In Re: Matter of Heiner (Cal. Ct. App. - Feb. 27, 2006)

I hate pretty much everything about this case. I recognize that's a strong statement. But it's largely true.

Don't get me wrong. What I hate is the case. Not necessarily Justice Rivera's opinion, which is actually pretty good (even though I think it may well be wrong in a couple of different places). It's the actual case that really irks me.

I'll just give you some highlights. It's a child support case. The underlying marriage was incredibly swell. [Editor's Note: Insert punctuation that reflects dripping sarcasm here.] George Heiner and Cathy Chandler were married in May 1993. Their "marriage" lasted all of 18 months, and they separated in November 1994. And during this glorious 18-month marriage they managed to produce two children. To which a large part of me reacts by saying: "You idiots. If your marriage sucks so bad you can't even make it for 18 months, can you at least please not make matters worth by bringing additional people into this world to drag down with you?" Though then I read the briefs and learn the names of the children -- Stephanie Heiner, now 12, and Heather Heiner, now 10, and think: "Well, maybe all life is good life. Maybe Stepahnie and Heather are the only good things to come out of this debacle of a 'relationship'." Or at least I hope so.

Regardless, my strong feeling is that both George Heiner and Cathy Chandler totally suck. Let's take George first. He's a dentist. Or at least he was. He gets into a tussle with a security guard at K-Mart and is injured, so he sues. (P.S. - Justice Rivera: Can you please not leave out important color in the opinion?! Justice Rivera categorizes the underlying suit this way: "George worked as a dentist for about 10 years, but became disabled from practicing dentistry after he was injured at a KMart store in March 1995." Sounds almost like a disability claim. But when you read the actual briefs, the true nature of the underlying suit has a little more detail, and I wish Justice Rivera had included it.)

So the lawsuit against KMart goes to trial, and George wins a judgment of $3.8 million. Which KMart, of course, appeals, and files an appeal bond. But KMart loses the appeal. So now, with interest, KMart owes George even more. Now, Justice Rivera's opinion doesn't mention this, and George's lawyers have slyly filed the relevant documents under seal, but it turns out that George ends up receiving (by my calculation) a total of $4.3 million in settlement from KMart. Pretty good, eh?

Here's the rub. The whole injury thing with KMart transpired after the marriage was over, right? So George has previously been paying all of $327/month in child support. Wow. What a massive amount. Oh, yeah, he is also required to put his kids on his health insurance. So basically he's paying incredibly little in support.

But now he's a multi-millionaire, right? He just got a check for $4.3 million. (Well, actually, something between $2.3 and 2.8 million after deducting costs and fees.) He's got a boatload of money. He buys a huge house and dumps a ton of money into stocks and real estate and the like. He's rich, after all.

What about the kids, you ask? Well, of course, if you were thinking about these things as a real human would, you'd expect that a lawsuit might arise because Cathy would maybe request a little more child support from her now multi-millionaire ex-husband. Or, if you were really human, maybe you'd think that George would actually take care of his kids with some of his extra millions, and that no disputes would arise because George, like any parent, would make sure that his largess included spreading some comfort to his children.

But this is the real world, baby. So the newly multi-millionaire George responds to his fantastic new wealth not by upping the (whopping!) $327/month that he pays in child support, but rather moving to reduce his child support payments! Oh, yeah: He wants to take the kids off his health insurance too. Classy.

And, because this is the real world, the trial court grants the motion. After all, George ain't working any more; all he's doing all day is hanging out with this millions of dollars! So reduces George's child support payments to $99/month. Plus lets him take the kids off his insurance.

Wow. So you've got a multimillionaire who pays less than $1200 a year in child support for his two kids. Oh, yeah. That's definitely in the best interests of the children. But, legally, the trial court holds -- and the Court of Appeal agrees -- that the millions that George has received isn't "income" and so doesn't count. (Part of that is a clear crock, by the way: There's at least a half a million in the settlement that's basically interest income, and clearly that qualifies. Plus, the vast majority of the actual payment was due to George's lost income as a dentist. Justice Rivera has a response -- including the claim that we can't tell precisely "how much" was actual income -- but come on. Some of it -- in fact, probably almost all of it -- clearly is. This is a somewhat lame response, and nowhere justifies impoverishing the kids and taking away their health care while daddy gets to hang with his millions.)

So that's George. What a quality impression I have of him.

Oh, yeah. Cathy. She's a piece of work too. Here's but a taste of the many, many things we know about Cathy from the opinion: "The case was described as 'unique because of the degree of fraud, deception and obstruction practiced by Cathy.' Some examples: Cathy falsified her tax returns to show only one-fifth of her true income; Cathy admitted she made a false income statement in her income and expense declaration; and Cathy had previously claimed she had income of $1,500 per month but then admitted at trial she received $2,250. According to the court, Cathy 'manifested no humiliation, embarrassment or remorse when she admitted these falsehoods.'" Classy.

Oh yeah, Cathy's now living with a sugar daddy, Craig Schwab, who -- among other things -- owns a huge number of gas stations, and has also put various properties (including a Portola Food and Liquor) into Cathy's name. (Random aside: Hey, at least Cathy's store apparently doesn't routinely sell alcohol to undercover cops!) Anyway, as Justice Rivera notes, "It is undisputed that Cathy 'lives with a wealthy individual in an opulent setting.'"

The net result of all of this is that Cathy and her sugar daddy routinely manipulate their properties and assets, George essentially does the same -- but through the law -- on his side, and the kids net a whopping $99/month in child support. Plus get to see their "parents" -- and you'll note the deliberate quotes -- have this swell little battle over their welfare.

Okay. Maybe I'm being overly harsh here. But, as I said, I don't like virtually anything about this case. Yes, I know: This is the real world. With real law. Both of which are imperfect.

Still. Cases like this bum me out. For, I think, good reason. Wholly apart from the injustice that's approved by Justice Rivera's opinion. But also precisely because of that result as well.

POSTSCRIPT - I received a long, and touching, e-mail from one of the participants in this saga. I won't recount its contents, but did want to reiterate one thing that I'm increasingly certain about. Something that I said in the initial post, but that bears highlight. "Stepahnie and Heather are the [] good things to come out of this debacle of a 'relationship'." I'm increasingly confident that's true.

Brief Sojurn

Don't take my silence during the past couple of days the wrong way. I haven't forgotten anyone, much less have I decided to let the Ninth Circuit or California Court of Appeal off the hook. I was merely skiing at Big Bear during the last couple of days last week, and was without internet access. But now I'm back and better (and tanner) than ever.

I'm sure I'll have some choice words later today, at least after I finish co-oping at my son's preschool class. Ah, the joys of being a parent. Still, all in all, it sure beats actually working for a living.

Hoskins v. Hogstad (Cal. Ct. App. - Feb. 21, 2006)

One of the both good and bad things about being like me -- a person who still keeps his hands (and head) in the courtroom, but without an actual staff or law practice -- is that you're forced to do yourself all the menial tasks that are associated with being a lawyer; e.g., reserving court dates, arranging service, etc.

It's pretty obvious what the bad part is about that role; namely, it's both totally boring and a pain in the arse. But the silver lining -- the good part -- is that you're more likely not to make a significant mistake; or, if you do, you've got utterly no one to blame but yourself.

Those thoughts came to mind when I read this case. Which, at least in part, is about the danger of delegating to someone else things that you should do -- or at least actively oversee -- yourself.

The facts are pretty simple. Defendants want to file an anti-SLAPP motion to dismiss plaintiff's complaint. So they write the motion and, as is typical, ask their paralegal to set the motion for hearing on the first available date. So the paralegal calls the clerk and is told that the first available date is January 31, 2005. So counsel for defendants files and serves their anti-SLAPP motion on November 24, 2004 -- prior to their answer -- and sets the hearing date for January 31, 2005. Pretty routine, huh?

Except, as we all know, anti-SLAPP motions have to be heard within 30 days of service of the motion. So the trial court denies the motion as untimely. Defendants respond that their motion was timely because it their selected hearing date was the first available date, and hence falls within the exception that authorizes a later hearind date for anti-SLAPP motions when the docket conditions so require. But Justice Robie agrees with the trial court, and (rightly) holds that this isn't the case. Just because the clerk tells you -- as they often do -- that X is the "first available date" doesn't mean that the docket conditions require such a date. You have got to do more than that. And, because defendants didn't, their motion was properly denied.

Justice Robie's opinion is both a good one and also gives eminently practical advice. He notes that defendants could have done a number of different things in order to get their motion heard in a timely fashion, or (in the alternative) to demonstrate that the "docket conditions" of the court would not allow an earlier hearing. They could (and should) have moved ex parte for a hearing date earlier than January 31, 2005. If such a ex parte request had been granted, problem solved; if denied, that fact would probably have established that docket conditions did in fact not allow an earlier date. Alternately, they could have filed, but not served, the motion, which (again) would have solve the problem. Or, equally efficaciously, have filed and served the motion after their answer, which would still have been within the 60-day period permitted for such a filing. Or defendants could have planned ahead and reserved a hearing date prior to the actual day they filed the motion.

Defendants had plenty of options, and had counsel thought about it, the resulting problem could easily have been avoided. But, instead, they relied upon their paralegal, and upon the "usual" way of doing things. That's often a problem. It certainly was here.

Be more careful in your work. You don't want to blow an anti-SLAPP deadline -- a critical pretrial motion -- due entirely to following your "usual" routine. That's the lesson for today.

Rodriguez v. American Technologies (Cal. Ct. App. - Feb. 16, 2006)

Ah, the exciting world of the Federal Arbitration Act. A topic that is especially enthralling when it involves difficult choice of law issues and their relationship to whether or not a particular action should be stayed. I -- and I'm sure everyone else in the universe -- am trembling with anticipation at discovering how these tough procedural issues get resolved.

I'll not spoil the surprise, and will allow everyone to read Justice Ikola's opinion in its entirety to discover why he reverses the order denying the motion to compel arbitration and stay judicial proceedings. How exciting!

P.S. - Sarcasm aside, I was sincerely excited to see that Eve Brackmann, a former student of mine, was on the winning side of this appeal. Great job, Eve. I told you that Civil Procedure would eventually come in handy!

Capri v. L.A. Fitness Int'l (Cal. Ct. App. - Feb. 15, 2006)

This is a really well-written and well-analyzed opinion by Justice Epstein. About nothing exceptionally enthralling; basically, Reoven Capri slips on some algae near the pool and sues.

Still, an excellent opinion. Good job, Norman.

Mayer v. L & B Real Estate (Cal. Ct. App. - Feb. 14, 2006)

Want to see how the government treats its citizens right, and how the judiciary responds to it? In particular, how wonderful it is sometimes to deal with, say, the Los Angeles County Treasurer and Tax Collector, and the totally cool and fair fashion in which that entity treats the residents of that fine county?

If so, take a look at what happens to Frank and Josie Meyer in this case. To put it bluntly, Frank Meyer "trusted the government" (to use his words) and, as a result, the Meyers lost their property in a tax sale. And while the trial court gave it back to them, Justice Kriegler reverses.

Sorry. Better luck next time, Frank and Josie. I bet you'll have a little less faith in your elected and appointed officials -- including the judiciary -- next time 'round.

People v. Platz (Cal. Ct. App. - Feb. 15, 2006)

I'm certain that the murder of a nine-year old child can evoke strong emotions in even the most jaded jurist, and don't at all mind it when opinions are written from the heart.

Nonetheless, with all due respect to Justice Raye, my strong take is that this opinion is overly melodramatic and a bit over the top. To get a sense of what I mean, here's the first paragraph:

"Defendant Lisa Ann Platz will spend the rest of her life in prison for the death of her nine-year-old daughter. She alone is criminally liable, although many others set in motion or contributed to the events that led to her daughter’s tragic death. Those participants and their decisions, however, are not before us. [Justice Raye is primarily referring to the fact that another person responsible for the child's death killed himself in prison.] We must affirm the jury’s verdict convicting Lisa of murder [] and finding true the special circumstance that the murder occurred during the commission of a kidnapping [] because her legal challenges are without merit and we cannot say any of the evidentiary or prosecutorial errors resulted in a miscarriage of justice. If there was a miscarriage of justice in this case, it preceded the kidnapping and death of the child and therefore is not one we have the ability to review or to rectify."

Read the remainder of the opinion to see if you agree with my assessment. Sorry, Justice Raye. I don't think this is your best work.

In Re Marriage of Jackson (Cal. Ct. App. - Feb. 15, 2006)

Oh, sure. I'm desperate for love-related opinions to talk about on Valentine's Day, and all the Ninth Circuit and California Court of Appeal give me are these. Then they wait until the very end of the day to give me this.

Justice Perluss: You couldn't possibly have issued this case one day earlier?! A case about the marriage and children of Michael Jackson. The most normal and routine relationship in the universe. Why not issue a case about Michael Jackson's marriage to Deborah Rowe on February 14th instead of the 15th? Too much class? Since when?!

Oh well. Better late than never, I guess.

The issue here -- to put it briefly -- is basically whether you can give away your children. Back when she was in "love" (or whatever you might more accurately call it) with Michael, Deborah wanted/was willing to give all custody of their two kids to Michael. So in 2001, Deborah goes before the court and, in what was essentially a stipulated proceeding, has Michael's attorney (Michael didn't bother to show up) walk her through questions that demonstrate that she wants to give up all her parental rights to Michael. So the trial court says, okay, I'll go ahead and take away your rights.

But later, in 2004, when lots of stuff has transpired vis-a-vis Michael (hmmm, I wonder what the tipping point was?), Deborah changes her mind, and wants to void the prior termination of her parental rights. So she files a motion -- which the trial court grants -- to vacate the prior termination on the grounds that it was a void act because you're not allowed to stipulate away a cessation of such rights. Michael opposes the motion, but the trial court grants it. Michael appeals, but Justice Perluss (rightly) affirms.

You can't give away your kids. Well, okay, you can, but it has to be a real proceeding, not essentially the stipulation of the parties, which it was here. You can split up your property in a divorce in a stipulated disposition. But that's because it's only property. Kids aren't property. And we care about their best interests, not just yours. So without a real investigation -- which didn't happen here -- into what's best for your children, you can't simply give them away to the other parent. That's the law. Entirely justly.

Is this type of case routine? No. Thankfully. Not many people are rich, have lawyers, and are entirely willing to give away their own children in a stipulated proceeding. But it does give some insight into both the reasons for the existing laws relating to parental rights as well as allow a brief glimpse into the weird, utterly bizarre world in which Michael and Deborah Jackson (formerly) lived. Scary.

Sosa v. DIRECTV (9th Cir. - Feb. 15, 2006)

For a lengthy discussion of the fascinating world of the Noerr-Pennington doctrine as applied to prelitigation communications, take a gander at Judge Berzon's opinion in this case. And, yes, that sentence is dripping with sarcasm, but I also mean it. If you're a big academic federal courts scholar -- or simply care about not getting sued if and when you write pre-litigation demand letters -- it's actually a pretty interesting (and, in my view, accurate) exegesis on the subject matter.

District judge Panner's concurrence -- which is only a single paragraph, so definitely read it -- looks pretty darn reasonable as well. With this caveat: Judge Berzon is totally right when, in footnote 3, she basically says: Nope. Read that footnote for a good explanation of what "dicta" really is, and why Judge Panner isn't correct that the opinion is basically advisory. Judge Panner's approach makes facial sense, but it's Judge Berzon who's actually right.

P.S. - A shout out to my former boss, Dale Oliver, and a former colleague, Mike Williams, for their successful representation of DIRECTV in this appeal. Good job, guys.

U.S. v. Knows His Gun (9th Cir. - Feb. 15, 2006)

I'm conflicted. So, so, so conflicted.

Yes, I want to comment on the name of the defendant and the crime for which he was convicted. Which is not, as you might imagine, illegal possession of a firearm. But this is a family-oriented publication. Which means I can't make any number of the comments that are floating around in my mind.

So I'll just tell you the facts. Knows His Gun is convicted of Knowing His Nephew. His conviction is affirmed. End of story.

Kim v. Superior Court (Cal. Ct. App. - Feb. 14, 2006)

Now here's the type of opinion that I'd expect -- nay, demand -- to see published on Valentine's Day. One with a critical issue that's entirely appropriate for resolution on February 14:

Can words alone constitute an "act" in furtherance of an agreement to engage in an act of prostitution?

The answer, by the way, is "Yes". At least according to Justice Zelon. So if you're "looking for love" this V-Day, let's keep it clean, okay?

P.S. -- Yeah, yeah. I know you're dying to hear what precisely the magic words are that can get you (or, in this case, the alleged prostitute) in trouble. Salacious bastards. Okay, I relent. Here they are: "Defendant placed her right index finger on her mouth and told Officer Gutierrez to be quiet when he asked her if he could have sex with her for a little more money; raised her index finger and said ‘one’ after the officer asked if he could have sex for sixty dollars; stated ‘yes’ after the officer pointed to her groin area and asked if she was clean ‘down there[;]’ responded ‘yes’ when the officer asked whether she had a condom; and instructed the officer to take off his clothes.”

So now you know. Don't use those words. Okay? (Actually, in truth, the only words that Justice Zelon holds matters are the verbal instructions to the -- undercover (duh!) -- officer to take off his clothes. It was those instructions, she holds, that constitute the actionable "act" in furtherance of the agreement.)

P.P.S. - Why did I have to wait until 4:00 p.m. today for a good Valentine's Day opinion?! Can't we get these things out any earlier? I've got real work to do, after all!

People v. Dragomir (Cal. App. Div. - Feb. 14, 2006)

Slim. Slim. Pickings. Two cases so far on this lovely Valentine's Day: one from the Ninth Circuit (a somewhat boring case about the propriety of a particular asset forfeiture) and then this one from the Appellate Division. That's right. You heard me: the Appellate Division. You don't see that many of those types of cases published -- the last one, for example, was over two months ago. (Plus, this one was actually issued back in November, but the reporter has only now actually issued the opinion.) So when one comes out, why not chat about it for a bit?

Especially when, as here, it concerns a violation that's near and dear to pretty much everyone's heart. A speeding ticket. Oh yeah. Which is precisely what Alin Dragomir received for going 90 miles per hour on Highway 17 in Santa Clara County. So he fights the ticket. But he fought the law and -- as is often the case -- the law won.

Except that they cheated. Dragomir is representing himself (of course), so he cross-examines the police officer when she testifies. But then, when Dragomir testifies, the police officer cross-examines him. Now, Dragomir is no lawyer, but is nonetheless smart enough to say: "Hey, the state didn't bother to send a prosecutor down here; it's not cool to allow a witness to cross-examine me." The learned judge, however, responds: "Overruled".

So Dragomir bothers to appeal. Which is pretty shocking, when you consider that the total penalty for his speeding ticket is a whopping $193.50. But the Appellate Division actually agrees with him, and says (rightly) that allowing the officer to cross-examine him was a no-no. However, sadly, at least for Dragomir, there's this whole "harmless error" thing. Since the stuff elicited on cross-examination wasn't actually prejudicial, the fine is nonetheless affirmed. Sorry, Alin. That's the way the cookie crumbles.

Anyway, the next time you fight a speeding ticket, don't let the police officer cross-examine you. Scream "I invoke the sacred name of Alin Dragomir and refuse to respond." See how that comes out, and give me a call. Maybe I'll bail you out of jail when you're thrown in the pokey for contempt.

Still, cool name -- Alin Dragomir -- eh?

Jibilian v. Franchise Tax Board (Cal. Ct. App. - Feb. 9, 2006)

I have to be honest with you. Cases like this one somewhat hack me off. Here you've got a rich, married couple who make a mint and who (accordingly) owe hundreds of thousands of dollars in state and federal taxes. But they try to get out of paying any taxes -- and apparently successfully get a federal refund of over $300,000 -- by asserting the usual stupid, utterly frivolous claims repeatedly employed by tax protesters ("I'm a sovereign citizen," "Wages aren't taxable," "The moon is green," etc.).

Sure, the FTB catches on, and doesn't give them the $250,000+ state tax refund that they requested. But then these nutballs -- their names are Tony and Dorothy Jibilian -- file a lawsuit against the FTB seeking their requested refund, again on the same utterly frivolous bases. And, yes, the trial court dismisses the complaint, and Justice Mallano affirms.

What hacks me off is this. Could you please sanction these people -- and, for that matter, their lawyer (who, here, is Derek Tabone). It's bad enough that these rich sleazebags are trying to leech off of the community and citizenry that made their wealth possible by paying utterly no taxes, and that they've also added insult to injury by then making us waste our time dealing with their absurd administrative claims. But it's even worse when they file a lawsuit and add even more economic harm to the community as we're forced to deal with an utterly frivolous civil action.

My honest belief is that these people should be in jail. (I know that's harsh, but that's how I feel.) At a very minimum, this action in the very definition of a frivolous lawsuit -- claims that have repeatedly, repeatedly, repeatedly, and uniformly been rejected by the courts. If anyone deserves to be sanctioned, it's the parties and their lawyer here. I simply can't fathom why Justice Mallano apparently decides otherwise.

P.S. - Of course, you know that this is hardly the first -- or last -- utterly frivolous lawsuit that the Jibilians have or will file. Here's one of the (many) others. Jerks.

Jamarillo v. State Board (Cal. Ct. App. - Feb. 10, 2006)

I could have been given a million chances and still not have guessed the offense for which the defendant in this case was (apparently properly) cited. "Practicing geophysics without a license." Who knew?!

Chamber of Commerce v. Lockyer (9th Cir. - Feb. 9, 2006)

I've got to be honest with you. I can't figure out the entirety of what's going on here. And I've tried. Anyone smarter than me -- and there are plenty, plenty of you people out there -- who can figure it out are free to send me an e-mail and thereby enlighten my dull, unsophisticated, and uniformed brain.

Here's the tortured, multi-year procedural history of this appeal. Back on April 20, 2004, the panel decides -- in a unanimous opinion -- that the California statute at issue (which bars employers who receive state grants from using such funds to advocate for or, as always, against union organizing) was preempted by the National Labor Relations Act. Judge Fisher writes the opinion, and Judge Beezer and District Judge England join. Just another routine disposition. Affirmed. No problem, right?

But then, over a year later, on May 13, 2005, the panel withdraws its own (unanimous) opinion. Strange, but what's even more strange is that they don't contemporaneously replace it with a different disposition. Weird. Prompting one observer -- me -- to say, basically, "This is weird."

Then, on September 6, 2005, we learn a little bit more. Judge Fisher -- the author of the original opinion -- has apparently now changed his mind. So now Judge Beezer is writing the majority opinion, joined by Judge England, which again affirms the district court and finds the statute preempted. But this time, Judge Fisher dissents.

Okay, a little strange. But it happens. People sometimes change their mind. We're all down with that.

Then, on January 17, 2006, the Ninth Circuit votes to take the case en banc. Not surprising. It's a difficult and controversial issue. And, in doing so, the Ninth Circuit issues the usual order that accompanies such a vote: "The three judge panel opinion shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court." You know, the typical thing. Happens every single time the court votes to take a case en banc.

I'm on board so far. Here's the thing I don't understand, though. Earlier today, the Ninth Circuit issues this order: "Upon the vote of a majority of the en banc court, the opinion and dissent filed on September 6, 2005, slip op. 12167, and appearing at 422 F.3d 973 (9th Cir. 2005), are withdrawn." Huh? You already said that the case couldn't be cited. What's the point of separately withdrawing it? Sure, that means it also can't be cited to other courts (though what's the point anyway of citing a case that's actively being taken up?), but why are we doing that in this case but not any of the others that we vote to take en banc? Plus, why the three-week delay between taking it up and withdrawing it?

Back in the old days -- a practice that stopped, I think, back in 1999 -- the Ninth Circuit would pretty much automatically withdraw the panel opinion once the vote was taken to rehear the case en banc. I doubt that the court is returning to those days as a general practice, so don't understand the reason to do so in this one particular case.

But, again, maybe I'm stupid. Maybe there's an obvious reason out there that I'm just missing -- that is clear to everyone else in the universe, but that my feeble brain just can't fathom. It's presumably not, by the way, that the panel has changed its mind again, since the withdrawn opinion is pursuant to a vote of the en banc court (not the panel). Though I suppose it is possible that the panel did change its mind, but only after the case was taken en banc, at which point it required a vote of the en banc court (rather than the panel) to withdraw the opinion, since that's the entity that had jurisdiction over the appeal at that point. Though if that's really the case, what an utter clusterfart. (Yes, I know, that's not the actual word, but hey, this is a family blog.)

Weird, weird, weird.

P.S. - If you care at all about the merits of the underlying dispute, here's a good paper by Professors Befort and Smith at the University of Minnesota Law School -- an entity, by the way, that is essentially a feeder school for the University of San Diego School of Law at this point, since we've hired so many of their outstanding faculty members away from them during the past several years (ho ho ho) -- that discusses the issue and is deeply and intelligently critical of the panel opinion(s).

Smith v. Mitchell (9th Cir. - Feb. 9, 2006)

I'm as concerned about convictions of innocent people as the next person. Perhaps even more so. That said, my (admittedly weak) sense is that Judge Canby may go too far in this one.

This is a habeas case in which Smith was convicted of shaking her seven-week grandson to death. Smith's habeas petition says, quite simply, that she's innocent, and that the evidence against her wasn't sufficient.

The opinion is not that long: around ten pages. Judge Canby does a good job therein explaining that the evidence that was presented here didn't include a lot of the typical stuff that you often see in Shaken Baby Syndrome cases -- frustrated parents, a history of abuse, etc. And when you read the opinion -- or at least when I did -- I was definitely left with an impression that Smith might well be innocent.

But the thing is, I wasn't at the trial. And neither was Judge Canby. Yes, we can read a stale record, and we can review the medical evidence. But my strong sense is that this stuff isn't dispositive. Several different medical experts testified for the prosecution that the child's death was caused by Shaken Baby Syndrome. They also testified that there was evidence of old subdural bleeding (implying past abuse), as well as both old and new bleeding around the optic nerves (a classic sign of Shaken Baby Syndrome). Yes, here, there wasn't the type of huge bleeding in the skull that accompanies 80% of Shaken Baby Syndrome deaths, and you can't prove one way or the other -- since science apparantly can't detect it -- that the death here resulted from an instant shake-induced tear in the brain stem. But when the experts testify that, look, this is a Shaken Baby Syndrome case, and when there's at least some evidence to support their conclusions, even if my own view (on a stale record) is to conclude that the medical experts on the defense side seem more persuasive, it is difficult for me to conclude that no rational person anywhere could disagree with me.

That'd be my view, by the way, even without the evidence that Judge Canby somewhat hides in footnote 11, which is where we learn that when a social worker told Smith that the baby had died of Shaken Baby Syndrome, Smith's immediate response was to say: "Oh my God. Did I do it?" That's a pretty troubling statement. Yes, Judge Canby may be right that perhaps this statement was a spontaneous exclamation of a distraught grandparent. But isn't it still some evidence that Smith did, in fact, shake the child, and think that she might accordingly be responsible for his (otherwise entirely unexplainable) death? At a minimum, isn't it possible that a reasonable jury could so conclude?

So this opinion is troubling. It troubles me because I'm worried that an innocent person might have been convicted of killing a child. But it also troubles me because I don't think that the evidence here is so one-sided that any rational factfinder must have concluded that the evidence was insufficient -- much less that the state court's holding to the contrary was an obviously unreasonable application of federal law (as is required for federal habeas relief). And it troubles me a little bit when appellate judges may believe in their own position so strongly that they potentially displace the proper role of the jury (and, parenthetically, of state courts) and find any position contrary to their own to be entirely unreasonable. Sometimes you have to realize your own potential limitations, as well as potentially place faith on the institutions that we have created. Including the reality that the unanimous judgment of twelve different people is sometimes potentially more accurate than your own assessment of the evidence. Not always, of couse. But, very potentially, here.

P.S. - One final note. If the evidence was so crystal clear, I'm a bit surprised that it took Judge Canby (whom, by the way, I very much respect) over a full year after oral argument to write the opinion. Particularly since I assume that Smith was rotting in prison the entire time, if I were Judge Canby -- and hence convinced that Smith was innocent -- I'd have tried my very hardest to get my opinion out ASAP. And would certainly not have taken over a full year to do so.

People v. Lee (Cal. Ct. App. - Feb. 7, 2006)

Interesting. I don't know how I come out on this one.

DeAndre Lee is a prisoner and would like to smoke some weed. So he asks his wife to bring some to him the next time she visits him in prison. But, stupidly, he does so over a monitored phone. Not too bright. So the next time she comes, the guards search her, and find some marijuana and some loose tobacco and a little bit of crack in a couple of condoms hidden in her bra.

Okay, so that seems like a pretty easy case. And I'm sure it is, against the wife: an attempt to bring controlled substances into the prison in violation of Section 4573.9 of the Penal Code. Easy.

But here's the toughie. Section 4573.9 expressly doesn't apply to prisoners; rather, it says that it's a crime for anyone "other than a person held in custody" to attempt to smuggle stuff into prison. As a result, they clearly can't charge Lee for a violation of (or attempt to violate) Section 4573.9. They can, of course, charge him with other crimes. But they want to charge him with this one, presumably because it (unlike the others) is a felony, and since Lee already has a strike, this means he's gonna spend tons of time in prison if they can convict him of Section 4573.9 rather than something else. But, remember, that statute expressly doesn't apply to prisoners.

So here's where the State gets creative. They charge Lee with conspiracy to violate Section 4573.9, since he (after all) asked Lee to help. Lee says: "Wait a minute, I can't conspire to violate a statute I'm unable to violate as a matter of law." But Justice Ardaiz says "Yes you can, because conspiracy is a separate crime with separate dangers." To which Lee says, "I disagree, but in any event, common law doctrines entirely aside, surely you'll have to agree with me that the fact that the Legislature expressly exempted prisoners from Section 4573.9 -- presumably because they didn't want such a harsh penalty for prisoners -- means that they also intended that prisoners also not be punished under that law for conspiring to violate it." To which Justice Ardaiz responds: "Nope, I surely do not have to agree. The Legislature didn't like running drugs into prison. Guilty. Enjoy the extra 12 years in prison for your attempt to smuggle a little pot into your cell."

A while back, I wrote a fairly long piece about criminal conspiracy in the Stanford Law Review, and so have a pretty decent understanding about the concepts involved here. The reasoning that Justice Ardaiz employs is assuredly not clearly wrong, but it still troubles me a bit. I'm just not sure that conspiracy can or should be allowed to swallow up an express statutory exception. I'm not willing to say that I'd come out the other way, but there's a part of me that's definitely tugged in that direction.

On a less theoretical note, the opinion is funny because its discussion of Wharton's Rule -- which, again, I'm fairly hip on -- contains a paragraph-by-paragraph analysis of the leading cases regarding this Rule, and these cases always involve interesting underlying crimes. Paragraph 1: Transporting women across state lines for immoral purposes (Mann Act). Paragraph 2: Adultery. 3: Abortion. 4: Miscarriages. 5: Prostitution. 6: Three-card monte. 7: Keeping a Bordello. 9: Statutory Rape.

Seven out of nine cases about sex-related crimes, and one about gambling. It's sometimes interesting about how it's often the "victimless" crimes that occasionally push the envelope in various areas of the law. I should think about this more, but I really do thing that there's something about that. It can't just be a coincidence that this area of doctrine -- like several others -- is dominated by cases of this type.

In Re Marriage of Campbell (Cal. Ct. App. - Feb. 7, 2006)

Ah, bigamy. (Or, as some like to call it, "Utah Hold 'Em".) You don't see it around much anymore, at least around these parts. So when you do, it's certainly worth at least a brief mention. Especially when the particular twofer at issue is central to a decision by the California Court of Appeal.

You've got to love the facts of this one. Eric and Rebekah Campbell are married for over 13 years, but then separate. The parties agree that Eric will pay Rebekah $3500/month in temporary spousal support, so the trial court enters the appropriate order, and Eric promptly pays. So far, so good.

Here's the problem. As Justice Premo artfully put it, "Rebekah was struggling with sobriety." On (undoubtedly related) fronts, she was also unemployed, had no income, had limited contact with her and Eric's two young children (who were living with Eric), and -- as her own counsel put it -- was "going through a lot."

When that's your life, what's the solution? Well, it's obvious, isn't it? Go to Vegas. Get married. Again. And quick! Indeed, do it before your divorce is final. Yes. That's the ticket. Definitely.

Anyway, wise or not, that's what Rebekah does. Which makes her a bigamist, even in Nevada. At which point things get even worse. Because Section 4337 of the Family Code provides that spousal support automatically terminates upon death or remarriage. And since Rebekah has now remarried, Eric petitions to stop paying.

Justice Premo, however, reaches the right result, and affirms the trial court's ruling. A bigamous marriage is void. It's not a marriage. So Rebekah didn't "remarry" as that term is employed in Section 4337. And, no, this is not analogous to cases involving annulments. Even if you get your marriage annulled, you still "remarried" and hence aren't entitled to spousal support. But a marriage that's bigamous is different. It isn't a marriage at all. So you're still entitled to spousal support.

The right result, both textually as well as a matter of policy. Another marginal blow struck in favor of multiple marriage. And a soft cheer arises from the accumulated masses 750 miles to the northeast.

Kumar v. Gonzales (9th Cir. - Jan. 23, 2006)

The Ninth Circuit and California appellate courts haven't exactly kept me fascinated lately. A relatively small number of cases, and those that exist aren't exactly enthralling. Sadly.

That said, this one is hilarious. You only have to read Judge Kozinski's dissent. You can figure out what the majority opinion says both by the content of the dissent as well as by the identity of the author.

Remember that Kozinski's (fairly scathing) dissent is to an opinion written by his buddy, Judge Reinhardt. Notice also that Judge Reinhardt -- who's far from a wilting flower himself -- doesn't write a single word in direct response to his friend.

I'm quite positive that I know exactly what Judge Reinhardt is thinking. And fairly sure that Kozinski knows it as well. The words are unspoken. But the message couldn't be clearer.

Maybe you have to know a bit about the respective authors, as well as their attitude towards both each other as well as the underlying topic (immigration appeals). But if you do, the dynamic expressed in these opinions is utterly hilarious.

People v. Fisher (Cal. Ct. App. - Jan. 30, 2006)

Todd Fisher is convicted of forcible oral copulation and unlawful sexual intercourse with a minor. He's sentenced to three whole years in prison. Wow.

After his sentence is over, California -- shockingly -- wants to keep him locked up, so files an action to declare Fisher to be a mentally disordered offender. Since Fisher is far, far, far from the brightest bulb on this planet, he makes the infinitely wise decision to represent himself. Fisher's own testimony before the jury included his admissions (1) that he lives in "la la land," (2) that he's "crazy," and (3) that "I have a mental disorder." Oh yeah. That testimony will definitely help your case. Great decision. Keep it up.

Fisher has also consistently refused all psychological testing and every form of treatment. When hospital staff found a sharpened comb in his room, a sharpened plastic knife on his person, and a four-inch sewing needle in another part of his room, Fisher explained: "They aren't shanks. I just needed a screwdriver because I'm like MacGuyver."

Awesome. I'll leave you in utter suspense as to whether this guy is getting out anytime soon. In the unlikely event you can't deduce the result on your own, take a gander at Justice Yegan's six-page opinion, which is all it takes to reach the appropriate result.

P.S. - The only interesting doctrinal point worth mention comes from the final paragraph of Justice Yegan's opinion: "The instant case could serve as a paradigm for why a person with a severe mental disorder should not be allowed to veto his attorney's decision to waive jury, waive the right to counsel, and insist on self-representation." Food for thought.

Benninghoff v. Superior Court (Cal. Ct. App. - Jan. 30, 2006)

Don't be a sleazeball. Don't be a lawyer and be found guilty of conspiring to defraud the United States as well as multiple other federal felonys. Don't resign the State Bar of California with disciplinary charges pending against you and thereafter attempt to ply your legal trade by acting as a "lay advocate" providing legal advice to prisoners and people before administrative tribunals. That's the practice of law. It's illegal. And it's wrong.

That's the basic message that I garnered from this opinion, which concerns the stellar career of former California attorney (and outstanding USC Law graduate) Charles Benninghoff. (There are several others as well from the Court Appeal, including this one.) Check out his impressive disciplinary record, including various criminal and other charges. I shan't even list the plethora of lawsuits and other actions filed against him. There are simply far too many of them. Suffice it to say that this is not a person with whom I would voluntarily associate.

This honestly isn't the best opinion I've ever read from Justice Ikola. But I'm hardly inclined to reach out to help Mr. Benninghoff, and doubt that Justice Ikola was either. Sometimes your desire to just get rid of a case that has a foul stench as soon as possible leads one to jam out an opinion that isn't your best. I think that's at least in part what happens here.

People v. Lamb (Cal. Ct. App. - Jan. 31, 2006)

Don't combine pain medication and alcohol. Definitely don't do so and then drive at double the speed limit. Because if you do, you might well kill someone. And if you do, what happens to Timothy Lamb might happen to you: Sentenced to 17 years in prison. And that's after being acquitted of a murder count and convicted only of gross vehicular manslaughter.

Admittedly, Lamb had two prior DUI convictions. Still, don't medicate and drive. Seventeen years in prison ain't a cakewalk. Don't make it happen.

Lackner v. North and Mammoth Mountain v. Graham (Cal. Ct. App. - Jan. 24 & 26, 2006)

I've placed these two cases together because they both concern the same issue, both involve ski accidents at Mammoth Mountain, and are both of particular interest to me since I'm hoping to spend a good portion of my Spring Break at that fine ski facility. God, I love academia. What a life.

Both cases revolve around whether a particular skiing accident was caused by ordinary negligence -- in which case recovery by the injured party is barred by the doctrine of primary assumption of the risk -- or instead resulted from conduct that was reckless, in which case the defense does not apply. Both cases hold that the conduct at issue might well have been reckless, and thus reverse the grant of summary judgment to the skier who allegedly caused the accident. Interestingly, neither case cites the other. Also interestingly, in both cases, Mammoth Mountain wins. In the first case, Lackner, Mammoth Mountain is a defendant, and although Justice Blease reverses the grant of summary judgment in favor of the skier, he simultaneously affirms the grant of summary judgment in favor of Mammoth Mountain. In the second case, Graham, Mammoth Mountain is actually the plaintiff, and is suing to recover worker's compensation payments that it made on behalf of one of its ski instructors who was injured when the instructor was hit by a recreational skier. The trial court granted summary judgment against Mammoth Mountain, but Justice Nicholson reverses, holding -- as in Lackner -- that there is a genuine issue of material fact as to whether the conduct at issue was reckless instead of merely negligent.

Particularly taken together, these two cases demonstrate (1) that the line between reckless and negligent conduct is an incredibly fine one, as well as (2) the subtle -- or perhaps not-so-subtle -- pressure that the primary assumption of risk doctrine places upon that line. There's a reasonable argument that what both skiers in this case were doing (going fast and/or not paying attention) was merely negligent. But that would bar recovery. The Court of Appeal holds that there's a genuine issue of material fact, which means that both cases can go to the jury. Which, one might expect, will do "justice" in both cases.

Maybe there really is a GIMF in both cases. Maybe there isn't. Tough calls. But I do have a sense that the issue is hardly one with respect to which any reasonable observer can draw a principled distinction, much less a bright-line (or even determinate) rule. There's a lot of play in the joints here, and I wonder if that fact doesn't allow the justices to do a little case-specific "justice" of their own.

P.S. - Graham is also interesting because it slams -- in a big (and very public) way -- one of of the appellate attorneys, Ross Paulson, for allegedly deceiving the Court of Appeal at oral argument. Check out Part II of Justice Nicholson's opinion, which ends up referring the matter (and Mr. Paulson) to the State Bar. Ouch.