Thursday, September 07, 2006

Sass v. California Board of Prison Terms (9th Cir. - Aug. 31, 2006)

Slim, slim pickings today.

The Ninth Circuit published only two opinions today. The first, Feibusch, involves an incredibly fact- and contract-specific analysis of whether the disability benefits of a particular administrative assistant who allegedly was injured and could no longer type were properly terminated. Fascinating.

The second, Verizon California, consists of 29 single-spaced pages dedicated to the eye-poppingly boring issues surrounding whether, and to what degree, Verizon California is allowed under the Telecommunications Act of 1986 to collect call origination charges for internet-bound and pager calls (and calls that appear to the customer to be made within a local area code but in fact are not) as well as whether Pac-West is entitled to reciprocal compensation for "Virtual Local" or "VNXX" traffic. My goodness. I'm sure that someone cares, deeply, about these issues. But not me. I could barely keep my head off the desk as I struggled to avoid taking a nap and (mercifully!) reach the end of the opinion. ("Affirmed in part and reversed in part" was really all I needed to hear.)

Meanwhile, the California Court of Appeal has been utterly no help. They haven't published a single opinion today; moreover, the California Court of Appeal and the California Supreme Court have published a grand total of two opinions since September 1. As a reminder, it's now September 7. Let's pick up the pace, my friends.

So, in light of the foregoing, I decided that rather than remain silent today, I'd instead both (1) insult the various participants (done!), and (2) write briefly about an opinion on August 31st that I didn't previously have the opportunity to mention. And (2) is really just a shorthand for (3) insult my old boss.

Okay, so "insult" would be a strong term. How about "mildly disagree with"?

The underlying case is at least a tiny bit interesting, and is about whether Brian Sass should get out of prison on parole. He was convicted in California in 1988 of second degree murder because he killed someone when he was driving while intoxicated, and was sentenced to 15 years to life. So now his 15 years are up (and he even gets a fair amount of time off for good behavior) and he's trying to get parole. But the parole board keeps repeatedly denying him parole, and he files several habeas petitions alleging that's not right, arguing that he's no longer a danger to society nor was his offense unusually cruel. But the district court denies the petition and the majority opinion, written by Judge Goodwin, affirms.

What's most interesting about the case, however, is Judge Reinhardt's dissent. It's classic Judge Reinhardt, and is one of those cases that he's clearly very into -- indeed, that I'm quite confident he was more and more into with every one of the (very many!) drafts that I'm certain were prepared. It's one of those dissents that utterly slams the members of the majority opinion and that, while ostensibly doing so respectfully, is both ruthlessly hardhitting as well as very easy to take personally. It's worth reading the whole dissent, because this is a perfect example.

Alternately, if you're (somewhat) lazy, you can also get a brief glimmer of what I'm talking about from the last two sentences of the dissent. Which read as follows: "Regretfully, I conclude that what the majority has produced is a decision without a rational foundation or a legal justification. I firmly believe that one day my colleagues, who are both able jurists, will come to recognize and regret the erroneousness of their decision and the injustice it perpetuates."

The first sentence is an entirely accurate recitation of his beliefs, and he really does think that the opinion is utter crapola and doesn't even attempt to justify its findings. Whereas the second sentence is classic Judge Reinhardt.

With due respect to my former employer, I'm quite confident that Judges Goodwin and Hawkins will -- notwithstanding what Judge Reinhardt says -- never recognize the alleged errors of their ways and regret their decision. They think the decision is right. They continued to think it was write even after reading the dissent, and almost certainly always will. It's not that they lack compassion, or intelligence, or that they're temporarily confused and mistaken. They just disagree.

Sure, in a way, it's somewhat kind to say -- and really believe -- "I think you guys are great, and really do think that you'll come to see the error of your ways in this particular case eventually." But in another way, such an attitude can easily be taken as condescending.

See what you think. It's an opinion, and dissent, that's a lot more interesting than the snoozers that came out today!