Wednesday, September 30, 2009

U.S. v. Paul (9th Cir. - Sept. 30, 2009)

This one's pretty unusual.

First, a dissent from the denial of hearing a case en banc in which the author's basically just telling everyone how they should interpret the panel's opinion. Or to use the words of Judge O'Scannlain, "I dissent for the narrow purpose of sending the criminal defense bar this message: do not cite this case for the proposition that Paul’s sentence was substantively unreasonable."

Second, a one-paragraph concurrence from the denial from the two members of the panel itself that . . . well, I'll leave you to interpret their message for yourself. They say: "We stand by what we said in the opinion, whether or not it was 'one of our court’s most elegant,' and leave to others whether it was 'a masterpiece of craftsmanship.' (O’Scannlain Dissenting Op. at 14041)."

Something to smile about on this lovely late September day.

People v. Smith (Cal. Ct. App. - Sept. 29, 2009)

Can you rob yourself? Yes you can.

Or, more precisely, you can be convicted of robbery even if the owner of the property is in on it. At least if, while you're "robbing" the owner, you "take" the property from employees who don't know that the whole thing's an inside job. Since the employees "possessed" the property (even though it was owned by the owner), you deprived these people of their possessory interest by force, and hence are guilty of robbery.

I understand the reasoning. But it's controversial. For example, say that I loan my car to Y, who drives it to her work. Under Justice Ruvolo's theory, if X, with my permission, goes and takes the car back from Y, without Y knowing that I told X it's okay, this is robbery. But I was entitled to revoke my gift, right? I could clearly do it directly. Why can't I do it through X? Is Y really under an obligation to explain it to X under penalty of a (very severe) robbery conviction? This seems, at a minimum, a little strange.

Another problem. Imagine I tell Y to take my watch to his work, and he does so and puts it on his office desk. I decide I want it back, and so tell my wife to go to the office and retrieve it. My wife goes to Y's office, but Y is at lunch. But my wife notices my watch on Y desk and takes it. I know this isn't robbery since there's no "force and fear". But under Ruvolo's theory, isn't this at least theft? After all, I've deprived Y of his possessory and uses interest, and Y never knew I consented to the taking (and presumably freaked out when he noticed the missing watch). It's nonetheless absurd to hold that my wife could be convicted of theft -- and yet the California theft statutes use the exact same "felonious taking . . ." language that Ruvolo interprets and applies here. So it seems like he's got to hold that my wife's gulity under his view, which casts his whole interpretive/possessory use principle in serious doubt.

One last problem. There are about a million California cases that say that theft is a lesser included offense of robbery. But if Smith's guilty and my wife isn't, then theft is not a lesser included offense, since Smith would be guilty since he used forced but wouldn't be guilty if he didn't use force. And that has major consequences for the routine robbery/theft cases that percolate through the system.

I think that Justice Ruvolo has to deal with these issues, and the opinion doesn't. So even beyond the facially counterintuitive principle that one can be convicted of helping an owner to steal something that he already owns, there are additional -- deeper -- problems here as well.

Could Smith be convicted of, say, conspiracy to engage in insurance fraud (since the owner was in on the deal to get the insurance money)? Of course. But robbery? That's a lot tougher. An issue that raises a lot of very important questions -- both in this case and elsewhere -- that need to be addressed before I think anyone can be persuaded that Smith's in fact guilty here.

Tuesday, September 29, 2009

People v. Thompson (Cal. Ct. App. - Sept. 29, 2009)

I mention this one if only because the concurrence written by Justice Graham -- a retired judge from Marin sitting by designation -- seems particular timely in light of current events.

Justice Graham writes separately solely to write three pages excoriating prior authority that uses the term "voluntary" to describe non-forced sexual interaction between a minor and an adult. Or, at Justice Graham puts it: "The fact that one class of sexual prohibitions is based upon the age of the victims and another is based upon the use of force and violence by the perpetrator does not make sex crimes against children who do not resist ―voluntary. A legal culture which can devote millions of pages to examination of the voluntariness of searches, confessions and criminal pleas can surely afford a little care and ink to avoid confusing and diluting the moral imperative to protect children from sexual predators." Or, to put it slightly differently, "'voluntary' oral copulation (or sex or sodomy) with a minor is an oxymoron" and shouldn't be used.

Personally, I think Justice Graham's point is a tiny bit overblown. We all know that "voluntary" in this context means "not-physically-coerced." The distinction between statutory and regular rape. Nonetheless, Justice Graham is sufficiently worked up about it -- and for reason, I might add -- that it bears mention.

Plus, I thought it was interesting that this concurrence was published at the same time as the whole Roman Polanski extradition thing. Neat coincidence, and good timing for Justice Graham.

Coincidentally, I was reading earlier today an interesting article from Salon ("Reminder: Roman Polanski Raped a Child") [Hat Tip to my colleagues at The Right Coast] as well as the transcript of the victim's grand jury testimony in that case (first half here and second half here). I heartily recommend both. With the warning that they're pretty graphic and not likely to make one very inclined to be sympathetic towards Polanski. Even if you're not Justice Graham. Whose opinion on the subject I can probably already figure out without asking.

P.S. - For some reason, I was especially struck by page 10 of the second part of the transcript, lines 12-13. Where the victim says "then he went down and starting performing cuddliness." That the victim still thought, even at the grand jury, that the relevant word was "cuddliness" rather than "cunnilingus" highlighted to me the age and inexperience of this young girl. (Put to another side the whole issue of Polanski's alleged coercive vaginal and anal rape, which need not have anything at all to do with the age of the victim.)

Irigoyen-Briones v. Holder (9th Cir. - Sept. 29, 2009)

It's not that Judge Milan Smith didn't write a totally respectable majority opinion. He did. One that garners the support of Judge Siler, sitting by designation from the Sixth Circuit, and hence is the law of the Ninth Circuit. The BIA hasn't adopted the mailbox rule and hence requires the Notice of Appeal to be received on time; otherwise, the appeal is dismissed. That's its rule.

Sure, the petitioner here presents undisputed evidence that she sent the Notice of Appeal via USPS overnight mail well in time to be received by the deadline, and the USPS admits that it messed up and didn't deliver the filing on time. Too bad for you. Appeal dismissed. Sure, the BIA says that it can (and can) depart from that harsh rule on its own initiative if it wants to. But it doesn't feel like it here. So there's nothing you can do. You lose.

That's an internally consistent decision. It makes doctrinal sense. A rule's a rule. The fact that you get thrown out of the United States forever because the USPS messed up is, well, tough.

But Judge Kleinfeld's dissent is a perfect example of a different type of reasoning; in a way, a different type of judging. Yes, Judge Kleinfeld follows doctrine, and principles, and the law. But he does so, in my view, with a keen understanding of the way things work, as well as the practical consequences and underpinnings of the rules at issue. (In another context, you might even say that Judge Kleinfeld has "empathy" -- though Andy and his chambers might cringe at using that particular word.)

I'll let Judge Kleinfeld speak for himself, as I strongly doubt that my words could do any better than his. Here's part of what he says, and which I found incredibly persuasive:

"The BIA . . . held that 'short delays by overnight delivery services' are not 'extraordinary,' so 'appellants must take such possibilities into account and act accordingly.' The only places notices [of appeal in BIA cases] can be filed is Falls Church, Virginia, so evidently 'act accordingly' means fly to one of the D.C. area airports or sent the notice at some unknown and unpredictable time prior to the deadline so that the BIA would think the delivery service delay 'extraordinary.' . . .

All of the thirty days [in which to file the Notice of Appeal] are likely to be essential. Aliens’ appeals are not, by and large, handled by giant spare-no-expense law firms, in which a partner can command a senior associate who can command a junior associate to have something on his desk by 9:00 A.M. Monday without fail, and whatever expenses are necessary to accomplish that will be borne. The record in Iriguyen-Briones describes the details of a typical case, and there is no reason to doubt that they are typical. The alien had lost his case before the IJ pro se, just before Christmas on December 18, and came to a lawyer’s office right after New Year’s, January 4. The lawyer could not do anything without listening to the Immigration Court’s tapes (not yet transcribed, of course), and needed a retainer before investing the time to do so. The alien needed a few days to raise some money, came in with enough the following Monday, counsel got an appointment with the Immigration Court to listen to the tapes Thursday, and drove the 45 miles to the court. Counsel then researched the applicable law necessary to formulate the notice of appeal on that day and the next (Friday) and prepared the notice. Monday was Martin Luther King day, so counsel drove to the post office herself first thing in the morning Tuesday, and sent the papers express mail for guaranteed delivery Wednesday, which is when they were due. She did not drop the ball, the post office did, and as is common, all thirty days were reasonably necessary for the task (too short, actually—the tapes ran longer than the time the Immigration Court had for counsel to listen to them on Thursday before the next lawyer’s appointment).

The fundamental requiste of due process of law is the opportunity to be heard. The interest at stake in immigration cases, as in many others, is very important. Though some are frivolous, some are an alien's only chance to avoid unjustified destruction of his family or even torture and death in some benighted country. Due process of law requires that the government refrain from destroying life, liberty or property with fundamentally unfair procedure. It does so if it denies a person an opportunity within his control to be heard. In these two cases, that is what it did. What is worse, What is worse, the government’s important interest in proceeding expeditiously with these cases and requiring compliance with reasonable time limits can easily be protected, without subjecting aliens to the risk of losing their appeals to bad weather or post office error. All
it need do is what courts and private companies routinely do: allow people to email their notices of appeal. It is a cruel irony that the Board publishes the manual that lawyers are supposed to use as guidance on the internet, yet pretends the internet does not exist when it comes to receiving papers as opposed to distributing them."

When I was clerking on the Ninth Circuit, just after graduating law school, I used to cringe when my judge would edit my drafts -- which were heavy on caselaw and doctrinal argument -- with a page or two of pure prose, without any citations whatsoever. I've grown up since then. I realize now that this is often what being a judge is about. It's not all sterile recitation of precedent. It's about people. About institutions. About what's right. Or at least that's part of it, and a part that can't -- or at least shouldn't -- be overlooked.

So I like that. Particularly since that's something I've come to understand -- at least more fully -- only as I've (hopefully) grown.

So when Judge Kleinfeld says: "Hey, BIA, we expressly told you over fifteen years ago that you should let people file notices of appeal somewhere other than in Falls Church, Virginia, and there are plenty of places nowadays that use electronic filing and this fancy thing called the internet," those facts may perhaps be doctrinally irrelevant, but they still matter.

Yes, the BIA could constitutionally create a rule that says: "You must mail your Notice of Appeal within 15 days, and with no exception make sure it gets here within 30 days." And, as a practical matter, that may be what the current rule ("It's gotta get here within 30 days") actually means.

But I think that when a party does something -- as here -- that's totally reasonable, that we see every day, and that we might ourselves do, and someone gets deprived of a truly fundamental liberty as a result, there's another legitimate path. The one that Judge Kleinfeld took. And the one that seems right to me.

So I'm with you, Andy. One vote among the billions that admittedly don't count. But I'm still with you. Your sage wisdom in this one seems exactly right to me.

Monday, September 28, 2009

Guggenheim v. City of Goleta (9th Cir. - Sept. 28, 2009)

Judge Bybee writes a very long, very detailed takings opinion this morning -- one that finds that the mobile home rent control ordinance in Goleta constitutes a regulatory taking. He's got a point. One that conservative judges (and their clerks) are often especially keen on nowadays.

But I'm not sure this opinion is going to stand. Sure, it's hard to get a fact-bound opinion like this one taken en banc. And, yes, Judge Bybee was able to persuade Judge Goodwin -- hardly a huge right-winger -- onboard.

But Judge Bybee loses Judge Kleinfeld -- hardly a leftie -- who writes a very short but fairly persuasive disssent that argues that this isn't a taking, at least as applied to these mobile home park owners (who purchased the property after the rent control ordinance at issue had already been enacted). Plus, there are a variety of different docrinal ways to bounce this case (standing, ripeness, etc.), and while Judge Bybee responds to each, there's a lot here upon which to grab a vote or two from even otherwise sympathetic judges. Not to mention those who think that rent control regulations are a good thing and far from a taking.

So I think there's a very decent shot this case gets taken en banc, or (failing that) even that the Supeme Court steps in and reverses. Not because this is an "out of control liberal Ninth Circuit going amok." But rather because I think this case probably comes out differently with a limited en banc draw or Supreme Court review.

So stay tuned.

MacDonald v. Kahikolu (9th Cir. - Sept. 10, 2009)

Losers sometimes stay losers even after they win.

Chris MacDonald was working on a whalewatching and snorkeling ship in Hawai'i (nice life!) when he performs a free dive to retrieve a mooring line that's on the sea floor around 46 feet down. But he bursts his eardrum when he tries to equalize pressure, and he then sues the owners of the ship.

He loses at a bench trial. But then appeals to the Ninth Circuit, which reverses, holding that the wrong legal standard was applied and that a particular admiralty law principle -- one that's very difficult for defendants to meet -- should have been applied. So then back down to Judge Kobayashi the case goes, but again the lower court decides in favor of the defendants. Hence another appeal back to the Ninth.

But this time, the decision is affirmed. Yep, it's a tough standard. But the district court applied it (this time), and defendants satisfied their burden. Sure, they didn't have the required operations manual. But that didn't cause the accident -- even "in the slightest" -- since the manual didn't have to say anything about free diving in any event; plus, the employees had done tons of these alreay, and a manual wouldn't have made a difference. Stuff happens. Eardrums burst. That's one of the downsides of being under 46 feet of water. When you try to equalize the pressure in your ear canal, sometimes you blow too long or too hard. (Trust me, I know.) That's the downside of diving down deep.

So after all this -- after two shots at the district court, and two shots in the Ninth -- MacDonald loses. Good job by the defendants not settling after the intial loss in the Ninth. And sorry for MacDonald and his counsel. Like trips to 46 feet, not every trip to the Ninth Circuit gets you what you want.

Friday, September 25, 2009

Vickey Kraus v. Presidio Trust Facilities (9th Cir. - July 23, 2009)

No published opinions from the Ninth Circuit today. And no new opinions published from the California Courtof Appeal (at least as of 2:00 p.m.) either.

So let's go back a couple months and see if we can dredge up something interesting. Like, say, an example of how you can dredge up a lawsuit -- or at least a plethora of claims. Like Vickey Kraus did when she wanted to sue her employer.

"According to her complaint, Kraus is African American, female, a lesbian, and an individual disabled due to dyslexia, emotional distress, anxiety, depression, a back injury with sciatica, and brain damage caused by lead poisoning. . . . She alleges that she was discriminated against on various occasions because of her race, gender, sexual orientation, and disabilities, and was retaliated against on the basis of her participation in the discrimination complaint process."

That pretty much covers all the bases, doesn't it?

(Making allegations, however, doesn't get you cash. Kraus does gets a remand for some of the claims the district court erroneously held were not exhausted, but loses a large portion of her claims on the merits and in a contemporaneously-filed memorandum disposition.)

Thursday, September 24, 2009

Clement v. Alegre (Cal. Ct. App. - Sept. 23, 2009)

You don't get many appellate cases about interrogatories, much less opinions that address your standard boilerplate objections that we routinely see in everyday litigation. So when one comes out -- and when it's so strident -- it's something you should at least be familiar with.

I can shorthand Justice Kline's take pretty quickly. The Court of Appeal doesn't like lawyers who play games and who refuse or delay answering questions based upon nitpicky, hypertechnical objections. Even if you're smart enough to come up with alleged deficiencies, the Court of Appeal won't care. Sanctions may well be imposed below, and if they are, they'll be affirmed in a strongly-worded opinion. Indeed, my read of footnote twelve is that Justice Kline would have imposed sanctions on appeal as well if the defendant had shown even the slightest interest in them.

So be wary of interposing boilerplate objections that we all know are silly. Or at least of going to the mat on them. You're not likely to get an appreciative audience, particularly in the Court of Appeal.

U.S. v. Bragg (9th Cir. - Sept. 23, 2009)

Commit brazen multimillion dollar tax fraud? No biggie. As long as you and your rich parents agree to pay the money back -- after you're caught, of course -- even if the U.S. wants you to spend two years or so in prison, you may well get a sympathetic judge to give you three years of probation. Even if, as here, you've previously (1) twice been convicted of sex offenses, (2) been convicted four times of DUI, and (3) been convicted of illegally diverting the mail; in particular, checks from the IRS, which you pimped for yourself. And even if, as here, you were already on probation for that last crime when you stole the $2 million at issue here.

I mean, come on. It's not like you've done something serious, like stealing a piece of pizza or $150 worth of videotapes from Kmart. For that you get 25 years. But two million from the feds? Chump change. Just promise not to do it again. Or at least for three years. (But this time really mean it, not like last time you were on probation.)

That's what Judge Carroll, in Arizona, thought, anyway. And Judge Randy Smith's willing to affirm.

But unfortuntately for Randy Bragg, he drew Judge Noonan when the U.S. decided to appeal. And Judge Noonan sometimes sees things, well, let's just say, in pretty stark terms. Especially when it's a rich dude getting completely off when people with far less influence and resources rot away. That just doesn't strike him -- or Judge Berzon -- as right. So the Ninth Circuit reverses and remands. Allegedly to have the district court "explain" the sentence more. But anyone can read between the lines here. Two of the three don't like what's transpired. And want something more brought to bear.

Wednesday, September 23, 2009

U.S. v. Watson (9th Cir. - Sept. 23, 2009)

Scott McKensie used to sing: "If you're going to San Francisco, be sure to wear a flower in your hair. If you're going to San Fransciso. . . ." A classic 60s paeon to the City of Love.

But if you're Deandre Watson, all you can do is watch this video. Because you've been banished from San Francisco by Judge Alsup. And, today, the Ninth Ciruict affirms.

It's actually a neat little opinion. You'd have thought that banishment was an old-style -- and unconstitutional -- remedy, at least from a variety of post-nineteenth century cases that have so held. But you'd be wrong. One can reasonably dispute whether Judge Alsup's correct or not; essentially, he's convinced that if Watson goes back to San Francisco, he'll fall in with his old friend/gang and be rearrested. So as a condition of supervised release, he's not allowed to go back there (unless he's got a darn good reason and his probation officer agrees).

So what does that mean for Watson. Well, I guess he could live in Marin. Theoretically, at least. (I smiled when Judge Clifton explained in footnote 2 of the opinion: "Marin is the county immediately north of San Francisco, across the Golden Gate Bridge." Which is pretty funny to include in an opinion from the Ninth Circuit, especially in a case argued in San Francisco.)

But (much) more likely, Watson ends up in Oakland. Which I'm sure will help him a ton. (Judge Alsup recognized this, but said: "Now, living in Oakland may not be much better, but at least they make new friends. Maybe some of those are law-abiding friends." Yeah. Maybe.)

Judge Alsup ultimately concludes: "I’m going to require that, because I think it’s for his own good. I promise you in the long run, he’s going to be thanking me for this." We'll see. For now, though, Watson's got to keep out of the Big City. But feel free to enjoy any of the other Cities By The Bay.

In Re Judicial Misconduct Complaints (9th Cir. - Sept. 23, 2009)

You think I'm joking? Here's what I said yesterday. Which describes perfectly both this order this morning as well as this other one this morning.

Some parts of being the Chief Judge ain't so tough.

Tuesday, September 22, 2009

Manela v. Superior Court (Cal. Ct. App. - Sept. 22, 2009)

I agree with most of what Justice Kitching says here. We care if a parent has a seizure disorder when we assess what the best interests of a child are in a custody case. There's also been a partial waiver of the privilege here, so some discovery as to this issue can go forward.

At the same time, this type of discovery can easily be abused, so we should be careful. And protective orders and in camera review are good ideas. So as to the important stuff, I'm pretty much on board.

But as for the second sentence in the opinion, I've got to dissent in part. Personally, I don't think that "[o]ne of the principle issues in the case is whether father should be granted joint custody over the couple's 4-year-old son, Jacob." I think that's one of the principal issues.

Grammar aside, though, I think this is a pretty well-balanced opinion. Especially for something so short.

Carolyn v. Orange Park Comm. Ass'n (Cal. Ct. App. - Sept. 21, 2009)

I had to wait almost twenty full pages, but finally -- at the very end -- Justice Ikola said what I had been thinking about and wanting him to say the entire opinion.

The Orange Park Community Association has a series of trails for its homeowners. But it's nice; it links up to some other public trails, and while "technically" the public isn't allowed onto the private trails of the HOA, it's not like they actually care. They don't patrol the trails and kick people off. If you want to walk or ride a horse on the trails, as a practical matter, anyone can do it. In the HOA or not.

But there's a problem. Some people are using motorized vehicles on the trails. Which sort of ruins the experience -- as well as degrades the trails -- for everyone. So they jam some posts into the ground at the trailheads to stop this practice.

Which then generates a lawsuit. Not from the actual vehicle people, as they won't really have a claim. But instead from a figurehead -- one Evan Carolyn. Who doesn't even live in the relevant community, and who doesn't plan to drive a motorized vehicle, but who's disabled and says he'd "like" to ride on the trails "in a horsedrawn carriage" two or three times a month if he could, but can't due to the posts. Has he ever before ridden in a horsedrawn carriage on the trails, even before the posts? Nope. But he says: "No matter. The trails are public accommodations under the ADA and California Disabled Persons Act since anyone can use them. So you have to remove the posts." Oh, yeah. And pay my attorney a lot of money.

So the legal question -- aside from my gut reaction to the lawsuit itself -- is whether these trails are public accommodations. Sure, they're practically open to the public. But they're technically private. So does this qualify?

Justice Ikola ultimately holds that they don't. Rightly so, in my view. Something that I say even though I have a fairly expansive view of what constitutes a public accommodation. At least as applied to the facts of this case, I kept wanting Justice Ikola to say what he does on the very final paragraph of the opinion. Which seems to me totally correct as a policy matter, and which I'll forthrightly concede was present in my mind as I confronted the "purely legal" (balls-and-strikes) question of whether the trails were a public accommodation. Justice Ikola put it slightly differently in the final paragraph than I would have, but the sentiment is the same:

Finally, we note that classifying OPCA's trails as a public accommodation subject to the access standards of the ADA and California law could have perverse consequences for the disabled and able-bodied alike. Members of the public, including disabled individuals, currently enjoy the use of OPCA's trails without charge. Non-members of OPCA who use the trails are free riders — those on horseback quite literally so. Although there is no evidence in the record to support this observation, there are undoubtedly other owners of private property in California who tolerate trespasses upon their private recreational property. (See Civ. Code, § 1009, subd. (a)(1) ["It is in the best interests of the state to encourage owners of private real property to continue to make their lands available for public recreational use"].) It would be unfortunate if property owners (including but not limited to homeowners' associations) presently inclined toward nonenforcement of their right to exclude the public from recreational areas changed their outlook because of fears of civil litigation conducted by individuals without an ownership stake in the recreational area at issue. Indeed, the most likely explanation for OPCA's neglect of its members' property rights is the cost and hassle associated with excluding nonmembers and including members. It is possible a decision contrary to that reached here could lead a previously apathetic association (or individual landowner) to invest in fences, security, access technology, and other means of excluding the public from privately owned recreational areas."

Darn tootin'. Which, among other reasons, is why I'm glad the plaintiff loses this one. It's not a suit in the public interest, in my view. To the contrary.

In Re Complaint of Judicial Misconduct (9th Cir. - Sept. 22, 2009)

This happens to be from today, but it could be from just about any day. 'Cause they all get resolved the same way; in a published (transparent) order that gets rid of the thing.

So let me summarize this one, and pretty much any other one: "Someone [typically a pro se nutjob] has filed a complaint of misconduct against one or a plethora of judges. Lots of the allegations we don't have jurisdiction over because they're complaining about the merits. For everything else, what's alleged either isn't misconduct or if it is, there's no actual evidence of it, so we hereby dismiss the complaint. [If they've done a lot of these, we hereby order 'em to show cause why they shouldn't be sanctioned.]"

That pretty much covers this. Chief Judge Kozinski's chambers have to be pretty much old hats at this at this point. Not too tough.

Monday, September 21, 2009

Tichinin v. City of Morgan Hill (Cal. Ct. App. - Sept. 21, 2009)

It's been a good afternoon for Morgan Hill attorney Bruce Tichinin, who just learned that the Court of Appeal not only reversed the substantial award of attorney's fees against him resulting from the trial court's grant of the City of Morgan Hill's anti-SLAPP motion, but concluded that he also had a probability of prevailing on the merits. You can't ask for much more.

Though I want to add two points, none of which relate to the merits. First, the whole affair is disgusting. On so many levels. By "affair", I don't mean (at all) to refer primarily to the alleged affair between the city manager of Morgan Hill and its City Attorney, which Tichinin decided to investigate (on behalf of some clients) by hiring a private investigator to hopefully snap some lovely photos. I refer instead to the disgusting view of the innards of city government that this case affords us. Yuk! I'll leave the whole thing for you to read, but after looking at the morass here, I'd feel like taking a shower if I hadn't taken one just 30 minutes ago. For example, Justice Rushing says that Tichinin's client (a real estate developer) met with the city attorney and city manager and asked them "what it would take to get [them] to see it his way or get them on his side" -- get the hint? -- and when they demurred to his request, that's when the developer told Tichinin to get the photos of them sleeping together. Ewww. There's lots of other stuff -- lawsuits, retaliation, etc. -- in here as well. Let's just say that no one comes out looking clean. And I'd much rather see sausage being made.

Second, the fact that Tichinin wins is a testament to the Court of Appeal, and proof that you don't necessarily have to have a good appellate lawyer to prevail. Tichinin writes the brief himself alongside San Jose attorney Steven M. Fink. I don't usually call out attorneys for writing bad appellate briefs. But I'll make an exception here, because (1) I read it, (2) it's terrible as a matter of both form and substance, and (3) since Tichinin and Fink win anyway, they can feel secure notwithstanding my critique by saying "That just shows that Professor Martin's a moron and doesn't know a good brief when it hits him in the face." So let me just say: Ewwww. The two briefs they filed were not good.

So it's a double yuk afternoon.

APL Co. v. U.G. Co. (9th Cir. - Sept. 21, 2009)

Sometimes politics matters. Other times, not so much. Or at all.

The panel here consists of Judges Wallace, Thomas and Bybee. So two strong conservatives on the topside. It's reviewing an opinion by Judge Patel of the Northern District. A solid leftie. So if we're talking about civil rights, or constitutional law, or immigration, or pretty much any other hot-button topic, you'd expect some fireworks.

But, instead, this case is about contractual indemnification: Who's responsible for when U.G. Co. (in California) orders 717,120 cans of hair spray and 59,760 cartons of hair mousse and in transit from Istanbul to Long Beach one of the containers leaked and created a huge mess? The answer to this question relies on the particular invoice and on interpreting who's the "shipper" under the Carriage of Goods by Sea Act (COGSA).

For that dispute, politics matter not in the slightest. Indeed, not only is the panel unanimous on the merits, but it also affirms Judge Patel. So, as Coca-Cola would perhaps put it, the world now sings in perfect harmony, at least as concerns this particular dispute. With the exception of the losing lawyers, of course.

Actually, there's a residual portion of the case as which the Ninth Circuit reverses Judge Patel and that's somewhat doctrinally important as well. It's about attorney's fees and Singapore law. Yeah, I know. That was my initial reaction too. "Like I care." But the central issue relates to the application of Rule 44.1, which requires parties to give advance notice of any reliance upon foreign law -- a rule that's not too well-known and as to which there's not abundant precedent. Here, the losing party was constantly arguing the case (summary judgment motions, etc.) under COGSA -- a federal law -- but once they won, they said "Oh, well as to that issue, Singapore law applies, so give us fees even though federal law doesn't provide for 'em." Judge Patel said that's too late, but the Ninth Circuit reverses.

According to Judge Wallace, it was sufficient for APL to include a footnote or two in their summary judgment papers that said that even though it was arguing for federal law to apply, it "reserved the right" to argue that Singapore law applied as to unspecified "other issues." Although Rule 44.1 generally requires earlier -- and pretrial, not post-decision -- notice, because attorney fee disputes necessarily arise only after the merits are resolved, there's no Rule 44.1 violation here. Since Singapore law doesn't conflict with COGSA (which is silent) on this issue, the Ninth Circuit remands for APL to try to recover enough attorney's fees to buy the whole world a Coke. Good luck on that. And thank you, Singapore.

Friday, September 18, 2009

In Re Edward Q (Cal. Ct. App. - Sept. 17, 2009)

It takes some guts (and/or amazing stupidity) to bring weed in with you to juvie hall.

I bet it's even harder to keep from laughing when your only defense to the resulting charges is: "What? Pot in my shoe? How'd that get in there? That must have been from the guy I let borrow my shoes."

Thursday, September 17, 2009

U.S. v. Contreras (9th Cir. - Sept. 17, 2009)

This is how you properly ignore contrary circuit precedent. Because even if a dozen panels keep applying the same test, if the statute changed in the meantime, and the panels (and/or parties) didn't notice or discuss that change, then they aren't binding.

Glad Judge Tashima caught this one. Too bad it took six years to get it right.

But we're all good now.

(For the record: Being a cook in a prison may allow you to smuggle in a lot of drugs, but that's not a "position of trust" that involves "professional or managerial discretion" to get you a two-level sentencing enhancement.)

Dietz v. Meisenheimer & Herron (Cal. Ct. App. - Sept. 17, 2009)

Be careful to whom you refer -- or accept a referral from -- a case. Otherwise a big, ugly mess may develop. By "mess", of course, I mean litigation. Because who better to file and defend a lawsuit than two lawyers fighting over the spoils of a personal injury case that hits big?

This one's a San Diego case, but it could happen anywhere. Ultimately, San Diego attorney William Dietz -- the referring attorney, and a University of San Diego Law graduate -- comes out on top on this one, and gets his 25 percent. And Meisenheimer & Herron (a now-defunct firm, though James Meisenheimer is still a big lawyer in San Diego) has to pay.

So, as always, be careful who you team up with.

Wednesday, September 16, 2009

Falling Off Face of the Earth (Cal. Ct. App. - Sept. 10-16, 2009)

I'm sure there's a rational explanation for it. Huge conference. Administrative backlog. Budget woes. Something else. All of the above? Swine flu?

But what's going on with the California Court of Appeal? Usually it cranks out around six to twelve published opinions a day. Sometimes more, sometimes less. It generally evens out.

But in the seven days since September 9th, the California Court of Appeal has published three opinions. Total. None on the 10th, none on the 11th, one on the 14th, two yesterday, and none (thus far) today.

Not that I'm complaining, I guess. Personally, I've been busy, so it's actually lessened my workload (but also my joy) not to have to read so many cases lately. Plus, it's not that the Court of Appeal has been doing zip. It's issued over a hundred unpublished dispositions during this same seven-day period, after all.

But the death of the published opinion seems weird. So much so that, for a while, I thought the court's web site might have been broken. But the form looks fine. It just seems like there's no content.

So if you're wondering why I've focused almost exclusively on the 9th Circuit lately, don't kill the messenger. Hopefully we'll get some juicy California Court of Appeal cases soon enough.

U.S. v. Montalvo (9th Cir. - Sept. 16, 2009)

You know what I like to see in my coke dealers? A little effort. A little class.

No baggy-shorts-where-you-can-see-their-underwear here. Michael Montalvo's ran his crew "much like a legitimate enterprise, requiring his employees to dress in business attire, to work 8:00 a.m. until 5:00 p.m. five days a week, and to carry pagers so that they could be easily contacted.” Plus, his guys were forbidden from carrying guns or using drugs themselves.

No wonder the guy grossed $85 million in cocaine sales in a single year. Awesome business model! Harvard Business School: Here's a new case study for ya.

Didn't stop the guy from being sentenced to life in prison though. Too bad there's no downward departure for "criminal enterprise with class".

Tuesday, September 15, 2009

U.S. v. Chaney (9th Cir. - Sept. 15, 2009)

Don't get overly excited at the caption, you ultra-lefties out there. This is United States v. Chaney. Not the guy with the E. Who's had problems of his own, of course. But who isn't facing any actual time.

Plus, it's Linda, not even Lynne. This is crack cocaine Chaney. She's spending eight and a half years in prison. 'Cause drugs are bad. That regular Cheney stuff's just fine.

Dumont v. Ford Motor Co. (9th Cir. - Sept. 15, 2009)

I'm swamped. Absolutely swamped. And yet I love this case. Absolutely love it. So I couldn't help but share it with you. If only because the fact that it's a bankruptcy case didn't in the slightest diminish my interest.

Judge O'Scannlain writes the majority opinion, and Judge Graber respectfully dissents. Both opinions are extremely well-written as well as substantively great. I can't even say which one I find more persuasive; it's that close (at least to me).

I'll let Judge O'Scannlain set the stage. Adding, by the way, that this is a pretty good case (on the facts) in which to articulate his position:

"Antoinette Dumont purchased a car in 2003 from Ford Motor Credit Company (“Ford”). The loan agreement contained a clause stating that Dumont would be in default if she was involved in a bankruptcy proceeding, also known as an “ipso facto” clause. Dumont filed for Chapter 7 bankruptcy protection in 2006, subsequent to the effective date of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”). The vehicle was listed on the bankruptcy petition as having a value of $5,800. At the time, she owed $8,288 on it and was making payments of $335.78 per month. In her Bankruptcy Statement of Intentions, Dumont stated that she would retain the car and continue to make monthly payments.

Ford’s attorney e-mailed Dumont’s attorney, asking that Dumont reaffirm the debt. Her attorney declined the offer. It is not clear from the record what the terms of the proposed reaffirmation were. Ford filed a proof of claim, to which there was no objection; thus Ford’s claim was allowed. See 11 U.S.C. § 502(a). Dumont received a discharge on August 15, 2006. After the discharge, she continued making payments on the car loan. Without advance notice, Ford repossessed her car on November 14, 2006. Dumont successfully moved to reopen her bankruptcy case and claimed that Ford had violated the discharge injunction by repossessing her car. The bankruptcy court denied the motion to find Ford in violation of the discharge injunction, and the Bankruptcy Appellate Panel (BAP) unanimously affirmed."

So, to summarize, the question is whether a debtor can continue to make payments on an underwater car and retain possession of it, or can a creditor repossess the item even though the debtor's still current?

Judge O'Scannlain then cogently summarizes the applicable law, as well as the underlying policy choices. All of which was new to me (as a non-BK lawyer), and all of which I thought showed a lot of foresight and talent. Here's his take on the underlying stuff, with citations omitted:

"When a debtor files for Chapter 7 bankruptcy, she is required to state her intentions with regard to any property which is subject to a security interest. Prior to BAPCPA, our circuit law allowed the debtor to choose among four options. First, she could merely surrender the collateral. Second, she could redeem such collateral—that is, pay the creditor its present fair market value. The debtor could also reaffirm the debt on terms she and the creditor agreed on. Reaffirmation allowed the debtor to keep her collateral, but re-exposed her to personal liability should she fail to make payments as promised. The final option—recognized in only some circuits—was the so-called “ride-through” or “pay and drive.” Under this plan, the debtor continued to make payments as if the bankruptcy had never occurred. The creditor was forbidden by the automatic stay (and later, by the discharge injunction) from repossessing the collateral unless the buyer defaulted. If the buyer stopped making payments or otherwise defaulted, then the creditor could reclaim its collateral but could not pursue a deficiency judgment against the debtor.

Unsurprisingly, the ride-through system proved popular for debtors. Debtors usually need a car to travel to and from work, school, medical appointments, and other important activities. Having just filed for bankruptcy, they understandably expect to experience difficulty securing financing for another vehicle. Accordingly, they were often willing to continue payments on loans that were “underwater” (i.e., loans for which the amount due exceeded the value of the collateral). Some creditors embraced ride-through, even allowing the debtor to keep making payments in circuits which did not recognize the option. On the other hand, creditors might believe that the buyer was unlikely to follow through with the plan or that the collateral might decrease in value faster than payments were coming in."

So to frame the debate in terms with which I'm familiar, the question is whether we grant the option -- and I mean that in its classical economic sense -- to the debtor or the creditor. Who gets the cost-free put option?

Prior to BAPCPA, the Ninth Circuit, alongside many other (but not all) circuits, held debtors had the ability to ride-through. So the question here is whether BAPCPA changed that. And Judge O'Scannlain held that it did. So no more car unless you strike a deal, debtors. Walking's good for you anyway.

I won't go through the statutory analysis, since that's too much to reiterate even for me. But I will say that Judge O'Scannlain has a point. Then again, so does Judge Graber, who thinks that BAPCPA didn't change the applicable rule. Here's some of what she has to say (which, again, I liked):

"Because of confusing and contradictory statutory text, courts have struggled for decades to discern congressional intent on the answer to that simple question. Indeed, before the enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”), the circuit courts were split five to four. Five circuits—including ours—had held that the ride-through option was available to debtors, while four circuits had held that it was not. The disagreement at the circuit court level represented only the tip of the iceberg. In scores of cases, district courts, bankruptcy appellate panels, and bankruptcy courts had weighed in on the debate, as had commentators. . . .

[When BAPCPA was passed, the relevant section] remains entirely unchanged. The all-important “if applicable” phrase—the very source of disagreement among circuit courts, district courts, bankruptcy courts, and commentators—remains intact. Congress not only declined to adopt the Fourth Circuit’s suggested text, it declined to make any change whatsoever. I acknowledge, of course, that Congress did modify § 521(a)(2)(C) to include an exception for new § 362(h). But my examination of that section suggests that, if anything, Congress intended no change to the existing circuit split."

Judge Graber concludes by saying what it clearly the case: that Congress should fix this mess. But that's been said repeatedly already, to no avail. But if only for emphasis, she says it again, using language that a different panel of the Ninth Circuit said just last month regarding a different bankruptcy issue -- words equally applicable here:

"The “correct” answer to the question before us, which the courts have been struggling with for years
—at the unnecessary cost of thousands of hours of valuable judicial time—depends ultimately not upon our interpretation of the statute, but upon what Congress wants the answer to be. We would hope, in this regard, that we the judiciary would be relieved of this Sisyphean adventure by legislation clearly answering a straightforward policy question: [May debtors invoke the “ride-through” option?]"

Which is true, of course. And good luck with that. I'm sure that Congress will get right on it. As, I'm sure, is Judge Graber.

But you can always hope.

Kahn v. Holder (9th Cir. - Sept. 9, 2009)

It's relatively rare for Judge Nelson to write separately. Much less to an opinion by Judge Willy Fletcher.

When it does, there are usually somewhat weighty reasons for it. As I think there are here, albeit regarding an issue upon which reasonable minds could surely disagree. Here are the concerns that motivate Judge Nelson to concur:

"The majority recognizes the possibility that an interpretation of “terrorist activity” that ignores international law could lead to some bizarre outcomes, including classifying as terrorists Jews engaged in armed resistance against the Nazis. Maj. op. at 12774. But such anomalous results are not merely hypothetical: the United States military, whose invasions of Afghanistan and Iraq were indisputably “unlawful” under the domestic laws of those countries, would qualify as a Tier III terrorist organization. Accordingly, any individual or group who assisted the U.S. military in those efforts would be ineligible for asylum or withholding of removal. [Cite]. This could discourage sympathetic groups from lending support to the U.S. military, knowing it would preclude them from seeking refuge in the U.S. in the future.

The majority contends that such concerns are overblown, pointing to a provision in the statute allowing the Secretaries of State and Homeland Security, in consultation with each other and the Attorney General, to waive the terrorism bar. [Cites] I hope my colleagues are correct. I, however, am less sanguine than they are about the efficacy of this waiver provision. First, the waiver is entirely discretionary and unreviewable. [Cite]. Second, the waiver requires the assent of three separate agencies, posing a daunting bureaucratic obstacle to implementation. Third, even without this high administrative hurdle, a waiver seems to me a haphazard and inefficient means of avoiding outcomes—such as classifying the U.S. military as a terrorist organization—that Congress clearly never intended. Finally, because India is a democracy, the waiver provision is not even available in this case. [Cite]"


Whether such an unlikely (and I think it is indeed unlikely) scenario is a sufficient reason to go another way on a legal principle -- albeit an important one -- is a matter of judgment, of course. So I think both sides to this debate make some sense. As well as darn good points.

Just proving yet again why it's important to have smart and interested people on the bench.

Monday, September 14, 2009

Verdugo-Gonzalez v. Holder (9th Cir. - Sept. 14, 2009)

Given the plethora of semi-comptent (at best) immigration law practitioners out there, anyone should thank their lucky stars when Latham agrees to take your case (presumably, pro bono) and brief and argue the Ninth Circuit appeal.

So be happy. With, nonetheless, the full realization that you could still lose.

So it's back to Mexico for you, my possession-of-stolen-property friend.

Friday, September 11, 2009

Schad v. Ryan (9th Cir. - Sept. 11, 2009)

One thing about death penalty cases that go on for decades is that you often learn things during the lengthy appellate process that might matter -- to most people, anyway -- about the justice of the sentence and yet that doctrinally are totally irrelevant to proper outcome. Take the case of Edward Schad. He strangled a guy and stole his car. It wasn't the grisliest murder (by far) I've ever seen, nor the most shocking. But it was a murder. So he's sentenced to death. Back in 1979.

His first conviction (and death sentence) was overturned by the Arizona Supreme Court. He's then retried in 1985 and resentenced to death. State appellate, and thereafter state and federal habeas proceedings, take up the next 22 years, at which point he appeals to the Ninth Circuit.

But by then, we know a lot more about the "current" Edward Schad -- the one we'll put to death -- then we knew about this hypothetical person back in the 1980s. There were lots of things, even back then, that might augur strongly in favor of leniency. Even after just six years in prison, here's what we knew:

"At the sentencing hearing, Shaw called fifteen witnesses, including correctional officers, friends, relatives and a psychiatrist. Nearly all of the testimony related to Schad’s good reputation and behavior as an adult, and particularly his good behavior while in prison. A Utah prison official, John Powers, testified regarding Schad’s personal development and conduct while he was incarcerated in Utah state prison after a prior offense. Powers stated that Schad “made some great strides” in the prison’s group therapy program. He also testified that Schad was permitted to be near weapons while working on a renovation project because he “was an excellent security risk.” Powers testified that, in general, Schad was a “model prisoner” while incarcerated in Utah, and that he recommended Schad’s release because he felt Schad was not a danger to the community. One Arizona prison official, Frank Terry, testified that Schad was placed in a relatively lowsecurity prison block because he posed no disciplinary problems or security risks, and another official, Jerry McKeand, elaborated that Schad actually assisted with other prisoners’ disciplinary issues by helping to “keep[ ] the cell block kind
of in line." . . . Ronald Koplitz, the chaplain at Schad’s prison, stated that Schad consulted him for religious guidance due to his fear of death. He testified that Schad stood out from other prisoners because he was likeable and genuine. Koplitz described Schad as “the kind of inmate you can like, and the kind of inmate that does not play games or try to . . . . get extra favors by being in a religious program.”"

Imagine that this type of stuff continues -- indeed, intensifies -- in the next two decades. That Schad becomes even more of a model prisoner; mellower (with age), more regretful, more coherent, more human. What does one do with such knowledge? Ignore it? Say that whatever happens, whatever he becomes, is irrelevant to the determination of whether he lives and dies? Wholly beyond the resulting incentive effects, there seems to be a moral problem with any such position. Even though -- and I fully realize the problem -- the only reason we are able to obtain such knowledge is due to circumstances (delay) that many argue should not even exist.

I certainly don't have a solution to this problem. But it's nonetheless one worth considering. At least for a minute or two over the weekend.

Other than that, enjoy the fun and sun.

Kazarian v. US Citizenship & Imm. Bureau (9th Cir. - Sept. 4, 2009)

I find myself agreeing with Judge Nelson rather than Judge Pregerson.

Poghos Kazarian may be smart and good. But he's not that smart and good. And when it comes to immigrating to the United States, that distinction makes all the difference.

Thursday, September 10, 2009

U.S. v. Juvenile Male (9th Cir. - Sept. 10, 2009)

Read this one while you still can. Because it's a powerful opinion. And one that, for better or worse, I'm not sure will be around all that long.

It's a classic Judge Reinhardt opinion. Well-written. Touching. Keenly aware of both doctrine as well as practice. Concerned about both people as well as about liberty.

To give a taste of both the form and substance of the opinion, here are the first several paragraphs:

"As a society, we generally refuse to punish our nation’s youth as harshly as we do our fellow adults, or to hold them to the same level of culpability as people who are older, wiser, and more mature. The avowed priority of our juvenile justice system (in theory if not always in practice) has, historically, been rehabilitation rather than retribution. Juvenile proceedings by and large take place away from the public eye, and delinquency adjudications do not become part of a young person’s permanent criminal record. Rather, young offenders, except those whose conduct a court deems deserving of treatment as adults, are classified as juvenile delinquents and placed in juvenile detention centers. Historically, an essential aspect of the juvenile justice system has been to maintain the privacy of the young offender and, contrary to our criminal law system, to shield him from the “dissemination of truthful information” and “[t]ransparency” that characterizes the punitive system in which we try adults. [Cites]

In a surge of national concern, however, over the commission of sex offenses, particularly those against children, Congress in 2006 enacted the Sex Offender Registration and Notification Act (“SORNA” or “the Act”) and applied its registration and reporting requirements not only to adults but also to juveniles who commit certain serious sex offenses at the age of fourteen years or older. The Attorney General, exercising authority delegated by Congress, determined that SORNA would apply retroactively to all sex offenders convicted of
The retroactive application of SORNA’s juvenile registration provision affects people of all ages — not only juveniles.

As we are still close in time to SORNA’s passage, some, like S.E., were adjudicated delinquent relatively recently and are still minors or young adults. The vast majority of persons affected, however, were adjudicated delinquent years or even decades before SORNA’s enactment and quite obviously are no longer juveniles. Indeed, the brunt of SORNA’s retroactive application to juvenile offenders is felt mainly by adults who committed offenses long ago as teenagers — many of whom have built families, homes, and careers notwithstanding their history of juvenile delinquency, which before SORNA’s enactment was not a matter of public record. For these adults, sex offender registration and reporting threatens to disrupt the stability of their lives and to ostracize them from their communities by drawing attention to decades-old sex offenses committed as juveniles that have, until now, remained sealed. Although from this point forward no new individuals will be affected by the retroactivity provision, its effects will be felt by numerous individuals for the rest of their adult lives.qualifying offenses before its enactment, including juvenile delinquents. 28 C.F.R. § 72.3 (2007).

We must decide as a matter of first impression — in our court and in any other circuit court — whether the retroactive application of SORNA’s provision covering individuals who were adjudicated juvenile delinquents because of the commission of certain sex offenses before SORNA’s passage violates the Ex Post Facto Clause of the United States Constitution. In light of the pervasive and severe new and additional disadvantages that result from the mandatory registration of former juvenile offenders and from the requirement that such former offenders report in person to law enforcement authorities every 90 days for 25 years, and in light of the confidentiality that has historically attached to juvenile proceedings, we conclude that the retroactive application of SORNA’s provisions to former juvenile offenders is punitive and, therefore, unconstitutional."

This is a good panel for Judge Reinhardt, and Judges Tashima and McKeown fully join his opinion. Similarly, in light of the composition of the Ninth Circuit, I don't think that this one's going to get taken en banc. Though I think there might well be a call for it, and such a call would surely get some votes, I think it'd fail.

But I'm not sure I can say that same about the prospects for this one in the Supreme Court. Rightly or wrongly (depending on your view), the principles so ably espoused by Judge Reinhardt are far from universally shared by the Justices. Yes, there's no circuit split, as the Ninth Circuit is the first one to have rendered an opinion on this issue. Yes, there's no directly contrary Supreme Court precedent, so arguably you would want this issue to percolate in the lower courts first.

But let's be honest. It's a Judge Reinhardt opinion, and if only for that reason alone, there are plenty of people on the Court -- and in their chambers -- who'll be just itching to reverse him. Again. Especially when, as here, the opinion powerfully articulates a particular vision of the law that's far from shared in certain quarters. Any Ninth Circuit "liberal" opinion is on shaky ground. Those that (as here) invalidate portions of a federal statute on constitutional grounds are even more vulnerable.

So here's what I'd do if I were the U.S. Attorney in Montana. I'd ask for rehearing en banc. Not because I'd expect to win. But rather because I'd want (and expect) a fire-eating dissent from the resulting denial. Which I'd then have available as a basis around which to write a petition for certiorari. Which assumes, of course, that the SG's office (which is in charge of certiorari petitions) would want to file. But I think even under the Obama administration, the SG's office would indeed do so. And the likelihood of the petition getting granted, I believe, is fairly high.

I make no normative judgments here. I'm purely being descriptive. With the sole normative caveat -- again -- that you should read this one while you can. 'Cause I don't think this is the end of the matter. And I'm not sure it'll be good law in a couple of years.

U.S. v. Johnson (9th Cir. - Sept. 10, 2009)

Nice police work!

Some police officers are serving federal warrants in Anchorage (technically, an Alaska State Trooper and a deputy with the U.S Marshals Service). While stopped at a traffic light, they saw three suspicious-looking guys standing next to a Buick in a bank parking. The hood of the car was up, but the dudes seemed to be surveying the bank and surrounding area rather than looking at the engine. And as the officers drove way, the cops see two of the guys head toward the bank and one of the guys flip up his hoodie to hide his face.

So the cops double back and see that the hood of the Buick is now closed and the third guy -- hereinafter, the "getaway driver" -- now behind the wheel. So one of the cops goes into the bank to check it out while the other stays outside and covers the driver. The inside cop immediately notices a teller who's nervously watching the two suspicious-looking dudes, who are furtively whispering to each other and surveying the lobby. The cop then surreptitiously tells the teller who he is and asks if everything's okay, at which point the nervous teller says "no". Then one of the dudes looks at the inside cop, their eyes meet, and he notices that the cop -- who's in plain clothes but has an obvious sidearm, taser, police radio, and is even wearing a bulletproof vest -- is a cop, at which point he whispers to the other dude and they immediately leave the bank.

The three guys then drive away, and the cops follw and then decide to pull 'em over. No "speeding" or "not coming to a complete stop" or anything like that; they just think: "This doesn't seem right to me." So they put the lights on and ask 'em to step out of the car, telling them that this whole thing “might be a misunderstanding”and that they “just want[ed] to talk with [them].” And when they pat 'em down, lo and behold, they discover a loaded .25. Leading, needless to say, to an arrest (for being a felon in possession), which in turn leads to a motion to suppress.

The panel consists of Judges Beezer, Tallman and Milan Smith. So not too surprisingly, they decide to affirm the denial of the motion to suppress. But I agree with them. Yes, maybe everything that was going on had an innocent explanation. But maybe not. This stuff certainly seemed suspicious; indeed, is remarkably similar to what went down in Terry (the stop-and-frisk case) itself. So I think there was reasonable suspicion to stop the vehicle on the theory the dudes might have been about to rob the bank, and similarly reasonable suspicion that they were going to pull a gun while doing so. Sure, maybe they were just really nervous about the FDIC status of the bank (or whatever), and sure, maybe they were planning to rob the thing with a potato instead of a gun. But maybe not. So a good cop should -- and should be allowed to -- stop 'em for a brief period. As they did here.

Bearman v. California Medical Board (Cal. Ct. App. - Aug. 26, 2009)

I like a little sly humor now and then. Check this out by Justice Yegan:

"Here, a law enforcement officer encountered a "medical marijuana patient" who possessed marijuana and paraphernalia. He reasonably believed there might be abuse of the CUA because the doctor's letter, approving/recommending marijuana use, mentioned attention deficit disorder.

A person may come within the meaning of the CUA if he or she is "seriously ill." [Cite] We do not disparage a person suffering from attention deficit disorder. We do not denigrate the symptoms of this syndrome. But, it is difficult to accept the premise that such a person is "seriously ill" within the meaning of the CUA. We would be surprised if the medical literature would support the notion that marijuana use increases a person's attention span or "provides relief" from attention deficit disorder."

I wouldn't have put the comma after "But" in the penultimate sentence. I nonetheless loved the last line. True that.

Wednesday, September 09, 2009

Williams v. Hilb, Rogal & Hobbs Ins. Co. (Cal. Ct. App. - Sept. 9, 2009)

Boyhood friends John Williams and Steven Simon open up a business and ask an insurance broker to get them all the insurance they need. The broker does so, and they get an insurance policy, which they quickly review. Everything seems fine until there's a fire at the business and one of their employees is severely injured. Simon and Williams then discover that, oops, there's no workman's comp insurance. Leading to a judgment of $11 million plus, for which Simon and Williams were liable for almost $6 million.

At which point Simon and Williams sue their insurance broker. And win. Both in the trial court as well as in the Court of Appeal.

Sometimes you can legitimately rely on others. This is apparently one of those times.

Disability Law Center v. Anchorage School Dist. (9th Cir. - Sept. 9, 2009)

We always talk about the "American Rule" -- that everyone pays their own lawyer (with limited exceptions) -- as opposed to the "English Rule", which provides that the loser of a civil suit pays the other side's fees. After today, however, I think I'm going to start talking about the American Rule as opposed to the "Alaska Rule". 'Cause why bring the English into it if you don't have to? As I just learned -- as a result of this case -- that Alaska Rule of Civil Procedure 82 provides for fee-shifting to the losing party in virtually every civil case; indeed, after a little digging, I discovered that it does so in a very interesting way.

That'll teach me not to study Alaska law. You learn something new every day. Thanks, Judge Farris.

So let's start a trend. Every time you're thinking about referring to the English Rule, let's call it the Alaska Rule instead. Sure, we'll seem less worldly. But we'll be getting back at the Brits for all that stuff they did to us pre-1783. Plus burning the White House. That'll teach 'em.

P.S. - I will add that even in my ignorance, I wouldn't have made the same mistake with regard to the Alaska rules as the Alaska district court (Judge Beistline) did here. This was a federal question case, so Rule 82 of the Alaska Rules don't apply. And as Judge Ferris rightly points out -- and as is crystal clear in the rule itself -- Alaska Local Rule 54.3 just talks about the timing of attorney fee motions, and in no way, shape or form incorporates the substance of Rule 82 itself.

Levinson v. Owens (Cal. Ct. App. - Aug. 26, 2009)

I'm sure (or at least hope) that the plaintiff was just going after homeowner's insurance money. This is nonetheless an example of why some people hate lawyers so much.

Bert Owens, a landowner involved in a lot-line lawsuits, invites Ellyn Levinson, an attorney with the Department of Conservation, to his ranch to celebrate a recent victory that they both had obtained in a pending lawsuit. (Levinson's a Loyola Law graduate who's now with the California Attorney General's Office up in Oakland.) Levinson (the lawyer) asks Owens (the client) if she can ride one of his horses, he says "sure," she falls off, and the lawyer -- predictably -- sues. Ironic, eh?

Levinson ultimately loses based upon primary assumption of risk. But Owens still had to go through the joy and expense of being sued.

Remember that next time you wonder why you haven't been invited to attend many parties after law school.

Tuesday, September 08, 2009

Birotte v. Superior Court (Cal. Ct. App. - Sept. 8, 2009)

Want to know how cold-hit DNA testing and analysis transpires in California? Here you go.

Kinda cool, actually.

Nurre v. Whitehead (9th Cir. - Sept. 8, 2009)

We know you can't (usually) have a prayer at your high school graduation ceremony. What about singing Ave Maria? Do you have a First Amendment right to do so? Or can a school legitimately prohibit such a religious performance at graduation based upon a desire for inclusiveness and previous complaints?

You've got a pretty favorable pro-plaintiff panel drawn for this one, at least relatively: Judges Beezer, Tallman and Milan Smith. The majority -- in an opinion written by Judge Tallman -- concludes that the plaintiff's rights weren't violated by the prohibition. Judge Smith, by contrast, concludes that plaintiff had a First Amendment right to play the song at graduation.

Judge Tallman understandably writes a fairly narrow opinion; indeed, one that's much more constained and limited than the one that'd be written by a number of other judges on the Ninth. A good sense of the tone and content of his opinion can be obtained by reading the following paragraph therein:

"Contrary to Judge Milan Smith’s understanding of our holding, we do not seek to remove all religious musical work from a school ensemble’s repertoire. Nor do we intend to substantially limit when such music may be played. We agree with him that religious pieces form the backbone of the musical arts. To ignore such a fact would be to dismiss centuries of music history. Instead, we confine our analysis to the narrow conclusion that when there is a captive audience at a graduation ceremony, which spans a finite amount of time, and during which the demand for equal time is so great that comparable non-religious musical works might not be presented, it is reasonable for a school official to prohibit the performance of an obviously religious piece."

Moderate. Respectful. Deferential to the role of religion in society. As well as to the decisions of government officials in attempting to balance potential Establishment Clause problems.

Judge Smith comes out the other way, with a warning of the dire consequences of today's decision, saying that "the practical effect" of this opinion "will be for public school administrators to chill—or even kill—musical and artistic presentations by their students in school-sponsored limited public fora where those presentations contain any trace of religious inspiration, for fear of criticism by a member of the public, however extreme that person’s views may be." Judge Smith also repeats the type of "culture wars" refrain we increasingly see from some conservative members of the judiciary (and elsewhere). For example, in the following line: "The taking of such unnecessary measures by school administrators will only foster the increasingly sterile and hypersensitive way in which students may express themselves in such fora, and hasten the retrogression of our young into a nation of Philistines, who have little or no understanding of our civic and cultural heritage."

Judge Smith ultimately concludes that school officials had qualified immunity, however, and I think that of all the lines in his opinion, this one rings the most true to me: "I readily acknowledge that no bright lines exist in this complex field of First Amendment law, and I sympathize with school officials, who often find themselves in a Catch-22, subject to criticism and potential law suits regardless of the position they take. Because of this unfortunate reality, I conclude that qualified immunity is appropriate in this case." But in the very next line, Judge Smith says: "But I also believe that, unless the courts provide balanced guidance on where those not-so-bright lines lie, we only perpetuate the confusion, encourage further litigation, and stunt student artistic expression in violation of the First Amendment." The problem, to me, is that even under Judge Smith's view, it's exceedingly difficult (if not impossible) to figure out where those lines exist -- even for individual judges (like Judge Smith), much less for an entire circuit (or the judiciary as a whole). For example, Judge Smith's opinion appears to agree -- though even this is far from clear -- that school officials could prohibit playing Up Above My Head at graduation, as (according to Judge Smith) that particular song says the word "Lord," refers to "heaven," and arguably (though disputedly) refers to Jesus Christ. But is even Ave Maria itself really that different? From my (largely uninformed) viewpoint, personally, I can recognize Ave Maria pretty readily, and my longstanding belief was that it's a deeply religious song, whereas I don't really know anything all (nor have any preconceived notions) about Up Above My Head. Which I admit sounds religious too, but I hardly view 'em as wildly divergent; indeed, when I listened to the latter, I was mostly just rocking out, and didn't for even a second really even think about its message. Whereas that's definitely not the case with Ave Maria. In any event, wholly beyond the particular songs here, as a doctrinal matter, Judge Smith doesn't really provide any real guidelines (much less "rules") about which songs can be constrained and which ones students have a First Amendment right to sing to a captive audience, and that seems a problem to me.

Moreover, some of what Judge Smith says just strikes me as factually wrong. He says, for example, that "the playing of the Ave Maria arrangement could not have reasonably been interpreted to convey a religious
message," and is instead just a "pretty piece." Really?! Maybe I'm an example of someone who's unreasonable (though I think not). But when I hear the words "Ave Maria", my head also says "Religious". So, for example, when I hear a reference to the Ave Maria Law School, I don't think: "Synonym for 'Pretty School'". I instead think: "Synonym for 'Religious School'". Ditto for music. You sing "Hosanah in the Highest" at graduation and I'm pretty sure even Judge Smith's going to agree that's uncool.

So maybe at the end of the day we're talking about a judgment call. Since I agree that, at the one end, there are songs like When the Saints Go Marching In that are pretty much secular at this point, and maybe (though I'm not entirely positive even on this point) school officials shouldn't be allowed to prohibit them on the ground that someone in a captive audience might react negatively. But I'm not sure Judge Smith has persuaded me that Ave Maria is in the same class. Even the "contemporary", purely instrumental version.

I also wonder -- though perhaps this is just the cynic in me -- if even Judge Smith believes the strong version of what he's saying. To take one example: He asserts, as a factual matter, that Ave Maria has "a title in a dead language whose meaning would be unrecognizable to most attendees of the graduation." Really? I agree that the title is in a dead language, and one which I personally know almost nothing about. But do you really think that most average attendees of a high school graduation, upon hearing the title Ave Maria, wouldn't have any idea about the meaning of those words? Wouldn't be able to say, as I would: "Look, I don't have any idea who Ave Maria was, or what (in Italian, Latin or otherwise) the song's about, but I'm pretty darn sure it's religious; probably some Saint or something."? As a factual matter, I just think I disagree with Judge Smith. I think the fact that it's in Latin doesn't stop it from being "recognizable" to the average person. Far from it. And I'm not at all someone who has an overly charitable view of the cultural intelligence of the common man.

So this is a problem, I concede. Some songs you can prohibit, at least at a state-sponsored, time-limited forum in a ceremony with no real alternative. Maybe we're reluctant to say that you can prohibit any song in such an arena for fear that school officials might ban Born to Run or some other obviously secular song. (Or maybe we are willing to vest that decision entirely in school officials; I don't know).

But is seems to me that Ave Maria is in a different class. Nearer to "Our Father" than "Crimson and Clover". I'm not sure I can draw a definitive line. Nor that anyone can. But wherever the line is, I think that Judge Tallman is right that this particular song is over it.

U.S. v. Lam (9th Cir. - Sept. 8, 2008)

Come on, Willie! You're smart. I know you must have thought about it, right? Why not pull the trigger?

The question is whether a fugitive from state court proceedings who's filed a claim in a civil forfeiture action can have his claim struck under the fugitive disentitlement doctrine/statute. Here, the U.S. filed a forfeiture action against currency allegedly traceable to the defendant's crimes (crimes the U.S. then indicted him for), the defendant filed a claim to these funds, the state court then indicted the defendant on 101 counts, and the defendant showed up to two pretrial conferences in state court but then skipped town three days before trial.

Under those circumstances, can you strike the defendant's claim in the forfeiture action? The district court decided you could, and the Ninth Circuit (rightly) agrees.

So what's my beef? Opportunity. To be more precise: Missed opportunity. The defendant's a fugitive. He's fled, and not yet been caught. So Judge Fletcher's constantly calling him a fugitive.

Which is fine. But his name! It's perfect. He's not just a fugitive. He's on the lam. He took it on the lam right before trial. The dude's name is Lam. You can't work that in somehow?!

Trust me: If this was a Kozinski opinion, there'd be about 114 puns and variations on the theme. I kept waiting for at least one from Judge Fletcher. But he played it straight.

Damn him.

Monday, September 07, 2009

Al-Kidd v. Ashcroft (9th Cir. - Sept. 4, 2009)

Labor Day. A nice day to sit back and reflect upon one's relationship with work.

For those spending the day at home, it's a good day to reflect upon the importance of friends, family and fun. For those spending the day at work -- as I am -- it's perhaps a good day to reflect upon the values and choices that bring you there. Particularly, the goals that motivate one's decisions: what objectives -- hopefully ones with exceptional value -- you wish to accomplish through your devotion and hard work.

Meanwhile, in other "deep thoughts" for the day, perhaps reflect upon this case. Which was published on Friday, of course -- since neither the state nor federal bench works (at least officially) on Labor Day.

It's about the War On Terror. And a whole lot more.

Judge Milan Smith took almost a year and a half to write the thing. It shows.

Check it out. And enjoy a bright and sunny Monday.

Friday, September 04, 2009

In Re Craig (9th Cir. - Aug. 26, 2009)

Feel bad about the size of your student loans and potential inability to repay them?

Trust me. It could be worse. You could be Cheryl Craig.

Ms. Craig racked up $80,000+ in student loans (including interest) attending Pima Community College and the University of Arizona to get an AA in paralegal studies in 1992, and a BA in sociology in 1996. But she's now 47 years old and has only been able to find work as a customer service representative for Anderson Financial Network, earning $10 per hour and typically working fifty to sixty-five hours every two weeks.

How's her life at $10/hour and $80,000 in student loan debt? Not so good. Her income in 2004 was $16,815, and she had monthly expenses of $1,873, which included a $150 monthly mortgage payment on her mobile home. Not exactly living a life of luxury in the deserts of Arizona, eh?

But at least she's got her health, right? Uh, well, sort of. "Craig’s employment [] was protected under the Family Medical Leave Act, which permits Craig to miss up to 400 hours of work per year as a result of doctor certified medical issues and still keep her full-time employment status. This is significant because Craig suffers from numerous serious medical problems, including asthma, diabetes, chronic bronchitis, heart problems (she had a heart attack in 2002), acid reflux, irritable bowel syndrome, and chronic back problems. These medical problems require the monthly intervention of, and monitoring by, several physicians, and a daily regime of prescription drugs. Even with the benefit of health insurance, Craig’s out-of-pocket medical costs were approximately $350 per month in 2004."


I'm not a big fan of forgiving student loans. But at some point, it's just not plausible to pay 'em back. To me, this looks like one of those times.

Thursday, September 03, 2009

Carrera v. Maurice J. Sopp & Son (Cal. Ct. App. - Sept. 3, 2009)

Here's a great case decided by the California Cout of Appeal earlier today that encapsulates both a variety of policy/doctrinal choices as well as exemplifies how not-so-easy being a judge is even you're in fact a "pure umpire" who's merely "calling balls and strikes." (Hat tip: Chief Justice John Roberts, who came up with this only-true-sometimes analogy.)

Longstanding California legal principles say that absent "special circumstances," the owner or bailee of a motor vehicle has no duty to protect third persons against the possibility a thief will steal the vehicle and injure them with it. But there's also a specific California Supreme Court case (Avis) that says that "‘special circumstances’ exist when heavy vehicles are left unattended and available for use by those not accustomed to driving them."

So here's the question. Ray Bermudez, released on parole earlier that day, gets drunk on his bus to L.A., hops off in Huntington Park, enters a tow truck shop through an open gate, spies a tow truck with the keys left in the ignition, steals it, and promptly runs over numerous people at a bus stop. Is the tow truck shop liable?

(For what it's worth, Bermudez himself gets convicted of three counts of murder, and is sentenced to 140 to life. But he's penniless (obviously), and this is a civil case, so all we care about at this point is whether the tow truck shop has to pony up.)

Whatcha think? The trial court said it "struggled" with this tough case, but ultimately granted summary judgment to the shop. Does it matter that no vehicles had ever previously been stolen from the shop in its 31-year history? Does it matter that the security cameras showed that Bermudez had no trouble at all hopping in the tow truck and starting it? Does it matter that there were two cars stacked behind the tow truck and that Bermudez got out of the lot by smashing a couple of cars and driving through a canopy (though some of this, I think, was not actually necessary, but was because he was drunk)? Does it matter that the theft was in broad daylight in an occupied lot with many employees around? Does it matter that Huntington Park has, to use the words of Justice Klein, a "high transient population" -- moreover, that H.P. has the highest rate of vehicle theft in the nation?

Which way do you come out? Plus, even if you're leaning one way or the other, procedurally, what do you do? Do you grant summary judgment to the shop? Grant summary judgment to the plaintiffs? Let a jury decide -- even though the actual facts are entirely undisputed?

I'll leave you to it. But don't forget to check out the last page of the opinion. A photograph captured from the security camera showing the tow truck, driven by Bermudez, dragging the lot's canopy as it crashes out of the lot. Fuzzy, but a cool (and definitely unusual) way to end an opinion.

Yolo County Dep't of Child Support Svcs v. Lowery (Cal. Ct. App. - Aug. 23, 2009)

Guess what happens when your 12-year old son molests your daughter (his stepsister) and gets involuntarily removed by the State from your home (and put in foster care) as a result?

Answer: You have to pay the State for the foster care.

Wednesday, September 02, 2009

Wences v. City of Los Angeles (Cal. Ct. App. - Sept. 2, 2009)

There are lots of police misconduct/shooting cases in which the officer has acted pretty egregiously. But I gotta say that what Officer Cesar Wences did here seems relatively reasonable to me.

I'm glad that his discipline was slight, and that the official reprimand he received didn't stop him from getting a promotion. I'm sure the entire process has frustrated him, thereby resulting in his overblown (in my mind) rhetoric that he has an absolute right to defend himself by shooting near people -- one which the LAPD can't regulate or even attempt to discipline. But even though I don't agree with that extreme view, I can't say that I think what he did here was unreasonable. Is it what I'd have done? Probably not. But it still seems within the bounds.

As to the law, Justice Zelon gets this right, and remands for an independent determination by the trial court. My hope -- at least from the facts revealed in the opinion -- is that the court ultimately reverses the reprimand.

U.S. v. Inzunza (9th Cir. - Sept. 1, 2009)

We had a high-profile corruption case down here in San Diego a while back involvoing three members of the City Council. It had salacious facts and involved alleged bribery to change the laws that regulate strip clubs, so the media took to calling it "Strippergate". Which I love.

Nice place to stay, Strippergate. Comfortable beds. Though a bit loud.

Anyway, one of the defendants (Lewis) died, another was convicted on pretty much all counts (Inzunza), and the third (Zucchet) was convicted on a plethora of charges but had all but two of those convictions thrown out by the district court judge for insufficient evidence (and a new trial granted for those two to boot). So an ultimate win for one defendant, a loss for one defendant, and let's call it a tie for the one who died. As a result, everyone who's alive participates in the appeal, with Inzunza appealing his convictions and the U.S appealing the tossing of the verdicts against Zucchet.

The panel that's assigned once the case goes up is a strong split one: Judge Canby (on the left) and Judges Bybee and Milan Smith (on the right). The parties raise a plethora of different issues on appeal, but the Ninth Circuit's nonetheless able to write a unanimous opinion. Pretty impressive, though they're able to do so in part because they're simply affirming everything the district court did.

Judge Canby writes the opinion, and starts out by getting in some subtle humor, which is awesome. Here's the second paragraph: "In 2000, the San Diego City Council enacted an ordinance banning touching between exotic dancers and patrons: the so-called No-Touch ordinance. This ordinance replaced another provision banning only “lewd and lascivious” conduct at clubs. The bright line aspect of the No-Touch ordinance made for easier law enforcement and eliminated the need to spend public funds on lap dances for undercover police officers. It also put a damper on strip club profits."

Ultimately, Judge Canby agrees that Inzunza's guilty and Zucchet's innocent. Or, more accurately, that Inzunza's guilty but with Zucchet there's reasonable doubt. There's also a lingering issue about the legal requirements for "honest services" fraud that's at issue in the trial as well as in a pending Supreme Court case, so the Ninth Circuit stays the mandate to see how that all plays out. But essentially everything stays the same as it was in the district court for now.

I thought that Judge Canby did a good job of both (1) highlighting the evidence that demonstrated that Ralph Inzunza was indeed guilty, and (2) contrasting that evidence to the stuff against Zucchet, who was a far more peripheral figure and against whom the evidence was relatively slim. (Full disclosure: Zucchet is a neighbor of mine, and I often see him walking around with his kids, but I don't know him personally.) I also especially liked Judge Canby's discussion of the extremely difficult problem of policing the line between illegal bribery and legal bribery -- or, more descriptively, between bribery and "legitimate" campaign contributions. Here's some good stuff from Judge Canby on that topic:

"We confess considerable uneasiness in applying this standard to the acceptance of campaign contributions because, in our flawed but nearly universal system of private campaign financing, large contributions are commonly given in expectation of favorable official action. . . . Money is constantly being solicited on behalf of candidates, who run on platforms and who claim support on the basis of their views and what they intend
to do or have done. [Cite] . . . How, then, in the potentially polluted atmosphere of campaign contributions, can we tell a criminal agreement from a large campaign contribution accepted from a contributor who expects favorable results?"

This seems spot on to me. I'm not entirely persuaded by Judge Canby's solution: that the line is at the "quid pro quo" point, as this itself seems infinitely fuzzy. But my sense is that Judge Canby's not all that comfortable with it either, and recognizes that the only defense of this position is that it's better than the alternative. Call it a "problem of the beard". We know there's a difference between a guy with a beard and a guy without one, but we can't draw a line between that's at all objective. We simply know there's a line and can tell you -- or try to tell you -- which is which merely by looking.

So I'm mostly on board for what Judge Canby does here. His discussion of the facts is extremely detailed and coherent, so on the main points, I think he's right. The opinion tends to fade as it progrsses, and starts giving subsidiary points merely summary consideration, but that happens sometimes. Not something that's to be encouraged, of course. But it happens.

The one area where I might diverge a bit from Judge Canby in his discussion of the alleged Griffen error. At trial, Inzunza didn't testify. Which is his Fifth Amendment right. But at closing argument, the prosecution made a big deal out of that fact, which you can't do. The AUSA didn't come right out and say "Why didn't the defendants testify?" But essentially said precisely that by making a big point, right at the end of its rebuttal closing argument, by approaching the defendants, looking at them with an outstretched hand pointing in their direction, and referring to the 1919 Chicago White Sox scandal by quoting the famous lament to the corrupt player Shoeless Joe Jackson: “Say it isn’t so, Joe. Say it isn’t so. Say it isn’t so.”

The district court held that wasn't a comment on the defendant's failure to testify. But I think it crystal clearly was, and that Judge Canby rightly so holds. Particularly in the context of this trial, repeating "Say it ain't so" when you're pointing at the defendants who haven't testified -- and comparing it to one of the most famous corruption cases in history, and in which the whole point of the story is that you know that Shoeless Joe was indeed guilty because he didn't tell the fan it wasn't so -- is a direct comment on their failure to testify.

Judge Canby, however, holds that the error was harmless. On this point I'm not entirely persuaded. Judge Canby admits that the comment came right at the close of the prosecution's rebuttal -- right before the jury retired to deliberate -- but responds that this impact was dissipated because "the argument continues for another twelve transcript pages." But come on. Twelve transcript pages is like two or three minutes at most. Clearly this was a central point of the rebuttal; moreover, it was a particularly powerful one.

Judge Canby nonetheless concludes that Inzunza would have probably be convicted anyway, even without the prejudicial comment on his silence. But even the district court concluded that the evidence against this defendant was "not overwhelming," and Judge Canby himself spent a half-dozen pages at the outset of the case explaining just how tough it is to draw a line between legitimate and illegitimate contributions. Especially in light of these circumstances, it seems way, way too facile for the panel to conclude that the error was likely harmless -- much less that it was harmless beyond a reasonable doubt. So I think this is a serious problem.

I do agree with Judge Canby on one point in this regard. The jury might well have convicted Inzunza even without the Fifth Amendment violation. After all, it convicted Zucchet even though every judge now agrees that the evidence against him was insufficient. But this additional fact seems to me only to highlight the need to grant a new trial and to vest less confidence in the jury's judgment and the allegedly "harmless" nature of the prosecutor's comments. Indeed, to me, the fact that the jury convicted Zucchet even though we all agree that the evidence against him was insufficient may well suggest that the "Say it ain't so" comment worked: that the jury was indeed so prejudiced by the prosecutor's comment about the failure of Zucchet and Inzunza to testify that they voted to convict even an individual against whom every rational juror would concede there was reasonable doubt.

Particularly given how the entirety of the trial played out, I'm just not at all convinced that the Griffen error here was indeed harmless, much less that we can be totally confident in that fact and in the deference that the Ninth Circuit gives to the jury's verdict against Inzunza. To be clear: I'm not at all saying that Inzunza is in fact innocent, and Judge Canby does a darn good job of persuading me that he's probably guilty. But being more than likely guilty isn't an adequate substitute for having a neutral and unprejudiced jury conclude that you are indeed guilty beyond a reasonable doubt. Which I just don't think has ever transpired here.

People v. Hach (Cal. Ct. App. - Aug. 25, 2009)

Before I read this case, I'd have told you: "Those stupid 'chat line' commercials you see on late-night television are absurd. There's no way you can meet an actual woman on those things."

But now I have to revise my assessment. As follows: "Maybe you can meet a woman, but watch out. Her common law husband may kill you."

Hardly seems worth the $2.99 a minute in either case, eh?

Tuesday, September 01, 2009

Stevens v. Tri Counties Bank (Cal. Ct. App. - Sept. 1, 2009)

I've got plenty of joint accounts, not surprisingly. I've never really thought about them, which is also neither surprising or unusual, I imagine. I always thought the rule was -- as indeed it is -- that anyone who's listed on the joint account can withdraw whatever amounts they want. That's why you've got to trust 'em. Apparently there's also legal recourse if they withdraw more than their "share" -- which is good to know -- in order to stop, say, a departing spouse from taking all the money. In that case, the one owner would have a claim against the other owner for pimping anything beyond his or her "share" of the community property. But that's a fight for the respective owners to duke out. As far as the bank's concerned, everyone listed on the account is entitled to withdraw whatever they want. Makes sense.

But with that background in mind, let's get one level deeper. Imagine that X and Y have a joint bank account. Can Y add Z to this account without X's consent? Would the bank be liable to X if it permitted Y to do so and Z then took all the money out of the account?

This is a tough one for me. On the one hand, the nature of joint accounts is that you've got to trust your co-account owner. If you open a bank account with Y, you're taking the risk that Y will withdraw all the money, spend it on crack, and leave you with nothing. So if you've got to trust Y, then don't you also implicitly trust Y not to add Z to the account as well? What's the difference between Y adding Z to the account, who then takes all the money, versus Y taking all the money and giving it to Z? Why should the bank be liable to X in the first set of facts but not in the second?

On the other hand, trusting Y not to take the money does seem a little bit different than trusting Z. It might make sense to say that the bank can only let Y take the money -- which would leave Y liable for withdrawals in excess of Y's share -- but can't let Y add Z to the account and then have Z take the money, which may perhaps (if allowed) leave only Z (rather than Y) liable for any excess withdrawals. You trust Y, in other words, not to take the money, but you don't want to let 'em add an unknown Z without your consent.

Or at least that's perhaps the right default rule: the one that makes the most sense, but is one that the parties can contract around. Though I might even go farther and say that's the right rule, and one that can't be waived (though on that point I'm far from sure). What's the point -- the purpose -- of allowing Y to add Z without X's consent? What benefit does that create, especially since, as we already know, Y could already withdraw the funds to which s/he's entitled and give 'em to Z. Why let another potential tortfeasor into the account without the express consent of all holders? Seems to me that, as a protective measure, you might want to make that rule unwaivable, especially since we all know that if Rule X is waiveable, and potentially creates liability for the bank (here, for allowing Y to add Z), banks will probably insist upon waiver in a contract of adhesion, thus defeating the value of a default rule.

Those are my initial thoughts on the subject, anyway. Which are far more than are necessary to resolve this case, which simply holds that the actual law is that the bank can indeed be liable for allowing Y to add Z (who then withdraws all the money) at least when such conduct isn't permitted by the bank's rules.

Though, as I said at the outset, this isn't -- and wasn't -- a foregone conclusion, either as a matter of policy or (perhaps even more confusingly) as a matter of statutory interpretation in California. But it's nonetheless the law.

So think about that joint account. For at least a second, and for slightly more than the facile inquiry regarding how much is therein.