U.S. v. Hinkson (9th Cir. - May 30, 2008)

Whoa, Nelly.

(1) It's the exceptional Ninth Circuit case that runs, like this one, over 90 single-spaced pages. It's even rarer for the author of the majority opinion to apologize (!) for such prolixity. See Page 6142 ("We apologize to the reader in advance for the length of the discussion.").

(2) There's a reason for the length. Not because the topic is globally important, since it's definitely not -- it's a fact-specific opinion about a particular conviction of a crazy tax protester who both deserves to be and will be in prison on various counts. Rather, the opinion and dissent are lengthy in part not only precisely because it's a fact-intensive opinion about whether a new trial should have been granted here based upon the perjury of the main prosecution witness, but also because the issue is (in my mind, anyway) an exceedingly close one. I could easily see myself going either way. Both the majority and the dissent make very compelling cases. But, of course, only one of them can be "right".

(3) Perhaps most unusual, at least to me, is the underlying tenor. The majority opinion is written by Judge Willie Fletcher. The dissent is written by Judge McKeown. Judges Fletcher and McKeown agree much more than they disagree. So you'd perhaps expect a very, very deferential and circumspect response to the other's points.

But that's not what you see. At all. If you read the opinions without knowing their authors, based upon the language and arguments employed when responding to the other side, I strongly believe you'd conclude the dispute was between traditional foes. Indeed, take this test: Black out the names in the first page, give the majority opinion and dissent to an informed reader, and given the language employed by the authors, have them guess who wrote each opinion. I'd be stunned if anyone -- anyone -- would guess that the dispute here was between Judges Fletcher and McKeown.

I'm not saying that this reads like, say, a Reinhardt/O'Scannlain fight. Still. It's not what you'd expect.

Let me make clear that I don't believe that Judges Fletcher and McKeown are being affirmatively disrespectful to one another. Far from it. Nor do I believe that colleagues -- or even friends -- can't (or shouldn't) be strong and tough in the language they use in response to a competing view. I was merely surprised to see what I read here. And when even I -- no shrinking violet, let me assure you -- might well have been a fair piece nicer to the other side, that's a telling sign.

(4) Finally, unmentioned in either opinion is the fact that the lower court's decision here was issued by none other than Judge Tallman, who was sitting by designation in Idaho. An interesting fact. And that just adds to the interest level here.

I love opinions that make me think. This one definitely does. In spades.

Arteaga v. Brink's Inc. (Cal. Ct. App. - May 28, 2008)

Your effort to manufacture a FEHA claim by disclosing alleged ongoing physical injuries after you knew that your employer had begun an internal investigation into massive money shortages on your watch and days before you were fired will not -- and did not -- succeed, Carlos Arteaga.

And I couldn't be less sorry for you.

Justice may well be blind. But she's not an idiot.

In Re Gong & Kwong (Cal. Ct. App. - May 29, 2008)

"Didn't like our prior published opinion, which dismissed your appeal as frivolous, relentlessly slammed you and your appellate counsel, and imposed a healthy dose of sanctions payable both to respondent and to the Clerk? I'm not surprised. Want a rehearing? Sure. We're happy to give one to you. In which we'll reiterate our slams (and sanctions) in yet another published opinion. Feel better now?"

California School Employees Ass'n v. Bonita Unified School Dist. (Cal. Ct. App. - May 28, 2008)

The Bonita School district wanted to fire Donald Roberts for nine "causes" and twenty-four "reasons" under the Education Code. As Justice Mallano explains in affirming Roberts' termination:

The “causes” included incompetence, dishonesty, insubordination, immoral conduct, evident unfitness for service, absent without authority, and violation of school laws. Among the “reasons” were: (1) communicating regularly with staff members in rude, abusive, sexually explicit, and threatening language; (2) creating a sexually hostile work environment for two female employees; (3) refusing to do assigned duties; (4) failing to comply with supervisors’ directions; (5) permitting a subordinate to damage District equipment and to harass other maintenance department employees; (6) taking District property home for personal use; (7) destroying District property; (8) intimidating employees of the maintenance department on a regular basis; and (9) exposing the District to liability under state and federal antidiscrimination laws.

What?! None of that's allowed?!

Outrageous.

People v. New (Cal. Ct. App. - May 28, 2008)

Just because you got away with shooting your first wife in the head while she slept doesn't mean that you're going to get away with shooting your third wife in the head while she sleeps. Yeah, the San Bernadino police might have been convinced that the first killing was an accident. But when your wives keep getting shot in the head -- well, eventually we're going to get a wee bit suspicious about the resulting coincidence. Even here in San Diego. At which point we'll convict you for both the first murder (in 1973) as well as the second murder (in 2004). And the Court of Appeal will affirm.

Lessons of the day: (1) Don't shoot your spouse in the head; (2) Don't do it again.

San Joaquin County Dep't Child Support Svcs v. Winn (Cal. Ct. App. - May 27, 2008)

A Hegelian dialectic rarely expressly appears in the pages of the California Appellate Report. And I can't in all honesty say that I've reached an appropriate synthesis on the following topic that's worthy of sharing with the world.

But let me nonetheless express my own personal yin and yang about the following opinion by Justice Robie.

On the one hand, I'm totally on board. Sure, Steven Winn doesn't want genetic testing performed pursuant to a discovery order in a paternity case. I understand that. But that's not an appealable order. Nonetheless, Winn goes ahead and files an appeal.

Justice Robie rightly concludes that there's no jurisdiction over the purported appeal since there's not a final judgment. And when Winn asks -- as one would totally predict -- that the Court of Appeal treat the appeal as a writ petition in an attempt to cure the resulting deficiency, Justice Robie declines to do so. "To treat the instant appeal as a writ application would obliterate that bright line and encourage parties to knowingly appeal from nonappealable orders, safe in the knowledge that their appeal will be ‘saved by the appellate courts.’ We cannot condone or encourage such practice." Good quote. Good reasoning.

So all this strikes me as particularly appropriate. Especially in a case, as here, in which it's pretty clear that what we're dealing with is a nonfinal order. So I appreciated Justice Robie's response. Not every appeal should be saved from dismissal by treating the thing as a writ petition. The rule exists for a reason. That's why we should encourage people to file appeals for final judgments and writs for nonfinal orders, rather than appeals (with an alternative claim that writ relief is appropriate) for everything.

So that's the yin.

But at the same time, there's a yang. Albeit one that I only felt a couple of minutes after I finished the opinion. Which is this:

I understand for policy reasons why Justice Robie doesn't want to treat the thing as a writ petition. But as a writ petition, isn't it a pretty darn good one? Justice Robie says that there's no need for writ relief because "if the genetic testing excludes Winn as the children’s father, the case will be over and there will be no need for any review. If, on the other hand, paternity is established following the genetic testing, then Winn will have an adequate remedy on appeal from the judgment determining him to be the children’s father and ordering him to pay child support for them." And that's true. As far as it goes.

But there's another reason for writ relief that seems to me both equally important and -- critically -- that's not at all adequately addressed by post-judgment appellate review: namely, Winn's interest in not having the testing go forward and getting a result. Winn's substantive claim is that the child at issue was born to a mother (Jeanelle) who was married to another man (Gregory) during the marriage, and hence that the child that Winn is accused of fathering is, as a matter of law, Gregory's. Thus, Winn argues, he shouldn't be tested, since he is under no obligation to pay child support for a child that the law considers to be Gregory's.

Now, there are a lot of problems with that position on the merits, including but not limited to the distinction between the conclusive and rebuttable presumptions in family law, a prior judgment involving Gregory and Jeanelle, and the reality that, as a factual matter, prior genetic testing has conclusively determined that the father of the child is not Gregory. But ignore all that for now, and assume for purposes of argument that Winn is correct on the merits. Doesn't that make for a pretty good writ petition? Sure, we could always review an eventual judgment. But, by then, Winn may well have already been found to be that actual father of the child. And even if we can thereafter, on appeal, reverse a child support judgment against him, that doesn't solve the dignitary and other interests that result from the factual declaration that Winn is the father. All of which the conclusive presumption was designed to avoid and all of which remain notwithstanding the reversal of the eventual child support judgment below.

So while I'm strongly persuaded by Justice Robie's adjudication of the appeal, at the same time, I'm not so convinced that the issue isn't a proper matter for writ relief. And yet, simultaneously, I totally buy Justice Robie's argument that we can't just make every "appeal" into a writ petition without encouraging a socially deleterious practice of just appealing everything and requesting writ relief in the alternative.

So those are the two competing sides of the equation. I can imagine, I guess, two possible syntheses. One is to say that, sure, it'd perhaps be a valid writ petition, but we've decided to punish you for filing an appeal and on that basis not grant you relief to which you'd otherwise be entitled if you followed the rules. That would make logical sense, but potentially be overly harsh. Especially given the stakes involved. The other would be to say that we won't treat your appeal as a writ, but you're always free on remand to file a writ, which we may well go ahead and grant given the merits. But while that may be doctrinally consistent, it still seems to encourage the filing of an appeal (and resulting benefits like automatic stays) without any corresponding downside.

So I'm torn. I like what Justice Robie's done. I really do. But I can't help the nagging feeling that there's more here worth exploring. And that, in fact, there are some pretty tough calls to be made, none of which is entirely perfect and each of which results in both benefits and detriments.

So that's my take. In short, there's a lot here. And, sometimes, even seemingly easy resolutions that totally persuade me aren't, in fact, so totally easy.

Azure Ltd. v. I-Flow Corp. (Cal. Ct. App. - May 27, 2008)

When you know that an opinion is likely to be reviewed by your boss -- e.g., to have review granted by the California Supreme Court -- there's a strong tendency to write an expansive missive on the subject. After all, you want to put your best foot forward.

But Justice Ikola avoids that temptation here.

It's a case that I think will -- and am certain should -- be granted review by the California Supremes, if only due to both the importance of the subject matter and the split in the Court of Appeal. A couple of years ago, the Second District, in an opinion by Justice Vogel, decided that a defendant who transfers eschated property to the state is absoutely immune from liability even if it didn't follow the provisions of the Unclaimed Property Law; e.g., if it failed to properly notify the owner as required by the statute. Today, the Fourth District, in an opinion by Justice Ikola, disagrees, and concludes that the dissent of Justice Mallano in that case was more persuasive.

Property gets transferred to the state all the time. I'm certain that the process is far from perfect, and in any event, it's easy to make allegations that mistakes were made, particularly given the fact-intensive nature of the statutory process and the fluctuating value of some of the underlying assets. As a result, this is an important issue. The resolution of which is far too important to be decided purely according to the particular appellate district in which the lawsuit is filed or the particular panel that's drawn. As such, the California Supreme Court should take it up. And settle the matter once and for all.

When it does so, it won't have to wade through dozens of pages of Justice Ikola's personal views on the subject. He keeps this one to a single-digit number of double-spaced pages. And does so well.

Which is no small feat.

Look for this one to go up.

U.S. v. Fernandez (9th Cir. - May 27, 2008)

Sometimes they make it easy for you. So easy that you only have to read the first sentence of the opinion to know not only the question presented, but also its unstated -- but crystal clear -- resolution by the court.

So, for example, when the first paragraph of the opinion contains a single sentence, and that sentence reads: "We must decide whether evidence obtained from an authorized wiretap investigation must be suppressed where the government continued to intercept a named target’s conversations despite his adoption of a new alias," it's far from tough to figure out what the answer is.

Even if you forgot that the opinion was written by Judge O'Scannlain -- another huge clue -- you'd have to be totally out of it not to know how this one ends.

In Re Carlsson (Cal. Ct. App. - May 23, 2008)

"This may come as a shock to you, Judge Peter McBrien (up in Sacramento County). But you can't walk out in the middle of a trial -- literally -- and decide the case on whatever evidence happened to have been already presented. I don't care how busy you are. Justice doesn't work that way.

So we're reversing you. And assigning the case on remand to a different judge. And while we first resolved the case in an unpublished disposition, we've now decided to publish it. So the slams on you now get to be read by everyone.

Think about that next time. As well as any other would-be Judge McBriens out there."

Justice Butz utters similar words.

People v. Martinez (Cal. Ct. App. - April 1, 2008)

Just be glad I wasn't your judge, Paul Martinez. Because based upon what I've read here, I wouldn't have limited your sentence to probation. You'd have done time.

Consider yourself fortunate.

U.S. v. Crandall (9th Cir. - May 13, 2008)

I'm at the federal penitentiary in lovely Fort Dix, New Jersey today -- for hours rather than a judicially-established number of months, fortunately -- but should be able to bop my head in from time to time to catch up with whatever happens today. In the meantime, let's do what we can to keep our loyal readers out of similarly-situated institutions.

Too difficult and expensive to file the necessary paperwork with the City to convert your apartment complex into condos? Why not just forge the relevant documents?

Here's to spending six and a half years in prison thinking of reasons why forgery might not be the greatest idea.

Witt v. Department of the Air Force (9th Cir. - May 21, 2008)

It's been a good couple of weeks for gays and lesbians in California and the Ninth Circuit. First gay marriage in California. And today the Ninth Circuit holds that heightened scrutiny -- not traditional rational basis -- is the appropriate level of scrutiny for a challenge to the military's continuing efforts to discharge practicing homosexuals. And on that basis not only remands, but does so with language that substantially assists the plaintiff here.

I won't talk about this one too much since it, too, will get a fair piece of press (though not nearly as much as the gay marriage decision). But I did want to make two brief points.

First, it was a good test case. The plaintiff, Major Margaret Witt, was a nurse suspended from the Air Force for having a long term, committed relationship with another woman. She was an Air Force "poster child," and pictures of her were featured in Air Force promotional materials for over a decade. She was then booted out one year short of her twenty years purely because she was in a lesbian relationship.

Them's some good facts. It's a great, great case for a challenge to the current policy.

Second, on a related note, don't forget that this isn't the last word. Sure, Judge Canby concurs and wants even tougher (strict) scrutiny applied than the standard applied by the majority. But it's not likely, in truth, that the Supremes would do so; indeed, that tribunal might well show more deference than even the majority. Whether the Supremes would take this case, however, is far from clear, and a rational conservative bench might well choose to take a different vehicle than the present action.

Though, then again, who can resist hot lesbian nurses?

Myerchin v. Family Benefits, Inc. (Cal. Ct. App. - May 20, 2008)

You can't have your cake and eat it too.

Nor, as Justice Bedsworth holds here, may you keep (and spend) the money you received in settlement and yet refuse to dismiss your lawsuit as agreed.

Exactly right.

P.S. - Good decision to publish this one in the end. It's a good addition to the literature.

People v. Wardell (Cal. Ct. App. - May 20, 2008)

I always like reading opinions that help me be a more successful criminal. Like this one.

Granted, I'm not likely to go out and rob a bank anytime soon. But I do appreciate learning just how exactly those tracking devices they put into some of the money they give you work.

I did not know, for example, that these devices are apparently very tiny, neatly sandwiched between two $20 bills. Very cool. I also did not know that only some, and far from all, police cars have the ability to track these devices. Good to know. Or that these devices aren't always very precise; for example, here, the police get a strong tracking signal emanating from a Saturn, which they stop and search, but this car didn't have any connection with the robbery, and was a couple of blocks away from the guy with the cash. Oops.

Finally, and perhaps most importantly, it's good to learn that the way around these devices is apparently to chuck them (and the cash) in the toilet. Not surprisingly, dousing electronics with water is a pretty effective way to disable them. Which tells me that next time I rob a bank, the first thing I'm going to do is to hose down the money. Wet money is still legal tender; plus, it will dry out pretty well. So that's my plan in a parallel universe.

None of which, I might add, worked especially well for Chris Wardell, who deposits the money in a toilet far too late, only after they (eventually) get a decent pin on his location. Oh well. At least you can sleep well, Chris, knowing that you've made the job easier for future would-be bank robbers who read the California Appellate Report.

Anyway, thanks for the tips, Justice Mihara.

P.S. - How about a little slam on Judge Bocanegra for upping the restitution order from $200 to $10,000 as a result of Wardell's previous successful appeal?! Even the AG's Office admits that's impermissibly vindictive. Not to mention uncool.

RFK Medical Center v. Leavitt (9th Cir. - May 19, 2008)

My initial reaction to this case was: "Disputed corporate Medicare reimbursement as applied to depreciation losses resulting from the disposal of assets through a statutory merger: Thrilling!" Of course, I was being facetious.

But, to my horror, I did actually find the case to be marginally interesting. It seemed to me a close question as to whether the merger of the two non-profit hospitals at issue here -- RFK Medical Center (formerly in Hawthorne, now closed) and Catholic Heathcare West -- was really a "bona fide sale" and hence entitled to reimbursement. On the one hand, the two entities were unrelated, so it seems like a decently arms length transaction. On the other hand, the economics of the deal do indeed seem fishy: Catholic Heathcare West paid $30.5 million for $50.5 million of RFK assets, which facially doesn't make sense, and gives rise to an inference that the deal was done for non-arms length reasons.

Ultimately, I think that the panel gets it right when it holds that the deference to agency interpretations that's required by both the APA and Chevron -- which is especially applicable in the complex Medicare arena -- requires the court to uphold the Secretary's determination that the transaction wasn't arms length. It's a case where the relevant deference is, I think, in fact dispositive.

In Re Judicial Misconduct (9th Cir. - May 14, 2008)

I agree with virtually every word you say, Alex. Virtually.

Chief Judge Kozinski publishes his disposition of an unnamed attorney's disciplinary charges against an unnamed district court judge. Good to publish it. Especially here. So I agree with that. I also am in full accord with the sytle in which Chief Judge Kozinski elects to treat the numerous allegations raised by this unnamed attorney nutjob. Short and dismissive. That's all this loon deserves. It's clear that we're dealing here with an attorney driven insane by the "conspiracy" of everyone in the world against him, including but not limited to the particular judge who was forced to deal with this guy. And in the face of such insanity, and absurd allegations, Chief Judge Kozinski is right not to spend lots of time on this guy's charges. They're crap. They deserve no better. So I'm totally on board for all of that. I'm also completely in favor of doing what Chief Judge Kozinski does at the end of the opinion, which is to order the guy to show cause why s/he shouldn't be sanctioned for making such absurd and frivolous allegations. Right on. Loved to read it. So I think this is exactly the right disposition.

Except for one thing. Chief Judge Kozinski is correct that almost every one of the nutjob's allegations are utterly frivolous. Almost. But on page 5, Chief Judge Kozinski recounts one of loonie's allegations: that the district judge tore up and mailed back a copy of various state court documents that Mr. Crazy had sent to various judges (including the judge here). With respect to that allegation, Chief Judge Kozinski says a couple of things that are correct: that, even if true, this doesn't really count as "intimidation" as alleged by the complainant, and that there's no proof that the district judge stopped these documents from reaching the other judges. That's right.

But Chief Judge Kozinski also concludes (on page 6) that "there is nothing to indicate that the judge himself ordered the document returned or had anything to do with tearing it." On that point I have to completely disagree. As Chief Judge Kozinski notes, Mr. Should-Be-Committed "include[d] a picture of the torn document and an envelope addressed to him from the district court" alongside the petition. Now, these documents may be total fabrications, but I doubt it. Nor do I read Chief Judge Kozinski to so conclude. Rather, I hear him saying that merely because someone from the district court tore up the document and mailed it back to Mr. Loon, that doesn't prove that the it was the particular district judge here.

But come on. Who else is likely to have done it? Some random judge ain't going to go through all of the trouble of ripping it up and mailing it back. Nor will a clerk. All of those people are much, much more likely to just pitch it into the circular file. Who's the most likely person to actually go through the trouble to rip it up and send it back? A frustrated judge who (rightly) is frustrated at an insane litigant and who wants to send a message.

We know that someone at the district court did this. And, truthfully, my money's totally on the judge. Imagine, for example, that we knew for a fact that someone on the district court had gone out and killed the petitioner. It could have been anyone; a law clerk, a bailiff, a clerk, etc. But would we really say that there was no reason whatsoever to believe that it was the judge? Such no evidence that we wouldn't even ask the judge (as we don't here) whether he did it? Come on.

So I think that this part is wrong. Not only do I think there's enough evidence here, but I even think it's more likely than not that the judge did it. Which is far in excess of what you need in order to support a claim.

I'm not saying that tearing up a document and mailing it back is misconduct. I do think that it's not a very good practice, mind you. And I'd definitely tell judges not to do that. It does reek of frustration, and even though we know that likely exists, I don't think it's a good practice at all to manifest that feeling. Either on the bench or -- perhaps even worse -- through an anonymous act designed clearly to reflect that a judicial officer isn't even reading your stuff. That's not what I'd call good judging.

So I'd be fine with Chief Judge Kozinski saying essentially what I've said above: that there's no conclusive proof that the district judge did it, but even if it transpired, and even though that is a bad thing, under the circumstances here, we're not going to do anything more about it other than what we've done. That'd be fine with me. But I don't think that we should get rid of this claim by pretending that there's no evidence that the judge did something that we all know s/he may well have done. That sits far less right with me. And only, ironically, plays into the "conspiracy" theories that nutjobs like this have about the judiciary.

So I'd reach the same result, but edit that part out. Let's be honest and forthright with what we do. Always a good policy. Even with whackos.

U.S. v. W.R. Grace (9th Cir. - May 15, 2008)

Nice dissent!

Judge Hawkins writes an extremely well-written dissent to the majority's en banc decision. So good, in fact, that you should read it at length. It really is exceptionally well done.

I say that, mind you, even though I may well have been in majority on this one. Or at least have somewhat leaned that way as a practical matter.

The issue is about interlocutory appellate jurisdiction over suppression order in criminal cases. Section 3731 permits the United States to appeal an order of the district court that, inter alia, suppresses evidence in a criminal case upon the filing of a certification by the U.S. that the suppressed evidence is important and the appeal not taken for the purpose of delay. So the question then becomes whether that bare certification alone creates jurisdiction or whether those alleged facts actually have to be true.

For 30 years or so, the Ninth Circuit has held the latter. But the en banc court overrules this prior circuit precedent and says that the plain text of the statute suggests that the certification itself is sufficient. The dissent says that this is both a misreading of the statute as well as very dangerous, since it effectively makes the U.S. its own judge of the merits, without oversight by a neutral judiciary. But the majority says that we can trust U.S. Attorneys to be honest, and that if they're not, there are things we can do to expedite the appeal or get them in trouble.

It's a good debate, especially since the policy analysis focuses a lot on whether it makes sense to give carte blanche to bare, unsupported certifications of a party. Personally-- and I admit my own prejudice here -- I think that Judge Fisher makes a darn good point in the majority opinion that since the relevant U.S. Attorney has to get permission from the Solicitor General to appeal, we can be pretty confident that there's some real oversight going on. Personally, I tend to trust the SG's office, which goes to great lengths to preserve its credibility. Perhaps I'm a fool in that regard. But I like 'em. And trust that office a lot, lot more than any individual U.S. Attorney's Office. So I think that, as a practical matter, what Judge Fisher says makes sense to me.

But it does give Judge Hawkins an opportunity to make a variety of really excellent points, and in an extremely wonderful way. For example, in footnote 9, Judge Hawkins says the following, which I totally loved: "While I have great respect for the author of the Opinion distinguished
prior service as a senior Department of Justice official [Judge Fisher was an Associate Attorney General] , I wonder if recent experience might suggest that the comfort he finds in the supervision of Main Justice officials over the activities of United States Attorneys might not always be well placed. See John McKay, Train Wreck At the Justice Department: An Eyewitness Account, 31 Seattle U. L. Rev. 265 (2008)." Wonderful! In the same vein, here's the penultimate paragraph of the dissent: "Like the majority, my hope and expectation is that the government will act wisely and carefully when deciding whether to pursue an interlocutory appeal, and that its unchecked ability to do so will not diminish the independent judgment of district judges in the making of important evidentiary rulings. Unlike the majority, though, I would measure that confidence with caution. To paraphrase a former President, I would “trust, but verify.” [quoting President Reagan]."

How awesome is that?

People v. Bordelon (Cal. Ct. App. - May 15, 2008)

I spent my morning reading the California Supreme Court's opinion in the marriage cases. All 160-plus pages of it (including the various concurrences and dissents). That's obviously the judicial highlight of the morning -- indeed, probably of the year or decade -- but since it's a high-profile case about which much ink will already be spilled, I doubt I'd have anything unique to add to the debate. But that's how I spent my morning, and I felt it to be productive (and interesting) use of my time. Which you can do, I might add, when you're an academic and don't have to bill it. Which is nice. Very, very nice.

Meanwhile, on a more pedestrian level, remember the elderly inmate in The Shawshank Redemption -- his name was Brooks Hatlen -- who almost kills a friend and fellow prisoner (Heywood) in order to stay in prison and, after being released, ends up hanging himself because he can't deal with the outside world? Here's the real life analogue. Someone who was similarly (in the words of Morgan Freeman) "institutionalized" by his stay in prision -- or simply sufficiently mentally ill -- that he was desperate to go back. So much so that within a week of being released, he ineptly robbed the same bank -- and same teller -- that he initially robbed in a seemingly deliberate attempt to be caught and returned to prison. And, if that was indeed his goal, succeeded with flying colors.

It happens. And it's not a defense to robbery that you wanted to get caught.

At least you can feel self-actualized, I guess. And better to be you than Brooks Hatlen, I imagine.

Now I'll spend the rest of my day being a pro tem. Hearing much, much less significant cases than whether there's a right to gay marriage or whether a defendant should be returned to jail.

But, still, every dispute is important to the participants. And they have the right to be carefully heard. So that's what I'll do.

A big law day -- on both a macro and micro level -- for our hero.

Buono v. Kempthorne (9th Cir. - May 14, 2008)

Politics matters. But, sometimes, it doesn't. That's one lesson you might get from the lineup in this opinion and resulting en banc call.

At issue is a big, prominent Latin cross that sits atop Sunrise Rock on federal land in the Mojave National Preserve. The Ninth Circuit held back in 2004 that the maintenance of that cross violated the Establishment Clause, and one month after the oral argument in that case, sensing the writing on the wall, Congress passed a statute that would transfer ownership of the cross -- and a tiny parcel of land upon which it sits -- to a private party (the VFW) in order to keep the cross but "cure" the violation. After the transfer began to progress, on remand, the district court held that this manipulation didn't solve the problem, and that there was still an Establishment Clause violation. Which in turn spawned the (predictable) second appeal.

Judge McKeown wrote for a unanimous panel that, yep, the district court was correct, and that creating "a little donut hole of land with a cross in the midst of a vast federal preserve" didn't negate the Establishment Clause violation, especially given the (decidedly non-neutral) conditions of the transfer. At which point, in light of the politically sensitive (and high-profile) nature of the dispute, there was the predictable call for a rehearing en banc.

Full disclosure: I think the panel was clearly right on this one. And, indeed, the en banc call fails. But who dissents from the denial? Mostly who you'd predict, of course. Judge O'Scannlain authors the dissent, and it is a very good one -- indeed, both in style and substance it reads like a petition for certiorari, focusing on circuit splits and national importance, as well as the merits. Which, obviously, is deliberate. Who joins the dissent? The usual reliable conservatives, including Judges Bybee, Callahan, and Bea. As well as Judge Tallman, who's a Clinton appointee but who's joinder on this one is hardly surprising.

But what's equally interesting is who's missing. None of the strong libertarian-leaning (and somewhat more, artfully put, "academic") conservatives sign on. Chief Judge Kozinski doesn't join, which is not too surprising, as he wrote the original opinion back in 2004 (though that one was deliberately and tellingly phrased in terms of precedent rather than his own views). Nor does Judge Kleinfeld or Judge Clifton. Even Judge Rymer doesn't join the dissent, nor do the three most recent appointees (Judges Smith, Ikuta, and Smith). The latter may well be explained by their roles (e.g., newness on the court), which may make them reluctant to stand up so quickly and publicly dissent from the denial in a case like this. Still, both who joins the dissent, as well as who doesn't, in this one is interesting. And, I think, says a lot about at least some of the personalities and predelictions on the court.

Center for Biological Diversity v. Rey (9th Cir. - May 14, 2008)

This is not Judge Noonan's finest work.

I understand that it's a review of a denial of a preliminary injunction, and sometimes we want to get these things out quickly. Especially when, as here, we reverse the denial. I also appreciate an effort to write a little more informally. That doesn't bother me at all.

But when I read the opinion, it looked somewhat slapped together. Indeed, as I was reading it, I honestly thought that it had been written in two or three days, rather than over two months after oral argument.

And while I appreciate short, punchy sentences, and even a rhetorical device or two, the style that Judge Noonan employs here just doesn't work for me. Passages like: "Sell trees to loggers. Use the money to clear areas of what is potential fuel for fire. The solution has a secondary benefit: what the loggers cut can, at least in part, be timber that was potential for fire. In one sale, a fire hazard can be removed and the USFS paid so that it can remove the fuel of future fires. Two for one always has an attractive ring. But are there no alternative ways of getting money to do the clearing that is imperative? Obviously, there may be. First of all, there is the USFS’s own budget. Does that budget contain any funds that could be devoted to fuel removal? Is every one of its activities so necessary and so tightly allocated that no money could be shifted? We do not know the answer because this alternative has not been explored. Suppose that the USFS and its parent, the Department of Agriculture, cannot spare a dime. What then? Appropriate appropriations come from Congress. The work of fire prevention is work of the first importance. If the USFS does not have enough, why should not Congress be asked to give it more?"

To me, these aren't very strong arguments, but are rather merely a series of unanswered questions. And are written in a way that sounds a bit more rambling than a structured discussion of the merits.

Maybe my objections are merely stylistic, and if so, perhaps it's just a difference of opinion. But for whatever reason, the opinion just didn't gell with me. And perhaps others as well.

Price v. Connolly-Pacific Co. (Cal. Ct. App. - May 13, 2008)

What?! An admiralty claim filed in state court?! What in the Wild Wild World of Sports is going on here?!

But Justice Woods is correct that you are indeed allowed to have admiralty claims in state court in limited circumstances under the savings to suitors clause. So, though unusual, the case is rightly here.

There's other none-too-common aspects of the opinion as well. For example, the fact that the case involves a seaman whose lawsuit is entirely about getting bitten by a mosquito and hence contracting West Nile virus. As well as the fact that the plaintiff here lived in San Diego (La Mesa, actually) but worked in Long Beach and spent the week camping in the company's parking lot so he didn't have to commute back and forth. The opinion also contains a little description of the difference between "blue water" seamen and "brown water" seamen that I found interesting. And, no, "blue" and "brown" water seamen have nothing whatsoever to do with whatever disgusting thought just entered your head.

A neat little case.

Garcia v. Brockway (9th Cir. - May 13, 2008)

"I wrote the majority opinion for the panel. Sure, Judge Fisher dissented, and he and his leftie allies may have successfully gotten the case taken en banc. Even though there was totally no circuit conflict.

But guess what? Just because you've got the votes to take the case en banc doesn't mean you're going to win once it gets there. And I got drawn for the en banc panel and Judge Fisher didn't. Plus, for me, it was a very good draw. I end up getting nearly every single vote.

So here's what I'm going to do. I'm going to assign the majority en banc opinion to myself. And I can do that 'cause I'm the Chief Judge. And guess what that majority opinion is going to say? That's right. It'll adopt in full my majority opinion for the panel. Ha! (After correcting some minor errors in the opinion and adding a more careful caveat or two than I wrote in the original opinion.)

What does that leave you with? Only the dissent of the two Carter (!) appointees -- Judges Reinhardt and Pregerson -- from my edict. Who merely adopt Judge Fisher's dissent from the original panel opinion as their own. And even though they add a couple of bonus pages of their own commentary as well, we're still left with what I originally wrote on the panel. Only this time it's a 9-2 decision instead of a 2-1.

In other words: Victory is mine!"

So sayeth Chief Judge Kozinski.

P.S. - Take off that "Dissent by Judge Fisher" from the second page of the caption. He's not on the panel.

NLRB v. Lim (9th Cir. - May 12, 2008)

Want to read an opinion that's (1) about labor law, (2) not too long, (3) about a disputed $5 or so (though the principle at stake is obviously the central issue), and (4) is unquestionably a correct resolution of the merits, at least in my humble opinion?

Then check out this opinion by Judge Pregerson.

In Re Holtemann (Cal. Ct. App. - May 12, 2008)

You can comingle your marital assets, and there are a variety of good reasons to do so. But if you do, they're community property. And that matters -- a lot -- in a divorce.

That's the principal message of this short-and-sweet opinion by Justice Perren. I especially liked that Justice Perren explained the rationale of the decision with a very good quote from the trial court, Commissioner Patrick Perry (in San Luis Obispo). Commissioner Perry said:

"As the trial judge stated: "Husband argues that the transmutation was limited to estate purposes only. In other words, Frank wishes to have his cake and eat it too. He argues that, in the event of either his or Barbara's death, the survivor would be able to use the Transmutation Agreement to claim the property as community property, thus obtaining a full step up in basis to the fair market value of the property at date of death, while at the same time denying the validity of the Transmutation Agreement as an instrument which created community property. Thus, when it would benefit either Frank or his estate, Frank wishes to characterize the property as community. However, when it would be detrimental to Frank, he wishes to ignore the transmutation and call the property separate."

When the lower court explains its rationale in a way that's persuasive, I like it when the Court of Appeal gives credit where credit is due.

Charles Pratt Const. Co. v. California Coastal Comm'n (Cal. Ct. App. - May 8, 2008)

Even if you read the caption, I bet you can't figure out what this case is about merely from the first paragraph. Which consists, in its entirety, of the following:

"If "it's a long, long time from May to December,"1 it's an eternity from 1973 to 2008. But time, as Einstein taught us, is relative."

So what's it about?

If you guessed "The vesting of development rights upon approval of tentative maps pursuant to Government Code sect. 66498.1," you're a winner!

People v. Watson (Cal. Supreme Ct. - May 8, 2008)

A drive-by gang shooting in Compton. A death sentence for murder. A unanimous decision to affirm by the California Supreme Court.

Just another day in America.

People v. Tolliver (Cal. Ct. App. - April 10, 2008)

Red Jaguar. Maroon Lincoln. Same difference.

Or not.

P.S. - I'll take the former every day, thank you very much.

Serrano v. Stefan Merli Plastering Co. (Cal. Ct. App. - May 7, 2008)

When I first read the caption, I thought to myself: "Why are all these amici and objectors participating? It seems from the identity of the parties to be a totally mundane case." Then I saw what the case was really about: How much court reporters get to charge for deposition transcripts. Now I understand the reason for the heavyweight participation!

It's a definite must-read for litigators. Or at least those who care at all about how much their clients have to pay in costs. The issue is whether court reporters can charge whatever they want -- however unreasonable -- for copies of deposition transcripts. We know that they can charge the noticing party whatever they want. What about the non-noticing party who wants a transcript? Here, for example, can you charge the party who wants a copy hundreds or thousands of dollars for "expediting" a transcript that the ordering party has already fully paid to have expedited? Is there any reasonability review at all, or can the reporter charge whatever the market -- as defined by the noticing (not receiving) party -- will bear?

Justice Croskey writes an outstanding answer to this question. The Court of Appeal holds that costs do indeed have to be reasonable, and that courts are able to rein in unreasonable fees pursuant to a party's request. It's an opinion that's both well-written and seems entirely right to me. There are, admittedly, some administrative problems with the resulting regime, and I doubt that challenges to transcript costs will ever become routine as a result of the relevant economics. But the alternative -- that reporters are free to charge flatly unreasonable rates, with no recourse whatsoever for the party forced to pay -- is, in my mind, simply untenable. So, if only for that reason alone, I think that Justice Croskey hits the nail right on the head.

People v. Litmon (Cal. Ct. App. - April 23, 2008)

Not much today; by lunchtime, only a single opinion from the Ninth Circuit and nothing new from the California Court of Appeal. So a sleepy Hump Day.

Which gives me the opportunity to go back and write, if only briefly, about a very good opinion I read a couple of weeks ago.

I really, really like this opinion by Justice Elia. It's not only persuasive, but it is manifestly written with a sense of justice and the importance of the subject matter. Shorthand for what it says: Liberty matters. You deserve some sort of a timely hearing to challenge your involuntary commitment to a mental hospital.


I don't uniformly get a palpable sense that an opinion deeply and profoundly "gets" what Due Process means. But I do here.

Bravo.

Ellis v. Arriaga (Cal. Ct. App. - May 6, 2008)

You can be a putative spouse. So you can be a putative domestic partner too. And get un-domestic partnered even if you never actually got partnered.

Seems right to me.

People v. Gemmill (Cal. Ct. App. - May 6, 2008)

Want to know what the police can do -- in particular, where and how they can search a home -- when they find an unattended child wandering in the street? Then read this opinion. Which goes through all of the various cases in California that present this issue. Of which, sadly, there are quite a few.

Justice Robie authors a very good opinion here. It's comprehensive. It's moderate. It's well-reasoned. And it articulates a reasonable position that fairly attempts to balance both of the important competing interests at stake -- the privacy of the home versus the potential welfare of any occupants.

Ultimately, Justice Robie concludes that, under the particular facts here, it was reasonable for a police officer to look in a side window of the home. That counts as a search -- assuredly so -- but such a limited non-physical entry into the home was justified by the emergency aid exception. Reasonable minds might disagree about such a conclusion, but it seems a rational one, and Justice Robie's presentation of the issue is very persuasive. At least to me. (Thereafter, based upon what the police officer saw through the window -- a child playing with a plastic bag near an unresponsive adult -- the officer reasonably entered the home under the emergency aid doctrine, a result that seems entirely right.)

For you parents out there: Yet another reason not to let your young child wander alone in a street. Especially if you have a boatload of pot and meth in your house. Because the police can reasonably take a gander.

People v. Williams (Cal. Supreme Court - May 5, 2008)

You can read the first ten pages of this 80+ page opinion if you'd like. But it can also be summarized by simply saying that Dexter Williams engaged in a series of events during February 1991 that constitute nothing less than a barbaric display of inhumanity.

Weirdly, though, then read the subsequent pages. In which you discover facts that are difficult to square with calling Williams a total sociopath. Facts that seem to show humanity, at least of a sort. Not remorse or deep feelings, perhaps. But something unexpected nonetheless.

Anyway, he's sentenced to death. And the California Supreme Court unanimously affirms. For reasons that are not at all surprising given both the nature of this institution as well as the facts underlying the sentence.

This is not to assert, by the way, that the California Supreme Court in the post-Bird era is totally incapable of exercising detached legal judgment in death penalty cases. It has that capacity. Indeed, on the same day the opinion in Williams came out (today), the California Supreme Court also published this opinion, in which it unanimously reverses a death sentence based upon the failure to produce exculpatory evidence.

That said, examples like the latter are relatively few and far between. And are largely limited to situations involving innocence -- either factually or as relevant to the penalty phase. Even there, the spectre of recall and electoral pressures are never entirely absent.

So an interesting duo of death penalty cases today.

Brown v. Farwell (9th Cir. - May 5, 2008)

This is definitely a powerful way to begin an opinion:

"At Petitioner Troy Brown’s trial for sexual assault, the Warden and State’s (“Respondents”) deoxyribonucleic acid (“DNA”) expert provided critical testimony that was later proved to be inaccurate and misleading. Respondents have conceded at least twice that, absent this faulty DNA testimony, there was not sufficient evidence to sustain Troy’s conviction. In light of these extraordinary circumstances, we agree with District Judge Philip M. Pro’s conclusions that Troy was denied due process, and we affirm the district court’s grant of Troy’s petition for writ of habeas corpus."

It's a little less strong, however, when you read on, because at that point you realize that that "inaccurate and misleading" nature of the testimony at issue doesn't actually go to the merits of the DNA analysis, but instead relates to how those findings were presented. True, these facts were presented in an erroneous fashion -- in a manner called the "prosecutor's fallacy" -- that wrongly conflates guilt and match probabilities. And that's error, to be sure. But that a much weaker claim than I was expecting based upon the opening paragraph.

Here, for example, is the money paragraph of the opinion: "Romero initially testified that Troy’s DNA matched the DNA found in Jane’s underwear, and that 1 in 3,000,000 people randomly selected from the population would also match the DNA found in Jane’s underwear (random
match probability). After the prosecutor pressed her to put this another way, Romero testified that there was a 99.99967 percent chance that the DNA found in Jane’s underwear was from Troy’s blood (source probability). This testimony was misleading, as it improperly conflated random match probability with source probability. In fact, the former testimony (1 in 3,000,000) is the probability of a match between an innocent person selected randomly from the population; this is not the same as the probability that Troy’s DNA was the same as the DNA found in Jane’s underwear, which would prove his guilt. Statistically, the probability of guilt given a DNA match is based on a complicated formula known as Bayes’s Theorem, see id. at 170-71 n.2, and the 1 in 3,000,000 probability described by Romero is but one of the factors in this formula. Significantly, another factor is the strength of the non-DNA evidence. Here, Romero improperly conflated random match and source probability, an error that is especially profound given the weakness of the remaining evidence against Troy."

That's a fair piece weaker than the opening paragraph, eh? At least for me, I read the outset of the opinion as saying that there might well be an innocent person in prison. But when I read the rest of the opinion, I thought: "Well, yeah, I guess in theory there might be an innocent person in prison, and apart from the DNA evidence, there are indeed some holes in the case, but even after I've heard a perfectly accurate articulation of the DNA evidence, I think that Troy looks pretty darn guilty of the offense." That's a fair piece different than my reaction after the first paragraph.

Mind you, I disagree with Judge O'Scannlain, who dissents from Judge Wardlaw's opinion and concludes that even with an accurate recitation of the facts "no rational trier of fact would have changed its mind." Maybe I might not have changed my mind (maybe), but I'm not convinced that's true for everyone. It's tough, I concede, to be convinced yourself that X is true beyond a reasonable doubt and yet admit that you might be wrong: that other rational parties might find the other way. And that's a global problem whenever you're doing harmless error review, and is especially difficult in habeas cases, in which you have to add to this difficult mental gymnastics the required deference to state court findings. But, here, I think that even though I -- an alleged rational actor -- might have still voted to convict, a parallel rational actor might well have gone the other way. Which means a retrial is required.

Only when we're darn confident that a retrial would come out the same way as the originally flawed proceeding should we allow the latter to stand. I don't think that's the case here. Sure, Troy may well be convicted again at a trial in which the facts are accurately explained. But that is a result that's far, far from meaningless.

Pinhoster v. Ayers (9th Cir. - May 2, 2008)

The lower court docket number is"CV-95-06240-GLT"; in other words, this case has been pending in federal court for 13 years. The appeal to the Ninth Circuit was filed in 2003, it took four years before the thing was scheduled for oral argument, and over a year after argument for the panel to issue its opinion. And the opinion, in turn, consists of three separate opinions -- one from each of the judges on the panel -- and totals 74 single-spaced pages. Oh, and the crime that gave rise to the opinion took place in January of 1982; i.e., over a quarter-century ago.

Which can mean only one thing: It's a death penalty case. And, here, the Ninth Circuit reverses the grant of penalty phase habeas relief provided by Judge Taylor.

You see a lot more reversals of habeas relief coming out of the Northern District than you do from the Central District. Chalk this up towards evening the score, I guess.

Judge Tallman writes the majority opinion, Chief Judge Kozinski concurs, and Judge Fisher dissents.

Enpalm v. Titler Family Trust (Cal. Ct. App. - April 30, 2008)

I've always found perjury an interesting subject. It seems to me that it's fairly common. Even in the civil side, in which only money (rather than liberty) is typically at stake. My belief is that the typical civil case involves an extraordinary amount of "shading" by the majority of witnesses, a healthy dose of manifest exaggeration, a plethora of convenient forgetfulness, and the not-at-all-rare occasions of outright lying. And, parenthetically, that deception of this type is often rational, and increases the expected net result of a lawsuit.

So that's a problem. Which is, in part, why I found this opinion so interesting.

It contains a great debate between Justice Rubin, who authors the majority opinion, and Justice Cooper, who dissents, regarding whether Judge Biderman (up in Los Angeles) erred when he cut 90% off of the prevailing party's contractual attorney fee award because its principal party witness was a manifest liar at trial. Justice Rubin says that's okay; that the trial court may legitimately conclude that certain fee expenditures are not "reasonable" when they are based upon a client's deliberate perjury, especially if that perjury itself gave rise to the lawsuit and/or substantially complicated it. Conversely, Justice Cooper concludes that such a rule would give trial judges way too much leeway in setting fee awards and potentially unjustly punish prevailing parties.

Justice Rubin and Justice Cooper both make very good arguments. On the merits, I tend to lean a little bit in favor of the former, though that may be in part for policy (rather than doctrinal) reasons, as I believe that this is a huge problem area and one that demands at least an attempt at a solution. Admittedly, cutting a fee award doesn't really work in the vast majority of cases, most of which neither allow recovery of fees nor even get to trial. But it's a start.

Anyway, read the debate. It's a good one. And another reason to tell your clients to tell the truth. Even when you're not so sure that's really the most economically rational decision.