency grounds as a result of a hypertechnical mistake) is that it leads other judges to fudge the law and strain a bit harder for "distinguishing" characteristics. Like here.

Again, the result that the court reaches is one with which I definitely have sympathy. But I'm not sure that I really appreciate -- or find intellectually credible -- the doctrine upon which it's based. Seems to me it might be much more principled just to say "We all know banks are FDIC insured, so any case where the testimony even hints at that fact is enough. X and Y are hereby overruled." But, of course, a panel can't do that, and an en banc call might not succeed. But it can "distinguish" cases. And if the "distinguishing" characteristic is weak and results in an en banc call, so much the better. 'Cause then X and Y can be rejected. And if no en banc call, we've basically gutted X and Y already with the panel's holding and "distinction".

That's the realpolitik of panel decisions, I think. At least in cases like this one.

Reynolds v. Hartford Financial Svcs Group (9th Cir. - Aug. 4, 2005)

A practically significant case. Judge Reinhardt holds that the Fair Credit Reporting Act requires an adverse action notice when the rate that an insurance company charges you is increased because of your credit score, even if that increased rate is for your initial policy (as opposed to a renewal). This is an important issue of first impression (on which a number of amici filed briefs), and is surely important to anyone in the Ninth Circuit.

The opinion also goes into a lot of detail, and make a number of vital subsidiary rulings as well. It's the type of ruling that you'll appreciate if you prefer appellate opinions that are easy to follow and apply by parties and district courts. Plus, you've got to appreciate the fact that, even on a difficult issue of first impression, the panel is (basically) unanimous notwithstanding its composition: Reinhardt, Berzon, and Bybee.

Worth a read.

Gaston v. Palmer (9th Cir. - Aug. 2, 2005)

Dollars to donuts the Supreme Court grants certiorari in this case. Dollars. Donuts. Takers?

U.S. v. Stafford (9th Cir. - Aug. 3, 2005)

A fire alarm inspector smells a massive, foul stench in an apartment that smells very much like a dead boy, and when he tries to open a bedroom door (and associated bathroom), the stench becomes overwhelming, and he sees blood and feces (and hypodermic needles) everywhere. So he thinks there's someone dead in there, and calls the police. Who arrive a fair piece later. And who hang out and run license plate checks and do some other stuff for another 30 minutes until their sergeant arrives. At that point, the police enter the apartment to look for a dead body. They don't find one, but they do find a lot of incriminating stuff instead, and arrest and convict Stafford based exclusively upon the evidence they found in his home.

This is a permissible warrantless search of Stafford's home only if "there is an emergency at hand and an immediate need for [police] assistance for the protection of life or property." The police officers could easily have gotten a telephonic warrant during, inter alia, the half hour they were hanging out in the parking lot. Is looking for a dead body (there was utterly no indication that anyone was alive in there, and the stench of the unit and lack of reaction to the police -- plus the police department's lazy approach to the search -- suggests that they were not at all concerned someone alive being in there) an "emergency" that requires "immediate" police action "for the protection of life or property" and hence is an exception to the typical requirement of a warrant before a home may permissibly be searched and any evidence obtained therein used at trial?

Judges Tallman and Rawlinson sayeth "Yes." Judge Canby sayeth "No." What sayeth thee?

P.S. - Not that there was any doubt, but lest anyone believe that Clinton's appointments to the Ninth Circuit (e.g., Tallman and Rawlinson) weren't any different than Carter's (e.g., Canby), this case is Exhibit 1251 to the contrary.

U.S. v. Thomas (9th Cir. - Aug. 3, 2005)

This just shows how nice Judge Betty Fletcher is. Overly nice, some might say. But nice regardless. (Not that this will come as a surprise to anyone who knows her, of course. But always good to have things confirmed.)

Judge Rymer writes an opinion that affirms a conviction notwithstanding alleged ineffective assistance of counsel. Shocking, I know. Judges Fletcher and Fisher are also on the panel, and agree with the result (due to the lack of prejudice), but are quite concerned about the quality of counsel's performance; in particular, the fact that counsel essentially conceded the client's guilt on very important charges allegedly without informing the client that this was going to happen (and seeking his input and/or approval for this fairly bold strategy, which would ensure that client would spend a healthy amount of time in the clink -- something that the client might want to give some input on, eh?).

So Judges Fletcher and Fisher want the court to say something like "Look, we're affirming the conviction here, but don't think that we accordingly approve of counsel's alleged conduct. We don't. It shouldn't happen." But Judge Rymer doesn't feel like it. Who knows? She might like those sort of tactics by defense counsel.

What a lot of judges would do at that point is to pull the opinion from Judge Rymer. After all, Rymer's got one vote, whereas Judges Fletcher and Fisher have two. So they're the majority. And, as a result, they're entitled to write the majority opinion and speak for the court in disapproving counsel's alleged performance. If she wants, Judge Rymer -- with her one vote -- can write a concurrence and/or not join that part of the majority opinion, and maybe even explain therein why she does so. But she's only one vote. She doesn't get to write the opinion.

But Judge Fletcher doesn't do that. Alongside Judge Fisher, she merely writes a concurrence of her own in which she states her reaction to counsel's alleged conduct. Which results in a somewhat bizarre decision in which you have a majority opinion following by a separate concurrence by the majority.

A direct result of the personality of the underlying judges.

Circuit City v. Mentor (9th Cir. - Aug. 3, 2005)

Give it up, Circuit City. Ain't gonna happen. You too, Judge Real. Get wise.

Long ago, in 2001, Circuit City was sued by Mentor for wrongful termination, and Circuit City moved to compel arbitration. Judge Real granted the petition, but in 2003, the Ninth Circuit reversed, holding that the arbitration provision was both procedurally and substantively unconscionable. The Supreme Court denied certiorari (without a single vote in dissent, by the way), so the case goes back to the district court pursuant to the Ninth Circuit's mandate that requires the suit to continue.

But then Circuit City filed a "renewed petition to compel arbitration" based upon alleged intervening precedent. And, yet again, Judge Real compels arbitration.

The net result? Yet again, the Ninth Circuit reverses, and again orders the litigation to continue. And finds the case so easy to resolve that it doesn't even allow oral argument. Just, by the way, like it didn't allow oral argument the first time. Same panel. Same result.

So Circuit City essentially spends a boatload of attorney's fees in order to (1) create multiple bad precedents, and (2) obtain utterly no relief (indeed, has relief -- including a cost award -- granted against it). All this, mind you, in a presumably tiny wrongful termination dispute. Not really a massively effective use of resources.

Doe v. Kamehameha Schools (9th Cir. - Aug. 2, 2005)

Judge Bybee writes an important opinion worth reading in this case, which holds that Section 1981 may well prohibit a private, non-federally-funded school to adopt a blanket admission policy favoring native Hawaiians and effectively excluding non-native Hawaiians from admission. Judge Graber dissents.

From my perspective, the most interesting thing about Judge Bybee's opinion was how it is written. This is true in two different respects. First, it is much more nuanced, balanced, and careful than the polemic and partisan pieces that one might expect from him. Of course, Judge Bybee knows that this is a high-profile case, so undoubtedly took special care in crafting it. Still, I liked its style.

Second, the opinion reads much more like a legal history piece -- or law review article -- than a judicial opinion, and does much, much more than is required in explaining the history and structure of various principles than you typically see in the Federal Reporter. Now, I happen to like that approach, and find it to result in a more interesting read than a classic majority opinion. I'm also no good at it, mind you, so am especially impressed by those with facility in this area.

But others might have a different reaction. In any event, the opinion made me want to know the identity of the law clerk responsible for writing it, as well as how much of the structure/content was penned by Judge Bybee and how much by the clerk. Given the divergence between this opinion and some others by Judge Bybee, I wouldn't at all be surprised to see a very smart -- and hard-working -- clerk behind the first draft. Of course, Judge Bybee signs off on (and is responsible for) the final product, so any craftsmanship credit would need to flow his way. But the clerk almost assuredly deserves props as well.

Buckley v. Terhune (9th Cir. - Aug. 2, 2005)

Apparently I wasn't the only one fairly impressed by Judge Bea's dissent in this case (which I discussed here back in January). The Ninth Circuit just vacated the panel's opinion and took the case en banc.

We'll see how things go.

Warsoldier v. Woodford (9th Cir. - July 29, 2005)

Do you have a right to wear your hair long in prison if that's an important component of your religious beliefs? That's the question asked to -- and answered by -- this opinion.

Given the composition of the panel (Judges Paez, Pregerson, and Tashima), you can probably intuit the answer they gave. Which is: "Yes". Judge Pregerson's opinion does a good job of arguing for such a result. Particularly compelling, I think, is his introductory, five-paragraph statement of facts. It really does let the reader know what's at stake, and fairly effectively convinces the reader that this is no made-up, bogus claim of religious freedom, but is in fact an important part of the plaintiff's religion. (Judge Pregerson doesn't mention it, but even the plaintiff's name -- "Warsoldier" -- articulates some reason to believe that the plaintiff is indeed really into his Native American religious background).

Of course, a claim of religious freedom can fairly be outweighed by compelling penological interests and the regulation is the least restrictive means of advancing these interests. And, fear not, California articulates a wide and varied set of interests that are allegedly advanced by the restriction on long hair (e.g., "You could hide a weapon in there!").

But Judge Pregerson yet again does an impressive job of convincing the reader that these alleged claims are either frivolous, overblown, or not advanced by the least restrictive alternative. For example, he notes that many non-California prisons grant religious exemptions and allow long-haired inmates without any evidence that any untoward effects have resulted therefrom. Moreover, the fact that California allows female inmates to have long hair also, in my mind, goes quite a long way towards establishing that the alleged interests that are ostensibly advanced by the "no hippie hair" regulation are either nonexistent or uncompelling.

So, in the end, Judge Pregerson holds that, if your religious beliefs require it, you can have long, flowing, Fabio-like hair. Little solace to old, balding people like me, admittedly, who probably couldn't grow long hair (at least without looking somewhat absurd) if they tried. But important for people like Billy Warsoldier.

Lamere v. Superior Court (Cal. Ct. App. - Aug. 8, 2005)

It's fairly rare for the Court of Appeal to expressly state in a published opinion that counsel wrote excellent briefs. So this case is worth mention for that reason alone. The opinion by Justice Richli "acknowledge[s] the excellence of the briefs submitted by plaintiffs," who were represented by Brian Unitt and Jonathan Velie. Kudos, guys.

Mind you, in the same sentence, the Court of Appeal also recognized the fine briefs also filed by counsel for defendants: Alex Baghdassarian, James Kawahara, and John Schumacher. But only in a parenthetical. And that seemed a bit forced -- like the Court of Appeal was just trying to be fair. Still, good job.

The opinion itself is also worth reading. Not that concerns something about which parties constantly litigate, admittedly. The question here is whether the plaintiffs have a state court remedy when the Pechanga Band of Indians (which has recently started to get some real money from its casino) started to boot people out of the tribe (including plaintiffs) -- and hence deprive them of their share of the casino proceeds -- for allegedly not being "real" members of the Tribe (i.e., with sufficiently unambiguous ancestry). Not exactly something that you're going to litigate every day. But the Court of Appeals calls this an "easy" dispute, albeit one with a result that (Justice Richli admits) is perhaps a bit disturbing. No state court remedy for you, plaintiffs. And since the Pechanga Band doesn't have tribal court, that means no remedy at all.

Sorry about that. Guess you'll just have to resort to self-help. With guns, presumably. Or, preferably, with fists. Or, best of all, with nasty words (e.g., "participation in the political process"). That's your only recourse.

There's a great discussion of tribal sovereign immunity and various jurisdictional issues in the opinion. So an interesting read about the merits. Plus, definitely don't skip over footnote 2. You definitely don't want to miss the use of the phrase "Eurocentric mores". Not a term that you'll see used every day. Indeed, it's a term that's never before been used in a judicial opinion. Or even a law review article. I checked.

Cool. "Eurocentric mores". I'm gonna use that one every chance I get.

Wang v. Masaitis (9th Cir. - July 27, 2005)

Hmmm. I honestly don't know about this one, one way or the other. Everyone on the panel agrees that Michael Wang gets extradited to Hong Kong. So, at some level, who cares. But there's a big constitutional disagreement about how properly to reach that result. How the court should respond to Wang's argument that the extradition treaty between Hong Kong and the United States isn't a constitutional "treaty" because Hong Kong isn't a sovereign entity (since it's just a fancy administrative unit of China at this point) with which a "treaty" could constitutionally be made.

The majority -- Judges Hawkins and Noonan -- reject this claim on the merits. But Judge Ferguson dissents, arguing that this is a nonjusticiable question. What counts as a "sovereign", he argues, is up to the political branches, not the courts.

Both sides make reasonable claims. There seems to me that there has to be some enforcible limit regarding what counts as a sovereign with which the United States can make a treaty, particularly since treaties are on a par with the Constitution as the "supreme law of the United States". For example, assuredly the Senate and President couldn't get around the House by making a "treaty" with The Sovereign State of Shaun Martin to do X. And I wouldn't be particularly surprised at all if we elected to have the judiciary -- rather than an often distorted political process -- to be the one that would and should decide what counts as a legitimate treaty and what doesn't.

But admittedly, most "treaties" are in fact much more legitimate. And for a typical "treaty", I don't know that we gain much by having the judiciary perform the task rather than the political process. So I think that Judge Ferguson's view would probably be perfectly fine -- and potentially beneficial -- 95% of the time. But the other five percent has me a bit worried. Which is the advantage of Judge Hawkins' view.

A tough call.

Writs Writs and More Writs

So the title isn't in my usual format. Sue me.

Just a brief note to mention the relative plethora of writ petitions that have recently given rise to published opinions. Indeed, thus far, almost half of the published opinions from the Court of Appeal in August are from writ petitions: Jen-Weld, Huntington, Trend Homes, Solv-All, and Inco (plus, for good measure, the granting of a motion to dismiss the appeal of an order in Alan).

An anomoly, to be sure. But thought I'd mention it.

Koebke v. Bernardo Heights Country Club (Cal. Supreme Ct. - Aug. 1, 2005)

Since it's a high-profile case in the California Supreme Court about at important issue and that has a strong San Diego connection, I feel somewhat obliged to comment on this opinion, in which the Court unanimously holds that it may violate the Unruh Civil Rights Act to discriminate against domestic partners. The thing is, though, I don't really have much to say, since I think that Justice Moreno's opinion is pretty darn good, and engages in a thorough and cogent analysis of the problem that I think is genuinely persuasive. Which is not, of course, to say that everyone will agree. As assuredly is not the case. But it persuades me.

That said, after reading the opinion, take a gander at footnote 10 of the majority opinion and then Justice Werdegar's partial dissent. Footnote 10 is a stark contrast to the rest of Justice Moreno's opinion. It's not strong or persuasive at all; on this point, it seems like Justice Werdegar totally prevails.

And, quite frankly, I think that Justice Moreno knows it. Or -- at a minimum -- that he should. My read is that he's willing to give up this point in order to get a unanimous opinion. Even though it means articulating a very fine distinction that, in reality, doesn't stand up to even fairly superficial examination. And Justice Wedegar is willing to call him on it. As she does.

So that's my only substantive reaction to the opinion (or at least the only one I'll share). I'd feel bad if I felt compelled to make crappy arguments that I didn't believe were right merely to obtain a practical benefit like a unanimous opinion. At a minimum, I hope that Justice Moreno feels the same way.

Fitch v. Select Products Co. (Cal. Supreme Ct. - Aug. 1, 2005)

Various academic commentators have relentlessly criticized the California Supreme Court for writing opinions that are allegedly too lengthy. Personally, I think this critique is a little bit overblown, and would much prefer an opinion that contains too much analysis to one that contains too little. Nonetheless, the critique has undoubtedly had some influence on the Court, which has been slowly (but surely) reducing the size of its opinions.

This one will be quite good for the Court's average, since it's only ten double-spaced pages. Which is, quite frankly, all the (unanimous) Court needed, notwithstanding the fact that it was reversing the decision of the Court of Appeal. Indeed, at some level, I thought that Justice Kennard could have ended her opinion after the very first paragraph, which was: "May a Medi-Cal lien for costs incurred in treating a decedent's final illness be asserted against a recovery in a wrongful death action when that recovery does not and could not include those medical expenses? The answer is 'no'."

Yep. That pretty much says it all. The remaining nine pages simply assure the reader that this isn't a distorted way of framing the question. Which it isn't.

People v. Garcia (Cal. Supreme Ct. - July 28, 2005)

Defendants and their counsel have a right to be present when the jury requests and is subsequently allowed to return to the crime scene during deliberations. So sayeth the California Supreme Court.

It's somewhat rare to see a unanimous opinion of our Supreme Court in favor of a criminal defendant. But this seems the clearly right result. And the opinion is well-written and persuasive. There's a right to be there to make sure that the jury doesn't do anything (e.g., conduct experiments, view irrelevant material, etc.) that is improper. It's no different than the right to be there during the initial visit to the scene in the first place.

Of course, where would we be without a little disagreement. So Justices Chin and Werdegar partially dissent, on the grounds that the error here was harmless. But the majority finds otherwise. After all, if the case was so crystal clear, why did the jury bother to ask to go back to the scene of the crime?

Oakland Raiders v. NFL (Cal. Ct. App. - July 28, 2005)

The Oakland Raiders lost a case earlier this year in the Court of Appeal, which I discussed here. Now the Raiders make it 0-2. Justice Premo here affirms the grant of summary judgment against the Raiders on their claims against the NFL for breach of fiduciary duty. Let's hope that the Raiders do equally as well against the Chargers this year as they have against the NFL in the Court of Appeal.

The merits of the opinion speak for themselves. I wanted to comment only on the three-paragraph concurrence of Justice Rushing. I'm fairly confident that this is the first concurrence I've ever seen that is devoted exclusively to an issue of grammar; moreover, one that makes no utterly difference whatsoever to the result. The only think that Justice Rushing does is to argue that the term "Oakland Raiders" is singular, rather than plural, and hence (for example) that the opinion should say "The Oakland Raiders is" rather than "The Oakland Raiders are".

Mind you, I actually have an opinion on the merits of this grammatical dispute. But that's beside the main point, which is this: Who freaking cares? Do we really need several trees to die in order to allow a jurist to opine on proper grammatical form in an opinion in which it matters not? What's next? A concurrence that says "I concur in the 'judgment' but would spell 'judgment' with an e, as in 'judgement'"? That'd be an equally valid -- an unnecessary -- addition to precedent. Just leave it alone.

Admittedly, I'm sure that my reaction to Justice Rushing's concurrence is affected by the fact that these three paragraphs are not only entirely unnecessary, but also entail an incredibly lame attempt to be funny. Which is why the concurrence includes, for example, a claim that this alleged grammatical error "is personally foul and deserves dissent, if not a 15-yard penalty and loss of down." Oh my. I'm gripping my sides and rolling on the floor. Hilarious. Really. (I'll save you from the additional pitiful references to "second-stringers" and air horns by not repeating them. They're even lamer.)

Okay, I know you're dying for my opinion on the merits of the grammatical dispute. Which is that it's a cultural thing. American English and English English are different. So, in the U.K., for example, they do indeed say things like "Manchester United are great this year." Whereas we, by contrast, would say "Who the hell is Manchester United, and what the hell are they playing. It says on the T.V. Guide that it's 'football', but all they're doing is kicking a little white thing around. Where's Brett Favre?"

Really, the grammar of the two cultures is different. And we here in America routinely say "The Oakland Raiders are 0-2" or "The Oakland Raiders are evil" rather than "The Oakland Raiders is . . ." That's just the way we do it. And when you do it long enough -- as we have -- it becomes okay. So that's my take. Which is yet another reason I wouldn't have written Justice Rushing's concurrence.

People v. Chaney (Cal. Ct. App. - July 21, 2005)

Defendant calls a detective, says some words, and is convicted of making a criminal threat. This crime requires, among other things, that the state prove (1) that the defendant wilfully made a threat to commit a crime that would result in death or great bodily injury, (2) that the threat was unequivocal, unconditional, immediate, and specific, and (3) that the caused the person threatened to be in reasonable sustained fear for the safety of himself or his family.

Maybe my reaction is idiosyncratic. But what happens here, in my view, is that the defendant is threatening to get on the detective's case -- and probably sue him or report him for misconduct -- and that the detective tries mightily and repeatedly to get defendant to actually utter some real threats, but defendant doesn't take the bait. And that, in addition, the detective was never, ever in the requisite genuine fear; rather, he was just looking to get a conviction. So there was never any actual crime.

My reaction, however, isn't the one articulated by the Court of Appeal, which affirms defendant's conviction. So one lesson to be learned is not to make crazy enough to make threatening calls of any nature to the police. It's simply not a good idea. Because not only will the police try to do whatever it takes to put you away, but the judiciary isn't going to be much help to you either.

Read the opinion and see what you think.

Levine v. Higashi (Cal. Ct. App. - July 27, 2005)

What a jerk. Defendant files a motion for summary judgment and plaintiff responds with (inter alia) a number of evidentiary objections. At the hearing, counsel for plaintiff requests -- as he both should and as required in order to preserve the matter -- for a ruling on his objections. To which Orange County Superior Court Judge Derek W. Hunt responds: "Oh, Mr. Pike. Sure. You win them all. Next." And then promptly grants summary judgment against him.

That's exactly what I like to see in our judicial officials: Facetious remarks alongside a refusal to perform their required duties in critical, case-dispositive motions. Justice Ikola's opinion calls this "ruling" -- if you can call it that -- "troublesome to say the least," since it obviously wasn't an actual decision, as the judge granted the summary judgment motion while ostensibly striking pretty much all of the evidence on which it relied.

I'd have been much harsher. Much.

Do your job, Judge Hunt. Is that really too much to ask? And, if you're up for it, how about doing your job without crass and unnecessary comments that merely demonstrate how cavalierly you take your judicial obligations.

P.S. - Was sad to see that Judge Hunt ran unopposed in the last election. Maybe that won't continue indefinitely.