Wednesday, December 31, 2008
You gotta read the whole thing to get the appropriate warm and fuzzy feeling. I'll only emphasize that Judge Callahan might have picked a better vehicle for the attack, since Judge Reinhardt cogently points out that the last two times the panel reversed the death sentence, admittedly, the Supreme Court reversed. But the first time was simply a GVR (which expressly reflects no view on the merits), and the second was on a 5-4 vote. Hardly an example of an out-of-control, viciously anti-death penalty Ninth Circuit panel that needs to be stopped at all costs.
I wanted to add one more thing, which I thought was interesting. It's a death penalty case, so you might facially expect the votes to line up along the usual lines. Of course, the actual vote isn't public, only who signed onto the dissent from the denial. But what's striking about who joined the dissent -- at least to me, and this is something I haven't ever noticed before -- was that, sure, you have your usual conservative vs. liberal (and related, but no coterminous, pro-versus-anti-death penalty) lineup to a degree, but even more than that, there's a geographic split that's fairly striking.
Every single one of the eight dissenters is located north of the 36th parallel, and none of the 14 active judges who are south of the 36th joined the dissent. Every single active judge from Alaska (Kleinfeld), Washington (two Democratic appointees, Gould and Tallman), and Idaho (N.R. Smith) joined the dissent. Add to that a judge from Oregon (O'Scannlain), a judge from barely-north-of-the-36th Sacramento (Callahan), and a judge from also barely-north-of-the-36th Las Vegas (Bybee) and San Francisco (Bea) and you have your eight dissenters. By contrast, not a single judge from Southern California, Arizona, or Hawaii joined the dissent.
Think about that the next time people talk about splitting the circuit.
Nonetheless, Miranda warnings are not designed to be a game show. Instead of simply reading the rights off the card (for from memory) -- a simple enough task -- the police here instead basically asked the suspect (often rhetorically) which rights he already knew about from television shows. Which I guess is fine (?), so long as he names all four of the relevant warnings. But, like some game shows, if you miss one of the answers, there's no proper Miranda warning, and thus a reversal of any resulting convicion. Which is exactly what happens here.
Let's not get to tricky in the future, okay? Just read 'em their rights. It's really not all that difficult.
Tuesday, December 30, 2008
Notwithstanding the counterintuitive nature of the holding, Chief Justice George (who authors the majority opinion) makes a decent point that owning a pet might make it more difficult or dangerous for a probation officer to conduct unannounced searches of the premises, and hence telling the officer about your pet might indeed be a permissible condition. Dogs, after all, can bark and bite, so maybe the officer should indeed know whether they're there.
Nonetheless, while Chief Justice George mentions "dogs" 15+ times, as I was reading the opinion, I kept looking for any example other than dogs. And the opinion doesn't contain any. After all, having to tell the officer that you've got a goldfish hardly makes any sense. This point doesn't escape Justice Kennard, who dissents (joined by Justice Moreno), and who concludes that the condition is overbroad for this reason. Justice Kennard would have the condition read something like "dogs and any other dangerous animal". Whereas Chief Justice George thinks that a more bright-line (albeit overly broad) notification rule is equally permissible.
But I was wondering: Why not just a bright-line rule that says you have to tell the officer about any dogs? These are the only real animals you can worry about. Cats? Come on. They ignore even their owner, so hardly a threat to probation officers. Fish? Nah. Then I looked up the other top ten pets. Birds? Hamsters? Rabbits, mice, gerbils, rats, and guinea pigs? Forget about it. Of the top ten pets, I can't think of any other than dogs for which there's any reasonable relationship between the notification requirement and preventing criminality (at least in the DUI context).
Now, if the defendant has a tiger as a pet, well, of course. But I honestly don't see the harm in having a condition that's more narrowly tailored than this one. That at least carves out 9 of the top 10 animals and says "Tell us about any pets (but you need not disclose cats, fish, birds, hamsters, rabbits, mice, gerbils, rats, or guinea pigs)." That's gotta be a better system, right? Wholly beyond preserving the rights of defendants, who wants probation officers to waste their valuable time -- even if only a minute per probationer -- taking a call every time there's a new fish or cat in town. Come on.
For this reason, I'm somewhat sympathetic to Justice Kennard's dissent. And, at a bare minimum, I'd change the standard probation form so that the relevant boxes the judge checks (under the "pet" condition) excludes nine of the top ten pets. Otherwise we're just being silly.
And perhaps, deliberately nor not, imposing a condition of probation that we know that a large portion of probationers will violate, and hence give the officer pretty much unlimited discretion to violate him any time the officer feels like it.
So let's all agree to at least take away fish and guinea pigs, shall we?
Friday, December 26, 2008
That's what I would have thought, anyway. And, at least with respect to the Ninth Circuit, I was right. The Ninth Circuit's web site doesn't even contain its usual "No Opinions Filed Today" notation for the 26th. We see instead only something posted yesterday, December 25th (!), that says something different: "None Filed Today." Perhaps posted remotely. After a little too much eggnog.
But, like rust, the California Court of Appeal never sleeps. And dutifully published a single opinion this morning. It's a decision that affirms a multi-million dollar civil penalty against corporate officials under the responsible corporate officer doctrine. And that reminds me never to own a gas station. Ever.
Hope you had a good Christmas, John F. & Ned F. Roscoe. 'Cause the day after sucked for you. You may have hired some fancy lawyers (including Gibson Dunn) to try to help. But to no avail.
Here's hoping that 2009 is better than 2008 for you. And that you saved the receipts from the presents. Since you may well need the cash.
Wednesday, December 24, 2008
Okay, so that was fairly obvious. Since the plaintiff's name is Jerry McGuire. Since he filed for bankruptcy (so he clearly needs the money). And since he's suing the government -- initially successfully -- for over a million dollars in damages in a regulatory takings action.
Unfortunately for this particular Jerry McGuire, litigating against the government is even more complicated than negotiating with the Arizona Cardinals. Yes, he initially won in the bankruptcy court. But the district court reversed, holding that his claims weren't ripe. And while the Ninth Circuit disagreed with that point, McGuire's win was only temporary, as the next section of the opinion held that his action was only cognizable in the Court of Claims. So remanded and transferred ye shall be.
So it's a mixed bag for our Jerry. Does he get his seven figures? Nope. Does his loss get affirmed? No, not that either. It's a remand for you, my friend. Enjoy the next season of litigation.
Tuesday, December 23, 2008
"Salazar-Luviano is a fifty-five-year-old citizen of Mexico, originally admitted to the United States as a lawful permanent resident in 1976. He has lived in the Los Angeles metropolitan area for over thirty years with his wife, also a lawful permanent resident. As of 2005, Salazar-Luviano had four U.S. citizen children and five U.S. citizen grandchildren."
Hmmm. Let's see. An immigration case, right? Yep. The U.S. is trying to deport him, correct? Yep. What equities did the court just introduce us to? He's elderly. He's been here a long time. He's been married for over thirty years. He's got lots of U.S. citizen children and grandchildren. I bet they're saying all this just so we feel really good when the court holds that we're forcing the guy out of the country, right?
Oh, wait. One more hint about how it comes out. It's two days before Christmas.
Yeah. This one's not too tough.
Monday, December 22, 2008
Later that same day, I mentioned both the massive USD Law School connections of the participants, as well as the fact that I agreed with Justice McIntyre's dissent. Though noted that my opinion "with $3.50, will get you a cup of coffee at Starbucks."
But while my opinion may not matter much, the California Supreme Court's does. And, today, it unanimously agreed with Justice McIntyre (and me). In nine-page (double-spaced) opinion remarkable for its brevity. As if to say "Sorry, Justice Huffman, but this one's pretty easy. Those other guys got it right."
Somes, in extreme cases, the California Supreme Court will indeed get in the error-correcting business. This is one of those cases, IMHO. And I'd have done the same.
The opinions aren't fascinating for their doctrinal significance -- though feel free to read about the underlying case is you'd like. Rather, what's a must-read is the dispute between Judge Milan Smith and Judge Reinhardt about what should happen when a member of the panel dies. As well as the language that each of them uses, in a fairly personal manner, when addressing this issue.
Cases about the internal workings of the court, especially in which the judges consciously talk directly to one another in the opinions, don't happen every day. And this one's a gem. Don't miss it.
I can shorthand what transpired here -- and you can guess the parties' respective positions -- fairly succinctly. Back in June, Judge Reinhardt (joined by Judge Ferguson) issued a majority opinion that held that a particular Washington statute (about sex offenders) created a liberty interest, but that because this fact wasn't heretofore sufficiently clear the defendant was entitled to qualified immunity. Judge Milan Smith concurred, arguing that there wasn't even a liberty interest. Fair enough on all sides. (I especially liked, in retrospect, the way Judge Smith opened his concurrence, with a non-saracastic first sentence that reads: "I respectfully part ways with the majority." As you'll see, some of that attitude was retained in the subsequent opinion, but some of it went a bit away.)
Predictably, thereafter, the parties filed petitions for rehearing (plaintiff arguing for a panel rehearing and the defendant arguing for rehearing en banc). Two days thereafter, Judge Ferguson died. At which point Judge Tallman was drawn to replace him, and Judge Tallman agreed with Judge Smith rather than Judge Reinhardt. So Judges Smith and Tallman voted to grant the petition for rehearing and essentially made Judge Smith's previously-filed concurrence the new majority opinion.
Which, as you can imagine, pleased Judge Reinhardt to no end. And resulted in the battle you see played out at the end of Judge Smith's opinion and at the outset of Judge Reinhardt's concurrence.
I wish I could cut-and-paste all of the classic lines from both opinions, but that'd take up way too much room. Let me instead just give you a taste, and encourage you to savor in the original in its entirety. Representative lines from Judge Smith include things like: "We respectfully disagree, however, with much of the balance of our concurring friend’s preambular observations about this case." "Our colleague . . . . implies that the previous panel majority unearthed an unalloyed constitutional nugget waiting to be discovered within the primordial crust of the Fourteenth Amendment."
From Judge Reinhardt's opinion: "To those who question whether the results in constitutional and other cases depend on the membership of the panel, or whether the replacement of even a single Supreme Court justice can change the fundamental nature of the rights of all Americans with respect to matters as basic as affirmative action, a woman’s right of choice, and the nature of religious liberty, the result in the case currently before our panel is merely a minor illustration of how the judicial system currently operates." And "To say as the majority now does, that despite the absence of a single circuit opinion on an issue that has been presented to the court a number of times, there was “existing law” that Judge Ferguson and I “changed,” and that Judge Smith and Judge Tallman, by now reaching the diametrically opposite result are merely restoring our circuit law to the “status quo ante” is more than mindboggling. If we were to accept this view, the law in this circuit would no longer be declared in opinions; “existing” circuit law could be found in whatever sources suited anyone’s whim or fancy, including the Sewanee Law Review." (Did you really mean this reference?!)
Great stuff. Simply wonderful. Read the whole thing and see what you think.
My sense, for what it's worth, is that both sides have good points. But the central issue that I don't think Judge Smith adequately addresses is the prudential argument that I read Judge Reinhardt making. Can a new panel grant a rehearing when someone dies? Yes. Definitely. And Judge Reinhardt doesn't disagree. But should it? Personally, if I were drawn for the panel, I'd vote "No," regardless of what I felt about the underlying case. If only as an issue of form, I'd hate -- and it seems facially unfair -- to have someone's death so starkly result in a changed outcome. So even for a majority opinion that I disagreed with, I'd probably concur and say "Look, I don't agree with the former majority, but I'm unwilling to grant a rehearing solely on the basis of the death of my colleague. It just doesn't seem right. So I'll concur in what he previously wrote." Would I then vote for a rehearing en banc if I thought it appropriate? Sure. That seems entirely fine. But that's qualitatively different to me than withdrawing an opinion purely because someone dies.
I'm not saying I'm never willing to change the result in a case due to death or retirement. I am. Had Judge Ferguson died before the majority opinion had issued, for example, I'd have no problem changing the result by voting (after being assigned) with the would-have-been concurrence or dissent. But the formal issuance of an opinion to me changes things. Not because the opinion is doctrinally "final" in any way. It's not. But rather because a change in such settings seems untoward.
Say, for example, we're the Supreme Court, and we issue a 5-4 decision in favor of X against Y. Then one of the 5 dies two days later, and I'm immediately nominated and confirmed by the Senate, and as a result I'm on the Court when Y files a petition for rehearing. Even if I agreed with the 4, I wouldn't vote to grant rehearing. It just seems wrong to me, even if (as is of course the case) the matter isn't "final" yet. Might I potentially vote to grant certiorari in a later case and, with appropriate regard for stare decisis, overrule the earlier case. Yes. I would think about it. But I still wouldn't grant a rehearing. That seems different -- starker, and perceptually more unfair -- to me.
I understand that reasonable minds might differ on this one. Plus, it's tough to restrain yourself when you have the votes. Or to vote for a result that you don't believe in merely on prudential procedural grounds.
But I think here, especially when it involves the death of one of your colleagues, that's probably the right answer. At least in cases (as here) that don't fundamentally rock the world. Might I wimp out and vote my own way if it was a critical constitutional issue involving the lives and/or fundamental liberties of millions? Maybe. Maybe I'd be weak (or whatever) and feel compelled to vote my deeply-felt conscience there. But when it's an otherwise routine case, I'm persuaded, upon reflection, that the right thing to do is to defer. If only in the memory of and with respect for my departed colleague. That means something to me. And if it means I concur instead of change the outcome, so be it. That seems not only totally fine as a doctrinal matter, but likely preferable as a policy matter as well. The opinion may well not be final, but it's entirely within my discretion to treat it as something significant. So that's what I'd do.
Anyway, a great -- and interesting -- debate. Check it out.
Friday, December 19, 2008
This is one of those cases where I have little doubt that Justice Irion (as well as Judge Isackson, down here in San Diego) got it exactly right. It's not that the mother here is horrible; I've seen far, far worse. But the child has a real shot here. It couldn't be clearer that his best interests are to be adopted, and he totally can be. He's a bright, cute, healthy, and completely lovable 11-month old child. He should stay where he is.
A ray of sunshine on a cold(ish) but beautiful Friday morning.
Thursday, December 18, 2008
I'm not saying that the 4-3 decision here is right or wrong. It's a statutory interpretation matter, and there are reasonable arguments on both sides.
I'm just telling you what the law is. There's no immunity, at least in California, for pulling someone out of a burning car. Giving 'em CPR? Yep. Immunity. Ditto for giving trying your hand at a tracheotomy with some scissors and a bic pen.
But trying to save someone's life in a different ("non-medical") way? Nope. No immunity. Not now, anyway.
Perhaps for this reason, I can't tell you how impressed I was when I read this from the California Supreme Court. For reasons both personal and (perhaps) subtle, I was very proud of our judiciary to see the Court amend its opinion sua sponte in the way it did. Bravo.
A little background. This is a medical marijuana case, and the question is who counts as a "primary caregiver" sufficient to provide limited immunity from state prosecution. In this case, the defendant said that she was a primary caregiver even though the only real "care" she actually gave was weed. Not good enough, the Court said. Which made sense.
But the Court also went beyond that holding, and stated that in order to be a primary caregiver, you also have to have started giving the care before you start providing the pot. I thought that this part of the opinion was wrong, and explained why a couple of hours after the opinion came out. As I'm wont to do.
Basically, I argued that even if you started providing pot beforehand, the Compassionate Use Act would still immunize any future provision of weed undertaken after you became a true primary caregiver, and hence that the Court's requirement that a defendant not provide pot beforehand was erroneous. That even though your becoming a caregiver wouldn't retroactively immunize you from prosecution for the earlier weed, you post-caregiving pot provisions would still be protected. Or so I postulated. And thought I was clearly right.
So guess what then transpires? The A.G. petitions for rehearing to make a minor stylistic change to the opinion, which the Court does. But guess what? The Court also sua sponte amends the opinion to add the following footnote: "In holding that the assumption of primary caregiver responsibilities cannot apply retroactively to immunize prior cultivation or possession of marijuana, we do not suggest it would not apply prospectively. Defendants who show they satisfied all other prerequisites for primary caregiver status for a given patient at some point after the onset of providing marijuana may avail themselves of the defense going forward, even if they remain subject to prosecution for actions taken prior to assumption of a primary caregiver role."
Exactly right! And, more impressively, the Court added this without even the slightest bit of prodding from the parties.
I've always thought that it was too bad that there's not a formal structure for outsiders to provide input on points or holdings raised in an opinion after its issuance (since you can't move for rehearing if you weren't a prior amicus), and think that, sometimes, opinions contain some tangential holdings or statements that the parteis might not care about but others might. However, to the degree that the judiciary can correct those things on its own, that's the best of all possible worlds. Before today, I'm not sure I'd have thought that's very plausible. After today, I'm not so sure. And, regardless, I'm impressed that the California Supreme Court was able to do it here.
So great job, California Supremes. You've made at least one of your loyal subjects intensely proud.
Wednesday, December 17, 2008
This is not a surprise for anyone familiar with the Supreme Court's holding. The right to possess a gun in one's home for self-defense is a bit different from the right to possess a concealed weapon in public. But this is the first post-Heller appellate case in the California Court of Appeal to so hold. So I thought it was worth at least brief mention.
So, if you've got 'em, keep those weapons at home. Or out in the open.
Tuesday, December 16, 2008
It's a 3-2-2(minus 1)-1-4. What?! You heard me. Three (McKeown, joined by Schroeder and Silverman) write the "plurality" opinion. Two (Bea, joined by Callahan) concur. Four (Reinhardt, joined by Pregerson, Berzon and Rawlinson) dissent. Two more (Ikuta, joined fully -- and yet sort of -- by Kleinfeld) dissent on a different point (subject matter jurisdiction). But that leaves utterly no plurality, so Kleinfeld then writes a concurrence in the result reached by the three (Judge McKeown) so, when joined by the two (Bea and Callahan), there's at least a modicum of direction to the district court.
You gotta love how this one plays out. A variety of opinions. A total "count-the-votes-and-why" kind of case. A neat one.
That said, I have somewhat detailed memories of Canoga Park. Which was not probably the abolute highlight of the experience. And, among other things, recall seeing the Canoga Park Wienerschnitzel -- a chain, among others, of which this East Coast boy had never heard a peep.
Based upon this (admittedly long-ago) experience, I can say fairly confidently that it surprised me not in the least that there were multiple gang-related murders at this establishment.
Check out the opinion for a fairly good discussion (by both the majority and the dissent) of the nature of gangs in the modern era as well as the legal implications of routine gang-on-gang confrontations. It's an interesting tale. Even for those who've never been to this particular Wienerschnitzel.
Monday, December 15, 2008
You can't make this stuff up. And I didn't.
Friday, December 12, 2008
People are entitled to demonstrate under the First Amendment. The City of Seattle lets them, of course, but can (obviously) subject demonstrations to reasonable time, place and manner restrictions. So, for example, sometimes you can close off the streets and let demonstrators walk a particular path, and other times -- for example, with very tiny protests -- you can make them use the sidewalks. That seems fine.
But the City of Seattle vests unlimited discretion in the Chief of Police to decide when a particular protest is relegated to the sidewalk and when they can use the streets. And that discretion has been utilized -- as one might expect with unlimited government discretion -- in a potentially abusive manner: namely, the Chief of Police has been much more likely to put greater restrictions on political marches (e.g., to limit them to the sidewalk ) than other types of marches (e.g., sports gatherings). So, for example, the Chief of Police has been more likely to say to political marchers "You've got to have at least 200 people show up to be able to march on the street" than to non-political marchers. And when the annual march against police brutality transpired in Seattle, guess what? Yep. Relegated to the sidewalk.
Judge Fisher says that statutory structure doesn't comply with the First Amendment. I agree. Judge Ikuta dissents, but I think undervalues the danger of unlimited governmental discretion in this critical area. I'd have little problem with a statute that says, for example, "Any march under 200 people must normally stay on the sidewalk, whereas any march with over 200 people may normally march on the street," and that provides for particularized exceptions for particular reasons. But I have a big problem with a statute that essentially says "Any march the Chief of Police likes can march on the streets, but any march the Chief of Police doesn't like has to stay on the sidewalk."
So, like Judge Gould, I'd have to vote with Judge Fisher on this one.
Thursday, December 11, 2008
But while stopped at a red light at an intersection in Hayward in September of 2003, Francisco Sanchez -- who had just paid his union dues and wasn't afilliated with a gang in any way -- was murdered in cold blood for no reason other than an idiot Norteno gang member concluded that Sanchez was a member of a rival Sureno gang because he was wearing a blue UNC baseball cap.
The thought that you can be killed for utterly no reason other than that you're Hispanic and wearing the wrong color baseball cap seems even more profoundly wrong than the legions of other senseless killings I read about every day in the annals of the California Reporter.
A depressing, and telling, tale.
Wednesday, December 10, 2008
In short, if you waste our time -- the time of ten judges, I might add -- we'll make you look bad. Or at least we'll let everyone know how bad you look, Joseph Nascimento.
P.S. - Oh, yeah. We'll also alert the State Bar of Montana.
P.P.S. - A little research reveals that Mr. Nascimento may not be as adversely affected by the publicity as I might have initially thought, since he's (1) already pretty public about his (somewhat paranoid) allegations, and (2) is already indefinitely suspended from the practice of law.
But, then again, I'm not Eureka attorney Stephen Davies.
Regardless, even had I filed such a lawsuit, let me promise you that upon losing said action, I would not have filed an appeal. Lest the result be a published opinion that (a) affirms, (b) lets everyone in the world know that I not only lost, and (c) tells everyone that I didn't even repay my student loans. Which is hardly what a would-be client probably looks for in an attorney.
Yet that's exactly what happens here.
Tuesday, December 09, 2008
After all, Renoir was born in 1841, and died almost a century ago. Surely there can't be any lingering copyright claims about his stuff, can there?
Yes. There can. And is.
It's actually an interesting IP puzzle. Which you should, in any event, read while you can. 'Cause litigation involving the copyright ownership of Renoirs ain't gonna be around indefinitely.
Now for the bad news. We're also issuing an unpublished memorandum disposition. Which ships you back to Iran."
Sorry about that.
Monday, December 08, 2008
Plaintiff -- initially represented by counsel -- files a timely FTCA case against the United States for medical malpractice. Plaintiff's attorneys then withdraw, after which an AUSA representing the U.S. writes plaintiff and asks him whether he'd like to dismiss the case "without prejudice," and included a proposed stipulation. After that tactic didn't initially work -- plaintiff didn't even respond -- the AUSA tried again, and this time, plaintiff returned the stipulation.
When plaintiff, now represented by counsel, subsequently refiled, the U.S. responded: "Sorry. The dismissal was without prejudice, sure. Like we promised. But you missed that as a result of the dismissal, you're now time-barred. And the statute of limitations is jurisdictional, so don't even try arguing equitable estoppel based upon our misleading you. Ha! We win."
And the Ninth Circuit agrees.
Fooling the unwary. Especially fun when the plaintiff has complications (allegedly caused by you) from prostate cancer.
Friday, December 05, 2008
Sometimes, not so much.
Here's the opening paragraph of the opinion. Knowing nothing at all about the appeal other than this first paragraph, and (even then) knowing absolutely nothing at all about the relevant legal principles at issue, see if you nonetheless can accurately fill in the blank:
"Eric Jones was punched, knocked out, and tied by his hands and feet, and he was beaten beyond recognition, stripped of his clothing, and shocked with electricity, and he was sodomized with a tool handle, put into the trunk of a car, and driven to a remote area, and he was dragged into a field and shot 10 times at close range, and he bled to death. Gerardo Zavala admitted to a detective his involvement in some, but not all, of the acts of abuse. . . . [and] a  jury found him guilty of second degree murder, torture, and kidnapping and found two firearm allegations true. The trial court sentenced him to 18 years to life. We will ______ the judgment."
Tough one, eh?
Thursday, December 04, 2008
Defendant files a motion for summary judgment. They file it more than the statutorily-required 75 days before the hearing date, but (1) forget to add 5 days for service by mail, and (2) impermissibly set the hearing for 18 days before trial (whereas the statute requires 30 absent a showing of good cause).
Plaintiff waits the full period to respond (rather than moving ex parte to take the motion off calendar) and then raises purely procedural/notice objections, and does not respond on the merits. At the scheduled hearing, the trial court concedes (as it must) that the mandatory notice wasn't given, so gives plaintiffs an extra four days to respond, on the theory that the 76 days they got plus the extra 4 then gives 'em 75 plus 5. And also finds "good cause" for a shortly-before-trial hearing date. Plaintiff again objects, and doesn't file an opposition on the merits. The trial court then grants summary judgment.
Plaintiff then appeals, raising (again) only the procedural points. And wins. Rightfully so. You can't do what the trial court did. Sorry, but you can't. It's mandatory 75 (+5) notice. Defendant didn't get it. Ergo the case gets reversed.
Now, mind you, you're still going to have to eventually oppose the summary judgment motion, since on remand, defendant will simply refile it, and give you the right amount of notice this time. So my first reaction was: why spend all the time (and money) to file procedural objections, and then have to file an appeal? What's the point? Aren't you being penny-wise and pound foolish?
Maybe. Indeed, here, that may well be the case. Since I get a sense that this is a tinier case with not that much money (or attorney's fees) able to be thrown at it.
But, in a different case (and perhaps even here), I can indeed see a legitimate reason for such a move. If you respond on the merits, of course, you risk the trial court saying -- as it surely would have here -- that you had 76 of the 80 necessary days, so can't so prejudice, and hence your objections are overruled. By contrast, if you limit yourself to the timing objection, sure, you may have to appeal, and thereafter have to respond to the merits upon remand.
So what do you gain besides (1) wasting your (and the other side's) time and money, and (2) just generally being a pain? What's the point?
Strategic answer: A new judge. Since you get to bounce the existing judge after the case comes back down from the Court of Appeal.
Again, I don't have a sense that this was actually motivating the parties here. (The fact that the defendant didn't even file a brief on appeal suggests, again, that what's really motivating these particular parties are economic constraints.) Nor does the Court of Appeal discuss what really may be going on. But procedural "sandbagging" in such a manner may nonetheless both be effective as well as worth it in a given case.
As Paul McGuire of the Bay Area post-hardcore band Karate High School famously proclaims: "Sometimes when you lose, you win."
Regardless of my personal interest, however, I think that both Justice O'Leary and the trial court (Judge Margines in Orange County) got it exactly right. The CC&Rs here affirmatively require a homeowner to trim trees that grow above the house and obstruct views. Yes, fully developed palm trees look nice. And, yes, you can't actually trim them, because when you cut the tops off they die. So that's a bummer.
But that doesn't mean the HOA can simply refuse to enforce the CC&Rs by categorically exempting palm trees. Homeowners may permissibly rely upon the written CC&Rs when they buy a view home, and can assume that when the CC&Rs say that the view from their home won't ever be blocked by trees above other houses, that will in fact be the case, and those CC&Rs will be enforced -- either by the HOA or (as allowed by the CC&Rs here) through private litigation. Nor does the HOA get any deference when interpreting a straightforward and unambiguous CC&R. If it clearly says X, the HOA can't interpret it to mean "X except for Y". Sorry. Doesn't work.
I take no view on whether the palm trees in the area make the place generally look nicer. Regardless, when a covenant says you can rely on X, you can rely on X, even if X is a bad idea. (In that regard, can I mention that my home has a wide variety of totally absurd CC&Rs. Many of which expired in the early 1940s, but some of will operate forever to preclude me from, inter alia, brewing alcohol on the premises -- in short, from a wide variety of socially beneficial practices. I may or may not like 'em. But they're part of the deal.)
Wednesday, December 03, 2008
Melissa Andrzejewski may only be 22 years old (actually, 24 or 25 now), but she's a better pilot than you are. (Cuter, too, apparently.) Moreover, at least in a high-performance Zivco Edge 540, she may well be a better pilot than the people who watched her take off from the Butler County Airport in 2006. Two of whom thought she was hot-dogging it on takeoff, and the FAA on that basis revoked her license.
The ALJ reinstated the license, the NTSB reversed, and the Ninth Circuit reverses the reversal. In a decision that seems entirely right, and gives appropriate deference to the ALJ.
Mind you, do I think she was hot-dogging it? Honestly, probably yes. She was showing off her new high-performance aircraft to her family. Based purely upon what I've read, and upon what I might reasonably intuit about 22-year old pilots who perform in air shows and competitions and who are showing off a new airplane, I think it highly likely that she indeed did a couple of "wing wags" to her parents. Sure, she was able to muster a lot of friends and acrobatic pilots to testify "Well, no, in high-performance aircraft, what you thought you saw might actually be normal. You pedestrian plebes are simply not used to our fancy planes." But come on. I think I know full well what you did.
Still, I admit it seems harsh to revoke your license, albeit for a technically dangerous maneuver on takeoff. More importantly, Judge Bea is entirely right that you gotta give deference to the ALJ, who decided that the witnesses for Melissa were more persuasive than those of the FAA.
That's what factfinding is all about. Even when we think it's wrong, we defer. Maybe in particular cases that results in error, but that's the price of an otherwise good system.
So I agree with the reversal here. Though I hope Melissa is, at this point, a bit more circumspect. At least outside of air shows.
P.S. - Hot financee too!
P.P.S. - On a whim, I read the briefs. Which mention, inter alia, Melissa's prior license revocation (the year before this incident) for an illegal low-level flyby at a friend's wedding, the undisputed fact that she deployed air show smoke for her grandmother during the relevant events here, the testimony about the 80 degree (!) banking of the aircraft and rapid 45 degree ascention, etc. Sure, I read how Melissa's friends testified too. But oh my. (Again; nonetheless, Judge Bea gets it right.)
The last of these three had a $3.1 million foreign judgment against him (issued by the Supreme Court of Gibraltar, no less) affirmed by the California Court of Appeal. Rightfully so, I might add.
And I say "quasi-attorney" not because Mr. Sullivan hasn't passed the bar -- he did, long ago -- but rather because he's not currently entitled to practice law in California. As his increasingly-colorful disciplinary record amply reveals.
Which, wholly apart from the merits (the issue in the CoA was simply whether the foreign judgment was entitled to recognition) makes you think that the Supreme Court of Gibraltar might not have been entirely wrong to enter the $3.1 million judgment against him in the first place.
Tuesday, December 02, 2008
At least I don't look as bad as San Francisco attorney Andrew Dimitriou, though. Who's the principal subject of one of the published opinions today. Something that hardly made his day. Or week. Or probably year.
The problem is this: Dimitriou was the counsel for appellant in a tiny little appeal involving discovery sanctions of $6,382. Dimitriou filed the appeal and briefed the case, and since the case wasn't worth briefing, respondents elected not to respond. All of which is fine.
So the Court of Appeal asks if anyone wants oral argument, Dimitriou says he does, so it gets set for oral argument on September 16, 2008. Again, all okay.
The day before the oral argument, however, an associate for Dimitriou faxes the Court of Appeal a letter that says the parties settled the case back in 2007.
Oops. What about Rule 8.244, which requires the appellant to promptly let the court know if the case has settled? Or the reminder of that rule in the oral argument request the Court sent out?
The Court of Appeal wants answers to these questions as well. To which the parties respond in a manner that's worth reading about at length, but to summarize, the Court of Appeal is seriously -- seriously (and, IMHO, rightly) -- dubious of Dimitriou's veracity, and even if everything that Dimitriou says is correct, what he did was still a violation of the rules.
So spank him we shall. To the tune of $6,000 in sanctions, payable to the Court of Appeal. Plus reporting the thing to the State Bar. And, to boot, a published opinion.
Why? Because you violated the rules. And, on a personal level, because we don't want ourselves and/or our clerks to write complete opinions (ready-to-go at oral argument) for cases that settled long ago.
So more lessons for the day: When the case settles, tell the Court of Appeal. Like, immediately.
Or suffer the fate of Andrew Dimitriou.
P.S. - Check out the (ironic) last paragraph of his three-paragraph self-description on his web site. Which begins with the sentence "He has lectured extensively on legal ethics . . . ." My sense is that those many invitations to lecture on legal ethics may dry up a little bit at this point.
Regardless, even if everyone important is off doing other things, the rest of us can still obtain knowledge. So here's something worth remembering:
Don't blow off a case management conference.
Or, at a minimum, don't wait two years to complain about the consequences of blowing it off.
You are, indeed, the "Hollywood Wizard of Weed." At least according to the definitive source with respect to this issue; namely, High Times magazine.
However, my friend, attention begets attention. In this case, from the LAPD. So when you open the aptly-named "Temple 420" in Hollywood, please tell me that you were not surprised when an undercover cop came in to purchase some weed. A facility in which you (boldy) planned to sell marijuana, inter alia, in vending machines. An idea that I'm sure sounded really good when you were totally high.
Unfortunately, reality has a dangerous way of intruding sometimes. So you were busted. And your effort to claim that you were immune from prosecution under RFRA totally -- and predictably -- failed. Regardless of whether you have a personal religious right to use, you can't sell the stuff. Even if you sincerely believe that everyone would perhaps be a lot closer to God if they were thoroughly baked.
Sorry about that. Affirmed.
Monday, December 01, 2008
The judgment in this case probably became final -- at least as to some of the defendants -- on September 27, 2006, and the notice of appeal was filed on Monday, October 30, 2006. Which predictably (and to its credit)made the court inquire whether the notice of appeal was late, since the thirty days to appeal would appear to have ended on Friday, October 27, 2006.
Judge Graber doesn't mention it in her opinion, but I listened to the oral argument, and Judge Graber made this point to appellant's counsel about eight minutes in. To which counsel, who hadn't prepared anything on (or even thought about) this point for oral argument, mumbled some inapplicable words in response. And the court didn't seem too sure about the point either. And when the court (around 15 minutes in) asked the same question to appellee's counsel, more words were again mumbled, none of which were especially relevant. (All of the participants seemed focused on the Monday issue, but if the 30-day period expired on Friday, you don't normally get until Monday).
What no one mentioned -- but eventually everyone figured out, albeit after oral argument -- were the following two dispositive magic words: "Nevada Day."
You heard me. Nevada Day. Nevada was admitted to the Union on October 31st, 1864. So every October 31st was traditionally a holiday. At least in Nevada. And, as you know, under Rule 6, if it's a holiday in the state in which the district court sits (here, Nevada), it doesn't count.
But why does that matter? How does a traditional state holiday on October 31st affect the timeliness of an appeal that was due on October 27th?
More Nevada history for you. Sure, October 31st seemed the right day for a holiday. And so it was for a century or so. But what a bummer to have a holiday on Halloween, right? Don't you want two holidays? Or one holiday day and another celebratory night? What about a day just for Nevada, without a confusing -- if accurate -- reference to All Souls?
Or at least that persuaded the voters of Nevada, who in November 1998 voted to ask the Legislature to please change the day. And, after much heated debate, apparently, the Nevada Legislature eventually complied. In an act that changed the date of Nevada Day to the last Friday in October.
So what about Friday, October 27, 2006? You guessed it. Nevada Day. Hence the appeal is timely.
A neat little story. Regarding a holiday (and the consequences thereof) I couldn't have otherwise named for (as they say) all the tea in China.
P.S. - This is also a reminder that, prior to oral argument on appeal, to always spend three or four minutes making sure you're prepared on jurisdictional stuff like the timeliness of the appeal. It's a tiny issue. But one about which appellate courts often care. It's worth the marginal investment. Trust me.
Such is the fate of Judge Real.
Yet again: Feel the love.
Wednesday, November 26, 2008
First, it involves yet another elected official from Alaska who's allegedly corrupt and criminally investigated and/or charged. Is there something in the water up there?
Second, you gotta read the procedural history of this thing; in particular, how long (and how many times) it took for the government to get the thing properly certified so it could appeal the grant of a suppression motion. It was an unusual situation; nonetheless, you'd have thought the government could have gotten it together at least a little earlier. Plus, Judge Fisher's reaction to all of this is priceless. He's (relatively) nice about the whole thing, but doesn't pull any punches either.
Third, down here in San Diego, we have a long-running criminal case against our own city officials, and this holding by the Ninth Circuit is certainly not a great pre-Thanksgiving present any of those defendants. Basically, Judge Fisher holds that, contrary to the views of several other circuits, an "honest services" mail fraud charge against public officials need not be based upon an underlying state law violation. That doesn't help the defendants (at all) either in the San Diego case or in this Alaska prosecution.
I'd ordinarily think that the importance of the case and the creation of a circuit split would make this a pretty good candidate for Supreme Court review. But the unique procedural complexity in this case -- while arguably providing yet another basis for a grant of certiorari -- on balance may lead the Court to let the matter percolate one more time, and in a slightly more straightforward vehicle, before taking the matter up. (Plus, this one's an interlocutory appeal, so no need for the Supreme Court to get involved now rather than after a final judgment.)
So some interesting reading from the Ninth Circuit -- which has been a bit sleepy over the past week -- right before the break. Enjoy.
Tuesday, November 25, 2008
But the Court of Appeal holds that (wholly apart from procedural problems with using habeas to challenge the alleged deprivation of this entitlement), by "served hot," the regulations really mean "were hot at some point." Here, that as long as a prison at one point makes the meal hot, the mere fact that it regularly takes the prison 60 or so minutes to actually serve the food to an inmate -- at which point the meal is totally cold -- does not matter. It's still a "served hot" meal. So you got what you're entitled to. Enjoy your "hot" soup or whatever.
Let's hear it for Chevron and prison deference, eh?
Don't have sex with her. Not once. And definitely not for 16 months.
Human interactions are complicated. Plus, things are often more complex than they appear. There are also difficult-to-explain equities and particulars of any given relationship.
Still. Just don't do it.
Even if you win -- temporarily or permanently -- in the Court of Appeal, as here, it's still not worth it. By a longshot.
And I'm quite confident that even Gary Ventimiglia, the petitioner here, would agree.
Monday, November 24, 2008
Given that "primary caregiver" is defined in the stuate as "the individual . . . who has consistently assumed responsibility for the housing, health, or safety of that person,” this holding isn't all that surprising. Providing weed doesn't necessarily mean that you've undertaken the responsibility for a person's "housing, health, or safety," much less that you've done so on a consistent basis.
That holding is all that the California Supreme Court needed to say to decide this case. But it went further, and unanimously held that not only does a "primary caregiver" under the Compassionate Use Act have to be what we might traditionally call a primary caregiver, but further held that this relationship must also have been commenced at or before the provision of medical marijuana. The Court stated: "[W]e conclude a defendant asserting primary caregiver status must prove at a minimum that he or she (1) consistently provided caregiving, (2) independent of any assistance in taking medical marijuana, (3) at or before the time he or she assumed responsibility for assisting with medical marijuana."
That ostensible holding (actually, dicta) in #3 is clearly wrong. There may well be caregivers who are true primary caregivers protected by the CUA even though they undertook this status only after the provision of medical marijuana.
Take the following hypothetical. Mary is an occasional pot smoker, and meets Jim, who has cancer and is undergoing chemotherapy. Jim asks Mary for some weed, and Mary agrees, and they smoke pot together around once a month, with Mary initially providing Jim no further services other than the occasional pain-reducing and hunger-enhancing spliff. Plus, at this point, Jim can take care of himself, and does not need a primary caregiver. Six months later, however, Mary and Jim fall in love, Jim's condition takes a turn for the worse, and Mary moves in with him, and for the next year, provides him with every element essential to his survival, including food (Jim can no longer feed himself), shelter (Jim's illness has left him penniless and unable to pay the rent), and all the rest (Jim can no longer clothe, bathe, move, or go to the bathroom by himself). During this period, until Jim's death a year later, Mary continues to provide Jim with medical marijuana.
The California Supreme Court's statement would mean that because Mary provided Jim with marijuana prior to becoming his primary caregiver, she is not immunized by the CUA for the subsequent provision of weed to him during the one-year period prior to his death. After all, as the Court says, "a defendant asserting primary caregiver status must prove at a minimum that he or she  consistently provided caregiving . . . at or before the time he or she assumed responsibility for assisting with medical marijuana," and Mary can't do that, since she also provided him pot beforehand."
But that's clearly wrong. Even if Mary's not covered by the CUA during the initial six months, during which she's a medical marijuana provider but not a primary caregiver, she's unambiguously covered during the following year, in which she's both.
I understand the Court's sentiment that someone shouldn't be able to retroactively immunize prosecution, but the temporal limits established by the Court go further than that, and destructively (and wrongly) so. Just as a the Court recognizes that a true caregiver may provide marijuana at the outset of the caregiving relationship, so too may a true caregiver initially provide marijuana prior to the onset of this relationship. And the fact that the caregiver did something illegally at the outset does not mean that her subsequent conduct, which is clearly immunized by the CUA, somehow categorically loses protection.
So, in our hypothetical, Jim does not have to ditch Mary and fall in love with someone else as the only way to permissibly obtain medical marijuana. She's his primary caregiver. She can legally give him pot.
I'm all for making broad -- and even potentially unnecessary -- holdings sometimes. But on occasion, when a particular statement is unnecessary to the resolution of the case before it, the Court errs, and fails to consider accurately the implications of its holding. In my view, this is clearly one of those times.
Friday, November 21, 2008
I'm tempted to respond to the opinion on one of two different levels. First, on the practical side, Justice Robie holds -- and this is somewhat important, or at least interesting -- that you're apparently allowed in California to walk in the middle of the road, at least inside a residential or business district. I didn't know that; indeed, I'd have intuited the contrary if you'd have asked me what the law probably was. Moreover, the municipal codes of several cities facially prevent such conduct, and Justice Robie concludes -- correctly, I'm sure -- that such ordinances are preempted.
Which is cool. I may celebrate this weekend by walking down the middle of the road. If only to see what happens. (Were this blog suddenly to cease publication after today, you in turn could probably intuit the likely result.)
What I like about this holding is twofold. First, what's the interaction between this holding and jaywalking statutes? Is it okay to walk in the middle of the road, but not to cross the road except on the corner? This seems strange, but if that's what the law says, okay, I guess.
Second, the holding deepens the mystery behind the age-old question, first posed by the Beatles in the White Album in 1968: to wit, "Why don't we do it in the road?" After all, as the Fab Four noted, "no one will be watching us in the road" -- a dubious proposition, but assuming it's true, why not? Especially since Justice Roie has now concluded that "doing it" in the road is even legal -- at least in some settings (and under certain definitions of "it"). So why don't we? Why don't we do it in the road?
On a slightly different tack, I also found the opinion interesting, at a much deeper doctrinal level, because Justice Robie concludes that even though the detention by the police in this case was totally illegal (since, again, you can do it in the road), defendant can still get convicted of subsequently resisting this illegal detention -- that, as far as the exclusionary rule goes, the subsequent resisting "removed" the taint of the initial illegal detention.
As far as that holding goes, I gotta tell you that my civil libertarian rankles initially reacted negatively to such a holding, and to a degree still very much do. There's a large part of me that says that if I'm free to walk along a street, and the police abuse their authority and ask me to stop, I can say "Screw you" and keep on walking. We all agree on that, right? And if they then grab my hand, and forcibly try -- again, illegally -- to stop me, there's part of me that says I can pull my hand away, and keep walking. Can I shoot them? No. Of course not. Can I punch them? No. Though if, after I pull my hand away, they then wrestle me to the ground -- again, all of this illegally -- am I really just compelled to sit there and take it?
Something very similar to all this transpired here, so it's not just a hypothetical. At the common law, anyway, you had a right to resist unlawful authority. We were, after all, a nation of revolutionaries, unhappy with our experience with the King and very much unwilling to subject ourselves to the resulting tyranny -- or to allow a similar thing to transpire in our new nation. But, in a progression well known to historians (and in ways that have only intensified in the last generation), a nation that initially structures itself around a central fear of governmental abuse and power nonetheless, as it ages, becomes more and more convinced that its exercise of governmental power isn't so bad, and that citizens need to accept (or at least submit) to such power lest there be untoward consequences. And in the modern era, judicial doctrine has changed alongside this alternation in political perception. So that while you once had the right to resist the police in the event they attempted to act unlawfully, nowadays, the judiciary has increasingly held that you have to submit. Upon penalty of prison for resisting arrest, even if you can prove -- as here -- that you were merely resisting the assertion of unlawful conduct.
Now, in a democracy, is there at least a good argument for such a proposition? Sure. One could reasonably hold, I imagine, that you're obliged to submit because non-self-help remedies are superior. That rather than resist, you should submit and, thereafter, sue. That that'd be better for everyone.
But two things. First, given qualified immunity and all the other contemporary protections for governmental officials, what we may very well be saying as a result of such a holding is that you've got to submit and hence do effectively nothing in the face of the unlawful assertion of government power. (Remember, for example, that you can't even sue for injunctive relief given the standing requirement of Lyons and related procedural obstacles.) Which, again, strikes me as unjust. And even if you could sue -- and I'm assuming here that you could afford a lawyer or effectively represent yourself, dubious propositions at best -- even if all that's true, why can't you alternately just go about your way acting lawfully when you are confronted by a governmental attempt to illegally restrain you. Sure, if you're wrong about them acting illegally, you go to jail. But going to prison even when you're right? For doing what you have a critical federal (as well as state) constitutional right to do? At some level, that just seems remarkably harsh. And potentially profoundly unjust.
I know that, here, only the exclusionary rule issue is raised, likely (I imagine) because the comtemporary California jurisprudence on the right to resist is so unfavorable. And, again, I can see why the law might be as Justice Robie concludes it to be.
Still. There's part of me that says that I should be able to walk down the street, and continue to walk down that street, even if the police illegally tell me to stop. And that if the police then compound their illegal conduct by placing their hands on me, I can push their hands away, and if they tackle me, I can run. That far from being an offense on my part, it's an offense on their part, and I can resist it just as I could resist similarly illegal acts of private individuals much less powerful than the government.
So I'm torn. I've got more thoughts here, but it's time for a faculty meeting. Which I wish I could say would be a hundredth as interesting as Justice Robie's opinion.
Thursday, November 20, 2008
But it all happens here.
Clients unfortunately have very little access to information in choosing their counsel, which again enhances the possibility of abuse. In this regard, I have often thought it'd be helpful if there was some clearinghouse -- either online or otherwise -- that listed maybe some of the most obvious cases in which a particular attorney was held to be seriously deficient. Would this entirely solve the problem? Of course not. Would it be difficult to ensure that any particular opinion accurately reflected either the full set of facts or the attorney's typical performance? Again, no. But it'd at least be a start.
With that in mind, for whatever it's worth, I'd just like to mention that the performance of two California immigration lawyers -- Yemi Getachew (up in San Jose) and Olumide Obayemi (in San Leandro) -- are at issue in this opinion. And that, at least based upon what the Ninth Circuit found, neither of them come out smelling like a rose.
Take a look.
Wednesday, November 19, 2008
I mention the case only because it doesn't make the probation department -- at least in L.A. -- look good. At all. Especially check out the footnotes.
That's a holding that even -- and perhaps especially -- my tiny children can understand.
Tuesday, November 18, 2008
This is such an opinion.
Maybe Justice Moore simply wrote an opinion that's blindsided me to the equities on the other side. If so, congratulations. Nonetheless, I'm entirely persuaded. She seems pretty much indisputably correct to me.
Monday, November 17, 2008
So there's lots of "services" floating around on both sides. Including, to make matters even more messy, some important non-business "services" as well. Namely, Debra starts having an affair with Mordechai. Eventually leading Donald to initiate divorce proceedings against Debra. Oh, yeah. Mordachai's also driving Donald's Jaguar, but Donald's still making the payments.
You can figure out what happens. Except it's even messier than you might imagine. Mordachai sues for alleged nonpayment of various home improvement projects and personal loans. Then the Markowitz's sue the Kachlons for allegedly initiating foreclosure proceedings on the house. Then Mordachai sues Debra for alleged legal malpractice and breach of fiduciary duty.
Needless to say, a tangled web. And you've only heard half of it. All of which Justice Willhite has to sort out. Which takes over 70 pages. Yikes.
Read the whole thing if you'd like. But I can shorthand the message for you as well. Keep business business and personal personal. And the more interrelated your interactions, the more of a nightmare it will be in the event that things eventually get ugly.
Which they do here. In spades.
Here's some insight into the answers to those scintillating questions from the California Supreme Court.
Friday, November 14, 2008
But there's an even larger, and more practically important, lesson to be learned as well. Which is this:
Drive extra carefully around Indian casinos. Because even if they were grossly negligent and served clearly intoxicated casino employees, you can't sue.
Judge Gould concurs to expressly mention that he's not happy about this result. But it's nonetheless the law.
Let's be careful out there.
Thursday, November 13, 2008
Moreover, given that your life and welfare is much more likely to be at stake in a hospital than in the hands of the military (at least nowadays), practically speaking, this is a good topic to understand. The question here is whether a particular nurse (Ellen Finnerty) should have her license taken away for countermanding orders of a doctor. Basically, you had a very sick patient with very labored breathing, but when the doctor ordered immediate intubation (in the hospital room), the nurse disagreed, and whisked the patient off to the ICU for intubation therein instead.
My reaction to the case varied a little bit page-by-page. Initially, I thought that the nurse was totally and completely in the wrong. And my intuition was definitely that the doctor -- not the nurse -- should clearly be in charge. But then, after reading various paragraphs, I thought there might actually have been good reason for the nurse's decision; namely, that intubation might have been a lot safer in the ICU, and she argued that the intubation would actually have taken place faster there since the room didn't have the staff or equipment to do the intubation within the 5 minutes it would take to roll the patient to the ICU and intubate there. If that was indeed the case, then I could see why the nurse might have acted the way she did. And presume -- and I've been around hospitals a lot lately -- that nurses generally don't countermand the express orders of a doctor on a whim, and that when they do so, they typically feel like they've got a darn good reason for doing so.
But, in the end, I think that Justice Cooper gets in right. On both the facts as well as the law. Yes, nurses have the power to countermand clearly dangerous orders. But this one wasn't. The intubation originally ordered by the doctor could indeed have taken place more rapidly in the room. And hence, especially when giving the decision below deference, the decision to revoke the nurse's license was justified. You can refuse to follow the orders of those superior to you. But if you do, you'd better be right. And here, the nurse wasn't. And the fact that the patient died a mere hours after the delayed intubation -- even if (as the Court of Appeals recognizes) the delay had nothing to do with the death -- surely doesn't help the nurse's position.
This stuff matters. Part of me profoundly respects a nurse for putting her own booty on the line if she does so in a sincere attempt to advance the welfare of the patient. That's an incredible, incredible thing. On the other hand, if the nurse countermands an important order merely because (as at least alleged here) she thought that an immediate in-room intubation would be a hassle to the staff and patients at shift-change time, well, in that event, I'm not at all bummed that you lose your license.
In the end, I agree with Justice Cooper. The casual reader, or justice on the Court of Appeal, can't tell for sure which version of the facts is right. Both versions have some support. So, right or wrong, you affirm.
Here's the exception to the rule.
Hat's off to Justice Yegan. I'm sure that one could have written more. But I agree that more is unnecessary. Short, to the point, and yet complete and fully analytical. Well done.
Wednesday, November 12, 2008
I admit that I've always been interested in the lingering consequences of this historical difference, as I grew up (as most of us did) in the modern era, in which separate law and equity courts were (thankfully) merely a thing of the past. The distinction is still relevant, of course, in a number of different areas, the most important of which is whether you're entitled to a jury trial, but for the most part, you can go through life just fine with only a dim appreciation for the complexities occasionally engendered by the difference between law and equity (and, by implication, legal and equitable claims).
But sometimes, you gotta know more. And getting the answer right isn't easy. Like here.
When equitable issues are intertwined with a legal dispute (for example, when there are equitable defenses to a legal claim -- as there often are), it's an interesting issue as to which claims should be resolved first, as the first claims resolved may be preclusive of the other. California has a strong preference for resolving the equitable claims first; i.e., for having the judge adjudicate those things. The theory being that resolution of these judge-decided issues may obviate the need for a trial. By contrast, the federal system has a strong preference for resolving the legal claims first; i.e., for having the jury decide. The theory being that the right to a jury trial is important -- indeed, of constitutional magnitude -- and shouldn't generally be taken away by a judge. These two systems correctly identify and understand the interests at stake, but nonetheless come to competing conclusions. Which is always fun.
It gets especially interesting when, as here, the law/equity distinction intertwines with other relatively complex judicial doctrines; here, issue preclusion (a.k.a. collateral estoppel). Justice Sepulveda does a very good job explaining the resulting difficulties in a way that even non-procedure junkies can understand. Which is no small feat. And it's an important contribution as well, since even from reading this single case, one can garner the strong impression that one or more of the parties might have done things a bit differently had they fully understood the implications of what the initial jury instructions/findings might have on the subsequent disputes on the equitable defenses.
So for anyone who doesn't fully grasp what the judiciary does (or should do) in the relatively common cases in which both legal and equitable claims are raised, this is a very good opinion to read. I have a strong suspicion that virtually anyone who reads it will learn something. And can think of no higher praise for an opinion.
Tuesday, November 11, 2008
Monday, November 10, 2008
Because it's six months in prison and a lifetime of registration as a sex offender if you do. Even if it's your first offense and even if all your other babysitters love you.
A salutory lesson.
To slightly reprise a line from Risky Business: "Get off the babysitter." Indeed, don't get on her in the first place.
Friday, November 07, 2008
On remand, the district court gave Southern Union the option of accepting $4 million in punitives -- a ratio of around 10 to 1 -- and Southern Union (wisely, IMHO) accepted. Another appeal. This time, though, the panel is split.
The majority (Judges Reinhardt and Fernandez) conclude: Sorry, still too high. We admit that defendant is a very bad man. Who has done very bad things. Nonetheless, three to one is all that we're willing to allow here. So $1.2 million (plus postjudgment interest, of course).
Judge Reinhardt concurs to say that he's particularly influenced by the fact that we're talking about a rich (and hardly vulnerable) plaintiff here and a hardly rich defendant. "So don't get me wrong. I'm not capping out at a 3-1 ratio in the much more typical case involving a vulnerable plaintiff and wrongdoing wealthy corporation. Let me make that crystal clear." (I'm paraphrasing, obviously, but I read that as his central -- and important -- point.)
Judge Noonan dissents. "The defendant's a bad person. The district court was in the best position to judge things. Ten to one seems fine to me. I'm more than happy to defer to that." (Again, I'm totally summarizing.)
A neat little fight, with a not-so-typical lineup, about punitive damages ratios. Worth at least a quick read.
Thursday, November 06, 2008
So the Ninth Circuit reverses Judge Gonzalez (down here in San Diego) today, based upon an Allen charge that she gave that the Ninth Circuit found to be improper, but goes out of its way to try to make Judge Gonzalez feel okay about it. After reversing the conviction, Judge Bybee adds the following footnote to the opinion:
"In reaching this conclusion, we are aware of the conscientious effort that the district court made to avoid a mistrial after a lengthy trial, and we commend the district court for that effort. In this circumstance, as our opinion today makes clear, nothing could have prevented a mistrial."
So you get to redo a very lengthy trial, but don't feel bad about it. Not your fault.
P.S. - I'm sure this will be an additional entry into Force and Norris's aptly titled (but firmly tounge-in-cheek) multivolume work, "The Law of Seamen".
Wednesday, November 05, 2008
But this one, in my view, is the most well-written of any of his opinions over past fifteen or so years. Concise. Funny. Insightful. Pithy. Irreverant. Wonderful.
Mind you, there's lots to play with here. It's a case in which an East L.A. strip club filed a trademark suit against the makers of Grand Theft Auto. You can't dream up better, or more interesting facts. At least to a certain crowd. So Judge O'Scannlain gets to say a ton of fun things that are both relevant and simultaneously humorous.
I'm not going to ruin any of the lines for you. Or even provide you with a sample. I'll instead make you read the whole thing. Trust me: As long as you're marginally culturally aware, even if (like me) you have never played -- or even seen -- single game of Grand Theft Auto, the time spent reading the opinion will be worth it, and will bring a smile to your face.
There's a lot there on the law as well, wholly apart from the fun. And I somewhat sympathize with the strip club owners: after all, I too wouldn't want my strip club characterized in a best-selling game -- as it is here -- as the prototypical incredibly seedy tittie bar. Even if (as it may well be here) that characterization could not be more accurate. I wouldn't like it, and would might well be inclined to bring a trademark claim. Though, as an attorney, I could also easily see why the judiciary might well reject such a claim.
I'd especially be upset -- were I a hypothetical strip club owner -- if the name of my place was the "Play Pen" but the makers of Grand Theft Auto, in the game, called it the "Pig Pen". Ouch. Talk about adding insult to injury.
Read the opinion. It's less than ten pages. It's a fun romp. You'll be glad you did.
The police can't handcuff someone just because he's 6'6". If he's cooperative, and there's no real reason to believe he's a threat, you can detain him, but can't handcuff him.
Good to know. Even for those of us, like me, who are a full half-foot-plus shorter than 6'6".
Tuesday, November 04, 2008
Maybe it was all that food I had at the lunchtime faculty meeting. Or the excitement of the election. Or, just maybe, the incredibly dry and complicated topic of the opinion, which involved a fact-specific calculation of the defendant's proper sentence.
But, whatever the reason, I can honestly say that I found myself occasionally thinking: "I can barely even follow what the scoop is here." Maybe in part because it was very hard for me to deeply care about the result, since it's a defendant who was convicted of nine different counts (basically, some armed robberies and armed carjackings, with priors), on some or all of which he was pretty clearly guilty, and was sentenced to 154 years to life. And, as far as I can tell, the whole appeal is about whether the sentence should really be 154 years to life or something like 125 years to life or 114 years to life or whatever. In other words, a monster difference. Oh, yeah. And whether he should have been ordered to pay an additional $20 per count in costs as well. In short, potentially significant legal issues, but, practically, not much at stake.
Plus, it's just all really confusing. Here's, for example, what the trial court stated in its tentative ruling: "The three possibilities are term, three times the traditional sentence for the current crime, a term of 25 years of a traditional sentence, which includes enhancements, the greatest minimum term must be selected. Enhancements are not included and enhancements are not triple. Count 4 and count 7, exempt for those the greatest is 25 years for carjacking determines the upper term is nine years, three times nine is 27. This is ption one. Option 2 is 25 to life. Option 3 is the traditional sentence, which in this matter would be the high term of nine years, plus 10 years for the firearm, plus 10 years for the two prior convictions, and three years for the priors under P.C. 667.5, subsection (b). But since two of these are used under P.C. 667, subsection (a), they will not be used again under 667(a). Thus the total is nine, plus 10, plus 10, plus three, for a total of 32-to-life on count 4. Since the court is required to set the greatest term, option 3 is selected. Therefore, the base term on count 4 is 32 years-to-life. As to count 7, since the status enhancement under Penal Code 667(a) and 667.5(b) can only be used once for the sentence, the sentence is 25-to-life, plus 10 years for the firearm, for a total on count 7 of 35 years to life. As to count 1, second degree robbery, violation of Penal Code section 211, the minimum sentence is 25 years to life, plus 10-year enhancement for the use of the firearm, for a total of 35-to-life. Same sentence on count 2. As to count 3, a violation of 12021, subsection (a)(1), the sentence is 25 years to life. As to count 5, grand theft of an auto, violation of 487(d)(1), sentence is 25 years to life, plus 10 years for firearm, so 35 years to life on count 5. However, count 5 is stayed pursuant to 654. As to count 6, unlawful driving of a car in violation of [Vehicle Code] section 10851(a), sentence is 25 years to life, plus the 10, total sentence on that count is 35-to-life. That, as well, is stayed pursuant to 654. Count 8, grand theft auto, P.C. 487(d)(1), 25-to-life, plus 10 years, so 35-to-life on that count, stayed, as well, pursuant to 654. As to count 9, unlawful driving of a car, pursuant to 10851, subsection (a), 25-to-life, plus 10 years, so 35-to-life,
stayed pursuant to 654. The total sentence in this case for all the counts is 162 years to life.”
And then here's the sentence (and explanation therefor) the trial court ultimately pronounced: "[B]ased on the case I came up with the same calculations for count 1, exact same. And for count 2, the 211, would be 25 to life, plus 10 for the gun, plus 10 for the two priors pursuant to 667, same goal, 45-to-life. Third count, even though [the prosecutor] has argued it should be concurrent, the number will come up differently because we have a 12021(a)(1), 25-to-life, 10 for the 667, which makes it 35-to-life. For 4, the 215, it would be nine, which is the highest term, 10 for the gun case, 10 for the two priors, three for the 667 prior prison, 32-to-life. 5 would be the same, 25-tolife, 10 for the gun, 10 for two priors, 45 to life. 6 would be 10 for the gun, 10 for the
priors. 5 and 6 remain stayed. [Seven], for 215, once again, is the same as count 4. Count 8 is 25-to-life, plus 10 for the gun, plus 10 for priors, 45-to-life. [Nine], the 10851(a), and we have to remember that, pursuant to, I think it was both 1170.12 and 667, any felony where a gun is used is a straight 25-to-life with the priors. So it’s 25-tolife, 10 for the gun, and 10 for the priors, 45-to-life. Counts 8 and 9, again, are stayed. . . . . [So] Count 1, 45-to-life. Count 2, 45-to-life. [Three], 35-to-life. [Four], 32-to-life. Count 5, 45. Count 6, 45. [Seven], 32.
Count 8, 45. Count 9, 45-to-life. Counts 5, 6, 8 and 9 are stayed pursuant to P.C. 654. And because [the prosecutor] has agreed and there’s no dispute that count 3 should run concurrent pursuant to [defense counsel’s] request, that now makes it 189-to-life. It’s 154-to-life."
I mean, I understand all the words that are being used. But can I really follow, intellectually, what's going on? Honestly, no. Not really.
Admittedly, Justice Turner's opinion helps out, and as I read all thirty-plus pages of it, I at least began to comprehend the basic scoop, as well as the potential problems. Still, on occasion, I found myself lost. Like I was reading stereo instructions. "Place the red coaxial into the right audio out input of the video component subwoofer?! What?"
Fortunately, in the end, I understood what was going on. Or at least I think I did. Kind of. Most importantly, I obtained solace in the fact that Justice Turner (1) explained the results, count-by-count, in the end, and (even more important, to me), (2) said, in the end, "We have asked the parties to calculate the sentence for each count. The calculation of the current sentences are quite complex and the trial court and the parties have quite understandably struggled with the issues; as have we." Whew. Thank goodness. Glad to know I'm not alone. 'Cause I gotta tell you that for a while there, I was feeling like a liberal arts major at a NASA engineering convention.