Thursday, July 31, 2008

People v. Windus (Cal. Ct. App. - July 30, 2008)

You've got to love a doctor who'll not only prescribe marijuana for you, but who, at your trial, will testify that using three to six pounds of marijuana every month would be appropriate for your condition.

I mean, I'm no expert in the area. But three to six pounds per month?! Couldn't you keep, like, an army stoned with so much pot?

So those of you in Redondo Beach who're looking for some extra "compassion" pursuant to the Compassionate Use Act might want to look up Dr. William Eidleman. And based upon what I know about Redondo Beach, that describes a fair piece of the population.

Conviction reversed.

County of San Diego v. San Diego NORML (Cal. Ct. App. - July 31, 2008)

In a decision that should surprise no one, the Court of Appeal affirmed today the trial court's dismissal of the challenge brought by San Diego and Riverside County to California's Medical Marijuana Program Act. So you can still get your identification card.

Justice McDonald rightly holds that, sure, there may perhaps be some degree of conflict between California's Compassionate Use Act and the federal Controlled Substances Act. (Though even that is up to debate; after all, the former merely precludes state prosecution, and does not even attempt to alter the availability of potential federal prosecution.) But even assuming that's true, "[t]he identification card statutes impose no significant added obstacle to the purposes of the CSA not otherwise inherent in the provisions of the exemptions that Counties do not have standing to challenge [e.g., the CUA itself], and we therefore conclude the limited provisions of the MMP that Counties may challenge are not preempted by principles of obstacle preemption."

Which is exactly right.

In Re Marriage of Bardzik (Cal. Ct. App. - July 25, 2008)

Sometimes writing in a fun, informal fashion doesn't work. But my strong sense is that the opposite is true here.

For those of us who don't know all that much about family law -- and I'm clearly in that group -- it's a wonderful opinion. Flowing. Informative. And full of both details, not only doctrinal but also factual, as well as insight. If you want to know what happens to child support orders when one of the parents quits work or retires or just starts "taking it easy", this is a great opinion in which to start learning. If only because it's replete with lines that put a tiny little smile on your face as you're reading. (Like: "Most (all?) judges, after all, would make more money if they returned to private practice, but the phrase “extraordinary work regime” does not even begin to describe the often typical 2,200 (or is 22,000 these days?) billable hours a year that might be required." Or the discussion of Regis Philbin. Which isn't nearly as random as you might think.)

One more thing. I have a bad habit -- one that I learned from this guy -- of writing complete sentences within parentheticals. It's a habit that I try to break, since I know that it's a English composition horror show, but find myself doing it all the time, at least in my nonacademic work, because it's just so easy and seemingly righteous. I've always felt guilty about it. But now that I notice that Jusice Sills does the same thing (a fair piece, I might add), I'm going to worry about it less. I may well be wrong. But at least I've got precedent.

Anyway, I liked the opinion. It's a very good read.

Dougherty v. Haag (Cal. Ct. App. - July 28, 2008)

I can promise you this: Paul Dougherty isn't a big fan of Justice Sills. At least after this.

Dougherty is a forensics expert in firearms who was censured by the Association of Firearm and Toolmark Examiners (AFTE) for giving allegedly absurd expert testimony in a civil case. So he brings a lawsuit against the AFTE.

And not only loses in the trial court, but gets absolutely slammed by the Court of Appeal.

It's bad enough that Justice Sills only deems Dougherty's arguments worthy of response in repeated parentheticals. For example, take a gander at the following "sentence" -- and I use that term loosely, given its seemingly intentionally run-on nature -- by Justice Sills:

"Dougherty complains that he was denied the right to have counsel of his own choosing (but only because he chose counsel who could not make a hard-to-schedule board meeting); the board went forward with the ethics committee’s “vague and conclusory report” (which is still clear enough to give anyone who reads it a good understanding of the three major items that cast doubt on Dougherty’s double ricochet thesis); he couldn’t “question his accuser” (the case did not turn on Haag as percipient witness); the board didn’t give him a chance to voir dire the board for conflicts of interest (AFTE is a private organization whose board was chosen independently of this disciplinary matter); the board shifted the burden of proof to him (which is not a valid inference from the fact that he was invited to defend himself, but even if so, a prima facie case had already been made); the board voted only once on all ten accusations (so?); the board failed to issue its own report substantiating each charge with “clear and convincing evidence” (so?); the board allowed Haag to respond to the Nixon Report (the Nixon report was new, Haag’s rebuttal was new, so both were made available to the membership)."

Doesn't give you a sense that Justice Sills is really in love with the arguments that Doughtery and his counsel are making, eh?

But it gets worse. Take a look at the last paragraph of the opinion. And feel the pain:

"Stepping back from this appeal, however, there is something very heartening about this case: A private organization whose purpose is to ensure the integrity of expert testimony actually had the gumption to censure a member whose testimony bordered on the ludicrous -- roughly the equivalent of saying that a shotgun can shoot at a right angle. The organization painstakingly gave the errant member multiple opportunities to explain why his testimony wasn’t as bad as it looked, and ultimately, after about four years of internal due process, his peers censured him. In our opinion, they didn’t deserve a lawsuit, they deserve a medal."

Come on, Justice Sills. Don't hold back. Tell us what you really think. :-)

Wednesday, July 30, 2008

People v. Osorio (Cal. Ct. App. - July 30, 2008)

You've been found guilty of murder, arson, robbery, and burglary. Among the people you murdered was a 34-year old traffic officer for the police department. And you belong to a gang, and your nickname in this not-easily-impressed group is -- tellingly -- "Criminal".

Given these facts, don't be surprised when you're sentenced to two consective life terms without the possibility of parole. Plus 44 years. And when the Court of Appeal affirms.

People v. Gonzales (Cal. Ct. App. - July 30, 2008)

When you're going to use your first four peremptory challenges to strike Hispanic jurors, at a minimum, you've got to be more subtle about it. Sure, maybe you can get away with striking the guy with the baggy pants. But, trust me, that guy to whom you didn't ask any questions, or develop any record about other than the fact that he (like at least one other juror you didn't strike) also speaks Spanish; well, that ain't gonna cut it as a race-neutral explanation. Not by a longshot.

Klein v. United States (9th Cir. - July 30, 2008)

When I started reading this case, which certifies a question to the California Supreme Court, I had an unusual thought. Unusual for me, anyway. My initial reaction was: "Hey, I love certification as much as the next guy, and generally even more. I typically like the modesty and comity and restraint that it entails. But this seems to go overboard, even for me. There isn't an oft-repeated or critical legal issue at stake here, so I don't see why the Ninth Circuit can't just decide the case by itself. Sure, it's a prediction. But give it a shot." It was, I initially thought, one of those very rare cases in which I thought that certification might not be worthwhile.

But then I read the rest of the opinion. And Judge Gould persuaded me that this is actually precisely the sort of case in which certification is appropriate.

Here's the paragraph that convinced me that Judge Gould was entirely right and I (or at least my first reaction) was wrong:

"When “there is no relevant precedent from the state’s highest court, but . . . there is relevant precedent from the state’s intermediate appellate court,” we “must follow the state intermediate appellate court decision unless [we] find[ ] convincing evidence that the state’s supreme court likely would not follow it.” Ryman v. Sears, Roebuck & Co., 505 F.3d 993, 994 (9th Cir. 2007) (emphasis omitted) . . . . We are particularly reluctant to follow [the California Court of Appeal's decision in] Shipman in light of the harsh result that granting immunity here would create, where Klein’s injuries were so severe and where he would have been able to seek recovery for those injuries from Anderberg’s employer if that employer had been anyone but the federal government. However, because we are “in doubt” about how the Supreme Court of California would resolve this important question of California law concerning immunity of a landowner for its employee’s negligent vehicle operation on its land harming a recreational user of such land, we prefer if possible to let that court speak to the issue rather than making our best prediction of what it would say."

Wonderful. And absolutely correct. I like it when a federal court thinks to itself -- and even says out loud -- "Look, we think that X got it wrong, and might well hold that way. Because that's our idea of justice. But we understand that this is your law, and that our role isn't necessarily to do what's right or equitable here. So we will restrain our own power, let you know what we're thinking, and give you a chance to decide. Let us know if you want to take this thing yourself, or would instead prefer that we just go ahead and do what we're thinking." I very much like the sentiment -- and restraint -- that entails.

Tuesday, July 29, 2008

City of Hollister v. Monterey Ins. Co. (Cal. Ct. App. - 29, 2008)

Thinking about purchasing a policy with Monterey Insurance Company, or have to deal with them on a claim? Then take a look at this.

Rarely, in my view, does an insurance company look this bad. Justice Rushing gives excruciating details about how Monterey Insurance -- and one of its adjusters, Jack Boczar -- handled an insurance claim filed by the City of Hollister when one of its old buildings at the Hollister airport caught fire. Suffice it to say Justice Rushing's description makes it crystal clear that this is not an insurer with which I'd elect to do business.

The type of stuff the insurer pulled here is exactly why some people despise insurance companies. And I was more than happy to see that the trial court, as well as the Court of Appeal, didn't let them get away with it.

Bandana Trading Co. v. Quality Infusion Care (Cal. Ct. App. - July 21, 2008)

Let me give a tiny little lesson on propriety. If you're a juror, don't aggressively nod -- either affirmatively or negatively -- during counsel's closing argument. And for God's sake, whatever else you do or don't do, don't start clapping during his or her closing. For so many reasons that I don't even feel like counting them.

But if you do, c'est la vie. It generally ain't gonna get you booted off the jury (!) or constitute reversible error.

However, it's still extremely bad form.

Monday, July 28, 2008

Moore v. Czerniak (9th Cir. - July 28, 2008)

As they say at the outset of Celebrity Deathmatch: "Let's get it on." And that's precisely what the respective authors do here. In a wicked smackdown that's virtually without parallel.

I naturally hesitate to recommend to anyone to read through a series of opinions in a single case that, in total, span over a hundred single-spaced pages. But this is an exception. It's a tour de force. Filled with the type of no-holds-barred language and attacks that are utterly classic.

It took the authors over three years to write this one: the oral argument was in March 2005, and the opinions came out only today. You gotta admire the effort. As well as the final product. I defy anyone to find a better example in which the authors go totally all out to unhesitatingly respond to, attack, and otherwise slam the crap out of the contrary beliefs of their colleagues. Even if you don't have the stomach to read the whole 100 pages of diatribes, at least read the footnotes of both the majority opinion and dissent. As well as Appendix A of the majority opinion, which is devoted exclusively -- and I've never seen this before -- to yet more slams on the dissent. Fantastic. Classic.

The majority opinion is written by Judge Reinhardt. No surprise there. Not a guy to hold his tongue. Or to suffer what he considers to be foolish reasoning in silence. His opinion is almost fully joined by Judge Berzon, who also writes a concurring opinion that's doctrinally interesting in its own right, and also manifests a tone that is quite a bit different than both the majority and dissent. The dissent, in turn, is written by Judge Bybee. Not a massive surprise there either. Judge Bybee doesn't hesitate to take others to task when he feels they are deserving. And does so here in spades.

I thought about providing selected exemplars of colleague-to-colleague slams from the footnotes, but I would simply be doing them injustice. You gotta read the stuff yourself.

We all know that judges occasionally -- indeed, often -- pull punches because they have to work with (and, at times, hope to persuade) the judge on the other side in a large number of other cases. That ain't happening here. You get Judges Reinhardt and Bybee in their full, unvarished truth. And I love it. Absolutely love it.

Don't let me down. Read the footnotes. And feel the love.

Friday, July 25, 2008

People v. Cruz (Cal. Supreme Ct. - July 24, 2008)

Defendant's criminal history consists exclusively of being drunk in public. And in 1991, when he is again arrested for being drunk in public, in the midst of being transported to the main county jail (while handcuffed and still drunk), he inexplicably reaches under the front seat of the patrol car, obtains the fanny pack of the officer who's driving him to jail, grabs the backup pistol that is located therein, and shoots the officer in the head through the plexiglass, killing him. And is then sentenced to death, a conviction and sentence unanimously affirmed by the California Supreme Court.

Two reactions. First, why, why, why would anyone make that decision? It's one of the least "rational" -- if any murder case entails "rationality" -- elections I've seen. You're busted for drunk in public. You have no warrants or real criminal history. Why kill someone to escape?! Doesn't make sense.

Second, I also wonder about the rationality of the death penalty scheme as applied to cases like this. I've read many cases in which the offense and/or defendant was quite a bit more depraved and worthy of the death penalty that this one and yet was sentenced to life (or less). One could, of course, come up with differences between those offenses and this one. But as for applying the death penalty to the "worst of the worst" of offenders, I'm far from confident that our current system effectively accomplishes this objective.

Thursday, July 24, 2008

People v. Evans (Cal. Supreme Ct. - July 24, 2008)

Throughout the history of Anglo-American jurisprudence, for almost half a millennium, a defendant has had the right to allocute after being convicted of a crime. To express sorrow for what he's done. To explain his actions. To beg for mercy. To try to place a human face on things before the court pronounces sentence.

You don't have that right in California anymore.

Lopez v. Imperial County Sheriff's Dept. (Cal. Ct. App. - July 22, 2008)

Ties go to the runner in baseball. Ties go to the House of Representatives in elections. Ties go to the respondent in the United States Supreme Court.

But ties in Imperial County -- at least in the Employment Appeals Board -- go to the bureaucratic equivalent of overtime. Revote.

Wednesday, July 23, 2008

In Re P.C. (Cal. Ct. App. - June 23, 2008)

Tell me that there's an obvious solution to this problem. Please.

A homeless mother who's trying hard and seems to sincerely care about her children. Children who remain strongly attached to their mother, but have also bonded with a family that's eager to adopt them.

Read the details. Tell me what the easy answer is. Justice Fybel seems to do what's right, but I think it's far from an easy case.

I just have no idea (or at least am incredibly torn) as to how society should deal with these incredibly difficult issues. Which, I fear, arise far too often.

People v. Monjaras (Cal. Ct. App. - July 21, 2008)

It's as good a reason as any -- or at least good enough -- to publish an opinion merely to put to rest meritless arguments that nonetheless seem to be repeatedly raised in the Court of Appeal

Or, as Justice Scotland puts it so artfully here: "Our point in publishing this opinion is to say in no uncertain terms that a moribund claim like that raised by defendant has breathed its last breath."

To which I respond as follows: (1) Hear, hear. And yet (2) Wanna bet?

Tuesday, July 22, 2008

Los Angeles County Prof. Peace Officers' Ass'n v. County of Los Angeles (Cal. Ct. App. - July 22, 2008)

Sometimes you can summarize an opinion very succinctly. Using only three or four sentences of the opinion to get the point fairly clearly.

That's the case here. About which you need know very little more than this:

"Labor Code section 4850 provides that when a public safety officer (like each plaintiff here) "is disabled, whether temporarily or permanently, by injury or illness arising out of and in the course of his or her duties, he or she shall become entitled, . . . to a leave of absence while so disabled without loss of salary . . . ." The principle question [see below] in this case is whether Los Angeles County's policies concerning payment for excess accumulated vacation hours violate section 4850. . . . [Taken together, these policies mean] that, for example, a deputy who has accumulated excess vacation hours, but who has never been injured on duty, might collect more in retirement benefits than a deputy who has been injured on duty, even if the two have the same employment history in terms of rank, years of experience, and so on. It also means that a deputy who retires after taking leave due to a non-job-related injury, perhaps a ski accident, might collect more than a deputy who retires after having suffered an injury in the course of his or her duties, even if the deputies are in other respects identical. Plaintiffs' theory is that this different treatment violates section 4850. The trial court agreed, as do we."

You can read the whole thing. But as a matter of both doctrine and equity, it seems right.

P.S. - I'd just probably quibble with the "principle question" part. Yeah, it's a question about a principle. But I think that Justice Armstrong actually means that it's the principal question. A tiny -- but extant -- difference.

Bonanno v. Connolly (Cal. Ct. App. - July 22, 2008)

If you've got a wife, a girlfriend, and an adult daughter from a prior marriage, don't die intestate. Because if you do, your estranged wife -- from whom you've been separated for 12 years -- will file a claim for a huge chunk of your estate, your girlfriend will file a palimony and other claims, and your daughter will seek her share as well. And they'll fight, fight, fight -- for years -- over your former material possessions. And try to hose each other every step of the way.

Is this really what you want as your legacy?

Garcia v. Paramount Citrus Ass'n (Cal. Ct. App. - July 21, 2008)

"Dude, I authored a kickin' opinion when this thing first came up. Then, after you lost, you let me know that one of my colleagues/panel members should have been disqualified. So be it. We replaced the disqualified justice with another one and reheard the thing. That's good enough. We ain't gonna get a whole new panel -- from a different district, no less -- like you asked. We also won't refrain from using any of the language I used in the earlier opinion. Which, IMHO, kicked butt. Albeit yours.

So here's my opinion, again, with minor technical changes. Deal with it. You don't get a second bite at the apple just because the earlier one had a tiny little worm in it we didn't know about. We took out the worm. Apple's the same."

That, in a euphamistic nutshell, is what Justice Vartabedian says here.

P.S. - Not that he -- or I -- are calling Justice Kane a worm. I want to make that crystal clear.

Monday, July 21, 2008

Simmons v. Ghaderi (Cal. Supreme Ct. - July 21, 2008)

Congratulations to (insert any one of a number of applicable prestigeous appellations here: Judge, Secretary, Justice, Dr., etc.) Shirley Hufstedler on winning this one. Unanimously, no less.

Given that I previously discussed this case in the Court of Appeal, I'd typically link to my prior discussion -- in which I noted, inter alia, that I thought this was a hard case, and one that (for that reason alone) was a prime candidate for a grant of review. But out of respect, I'll merely limit my comments to a sincere congratulations, alongside a note that it takes a gifted advocate to win a case with strong merits on both sides without losing a single vote.

Well done.

Green v. LaMarque (9th Cir. - July 17, 2008)

You can strike one African-American juror from the pool. Or two. Or even three. But when you strike all six of the African-Americans in the pool -- and when the defendant is African-American as well -- well, that's raises some red flags. At least in some circles.

What's interesting about this case is, first, that the Ninth Circuit finds it so clear that the prosecutor engaged in a violation of Batson -- correctly, in my view -- that its grant the habeas petition notwithstanding (1) the strict limitations of AEDPA; (2) the fact that the district court denied relief; and (3) the fact that a very-non-leftie Judge Bea is both on the panel and, indeed, writes the opinion. That's pretty good evidence that there really was something untoward going on in state court. What's also interesting is that it's a good example of a case in which the court doesn't buy the prosecutor's purportedly race-neutral reasons for excusing the jurors in part due to the fact that the prosecutor seemed to examine the African-American jurors much more closely (in an attempt to obtain or support reasons to exclude them) than similarly-situated white jurors. That shows some keen insight on the part of the panel. And you don't see that view actually applied that often.

Finally, the Ninth Circuit's opinion is a testament to the wisdom of Justice Kline. Who -- way back in 2001 when this case was decided on direct appeal -- filed a dissent (albeit an unpublished one) in which he said that he agreed with the deference that his colleagues applied to the trial judge's finding that there were race-neutral reasons for the challenges but said, inter alia, that "a reviewing court is not a potted plant; the deference trial courts deserve does not require us to blind ourselves to the deprivation of an important constitutional right." And concluded -- as did the Ninth Circuit seven years later -- that the defendant should have been entitled to a new trial.

Vindication. At least for Justice Kline and the defendant. (Not so much for Justice Haerle, who wrote the majority opinion in the California Court of Appeal.)

Friday, July 18, 2008

U.S. v. Gonzalez (9th Cir. - July 18, 2008)

We take it seriously if you use your position of trust and authority as a police officer to sexually assault women.

As in 30 years in the slammer seriously.

The last paragraph of the opinion --which affirms the defendant's conviction -- is classic Judge Noonan. Who has a heart and doesn't lose sight of either the occasional imperfections of the system or the fact that we are dealing with real human lives here. The last paragraph is a virtual signature:

"Gonzalez, thirty-seven at the time of the crimes, was a graduate of California State University at Long Beach. He had been gainfully employed since he was 26. He had no criminal record. He had been a member of the Los Angeles Sheriff’s Department since 1997. To read his case is to read the story of a police officer inexplicably gone bad. His fall is great, his sentence hard. Bearing all this in mind and recalling that identifications are sometimes mistaken, we have reviewed the record and found that we cannot say that our confidence in the verdict has been shaken or that the convictions were produced by error. Accordingly, the judgment of conviction is AFFIRMED."

Tekle v. Mukasey (9th Cir. - July 18, 2008)

Nice day for me today. Woke up early and went surfing. Finishing a law review article this morning and over lunchtime. Heading out to court for a hearing this afternoon. Going to eat a big steak with the wife and kids for dinner. Not a bad way to spend one's 40-something birthday. Not bad at all.

Plus, as a extra bonus, Judge Willie Fletcher let's me read this smackdown of an (unfortunately unnamed) IJ. By starting the opinion (after an introductory couple of paragraphs) with the following:

"We observe that immediately prior to Tekle’s testimony, the IJ offered the following comment for the record: 'I have one other comment, and again, I don’t care if the 9th Circuit wants to report this to my supervisor. The 9th Circuit does not comply with Supreme Court law with regard to asylum. While I am in the 9th Circuit and have to comply, I do note that they don’t really care what Immigration [J]udges do. If an Immigration [J]udge makes an adverse credibility determination, they will, in only one case out of every 250 to 300, affirm it. So I don’t play their game with regard to credibility determinations. In my view, an asylum merits hearing is analyzed on the basis of whether the claim itself is credible as opposed to testimony because that’s really the, the strength of it, because it’s very rare that an Immigration [J]udge can make and have withstand either with the Board or with the 9th Circuit, under applicable 9th Circuit case law, an adverse credibility determination.'

To clarify the record, we note that the IJ’s assertions about this court’s review of adverse credibility findings, even understood as hyperbole, are incorrect. According to statistics provided by the Ninth Circuit Staff Attorneys’ Office, in asylum cases decided between January 2005 and March 2008 the Ninth Circuit affirmed approximately 80% of all adverse credibility findings.2 Cases such as this one, in which the Ninth Circuit reverses an IJ’s adverse credibility finding, are the exception, rather than the rule."

Take that! Actual facts versus your selective perception/stereotypes! Sweet. Plus, I gotta say, I very much didn't like the IJ's attitude here. Either in the quote or as reflected by the facts in the rest of the opinion. It's one of those cases where you just get a gut sense that the IJ's completely out to scr*w the petitioner whatever the merits of her petition.

Now, mind you, if I were the IJ, I'd respond to Judge Fletcher's opinion by noting that the statistics that he's citing are from 2005-08, and hence postdate (and hence are not necessarily inconsistent with) the "1/300" statistic that the IJ threw out. But (1) even assuming a slight increase over the past three years in the rate at which the Ninth Circuit affirms adverse credibility findings -- which is possible but by no means certain -- I'm quite confident that the numbers that Judge Fletcher throws out are far closer to the truth, even back in the early 00s, than the IJ's, and (2) the IJ doesn't actually get to respond to the Ninth Circuit anyway, so this is all hypothetical.

Anyway, a great case. Thanks, Judge Fletcher. You didn't make my day, but you definitely made it a tiny bit better. I like to see this kind of stuff.

Thursday, July 17, 2008

Herrera v. Hernandez (Cal. Ct. App. - July 17, 2008)

I understand where Justice Mihara is coming from in this one. Much of what the appellant says is clearly wrong; for example, the claim that reversal is required because the juror obviously deliberately lied during voir dire. And the equities seem clearly to favor upholding the judgment below.

Let's be clear: it's not like the juror did anything at all untoward or wrong. The juror didn't realize that her ex-husband -- whom she divorced 20 years ago -- was the defendant's nephew until the defendant's daughter (whom the juror recognized) sat behind the defendant at trial. And, once she did realize that fact, the juror immediately notified the court and explained the scoop. The juror wasn't trying to hide anything. She barely knew the defendant. She could totally be fair. I completely agree.

Given all that, I can understand -- at least emotionally -- why Justice Mihara doesn't reverse the judgment.

The problem is this pesky little thing called the law. Section 229 of the CCP says that "a challenge for implied bias may be taken for one or more of the following causes, and for no other: (a) consanguinity or affinity within the fourth degree to any party . . . ." There's no doubt that the juror met this "fourth degree" criteria since she was married to defendant's nephew. That's not a blood relation, but it is a relation by "affinity"; i.e., by marriage. Hence she's subject to challenge for cause.

Justice Mihara holds, however, that the term "affinity" is present tense and hence that the divorce negated the challenge for cause. When I first read this holding, I thought it made sense, and it seemed totally persuasive.

But I also had this strange feeling in my gut -- and I usually don't get this feeling -- that something was amiss notwithstanding my agreement. And when I went back and looked at the stuff in more detail a little bit later, I was persuaded that Justice Mihara's holding, while well-intentioned, was both wrong and makes very bad law.

There are two problems with this view. First, as a matter of statutory construction, I don't think that "affinity" means what Justice Mihara asserts it means. He says it's present tense -- and hence only applies if the parties are still married -- because "affinity" is defined in Section 19(b)(9) of the CCP as "the connection existing in consequence of marriage" (emphasis hers). Hence, he argues, there's no "affinity" if there's been a divorce since that connection isn't "existing".

Let's entirely ignore for a moment the caveat of Section 19(b) that this general definition doesn't apply when the context reflects otherwise. I still don't think that what Justice Mihara asserts is true. Yes, Section 19 says "existing". But the full context of that word is as follows: "the word 'affinity,' when applied to the marriage relation, signifies the connection existing in consequence of marriage . . . ." In other words, yes, the connection has to exist, but that connection only need exist "in consequence" -- i.e., because -- of the marriage. Which it clearly does. The relationship was created exclusively due to the marriage; without that event having ever transpired, there'd have been no relationship. "Affinity" merely "signifies the connection existing in consequence of marriage". That connection exists here. The marriage created the connection, and the definition of "affinity" accordingly says nothing about that connection being terminated upon divorce. "In consequence" is the relevant term, and that's not limited to present tense.

But ignore grammar for a moment. Or even context. Because, sure, one could perhaps go the other way on those. Let's look at this thing more globally. Let's say that Justice Mihara is correct; that "affinity" is definitionally present tense and is dissolved once there's a divorce. Let's see what happens.

Let's say that a defendant's ex-wife of 6 months is called as a juror in his trial. Challenge for implied bias? Nope. Not according to Justice Mihara's definition. Since the juror no longer has an affinity with her ex-husband post-divorce. Nor can you satisfy paragraph (b) of Section 229 (since that's clearly present tense), and hence you'll have to show actual bias -- which will tough so long as the ex-wife says she can be perfectly fair. Regardless, you've got to categorical challenge for implied bias.

In other words, under Justice Mihara's view, Section 229 excludes for implied bias a juror who has a grand niece who's a witness (or a first cousin once removed) but not a juror who's the actual ex-spouse of a party. That doesn't make sense to me. And I do not think that's either the intent of the Legislature or the textual command of the statute. In each of these cases there's an "affinity" that was created by the marriage. So just like you can't be a juror -- or at least can be challenged for cause for implied bias -- if your stepdad is a party, so too can you be similarly challenged if your stepdad-until-yesterday-when-the-divorce-became-final is a party. For challenge purposes, there's an "affinity" there -- a relationship as a result of a marriage -- regardless of whether the divorce became final yesterday or becomes final tomorrow. And for good reason.

Similarly, by the way, I think that in common discourse, we say that you have an "affinity" with someone even if the marriage that created that affinity has run its course. Don't think so? Then it's okay to fool around with your ex-wife's daughter, right? Woody, I'm sure, will glad to agree. Ditto for your Dad's ex-wife. Totally cool.

First cousins once removed on a jury?! The Legislature in Section 229(a) clearly says "No way." Your ex-husband on a jury?! The Court of Appeal says "Fine by Section 229(a)."

I understand why. But having looked at it further, as a matter of grammar, structure, and purpose and intent, I'm going to have to respectfully disagree. I think there's a legitimate challenge for cause here pursuant to the express provisions of Section 229(a). And wouldn't want the statute to be interpreted otherwise. E.g., in the manner in which the Court of Appeal defines it here.

Berglund v. Arthroscopic & Laser Surgery Center (Cal. Supreme Ct. - July 17, 2008)

Justice Kennard (and the rest of the California Supreme Court) couldn't be more right. Arbitrators have the statutory power to compel discovery by nonparties. And nonparties should be required to argue first to the arbitrator -- primarily for efficiency reasons -- that they shouldn't be compelled to produce the discovery. But a nonparty is thereafter entitled to full judicial review of any such discovery order. Because the nonparty has not agreed to be bound by the arbitrator's decision, and hence remains able to seek judicial review. Exactly right.

So I agree with everything Justice Kennard says, and think that's exactly right. However -- and perhaps this is a nit, but I think it may be a little more than that -- if I were writing the opinion for the court, I might have also done a little more to describe the precise nature of the judicial review which the Court (rightly) holds remains available in such discovery disputes. For example, I assume that judicial review of the arbitrator's decision is de novo since the arbitrator has no consensual power to bind, and I'd expressly say so. I'd also make express that both the arbitrator and judiciary have the power (but not the obligation) to stay the discovery and/or the underlying arbitration during the pendency of judicial discovery review. I might also have provided at least a minimial degree of insight into how judicial review of such arbital discovery orders should be accomplished as a matter of procedure, since the arbitration statutes themselves delineate how final judicial review is obtained but nowhere explain how interlocutory review may be sought.

Finally, I'd have also answered the obvious -- but lingering and unaddressed -- question regarding whether the party to the arbitration proceeding also has an unlimited right to judicial review of adverse discovery orders vis-a-vis a nonparty. On the one hand, the party has agreed to bind itself to the arbitrator's ruling, and hence the constitutional and statutory basis for judicial review does not exist as applied to parties. On the other hand, it would seem anomalous -- and unfair -- for nonparty discovery to be a one-way rachet in which the nonparty possesses the right to judicial review of an adverse discovery ruling while a converse ruling would be immune from similar review. Sure, the party (unlike the nonparty) has agreed to the finality of arbitration, but I don't think they should be held to have agreed to finality vis-a-vis a nonparty that's not similarly bound.

I'm not sure that Justice Kennard (or anyone else on the Court) disagrees with what I've said above. Though perhaps they -- or at least some -- might. Regardless, given the obvious (and important) implications of the Court's holding, as well as the widespread use of nonparty discovery in arbitration proceedings, I think that it would be extremely helpful to address at least the most central of the resulting issues at the outset, rather than create a mess for the Court of Appeal to sort out over the next several years. In this area, at least, a minimal degree of certainty and guidence might be warranted.

So I agree with the Court. I'd have just done a little more to give parties, arbitrators and lower courts a bigger heads up.

U.S. v. Miranda-Lopez (9th Cir. - July 17, 2008)

Want to see an opinion that's a great example of statutory interpretation? In which both the majority and dissent write excellent opinions, each of which is eminently reasonable? And an opinion in which the rule of lenity isn't merely addressed as a throwaway, but rather is treated seriously?

Here it is.

Were similar analytical skills evident in similarly situated opinions, the output of the judiciary would be much improved. Good job Judges Silverman and Bybee.

P.S. - Good job also by San Diego attorney -- and USD law graduate -- Keith Rutman, who wins this one on behalf of the defendant.

Wednesday, July 16, 2008

People v. Endacott (Cal. Ct. App. - July 16, 2008)

This is another one of those cases -- this time, from the California Court of Appeal -- holding that it's totally okay for customs to look through the contents of your laptop at the border (here, at LAX) even without any reasonable suspicion of a crime. The Ninth Circuit had held the same thing here and here, and it's not at all surprising that the California Court of Appeal goes the same way.

Still, I gotta say, Part I of the opinion (which was the relevant portion) was way too flip for me. I think there are good counterarguments. Or at least decent ones. That should at least be addressed.

I forthrightly admit that I'm in the minority on the merits here. Nonetheless, I don't think that this issue is so clearcut and unimportant that it requires only perfunctory discussion.

One person's view, anyway.

Regardless, practical counsel: (1) Don't put kiddie porn on your laptop. Especially when reentering the U.S. And especially when reetering from Thailand. (2) Don't put anything -- anything -- on your laptop (letters to your spouse, financial data, attorney-client communications, etc.) that you bring back to the U.S. that you're not totally willing to give the government free rein to examine.

Howell v. Polk (9th Cir. - July 16, 2008)

You're right, of course. Yes, it may well be unreasonable for the police to wait only five seconds or so after knocking before starting to bash your door in. Especially when it's 6:30 a.m. Not many people are going to get to the door within five seconds at 6:30 in the morning. Ain't gonna happen.

But a jury found the other way. And that's plausible. Maybe the search wasn't reasonable. But maybe it was. You gotta defer to the jury on this one, which found the latter. Right or wrong.

Conrad v. Ace Property & Cas. Co. (9th Cir. - July 14, 2008)

"We consider whether the standard Adjusted Gross Revenue Insurance Policy, a policy which provides crop revenue insurance pursuant to the Federal Crop Insurance Act, incorporates and mandates the claim adjustment procedures set forth in the Federal Crop Insurance Corporation’s Adjusted Gross Revenue Standards Handbook."

I'm interested in a plethora of different legal areas. But as to this particular issue, I can confidently state: Better you than me.

Tuesday, July 15, 2008

Styles v. Mumbert (Cal. Ct. App. - July 15, 2008)

It's bad enough to be defending a legal malpractice claim. It's worse when your alleged malpractice allegedly resulted in a $730,466 default judgment being entered against your client. Especially when you've "admitted on the record that [you] did not have time to devote to the case."

You've apparently tried a creative way, however, to get out of the resulting problem -- namely, by purchasing the claim of the plaintiff and then attempting to substitute yourself as the respondent in the subsequent appeal from the default judgment against your client (the one suing you for malpractice). There's only one problem. You have now arguably dug yourself in deeper. And have a published opinion by the Court of Appeal that not only mentions you by name, but that also holds that your efforts "violate[] multiple rules of Professional Conduct as well as the Business and Professions Code."

Such is the life of California attorney Anthony Pagkas. Who didn't have a very good day today.

Sunset Skyranch Pilots Ass'n v. County of Sacramento (Cal. Ct. App. - July 2, 2008)

When Justice Sims presented the central question in this case -- whether the denial of a request to renew a conditional use permit is a "project" that requires a study under the California Environmental Quality Act -- and answered it in the affirmative (hence reversing the trial court), I thought he was wrong. That didn't seem right to me, and I thought that such a holding would unjustifiably (and untenably) expand the scope of CEQA review requirements.

But then I got to page 40, at which point Justice Sims begins to analyze this issue (after dispensing with a variety of ancillary points). And you know what? Justice Sims is correct. Or at least I'm persuaded.

It takes a pretty darn good opinion to convince me that my initial impressions of a case are wrong. Justice Sims does so here.

Well done.

Monday, July 14, 2008

Redding v. Safford Unified School Dist. (9th Cir. - July 11, 2008)

It's a Section 1983 case against a school district that strip searched a 13-year old girl in a futile attempt to find a pill of prescription-strength ibuprofen. The Ninth Circuit takes the case en banc after the panel issues a majority opinion authored by a Bush II appointee (Judge Clifton) that finds no constitutional violation over the dissent of a Clinton appointee (Judge Thomas). At which point the en banc court reverses the panel on a 6-5 vote.

Clearly, draws matter. The conservatives predictably went one way and the liberals another. Right?


The three dissenters on the en banc panel who contended that the strip search was totally okay (and hence didn't violate the child's rights) consisted of (1) a Reagan appointee (Chief Judge Kozinski), (2) a Bush II appointee (Judge Bea), and (3) a Clinton appointee (Judge Hawkins). The two dissenters who contended that the strip search was a constitutional violation, but that this violation wasn't clear and hence the defendants had qualified immunity, consisted of two Clinton appointees (Judges Gould and Silverman). And the six judges on the majority, who found that there was both a violation and no qualified immunity, admittedly consisted of a Carter appointee (Judge Pregerson) and three Clinton appointees (Judges Wardlaw, Fisher, and Paez), but it was the swing votes of two of the most recent Bush II appointees -- the Judges Smith -- that made the difference.

Yes, draws matter. But justice doesn't entail merely voting along the lines of the person who appointed you. Especially in cases like this one, the wisdom and judgment of the particular judge matters. Sometimes a lot.

Berger v. City of Seattle (9th Cir. - July 14, 2008)

I hate to see really good opinions (and dissents) go away after a case gets taken en banc. Especially in this case, which I briefly discussed here.

That said, (1) I'm not at all surprised that this one got taken en banc today-- it's an important (and close) issue, and (2) I have a keen sense that you'll see these same arguments -- and, assuming an appropriate draw, perhaps virtually the same opinions -- reappear after the en banc process concludes.

Stay tuned.

Friday, July 11, 2008

Classic Media v. Mewborn (9th Cir. - July 11, 2008)

This was one of the sleepier weeks in the Ninth Circuit and California Court of Appeal. There were cases, to be sure. Including some interesting ones. But the drama wasn't there as much.

Judge Wardlaw ends the week with a case that probably falls along those same lines. One that's not doctrinally all that fascinating -- unless you get really hot and bothered by some fact-specific copyright renewal disputes -- but that nonetheless manages to pique one's interest, if only at the margin.

I liked reading the opinion for two reasons. First, it concerns who owns "Lassie Come Home". And who doesn't like Lassie? It also gives Judge Wardlaw the opportunity to both describe the history of the series in some detail (e.g., "Eric Knight authored the beloved children’s story, “Lassie Come Home,” about a boy and his dog who, when sold to a rich duke by the boy’s poverty-stricken family, makes an arduous journey to return home to her original owner. Inspired by the harsh realities of life during the Great Depression, the story of the fearless collie, Lassie, and the boy who loved her was first published in the December 17, 1938 issue of The Saturday Evening Post . . . .") as well as to make neat little side references like describing the subsquent copyright fight with the line "This began the Lassie Works’ difficult journey home . . . ." Ho ho ho!

Second, Judge Wardlaw also includes snippets of totally irrelevant -- but nonetheless interesting and informative -- exchanges between counsel below. This portion of the opinion begins (and I liked this part, as to both substance and style) by noting that "counsel on behalf of the parties—but predominantly Classic—spewed acrimonious charges, threats and demands over the rights to the works in a series of correspondence of not much relevance, but nonetheless included in the record before us." Then she goes on to describe the content of some of these exchanges, and I especially liked the line in which Judge Wardlaw says: "Classic’s counsel responded with a vituperative gem of a letter dated March 29, 2005, accusing Mewborn of “extortion,” threatening to sue Mewborn and her counsel “personally,” and claiming that “[t]he damages to which Classic will hold you accountable are enormous . . . [and] irreparable.”" Nice! Especially the "vituperative gem" part! Plus, she ends the paragraph with "This bombastic correspondence did little to further communication or deter litigation." Which I'm quite confident is entirely correct.

Sure, all this stuff is irrelevant. But it makes the opinion interesting to read. And, more importantly, it also gives one the keen sense that even judges on the Court of Appeals -- rightly, in my view -- don't like it when the parties or their lawyers are total jerks. Even if their being a bunghole isn't technically relevant to the appeal. It reminds lawyers, in a subtle but very real way, that there may well be consequences to litigating a case in the hyperaggressive (and totally counterproductive) manner in which lawyers all-too-often perform their jobs. And that even if you get away with it in the district court, or in one case, eventually, this type of stuff may well come back to haunt you.

In short, the case reminds one that, even for lawyers, karma's a bitch. And rightly so.

Thursday, July 10, 2008

People v. Parson (Cal. Supreme Ct. - July 10, 2008)

It's not the usual death penalty case where the defendant forthrightly admits to killing the victim. But it's also not surprising that's the case here, since the evidence against the defendant was stunningly overwhelming.

Sound strategy, I guess. Didn't work though. Still sentenced to death. And unanimously affirmed. Albeit after 14-plus years.

Brazil Quality Stones v. Chertoff (9th Cir. - July 10, 2008)

You'll be happy to know that it's not exclusively poor people and criminals who are deported. So there's an equality there, I guess.

Wednesday, July 09, 2008

Schwartz v. Lawson (Cal. Ct. App. - July 9, 2008)

What a day.

For me, mind you. By contrast, for the California Court of Appeal, it was largely error-correction day. Check out, for example, the following two orders, both of which came out today and both of which were issued by Division Three of the Second District.

The first, in Schwartz v. Lawson, says (in its entirety): "On page 19, second sentence of the first full paragraph, the word “Labow” is inserted after the word “Respondent” so the sentence reads: Respondent Labow shall recover costs of appeal. [This modification changes the judgment.]" Oops. Apparently there was more than one respondent. Our bad.

The second, issued minutes later, in State Farm v. Superior Court, says (again in its entirety): "On page 15, third sentence of the first full paragraph, the words “Petitioner is” are changed to “Petitioners are” so the sentence reads: Petitioners are to bear the costs of this writ proceeding. [This modification changes the judgment.]" Again: Oops. We were definitely having problems with plural parties on June 26th, when we issued both of these opinions. We're having a better July, though. We hope.

In Re A.B. (Cal. Ct. App. - July 8, 2008)

"Angelique has a lengthy history of mental illness and substance abuse. Before she and Leonard moved to California they lived in the State of Washington, where child protective services received approximately 600 referrals on her [!] and she lost custody of two daughters. . . . A.B. was born here in the fall of 2006 when Angelique was on a 72-hour hospital hold. She and Leonard were homeless and she was found 'wandering off a freeway.' . . . She was not taking medication for her bipolar disorder, seemed out of touch with reality, exhibited childlike behavior, such as thumb sucking, and tested positive for cocaine.

Oh yeah. I definitely want you raising a child. Doing crack and sucking your thumb. Nice combination.

Tuesday, July 08, 2008

In Re Marriage of Falcone & Frye (Cal. Ct. App. - July 8, 2008)

Justice Premo begins this opinion with the following line: "This is one in a series of 10 appeals or writ petitions filed in this court by Kathey Fyke, the respondent in a dissolution matter initiated by her former husband Richard Falcone in 2003." You can figure out where it's going from there. It's one of those classic divorce proceedings from hell. Fortunately, both the trial court and the Court of Appeal responded accordingly. And imposed -- and affirmed -- over $64,000 in sanctions against the ex-spouse who just couldn't stop.

Glad to see it. Indeed, if it were me, I might -- only might, but would have been sorely tempted -- to award sanctions against Ms. Fyke on appeal.

The marriage is over. Stop fighting. Just move on.

U.S. v. Fuller (9th Cir. - July 8, 2008)

Sure, college students sometimes have fake identification (e.g., to buy alcohol). And sometimes really little kids make up "badges" and pretend to be a sheriff or the like. But when you get, say, in your 30s, it's time to stop those little games. Because, really, what's the point?

So why, for example, would someone create a fake badge for the (alleged) "Special Response Unit" of the State Department? Especially when the only thing you seem to be using it for is to drop your gun off at a Customs Office locker before you head up to Canada. You can't just leave your gun at home? Or in a private locker? You really think it's wise -- or worth it -- to flash a fake badge and risk a federal felony rap just for the ease of dropping off your six-shooter at Customs?

Only in Idaho.

P.S. - The fake identification actually sounds like it was pretty well done. Except, of course, for the fake name of the nonexistent agency. Oh, and what's on the back of the attached identification card. Which carries the following oath: "I, acting as an agent of the United States Special Response Department, promise to uphold the integrity of the Constitution of the United States. My priority as an agent is to act in bravery to protect the United States citizens against criminal injustice and to ensure due processing of our justice system." Now, to the average person, that may perhaps sound like an oath that a law enforcement agency might make its agents take. But come on. In the real world, we don't give people oaths "to act in bravery" against "criminal injustice". And I'm sure you got the part about ensuring "due processing of our justice system" by some loose analogy to the Due Process Clause. But you sort of missed the point -- and syntax -- on that one.

Monday, July 07, 2008

Molski v. Arciero Wine Group (Cal. Ct. App. - July 7, 2008)

It doesn't bode well for you when the very first paragraph of the Court of Appeal's factual statement includes the following two sentences: "[Plaintiff] has filed in excess of 400 such actions in state and federal court, and has been declared a vexatious litigant in both jurisdictions. His present counsel has represented him in many of these actions and is also subject to a prefiling order in federal court." Sort of gives you a sense of where the Court's going, eh?

The Court of Appeal ends up affirming the award of over $30,000 in attorney's fees against the plaintiff, Jarek Molski. As well as imposes a cost award against him on appeal. And entirely rightly so on both counts.

Not a good day for Mr. Molski. Or his attorneys, Thomas E. Frankovich (a Southwestern graduate) and Jennifer L. Steneberg (a Golden Gate graduate).

But a good day for justice and equity. IMHO, anyway.

People v. Towne (Cal. Supreme Ct. - June 26, 2008)

Don't pick up male prostitutes in Hollywood.

That said, regardless how you spent your three day weekend, I hope it was fun, and filled with family, fireworks, friends, and food. And any other applicable word along those lines.

Welcome back.

Thursday, July 03, 2008

People v. Johnson (Cal. Ct. App. - July 3, 2008)

It's the typical story. One that appears in the pages of the California Appellate Reporter many, many times. A husband and wife are estranged, and have a seriously deficient relationship. The husband allegedly beats and injures the wife, and he's forced to move out of the family home. He then starts stalking her, and chasing her in his car, and calling her a "whore" and a "bitch". Later, he catches his wife, puts a gun to her head, and says that he's going to have sex with her "because she was still his wife and as long as she was his wife, he could have sex with her." The wife eventually secures her release by convincing him that she might reconcile with him. Two days later, she rents a U-Haul and starts to secretly move out of the house to escape her abusive husband. The next morning, the husband comes to the house, discovers his wife's deception, says "Bitch, you lied to me," and shoots her dead.

It's your usual -- albeit sad -- fare. With one exception. The husband -- George Edward Johnson -- is 64 years old.

Proof positive that profound irrationality knows no defined bounds.

Hearns v. San Bernadino Police Dep't (9th Cir. - July 1, 2008)

I can't think of a better case to read regarding the requirement of Rule 8(a) that pleadings contain a "short and plain" statement of the claim than this one. It concerns a clear, but verbose, 81-page complaint. It involves a district court who warned the plaintiff (and her counsel) that the complaint was too long, and ordered a new complaint to be filed, to which the plaintiffs essentially responded by merely changing the size of the margins so the same complaint only took up 68 pages. There are strong arguments on both sides: the best argument in favor of the dismissal is the steadfast reluctance to remedy the clear verbosity, but the best argument against the dismissal is that the complaint was clear and more than adequate to provide notice. Finally, both of these positions are exemplified in the case: Judge Hart (sitting by designation from the Northern District of Illinois) writes the majority opinion and reverses the trial court's dismissal of the complaint, and Judge Kleinfeld pens a dissent on this point. Perfect. For a civil procedure professor, you couldn't ask for any better teaching tool.

The case also sheds a little bit of personal insight into the trials and tribulations (as well as the lives) of two of the plaintiff's attorneys: Danuta Tuszynska (a Riverside sole practitioner and Western State graduate) and Letitia Pepper (a Hastings graduate who also practices in Riverside). You can read the opinion for the details, but I can summarize them by saying (1) that I'm sure that this was not their favorite case, and (2) from the looks of it, most of us would probably not trade our legal career for theirs.

State of Alaska v. EEOC (9th Cir. - July 3, 2008)

What did I say back in November, when the panel's opinion came out? "Don't be surprised -- at all -- if this one's taken en banc."

What did the Ninth Circuit do today? Took the case en banc.

I'll submit my application to the Psychic Friends Network posthaste.

P.S. - There was one judge who recused himself from the en banc call. Can you guess who? (Here's a hint: It's the State of Alaska v. EEOC.) Yep. Him.

People v. Holloway (Cal. Ct. App. - June 26, 2008)

What a nightmare. For everyone -- everyone -- involved.

Justice Kane correctly decides the merits, and writes a good opinion to boot. But even more than the legal analysis, the underlying facts -- in what would is facially just a simple DUI with injury case -- are bizarre and depressing.

I am glad that I merely read about, rather than live, that world.

Wednesday, July 02, 2008

The Lands Council v. McNair (9th Cir. - July 2, 2008)

When it's an environmental case, and you're on the side of the environment, you're pretty happy to see Judges Reinhardt and Ferguson drawn for your panel. Which is exactly what transpired last year, and the result was a reversal of the district court, which had refused to enter a preliminary injunction on behalf of the plaintiffs.

But, as they say, it ain't over until the fat lady sings. And, in this setting, the "fat lady" is a group of eleven Ninth Circuit judges. Which promptly reverses the panel's decision. On a vote of 11-0.

Talk about a crush.

P.S. - Judge Milan Smith: Did you deliberately issue the opinion exactly one year to the day after the panel's original opinion (of July 2, 2007)? If so: Nice touch!

U.S. v. Davis (9th Cir. - June 30, 2008)

I'm just a poor boy who grew up attending public schools in a semi-rural community in Virginia. So I don't know a lot of fancy words. Or even, often, how to spell the easier ones.

As a result, my ears perked up when I got to the end of the first paragraph of this opinion by Judge Randy Smith. In which he uses the phrase "omniscient honesty." A phrase that I had never heard before, and sounded very cool, but as to the meaning of which I remained a little unclear even after thinking about it for a while.

I understood from the context what he meant (and means), since the full sentence in which this phrase appears is as follows: "While officers were executing the search warrant on the Davis’s property, Jeffrey Davis’s brother, Richard Davis, drove onto the property through a locked gate and, when asked, told officers in a moment of omniscient honesty that he knew 'everything' about the marijuana growing operation."

I get it. He was totally honest. Completely honest. Omnisciently honest, I guess.

But I was still a little fuzzy. I mean, I know what omniscient means. Or at least I thought I did. Having total knowledge. Like God and stuff. Freaking knowing everything.

But what does that have to do with honesty? I mean, I understand, he was totally honest about everything. Everything. And "everything" and "omni" do indeed seem related. So is that from whence the phrase arises?

But I still don't get it. Yes, he was honest about everything, but that's just "total" or "complete" honesty. It has nothing to do with the scope of knowledge, right? You can be totally honest even if you know exceptionally little, as long as you tell the truth about what you know. So I don't get what the "omniscient" part adds. At least if taken literally. As opposed to just sounding cool.

But then, I thought: Well, maybe Judge Smith is making reference to the fact that Davis said he knew "everything" about the marijuana grow, and knowing everything is omniscience, right? So if Davis is omniscient, and honest, then he was being omnisciently honest when he spoke. Now I get it! And it's sort of a cool, backhanded phrase. Neat.

So I thought I understood it. But is that really "omniscient honesty"? Ignore for a moment that Davis wasn't even claming to be omniscient; the only thing he knew "everything" about was the marijuana grow, which hardly makes one omniscient. Otherwise I'm omniscient because I know everything about how many fingers I'm currently holding up. But even if we don't take the point literally, is it really "omniscient honesty" to tell the truth about everything you know, even if you know everything. That seems like, at best, "honesty by an omniscient," or maybe "omnipresent honesty." But not "omniscient honesty".

But let's be honest. What do I know? Every little. And the phrase sounds cool.

Plus, I checked it out. That phrase has never before appeared in the Federal Reporter. Or in any published or unpublished judicial decision in the United States. Even cooler! Judge Smith has invented a new term for posterity. One that doesn't even appear in even the hippest (or unhippest) of law review articles -- again, I checked. Indeed, apparently nowhere in any of the legal databases I checked does "omniscient" even appear within two words of "honesty." So talk about a hip phrase! It sounds cool, imparts knowledge, and has at least a fuzzy meaning, but at the same time has never before been uttered in this context. Sweet.

I'm calling it Judge Smith's most important contribution to the English language. Others can disagree. I care not. I'm being omnisciently honest on this one.

SEC v. Talbot (9th Cir. - June 30, 2008)

As a stylistic matter, I'd have written this opinion a little bit differently. And would have added a bit more on the doctrinal side as well.

Nonetheless, I think that Judge Wardlaw is exactly right that a defendant can be found liable for insider trading even if s/he is a relative outsider to the transaction; for example, as here, was on the Board of a company who was informed of a potential acquisition because the company was a significant investor whose approval would have been needed for the transaction. Sure, some of the doctrinal reasoning behind insider trading prohibitions apply less directly in such a setting. But they still apply. Including several that, quite frankly, are more direct than the generic "fair game" rationale upon which Judge Wardlaw centrally focuses.

Regardless, I think that Judge Wardlaw clearly reaches the correct result. And was right to reverse the contrary (and, quite frankly, somewhat surprising) holding of Judge Morrow below.

Oh, yeah. One more thing. The Ninth Circuit holds that the defendant, J. Thomas Talbot, has successfully avoided summary judgment through his own deposition testimony, which raises a genuine issue of material fact as to materiality. But hear me now, Tom. That's a hollow victory. I read the facts. You're going to get the living crap beat out of you at trial. Trust me.

Time to settle.

Tuesday, July 01, 2008

Donell v. Kowell (9th Cir. - July 1, 2008)

This is an outstanding -- simply outstanding -- opinion by Judge Bybee. It's clear. It's incredibly well-written. It exhaustively analyzes the various competing arguments. It's entirely persuasive. And it achieves justice in a setting in which justice is indeed difficult to achieve.

I'm impressed. I'm jealous. I'm green with envy. On my best days, with massive effort, I can only write a third as well.

It's not, mind you, that Judge Bybee does anything different -- or reaches a different result -- than precedent or other courts. He doesn't. But he does it so well, and so smoothly, that I couldn't help but be awed.

On the merits, by the way, this is another reason not to invest in a Ponzi scheme. Because if it sounds too good to be true, it almost assuredly is. And even if you are innocent, and even if you win (e.g., make money) in the scheme, the whole thing can still come back to bite you in the end.

So don't be greedy. Don't be taken for a fool. If it's an unbelieveable investment, don't believe it.

And write like Judge Bybee does here. Because it's awesome.

County of San Diego v. State of California (Cal. Ct. App. - July 1, 2008)

San Diego v. California. San Diego wants the money that the State of California is constitutionally obliged to pay it for unfunded mandates. So it files suit. Alongside Orange County. The trial judge (Judge Bloom, down here in San Diego) agrees with plaintiffs, and awards San Diego and Orange County over $40 million and $70 million, respectively. California appeals.

Guess who wins? Yep. Just our luck. California. Justice Benke says that the Court of Appeal is "sympathetic" to the plight of the counties. Which are, again, definitely owed the money. But separation of powers concerns prevents the judiciary from granting relief.

But fear not. We "trust the integrity of the Legislature to comply with its constitutional and statutory obligations." So we're sure the counties "will be fully reimbursed on their subject claims within the time alloted" under the California Constitution.

Notice the quotation marks. Which do, indeed, demark quoted lines. But they also demark sarcasm. Sure you're sure. I'm sure too. I definitely trust the integrity of the Legislature to pay what's owed. Totally. As certain as I am that tomorrow the sun will rise -- as it does every day -- in the West.

People v. Salcido (Cal. Supreme Ct. - June 30, 2008)

Here, in incredible brevity, are the relevant crimes:

"The evidence established that in the early morning hours of April 14, 1989, defendant drove his three young daughters, Sofia, Carmina, and Theresa to an isolated gulch used as a dumping site, where he cut their throats and left them, resulting in the deaths of Sofia and Theresa. Defendant drove to the residence of his mother-in-law, Marion Louise Richards, where he stabbed to death Marion and her daughters Ruth Bernadette Richards and Marie Ann Richards. Defendant returned home, where he shot to death his wife Angela. He proceeded to his workplace at Grand Cru Vineyard, where he shot to death his supervisor, Tracey Toovey, and then drove to the residence of another supervisor, Kenneth Butti, whom defendant shot and injured. The crimes took place within a period of approximately three hours."

The details are even more chilling.

Needless to say, the California Supreme Court unanimously affirms the resulting death sentence.

Which is what you'd expect. Even if, in the process of doing so, the California Supreme Court feels compelled to hold -- as it indeed does here -- that sentencing someone to death is fine even if the U.S. gets around the extradition treaty with Mexico (which refuses to extradite any of its citizens who's facing the death penalty) by falsely telling Mexican officials that the defendant is a U.S. citizen.

Admittedly, the facts here are pretty unique, including both the depravity of the crime as well as the fact that the defendant himself (stupidly) went on live television in Mexico and said that he was a U.S. citizen. Those facts, mind you, don't justify the deliberate lies of the U.S. officials. But bad facts sometimes result in bad acts. As well as bad law. So what the California Supreme Court -- and perhaps Mexico and U.S. officials -- did here is entirely understandable. It's the nature of the beast. Right or wrong.