Wednesday, April 26, 2006

Brief Hiatus

I'm going to have to take a brief break to attend to some family medical matters, and while I'm with my parents in Virginia, I'll have very little internet access. But I should be back by the 3rd. I'm sure nothing important will come from the Ninth Circuit or California Court of Appeal in the meantime. :-)

Monday, April 24, 2006

Way v. County of Ventura (9th Cir. - April 20, 2006)

Noelle Way worked at the Red Cove Bar in Ventura. One night, while she's working there, she had the distinct misfortune of coming across Robert Ortiez, who was a police officer in Ventura. Robert notices that Noelle is looking a bit tweaky, and (rightly) suspects that she's been using coke and/or meth. So he arrests her, does a blood test, and confirms that, yep, she's under the influence. Her charge is a misdemeanor, and it's so serious that she's ROR'ed, and ends up spending a total of around four hours in the local jail before she's released. No biggie, right?

Well, maybe. Except for one thing. Ventura County has decided that everyone -- everyone -- who's arrested on any drug charge gets cavity searched. So before spending her glorious four hours in the local jail, Noelle has to take off all her clothes, bend over and spread her buttocks (as someone inspects her anus), remove her tampon (and rip it up), and spread her labia as someone inspects her vagina. Not degrading at all, right?

Why does she have to do all of this? Not because the police have any reason to suspect that Noelle is hiding anything in her nether regions. They don't. Just because of a blanket policy that says, in essence: "Anyone who has anything whatsoever with drugs might possibly have something in their _____, so let's probe it."

The Ninth Circuit, in this opinion, concludes that this blanket policy isn't cool, and that it's an unreasonable search and seizure. But Judge Rymer's opinion (1) hold that it was far from clear that this was the case, so Noelle loses her lawsuit (as well as her dignity) on qualified immunity grounds, and (2) contains so many caveats that it also won't be clear in the future (and hence future defendants will get qualified immunity as well) whether such a blanket policy would be cool for drugs other than methamphetamine and cocaine, for situations in which the defendant will mingle with the larger jail population, etc. etc. etc. Basically, she says that this policy is no good here, but the holding is deliberately limited to the particular facts of this case. By contrast, Judge Wardlaw concurs and says (1) that Judge Rymer is parsimoniously reading and "interpreting" prior precedent, and (2) that qualified immunity shouldn't apply here because the violation was clear.

Well-crafted opinions by both sides. And a neat trick by Judge Rymer to find in "favor" of the plaintiff and yet both deprive her of any real personal or prospective relief. Sort of like Marbury only designed to diminish personal liberties instead of to entrench judicial review. Both opinions are definitely worth a read.

Friday, April 21, 2006

Freeman v. Gonzales (9th Cir. - April 21, 2006)

What's perhaps most interesting about this case is how long it takes -- 24 single-spaced pages of dense and complicated analysis -- to reach the correct result.

Here, a citizen of another country (Carla Freeman) who's working as an au pair in the United States falls in love with and marries a U.S. citizen, and after her marriage, promptly moves to adjust her status so she can stay here. While her application is pending, however, her husband tragically dies in an automobile accident. At which point the INS moves to deport her, arguing that she isn't a "spouse" anymore since her husband is six feet under. "Sure," says the INS, "if we'd have processed your application promptly, before your husband died, you'd have been counted as a spouse allowed to stay. Moreover, if your husband had lived for another year or so -- he died just short of their first wedding anniversary -- you'd also have been counted as a spouse and allowed to stay. But neither of those things are true. So Ha! Gotcha! Get out of my country!"

Judge Fisher, however, concludes otherwise, but has go overcome a plethora of legal doctrines (including Chevron deference) in order to achieve such a result. Hence the 24 pages.

Good to know that the INS is busy keeping our borders secure by making sure that we try to deport widows of U.S. citizens. Especially au pairs from South Africa. There's no bigger threat to our national security. Plus, I am confident that we'd be overrun with grieving widows -- and they'd take our valuable au pair jobs -- were we to fail to deport them. Keep up the good work, INS.

Thursday, April 20, 2006

Ramirez v. Nelson (Cal. Ct. App. - April 18, 2006)

I have some tall (30'+) palm trees in my yard that occasionally need trimming. It's a task that I'm not likely to ever perform myself, so every couple of years or so, I hire someone to do it.

Maybe that's why this case got to me probably more than it should. Here are the facts. The Nelsons live in Ventura County and have some eucalyptus trees in their back yard. They're getting a bit tall, so they hire a company -- the same one they've used four or five times in the past (probably one they just picked out of a phone book) -- to trim them. The crew of four comes over to the house and starts to do their thing. Which is cool with the Nelsons, who are just hanging out in the house doing their own thing as well.

Around noon, Mrs. Nelson starts hearing people outside screaming in Spanish and running around. She looks out her kitchen window and sees the crew running around the eucalyptus tree. So she goes out on her deck and sees one of the crew, Luis Flores, hanging upside own on his safety harness from the tree. She screams to her husband to dial 911, and he does, but Flores is dead. Electrocuted, probably from some power lines that are many feet away from (but still reasonably close to) the tree.

No one saw the accident. But, upon reconstruction, it seems like what must have transpired is that Flores was using a long pole made out of wood and aluminum to cut the trees, and he probably either touched the power lines with the pole or simply gotten too close. Could happen to anyone.

So, not surprisingly, the Flores family sues Nelson. You may be saying: What did the Nelsons do wrong? They just hired the crew. They had nothing whatsoever to do with the accident. And you'd be right. They were just the average homeowner hiring a crew to trim their tree, and when the case goes to trial, the jury finds for the defendants.

But, Justice Gilbert reverses. And makes it crystal clear -- at least to me -- that on remand, the Nelsons are going to lose.

I'm not saying that Justice Gilbert is wrong. In fact, on the merits, he seems right, at least given the contours of the existing legal principles. But not only are the events that gave rise to the lawsuit so random, but so is the way in which the Nelsons are going to be held liable. The bizarre interaction of legal doctrine just seems so byzantine and unjust.

You can read the opinion yourself -- it's pretty short (at 8 pages) -- but the basic scoop is this. Penal Code 385 says that it's a crime for anyone to move a tool or machine or buiding or basically anything else within six feet of a high voltage line. Don't screw around near power lines, in other words. Fair enough.

But the Nelsons say: "Flores might have done this, but we didn't. He was just from a company we hired. We didn't supervise him or tell him to use a pole near the power lines. We were just hanging out in the house. " All of which is true. But the attorney for plaintiff responds: "Flores was your employee, which means he's your agent, so you're liable." But the Nelsons say: "Employee? Dude, that guy was so an independent contractor. He worked for a company, for Christ's sake!" But plaintiff's counsel says: "Sorry, Nelsons. Take a gander at Labor Code 2750.5. Which says that if you hire someone who doesn't have a contractor's license to do work for which such a license is required -- and, since your tree was more than 15 feet tall, it was -- they're treated as an employee, not a contractor." The Nelsons respond: "We had no idea he wasn't licensed. We assumed he was!" Plaintiff's counsel: "Sorry. Doesn't matter." Nelsons: "Well, if he was my employee, isn't he covered by workman's comp?" Plaintiff: "Nope. Labor Code 3352(h). He worked for you for less than 52 hours during the 90 days preceding his death. So no workman's comp, and we can sue you." Nelsons: "Well of course he didn't work more than 52 hours. That's because he wasn't our employee!" Plaintiff: "That brings us back to Labor Code 2750.5. He is your employee. Full circle. Nice chatting with you. I'll be over in the morning to collect a judgment for wrongful death."

There you have it. Justice Gilbert holds -- and I'm pretty sure he's right -- that the jury has to be instructed on remand that violating Penal Code 385 by putting a tool within 6 feet of a power line is negligence per se. And, given the above legal analysis, that the Nelsons are liable for it. And since, on remand, I'm quite positive that a rational jury will conclude that this was precisely how Flores was electrocuted, that means that they're on the hook for potentially millions of dollars. And at least a healthy, healthy six-figures.

Which just seems so unjust, no? How'd you like to be the Nelsons, huh?!

That was my reaction, anyway. Though one more postscript. I noticed that counsel for the Nelsons was Henderson & Borgeson. Which is an insurance defense firm (a fact that I know only because they happen to have been on the other side of the table from me in a different recent wrongful death suit). Which in turn presumably means that the Nelson's homeowners' policy covers the action.

Which I know shouldn't matter. That I shouldn't feel any different about the result because an insurance company is getting slammed rather than the Nelsons. And yet, I do. I just don't care as much. If a totally innocent homeowner is getting slammed, I'm really upset. And yet if an insurance company is on the hook, well, I just honestly don't care as much anymore.

Yeah, I know, not everyone has insurance. Plus, it still sucks to be sued, even if you're insured. So, yes, the law should probably be changed. It's just that it doesn't seem so urgent anymore.

There you have it. Yet another intellectual and emotional flaw on my part. Which I know. But it's still true. Sorry about that.

Wednesday, April 19, 2006

People v. Carlos (Cal. Ct. App. - April 19, 2006)

I promise that I'm going to write about res judicata soon. I'm certain that an anxious world awaits. I've just been awake for 48 straight hours now finishing up a brief, and don't have it in me to do much other than drive to the courthouse in 30 minutes to file the thing (due later today, of course).

In the meantime, definitely take a gander at this opinion by Justice Vogel, which is both incredibly brief (only eight pages) as well as incredibly frightening. It is a photo identification case, where the defendant is picked out of a traditional "six-pack" of photographs by a witness.

Take a look at the six-pack here, which Justice Vogel helpfully reprints (photos!) on page four. Do you notice that the defendant is smack dab in the middle, and that his is the only photograph that has a name and identification number immediately under his picture?! And then did you read when Justice Vogel noted that the prosecutor testified that every single photographic six-pack always has both (1) the defendant in the immediate bottom center of the six-pack, and (2) the name of the defendant and his identification number -- and only his name and identification number -- on the six-pack, immediately below his (and only) his name?! So that whenever a witness is shown a six-pack, the only photograph that has a name and ID number beneath it is the picture of the suspect?!

Stunningly, the witness here circles the picture of the defendant. You know: the one in the middle, and the only one with a name and (jail?) identification number on it! What a shock.

I can't believe -- I really can't -- that this is honestly the uniform practice in L.A. County. If it is, there should be a lot more habeas petitions granted in addition to this one. What a stupid, utterly absurd practice. Beyond giving the witness a "hint" as to which photograph to hint, I can't think of a single rational reason why it would be necessary to uniformly structure the six-packs in such a fashion. Wow.

Monday, April 17, 2006

People v. Lopez (Cal. Ct. App. - April 13, 2006)

Rarely do you see a criminal conviction reversed for prosecutorial misconduct -- here, for prejudicial statements made during closing argument -- so quickly and perfunctorily as Justice Mallano does in this opinion, which tops out at seven (double-spaced) pages. The dissent by Justice Rothschild is similarly brief, and constitutes a mere two paragraphs.

It's a child molestation conviction of a Catholic priest in which the prosecutor made comments about his/her personal opinion in the defendant's guilt and also mentioned (without introduction of any evidence) the wider Catholic priest/molestation controversy. There's also an incredibly truncated discussion of harmless error in both the majority and dissent.

This reads to me like all of the Justices were in the mode of "Let's just finish this thing." I'm not sure I'm really excited about that fact. Moreover, since counsel for the defendant didn't object to the prosecutor's statement during closing, the majority (in a footnote, no less) has to reverse the conviction for ineffective assistance of counsel, which means that the opinion automatically has to be forwarded to the State Bar. In any event, the net result of the opinion is the reversal of a molestation conviction and a retrial -- surely no fun for the alleged victims. I'd generally like to see a little more analysis than exists here. Especially in a published opinion. If it's worth publishing, it's generally worth some detailed substantive analysis, no?

Tax Day

It's been one of those days today.

Tax day, of course. I still have yet to finish those, so that's the highest on the agenda. Plus I'm currently stuck at home -- I can't find my car keys, which could be just about anywhere. All of this after two consecutive nine hour drives to and from San Francisco over the holidays -- with yours truly driving the entire time -- to take the family up to watch the Easter baptism of my brother-in-law's son Hunter. So sleepy, sleepy I am.

Which stinks because there are also some darn good opinions to discuss as well. Fear not. After I've paid Uncle Sammy his due later this evening, I'll get back to the important stuff. My discourse on res judicata will merely have to briefly await the arrival of my keys and the filling ot of line 75.

Thursday, April 13, 2006

Avila v. Citrus Community College District (Cal. Supreme Ct. - April 6, 2006)

Does it count as a tort when a baseball pitcher deliberately throws a fastball at your head and seriously injures you? Apparently not, at least after this opinion by Justice Werdegar, which holds that such a claim would be barred by the primary assumption of risk doctrine.

There's a fair amount of this opinion that I agree with. But I don't think that I can climb on board for its assumption of the risk analysis. Justice Werdegar talks a lot (and writes well) about how a little chin music is a longstanding part of the game, and waxes poetic about the dangers of getting the judiciary involved in the regulation of sports.

But here's the thing. Deliberately beaning a guy is unambiguously against the rules; indeed, if you read the rule book, it's a cardinal sin. And, although Justice Werdegar doesn't mention it, it's equally true that beaning a guy in the head is even more against the rules -- both the formal rules as well as against more informal norms. Everyone recognizes that such an event is both an incredibly serious matter as well as inexcusable. Which leads me to two points. First, I don't see how Justice Werdegar can hold, ex cathedra and without evidentiary submissions, that throwing at someone's head is an inherent risk in the sport. Don't you at least have to remand for findings on this? I sincerely doubt that every single reasonable person would agree that having a fastball deliberately thrown at your head is something that's inherently part of the game. Second, even if it is a longstanding tradition, I don't see how that necessarily lets the judiciary off the hook and obviates their responsibility to generate applicable tort law. Both because (1) even longstanding norms change over time, so (again) we'd at least need a hearing, and -- more importantly -- (2) just because something has a long tradition doesn't necessarily make it right. What if baseball had (and, in some circles, I'm not sure it doesn't!) a longstanding tradition of sexually harassing rookies? Assumption of the risk there too? What if -- and this isn't far from the present case -- baseball allegedly had a longstanding tradition that if you're deliberately plunked with a pitch, you go after the pitcher and beat him senseless. No tort there either? What if the pitcher dies when you punch him in the face after he plunks you? Still tort or crime? After all, it's a long and glorious tradition. Primary assumption of the risk, right?

Which is all just a fancy way of saying that the judiciary doesn't allow private participants full range to determine their own conduct, especially when that conduct involves, as here, both a deliberate attempt to injure someone as well as a serious risk of injury. Maybe there's a (new) longstanding tradition of boxers biting off people's ears, for example. But that don't necessarily make it right. The judiciary -- or a jury -- still determines the legitimate range of conduct in a sport that society is willing to accept.

So I think that Justice Werdegar's analysis is a bit of a cop-out. Maybe the result here is right, and that there shouldn't be tort liability. But I don't think we can say so simply on the basis of an allegedly "longstanding" tradition of ignoring the sport's own rules. Nor do I think that this is the role of the California Supreme Court, particularly absent any evidentiary submissions.

That's my take. But pretty much everyone who's actually in power disagrees. So, in California at least, beanballs away. Watch your heads, ladies and gentlemen. America's National Pastime just got permissibly a fair piece more ugly.

Wednesday, April 12, 2006

In Re S.C. (Cal. Ct. App. - April 7, 2006)

Ouch ouch ouch ouch. Justice Scotland writes this opinion for one purpose, and one purpose only: To utterly, ruthlessly, and at length slam counsel for the appellant, Julie Lynn Wolff. That's what the entire opinion -- at 46 pages -- is about. The merits of the appeal are easily dismissed. The whole point of the opinion is to embarrass Ms. Wolff.

This is painful to read. Literally painful. Not that Ms. Wolff doesn't deserve a lot -- a lot -- of Justice Scotland's critiques. She does. Totally.

But the attack is so relentless that I couldn't help but feel a tiny, tiny bit of sorrow for Ms. Wolff. Who now has a published -- and deliberately high-profile -- attack on her, and who utterly lacks any ability to respond.

Plus, it's clear what transpired here. Ms. Wolff was trial counsel below, in addition to counsel on appeal. It was a highly emotional case, and involved both molestation allegations against the stepfather as well as an attempt by the State to take custody of the child away from her mother for failure to protect.

It is clear that Ms. Wolff became -- as sometimes happens -- emotionally involved herself. Which, in turn, led to the vast majority of the troubles with Ms. Wolff's brief on appeal.

Look, I'm not a nice guy. I insult people left and right. Daily, in fact. When even I feel a tinge of guilt at the breadth and depth of an attack, you know that it's really severe. Which it undoubtedly is here.

To reiterate: Not that Justice Scotland isn't right. There's a lot about Ms. Wolff's brief that's entirely wrong. Wrong, wrong, wrong. And inexcusable. So I totally see the point of Justice Scotland's missive.

It's just so . . . harsh. Just take a gander at the first several sentences of the opinion, which set the tone: "This is an appeal run amok. Not only does the appeal lack merit, the opening brief is a textbook example of what an appellate brief should not be. In 76,235 words, rambling and ranting over the opening brief’s 202 pages, appellant’s counsel has managed to violate rules of court; ignore standards of review; misrepresent the record; base arguments on matters not in the record on appeal; fail to support arguments with any meaningful analysis and citation to authority; raise an issue that is not cognizable in an appeal by her client; unjustly challenge the integrity of the opposing party; make a contemptuous attack on the trial judge; and present claims of error in other ways that are contrary to common sense notions of effective appellate advocacy--for example, gratuitously and wrongly insulting her client’s daughter (the minor in this case) by, among other things, stating the girl’s developmental disabilities make her 'more akin to broccoli' and belittling her complaints of sexual molestation by characterizing them as various 'versions of her story, worthy of the Goosebumps series for children, with which to titillate her audience.'"

Now imagine 46 pages exactly like this, which consistently -- and without pause -- reiterate and support this same basic theme. As I said at the outset: Ouch.

Again, not that Ms. Wolff doesn't deserve it. Check out, for example, this discussion on page 35: "Spread out over 81 pages is a contemptuous attack by appellant’s counsel on the mental competence of appellant’s daughter. The attack is stunning in terms of its verbosity, needless repetition, use of offensive descriptions of the developmentally disabled minor, and misrepresentations of the record. For example, appellant’s counsel sets forth a lengthy narration that purportedly quotes the juvenile court’s reasons for finding the minor competent to testify. She attributes to the judge a statement that the minor, 'with an IQ of 44' and 'test results . . . in the moderately retarded range in all areas, is more akin to broccoli, than to a single celled amoeba.' However, our examination of the record reveals that the judge never made such a statement. Rather, those words are the gratuitous, offensive commentary of appellant’s counsel. Indeed, earlier in her brief, counsel flippantly 'submits nothing is below [the minor’s test score] percentile, except broccoli.' Another offensive statement, which appellant’s counsel wrongly attributed to DHHS’s expert witness, was counsel’s assertion in the juvenile court that 'Dr. Miller think[s] [the minor is] pretty much a tree trunk at a 44 IQ.' Again, this is shameful editorializing by appellant’s counsel."


Justice Scotland, in the last paragraph of the opinion, sends a copy to the State Bar. Ms. Wolff -- a graduate of McGeorge School of Law -- has already (and recently) been disciplined by the Bar, in a November 2005 public reproval.

Ouch. Ouch ouch ouch.

Tuesday, April 11, 2006

People v. Castro (Cal. Ct. App. - April 11, 2006)

One good thing about working in the social sciences is that very little of what you write can be objectively disproved, and thereby subject you to abject (and entirely proper) ridicule. I can say, for example, that the intracorporate conspiracy doctrine should properly apply to criminal conspiracies, and no one can "prove" me wrong. I've got an argument. Maybe it's a good one. Maybe it's a bad one. But you can't "prove" that my position is wrong. Unlike, say, mathematics. Or physics. Or being a doctor. When you're a doctor, when you say "It's diverticulitis," you're saying something that can (at least potentially) be objectively disproved. And you'd better be right. Because there are lives on the line. Not to mention malpractice liability.

That said, notwithstanding the comfort of my cushy position, I'm going to go out on a limb. And say something that will likely either be demonstrably true or false. Which is this:

This case will not remain good law. It'll either be reversed, depublished, or found contrary to federal law. Not because it's an intolerable opinion; indeed, I think that Justice Wiseman actually writes an incredibly good and well-reasoned opinion here, with entirely the correct caveats. Nonetheless, I think it reaches the wrong result, and believe that even the Supreme Court would so hold.

The issue is whether an entirely anonymous tip that contains essentially no corroboration whatsoever can constitute reasonable suspicion for a search. Here, an anonymous tipster calls and says that the defendant (who's driving a particular car) threatened to kill his wife and is driving over to her house. So the police, based entirely on that information, pull over defendant, discover that he has a weapon, and arrest him. The lower court holds that the anonymous tip constitutes reasonable suspicion, and Justice Wiseman agrees.

The most difficult part of the opinion, as Justice Wiseman recognizes, is that the Supreme Court unanimously held in Florida v. J.L. that an anonymous tip that someone in a certain place wearing a certain shirt possessed a gun doesn't justify even a Terry stop. So it's similarly darn hard to justify the search here. Justice Wiseman principally holds that the exigent circumstances here were more severe than in Florida v. J.L. because there was an actual threat to kill someone. That's more serious, she (rightly) says, that merely possessing a gun or dealing drugs or something like that.

True. But it still doesn't constitute reasonable suspicion to search. The police could have gone to the house and waited here -- if the defendant had shown up, that might well have constituted sufficient corroboration. But they didn't do that. Or they could have followed the defendant, and either waited until he approached the house (again, corroboration) or looked for another reason to stop him (speeding, broken tail light, weaving, etc.). They didn't do that either. Or, if they thought the threat was real, they could simply have stopped him and not tried to obtain (or use) evidence from the search. That stops the crime, after all. But they didn't do that either. Rather, they're arguing that reasonable suspicion justifies the search. And, in my view, it doesn't. I don't see that you can permissibly distinguish this case from Florida v. J.L. Justice Wiseman does a great job attempting to do so. But it doesn't work. It's an argument, yes. But not a persuasive one. It's not the "right" assessment of the relevant doctrines. Can I prove that fact objectively? No. But I'm still right.

But for the fact that the validity of the search isn't cognizable on habeas, I'd predict that this one would, at a minimum, go away on federal habeas review. (It still might. There's a subsidiary "juror coercion" issue that could still result in reversal; basically, the jury was 10-2, said that they were hopelessly deadlocked, agreed unanimously that further deliberations wouldn't work, and then the judge told them that the case was a pretty "straightforward" one, made some comments about constructive possession that were pretty unfavorable to the defendant, sent 'em back, and then less than two hours later, the jury's unanimous.) Regardless, I don't think that the Fourth Amendment holding will stand.

That's my prediction, anyway. We'll see soon enough if my crystal ball is working properly. Though, whether it is or whether it isn't, I still think that Justice Wiseman is wrong on this one. The anonymous tip doesn't have sufficiently corroborative elements. It doesn't constitute reasonable suspicion. Sorry, but it doesn't.

Monday, April 10, 2006

U.S. v. Curtin (9th Cir. - April 4, 2006)

Calm down, Judge Trott. Calm down.

It's obvious -- totally, totally obvious -- that the underlying case bothers you. A lot. And, admittedly, there's a fair amount about the case that might well bother anyone. It's about a 42-year old man, Kevin Curtin, who's allegedly trolling the internet looking for minors. And when he allegedly thinks he finds one -- who, of course, is actually a police officer -- after two (sexually explicit) conversations, he arranges to meet her in the most romantic place possible: a bowling alley in Las Vegas. Needless to say, once Kevin shows up, the police arrest him, and charge him with traveling across state lines with intent to engage in a sexual act with a minor.

The 42-year old Kevin's defense is that he never thought that he was actually talking to a 14-year old; that he figured that he was talking -- as he in fact was (!) -- with an older person pretending to be a minor. And that he went to the bowling alley figuring that he'd continue the "fantasy" with whoever it was pretending to be the 14-year old; maybe he'd get a little action with a (somewhat twisted) 30-year old woman, or whatever. Anyway, that's his defense. Maybe it's true. After all, he never actually substantively conversed with the decoy who physically was there to meet with him in the bowling alley. Or maybe it's not true.

It's crystal, crystal clear that Judge Trott thinks that the latter is the case. That this guy is just a sick bastard looking to screw children. And Judge Trott ain't having none of it. Nor does he like it -- at all -- when the majority decides that a new trial is warranted because the district judge erroneously admitted some evidence -- namely, a variety of disturbing incest stories that were so inflammatory that even the district judge couldn't stand to read them. Yikes. (By the way: Should a judge really admit evidence that even he can't bear to read? Pretty shocking. Especially when, as here, their relevance is attenuated, at best.)

Okay. I'm fine with all of that. I can see why the majority holds the way it does. I can also see why Judge Trott might elect to dissent.

But oh my, what a dissent it is. You've got to read this one. It's eighty-three single spaced pages. And the language that's used therein is incredibly, incredibly strong throughout. Judge Trott simply goes off on the majority. Wow. (P.S. - Judge Trott: Thanks for including a lot of the details about the incest stories, including substantial verbatim pages. I always like to get my incest porn from the F.3d's. Ditto for the lengthy verbatim pages that contain the lovely sexual discussion between the 42-year old Kevin and the "14-year old" child. I really want this stuff preserved for eternity. What's next? Screen shots attached an an appendix in the next federal kiddie porn case to reach the Ninth Circuit? Let's show a little discretion here, okay?)

The thing is -- and maybe this is just me -- I could potentially understand it if Judge Trott went ballistic on a majority opinion by, say, Judges Reinhardt and Pregerson that allegedly let off some child molester. I mean, Judge Trott doesn't like (or think much) of those guys anyway, so I could see how a decision by such "activist and unprincipled liberals" might make Judge Trott go crazy and write a ballistic eighty-three page dissent.

But this isn't a criminal conviction reversed by lefties like Reinhardt and Pregerson. This is a majority opinion by Judge Wallace and Judge Rymer. These are among the most hard core conservatives on the Ninth Circuit, especially in criminal cases. When you've got these two agreeing that a conviction has got to be reversed, I don't see how you can possibly go ballistic. I just don't. Isn't there a shred of modesty, or self-doubt, or even just a slight recognition of imperfection, that whispers in your ear: "Hey, maybe if even these two judges think that the conviction should be reversed, even if I disagree, isn't it possible that I'm the one that's wrong on this one?" That should temper your instinctive desire to go medieval and write a dissent like this one?

I guess not. Or at least not here, for Judge Trott. Which is too bad.

Anyway, an interesting dissent. And an interesting case.

Friday, April 07, 2006

Toys R Us, Inc. v. Franchise Tax Board (Cal. Ct. App. - April 5, 2006)

As we used to say in the old days: "Let's get it on!"

In the red corner. Shilling for the boys and girls at Toys R Us. Weighing in at over $4.8 million -- or, so he testifies, that's what the people of the State of California owe Toys R Us in improperly collected taxes over the past several years. Wearing the Huskie blue and white trunks. From the University of Connecticut School of Law: Professor Richard Pomp!

In the blue corner. Shilling for the residents of the State of California. Wearing the blue and gold trunks of the Mustangs. Your hometown hero. From the University of California at Davis: economics Professor Steven Sheffren.

Professor Pomp starts out with a chilling serious of body blows, testifying that the FTB's allocation of Toys R Us derivative (debt and swap) and other short-term financial income to California -- and the FTB's collection of California income tax therefrom -- was improper. But Professor Sheffren counters with crushing blow of his own, responding that the FTB's allocation was entirely proper. Hold on! Sheffren's got Pomp on the ropes! Sheffren's (persuasively) claiming that Pomp's proposed allocation would lead to absurd results! Oh, that's gotta hurt.

But wait! Pomp tags the Toys R Us lawyers! They claim that Sheffren's testimony is inadmissible because it impermissibly utilizes separate accounting! The horror! Sheffren is visibly shaken! It could be a pin! This could be the end! 1. 2 . . .

No! Sheffren get out of it! He (coyly) responds that it ain't true! The crowd goes wild! It looks like this one's gonna be close!

It's down to the refs. Which of these esteemed academics will prevail?! Will it be the East Coast Mauler and Tax Professor, Richard Pomp? Or will it be the hometown Sheffren? And Justice Raye decides . . . .

IT'S SHEFFREN!! SHEFFREN!! Sheffren is the new champion!! The economics professor beats out the tax guy! Law fails! Social science triumphs! A victory for under-paid undergraduate professors everywhere! And the FTB even recovers costs on appeal!

The drama. The excitement. Riveting.

Thursday, April 06, 2006

Rostal v. Neste Enterprises (Cal. Ct. App. - April 5, 2006)

I've got only a couple of things to say about this case. Which holds that primary assumption of the risk doctrine bars personal injury claims brought against a personal trainer for injuries incurred when his patron works out too hard and has a heart attack. Two things. That's all.

First, how sad for Masood Rostal. Jared Shoultz is shopping in Rostal's furniture store, Rostal sees him, and Rostal says to Shoultz "I want to look like you" (i.e., buff and fit). So Shoultz says that he's a physical trainer and that Rostal should hire him, which Rostal does. Then Rostal goes to his very first workout with Shoultz, at Gold's Gym. It's a 60 minute workout. At the end of which Shoultz has a heart attack.

So not only does Shoultz have a heart attack -- which itself sucks -- but now he's also got a published opinion that will reflect for all eternity just how out of shape Shoultz was, and how he had a heart attack at the end of a 60-minute workout. Sad.

Second, I admit that I haven't ever hired a personal trainer, and don't exactly know what precisely they do, but if this opinion is any guide, I'm not particularly impressed. When Shoultz tells Rostal that he's really tired and out of breath -- remember, Shoultz is starting to have a heart attack -- Rostal allegedly responds: "Don't be a pussy." What motivation! Rostel then follows up by ordering Shoultz to drop and hive him 10 sit-ups, which Shoultz does. But, shortly thereafter, Shoultz says: Look, I'm really, really tired, and out of breath. I have to stop. At which point Rostel reportedly points to a nearby woman and says to Shoultz: "Come on, don't you want to get some of this ass?"

For this I'm paying $50 (or whatever) an hour? Maybe that's what really gave Shoultz the heart attack.

Riva-Gomez v. Gonzales (9th Cir. - April 3, 2006)

Yet another Ninth Circuit case about whether statutory rape automatically gets you deported as a "crime of violence."

I previously discussed whether 21/15 (i.e., a 21 year old having sex with a 15 year old) -- or, under the Oregon statute, 18/15 -- is a "crime of violence" under the sentencing guidelines. To which the Ninth Circuit, notwithstanding a powerful concurrence by Judge Gould, responded "Yes".

Now the Ninth Circuit decides here that because statutory rape is still "rape", it is automatically a "crime of violence" that essentially compels your deportation. Over the dissent of district judge Pollack.

Judge Trott basically says "It's rape, so it's definitionally a crime of violence." Judge Pollack responds "It's statutory rape, which isn't necessarily violent." There's the fight.

The former view gets two votes, whereas the latter only gets one. As a result, Carlos Riva-Gomez gets deported for being 19 and having sex with a 14 year old.

P.S. - Judge Trott says that because Oregon law categorically states that a person under 18 years old is "incapable of consent" -- alongside those who are physically incapacitated -- it's equally a "crime of violence" to have sex with any 17 year old as it is to have sex with someone passed out. Agree?

Wednesday, April 05, 2006

People v. Markley (Cal. Ct. App. - April 3, 2006)

There's something especially creepy about this one to me.

Maybe it's because the stalking occurred in San Diego; i.e., in my back yard. Maybe it's because the stalker was a woman -- a reversal of what you usually see in these kind of cases. Maybe it's because the situation in which the stalkee found himself was something that could totally happen to anyone. Maybe it's because the stalker -- Mary Markley -- was so incredibly persistent. And maybe it's just because the things that the stalker said are so darn weird; and, yet, strangely enough, something that you could totally believe that someone would say.

Here's a (not-so-) brief summary of the relationship and the stalking. Interlaced with my comments, of course:

Markley met Richard Habicht in the late 1990s when she was a customer at his furniture store. Markley visited the store on several occasions, and she and Habicht engaged in casual conversations, usually concerning real estate. . . . Habicht eventually bought a house located near his store, without Markley's assistance. Markley asked Habicht to meet her at the house, which was vacant at the time, for lunch. Habicht agreed, believing Markley intended to talk with him about reselling the house or renting it for him. Instead, Markley told Habicht that she loved him, and that she wanted to have a child with him and live in his house. [Ed. Note: Yikes! Get me out of here!] Habicht was flabbergasted and told Markley that would not happen. Prior to this occasion, there had never been any romantic overtures or expressions of affection between Markley and Habicht.

Within the next month, Habicht accepted two dinner invitations from Markley. [Ed. Note: What a total, total mistake! What are you thinking, dude?! She just told you that she loved you and wanted to have a kid with you. This is NOT someone you "go to dinner" with if you're uninterested!] The only physical intimacy between them during this period of time was a hug. [P.S. - Hugging probably not a good idea either.] During the second dinner, Markley insisted that she and Habicht had previously met while skiing at Mammoth Mountain, and that she knew his parents. Habicht knew these statements were not true and began to believe something was wrong with Markley. Habicht told Markley he did not want to see her anymore. [No kidding!]

Markley continued coming to Habicht's store and asking for him. She also telephoned him at his home. Markley apparently believed Habicht was calling her, and became agitated when he denied it. Habicht was concerned about Markley's behavior and suggested that she seek help.

Linda Holden was Habicht's store manager. Markley came into the store one day and asked for Habicht. Holden told her that Habicht was not there and said that Markley should not be in the store. Referring to Habicht, Markley said, "I could just kill him." [Double Yikes!] Holden believed Markley's threat was serious, and this caused Holden to be afraid. She immediately notified Habicht. On another occasion when Markley came to the store, she challenged Holden to call the police, saying, "Oh, Linda, you don't want to do that." Holden perceived this as a threat as well.

Markley telephoned Habicht to say she was accepting his proposal of marriage. [Triple Yikes!!] Habicht had made no such proposal. After Markley made the comment that she could kill Habicht, he became concerned for his safety and the for safety of his employees, and decided to seek a restraining order. [For sure.] Markley was present in court at the hearing on the request for a restraining order. She told Habicht "the only reason we should be here is to get married." [Oh my. Welcome to Nutsville. Population: You.]

During the hearing, Markley admitted that the allegations in the application for a restraining order were true, and the court issued a restraining order. In spite of the restraining order, Markley resumed calling Habicht at home. Habicht hung up the telephone when Markley identified herself. Markley also continued going to Habicht's store, and her demeanor became increasingly aggressive and angry. . . .

One evening, Markley went to Habicht's house and knocked on the door, saying that she needed to talk to him. Habicht asked her to leave and told her he was calling the police. Markley told Habicht that she loved him. [Note: When someone says "I'm calling the police," the appropriate response is not "I love you." If you ever find yourself saying that, there's probably something seriously wrong with you.] The police arrived 20 minutes later and arrested her. After that night, Habicht borrowed his father's gun and kept it next to his bed. Habicht viewed Markley's repeated and unwanted visits and contact as a threat. He was afraid Markley was going to kill him.

Following her arrest and subsequent incarceration, Markley was placed on probation under the supervision of Probation Officer Anna Guzman. Guzman discussed with Markley her probation conditions, including the condition that she stay away from Habicht and his store. Markley agreed to comply. During the period of Markley's probation, Guzman repeated to Markley the terms of the stay-away warning between 50 and 150 times, emphasizing that Habicht was afraid of Markley. Markley told Guzman that she was in love with Habicht and that he was sending messages to her that meant they were destined to be together. After assessing and evaluating Markley's case, Guzman believed Markley was at high risk to reoffend. [No rocket science there.] Guzman instructed Habicht and Holden to call her if Markley were to contact them.

Within several months, Markley went to Habicht's store and was arrested. At a probation violation hearing, the court ordered Markley to stay away from Habicht. In spite of the order, Markley again returned to Habicht's store. Markley appeared angry and said she would try to forgive Holden for having her arrested. Markley also asked Holden whether she had ever been strip searched. Holden interpreted those statements as threats. Markley was again arrested. At the probation violation hearing following this arrest, the court and Guzman again admonished Markley to cease all contact with Habicht. [Remind me exactly what it takes to get violated in San Diego again? How many times do you have to continue to stalk someone until they finally put you away?]

Several months later, Holden received a telephone call from someone purporting to be from the District Attorney's office. Holden later discovered that Markley had placed the call. Habicht received about six calls from Markley while Markley was incarcerated. Guzman had Markley's jail telephone privileges suspended because of her increasing defiance of the court's restraining order. Markley pled guilty to another series of restraining order violations and was again sentenced to probation. [Boy, we're really getting tough on her now!] As a condition of probation, Markley was to move home to Iowa. [Ah, the classic punishment: Banishment.] She was informed that if she were to return to California, she would face additional penalties and charges.

Within two months, Markley again appeared at Habicht's store. When Holden told Markley to leave, Markley told Holden that Holden would not have a job as soon as Markley and Habicht were married [!], and said that she did not appreciate Holden getting in their way. Markley was even more angry, agitated, frustrated and desperate than she had been on prior occasions. Later that day, Markley telephoned Habicht and said, "How dare you set me up." Markley was again arrested for violating probation. Guzman arranged for Markley to return to Iowa. Once Guzman confirmed that Markley was in Iowa, she informed Habicht, who was relieved.

Three months later, Habicht received seven or eight telephone calls from Markley. She told him that he should be in Iowa with her, or they should be married. [Or, alternately, that one of them should be in intensive therapy.] On December 31, 2001, Markley went to the home of Habicht's parents, who lived two houses away from Habicht. [Oh my. Now she's stalking my parents.] Markley told Habicht's father, Albert, that she loved Habicht and wanted to see him. Albert told Markley to go away and to stop bothering Habicht.

The following day, Markley returned to Habicht's parents' house and rang the doorbell. Habicht's mother, Madeline, asked who was there, and did not open the door. Markley identified herself and said she wanted to wish Habicht happy holidays. Madeline knew that Habicht was afraid of Markley, and told her to stay away. Markley left, but returned later that day in an airport van. She telephoned Habicht and told him that she was at his house. Habicht told Markley he would be right there. When he got off the telephone with Markley, he called the police. Habicht then went to his house.

When he arrived, Markley was sitting outside Habicht's house with her luggage next to her. [Creepy.] Habicht told her that the police were coming to arrest her. In response, Markley said that the only car that should be coming was a limousine to take them to Las Vegas to get married. [At least she's got a sense of humor. Or at least a delusion that's somewhat funny. In a pathetic sort of way.] The police arrived and arrested Markley. This incident resulted in the stalking charge for which Markley was convicted in a court trial in 2002. She served a prison term [finally!] and was paroled on March 28, 2004. She did not appeal her conviction. As a condition of her parole, Markley was prohibited from contacting Habicht or his family and friends, and from passing near where Habicht lived or worked. A correctional counselor discussed Markley's parole terms with her, and she signed a form indicating that she understood them. Neither Habicht nor Holden was informed when Markley was released from prison. [That makes sense!]

One day after Markley was released on parole, she went to Habicht's house. [That took a long time! Prison really rehabilitated her, huh?] The doors were open and a contractor, Jim Southard, was installing hardwood floors. . . . Markley told Southard she was a friend and neighbor of Habicht and asked Southard if he had seen Habicht. Southard told Markley that Habicht had been there earlier that day. Markley asked if she could look around and Southard said she could. Markley went upstairs to the master bedroom and Southard did not see her again. [I shudder to think what Markley did up there in his bedroom.]

That same day, Markley went to Habicht's store. She was very friendly to Holden and asked where Habicht was. When Holden told Markley that Habicht was not there, Markley walked to the back of the store. Holden called Habicht and then called the police. Habicht and a police officer arrived at the store ten minutes later. Markley was sitting in a chair reading a magazine. Markley told the officer she was there to see Habicht and admitted that she was on parole. The officer placed her under arrest.

So that's the story. Are you as creeped out as I am? There but for the grace of God, I guess . . . .

POST-SCRIPT (4/10/2006): One of my students came in to my office today and mentioned that he was on the jury in this case, and that the story was even more bizarre and weird than I had thought. Among other things, he mentioned that the stalker represented herself, that deliberations took only around 45 minutes (most of which was spent deciding who would be the foreperson!), and that the stalkee was obviously distressed about the whole situation, including both crying and occasionally screaming at the stalker (who, remember, was cross-examining the stalkee herself!) on the stand. Life. Even weirder than you might think.

Tuesday, April 04, 2006

U.S. v. Biggs (9th Cir. - March 31, 2006)

I'm not complaining, exactly. I love short opinions as much as the next person. Perhaps even more so. After all, when you read every published Ninth Circuit and California Court of Appeal opinion, as you might expect, you're often really in favor of brevity.

So when Judge Beezer writes an opinion that, in toto, is a mere seven paragraphs, I'm hardly predisposed to react negatively. Especially when, as here, the opinion seems right. Yeah, the Seventh and First Circuits have squarely held that self-defense, like necessity, includes a "no lawful alternatives" requirement. But, in truth, it doesn't. At least not in our circuit. So there.

Here's my only point. The entire opinion is seven paragraphs. The briefs were filed in early- to mid-2005; the last one came in on July 25, 2005. The oral argument was on December 7, 2005. You've had this whole time to decide the case. Why exactly did it take almost four months after oral argument to write a seven-paragraph opinion? Especially since you already had a bench memorandum that, I'm quite sure, was even longer.

Seven paragraphs. Four months. Doesn't seem quite right. Speed, ladies and gentlemen. Sometimes it's a virtue.

Monday, April 03, 2006

MacDonald v. Kahikolu (9th Cir. - March 31, 2006)

One of my (many) deficiencies is that I much prefer reading nonfiction -- including judicial opinions (which is by far my largest category of reading) -- to fiction. Nonfiction just seems more "real" to me than fiction. Maybe, of course, because it is. Which is, after all, the whole basis behind the distinction between these two forms of writing. (Yeah, yeah, I know: Fiction is also "real" in a way. But you know what I mean. Plus, don't even get me started on the new, allegedly "third" form of writing -- the memoir. Oh my.)

Anyway, one of the many bonuses of reading nonfiction is that sometimes you actually learn stuff. And, occasionally, you'll learn the weirdest stuff, and in the strangest places.

Like here. This is an otherwise nondescript (and entirely correct) decision by Judge Alarcon, which properly applies the negligence per se doctrine and remands for a factual finding about whether the failure to follow a Coast Guard regulation contributed in any way to the accident. Yep. Exactly right. As a result, I've got pretty much nothing at all to say about the decision itself. (That said, I've got a pretty darn good sense that the plaintiff will still end up losing on remand. But that's fine. As long as the court follows and applies the applicable legal doctrines, I've got no complaints. Plaintiff's still gonna lose, but he's going to do so on the correct legal basis.)

But even though I totally agree with the decision, and there was nothing on the legal end that I didn't already know, I still learned something. And to understand why it's important -- to me, at least -- you've got to know some (minimal) personal background.

You see, my wife, Sandy, is very fond of Hawaii. As am I, though slightly less so. As a result, lately -- or at least since we've both obtained cushy academic jobs -- we've taken vacations there pretty much every year. Or at least every year in which Sandy wasn't about ready to give birth. And even one of those times.

Anyway, my favorite activities in Hawaii are (1) tooling around the lava fields -- I'm a Big Island fan -- and (2) watching the fishies. We live on the ocean in San Diego, so hanging out on the beach isn't really that novel; however, the clarity of the water in Hawaii definitely is different than here. So faire-du-snorkel is one of our mutual favorites.

When I'm tooling around the ocean with my flippers, I often like to dive down and hang out near the bottom. You know; look at the coral and stuff up close. And I like to do so even where the water's fairly deep; say, 10 or 15 meters. The thing is, when I do this, my ears invariably start to hurt; undoubtedly from the pressure. So much so that I can't really get to all the stuff I want to see up close. Which, I figured, was just because of my messed-up ears. Something unique to me. C'est la vie.

But then I read this opinion. Which is all about -- coincidentally enough -- free diving in Hawaii. And I learn something that undoubtedly everyone else in the world already knew, but which I didn't. Which is that when you free dive, pretty much everyone's ears hurt. And that the correct solution is to blow your nose in order to equalize the pressure. Which I already do on plane flights and the like, but which I was too stupid to relate to free diving. Air pressure. Water pressure. Both of which are -- as their names reflect -- pressure. Equalize it and you're fine. Duh.

So the cool thing is that, next time we go to Hawaii, I can totally learn from what I've read here and dive down to depths previously unexplored by yours truly. And, from reading the opinion, I've learned that not only can you equalize pressure in such a manner, but that's there's nothing particularly technical about it; that you learn how to do it basically by trial and error, and that you can free dive 30-50 feet by doing so. I'm so, so pleased to hear that. Thanks, Judge Alarcon. You da man!

Now, you might think that my excitement in this regard would be somewhat minimized by the actual facts of this case, in which the plaintiff was on a free dive, tried to equalize the water pressure on decent, and ended up blowing out his eardrum. Thereby causing permanent injury and hearing loss. After all, he was an expert, and had done this all the time, and still ended up screwing it up. Plus, at trial, plaintiff's expert said that free diving was an inherently dangerous activity, and that no safe operator would permit a free dive of over 20 feet.

Yeah, you might think that I'd react that way, and be chastened by the entirety of the opinion. But, if you did, you wouldn't know me very well. Expert testimony? Pshaw. Hacks. All of 'em. Permanent hearing loss even by experienced divers? A freak accident. Definitely won't happen to me. I'm so special. Nothing can possibly happen to our hero.

Remind me of all of this if you see me in the Fall and I'm permanently deaf. But, for now, I couldn't be more psyched.

Saturday, April 01, 2006

Avril v. Sot (Cal. Ct. App. - April 1, 2006)

Facially, this may be a somewhat surprising case, but in the end, I think the Court of Appeal reaches an appropriate result.

A homeowner in a posh community in San Diego hires a exterminator service to get rid of "pests" that have infested his abode. After a brief investigation, the service concludes that there's a fair number of deer mice that have taken up residence in the house. The service proposes to exterminate them, the homeowner agrees, and they sign a contract. The next door neighbor, however, is apparently a leading member of the militant animal-rights wing of the RLA. Who promptly files a lawsuit under, inter alia, the California Environmental Quality Act (CEQA) to enjoin the extermination, purportedly on behalf of the deer mice. The trial court denies his request for an injunction and he appeals.

Justice Fuele reverses. He holds that the deer mice not only have standing under CEQA, but a meritorious claim as well. The homeowner argued -- persuasively, in my view -- that deer mice are incredibly common, and not endangered in the slightest. But Justice Fuele responds that CEQA adopts a localized test, and that in the gated community at issue, deer mice infestations were fairly rare, and that the mice were accordingly protected by law from being "molested, annoyed, or disturbed." Moreover, in a fairly bold stroke, the Court of Appeal further held that this provision not only required termination of the contract, but also that -- under the facts of this case -- the homeowner was also required to permanently vacate the residence.

The court based this holding on the fact that defendant's activities (which basically consisted of living in the house, watching television, etc.) caused an "unacceptably high risk" of disrupting the sleep, feeding, and mating patterns of the deer mice, and hence were inconsistent with the requirements of CEQA. When the homeowner protested that was the rightful owner of the property, Justice Fuele responded that not only does the CEQA categorically trump whatever ownership rights he might possess, but further held -- based upon the findings of the exterminators, which included viewing several long-established nesting grounds -- that the plaintiff mice appeared to satisfy the requirements for adverse possession, particularly given that the homeowner knew or should have known of their presence and the homeowner's (unwise, in my mind) concession that their presence was "open, notorious, and hostile." When the homeowner argued that the deer mice had not paid taxes on the property (and hence did not satisfy the traditional California requirements for adverse possession), the Court of Appeal responded that this was hardly their fault, since the availability of credit to animals is fairly low (even for traditional subprime lenders), and concluded that the homeowner's payment of property taxes was legally "on behalf of" the mice.

So, in the end, the deer mice basically own this multi-million dollar home. Which is a fairly shocking result, at least upon first glance. But, in the end, in the modern era and on this day, I think that the Court of Appeal may reach the legally correct result. I'm sure the opinion is not one of the hundred best ever written, but it may nonetheless be worth a look.