Tuesday, May 31, 2011

Spicer v. City of Camarillo (Cal. Ct. App. - May 31, 2011)

The California Vehicle Code permits persons with disabled placards or license plates to park an unlimited time in zones that are marked with a sign that says you can only park there for a limited time.  The theory being that disabled persons may need to park closer (and take more time) than regular drivers.  Makes a fair amount of sense.

So if disabled persons can park longer in places where there are signs limiting parking times, surely they can also park longer in places where there aren't signs, right?

Not according to the Court of Appeal.  Which holds that if you're a disabled person, and there's a sign that says you can't park there, you can.  But if there's not a sign that says you can't park there, you can't.

Truly Orwellian, eh?

Let me nontheless first defend the Court of Appeal.  That's indeed what the Vehicle Code appears to say.  Section 22511.5 of the Vehicle Code provides:  "A disabled person . . . displaying special license plates . . . or a distinguishing placard . . . is allowed to park for unlimited periods in any of the following zones: . . . (B) In any parking zone that is restricted as to the length of time parking is permitted as indicated by a sign erected pursuant to a local ordinance."  So, pursuant to the statute, that's the only place where they're textually permitted to park forever.  By contrast, if there's not a sign, there's not an exception.  So where, as here, there's not a sign that limits parking, but instead a municipal statute that says you can't park for more than 72 hours in the same place (anywhere), the exception doesn't apply.  Statute's clear.  End of story. 

Except it's not, really.  Spicer says that if that's indeed what the statute provides, it's unconstitutional under the Equal Protection Clause.  Because such a statute would be remarkably silly.  But the Court of Appeal responds that such an interpretation doesn't violate the Equal Protection Clause because it would treat both disabled and nondisabled persons similarly.  Neither can park for more than 72 hours.  Treating people the same can't violate the Equal Protection Clause, the Court of Appeal holds.

Which facially seems right.  Except it's totally not.

The correct way to analyze this argument is not with respect to an assertion that disabled and non-disabled people are treated differently, but rather that places with signs are irrationally treated differently than places without signs.  That's the rational basis test under the Equal Protection Clause.  If a statute differentiates on this basis irrationally, it violates the Constitution.  Which this one arguably does.  It makes no sense at all -- even under the lenient rational basis test -- for a statute to say that a disabled person can park longer in a more time-sensitive area (places with signs) but has to leave faster from places in which longer parking is more acceptable (places without signs).  There's no tolerable argument for that.  It makes no sense.  The statute fails the rational basis test.  A test that the Court of Appeal doesn't apply, and that seems to me the correct one (as well as the one that plaintifff undoubtedly is articulating when he says that the statute doesn't make any sense if interpreted in the way advanced by the City).

Now, I think there's at least a possible defense of the statute, but it's not the one the Court of Appeal adopts (nor, I suspect, one the City advanced).  The Vehicle Code provides an exemption when (1) signs exist, that (2) are erected pursuant to a local ordinace.  Here, Camarillo has a municipal ordinance that limits parking -- everywhere -- to 72 hours.  But so does Section 22651(k) of the Vehicle Code itself.  Given these facts, the best defense of the Court of Appeal's interpretation of the statute might be to say that the Vehicle Code deliberately creates an exemption for disabled persons to municipal ordinances that limit parking (and have signs), but doesn't create an exemption for disabled persons to state law (including the 72-hour rule) that do the same thing.  That'd make (at least some) sense.  Surely enough to satisfy the lazy rational basis test.

Now, I won't talk at length about whether this is the correct interpretation of the statute.  That's an issue of statutory interpretation, and it's not an easy one.  But even if the Court of Appeal gets the statute right, I do not think it's right about the constitutional argument, which has a lot more depth than this six-page opinion addresses.

Which is not surprising.  This stuff is complicated.

But for now, at least, realize that it's after 1984.  So if there's a sign that says you can't park, go ahead and park.  But if there's no sign that says you can't park, watch out.  You can't park there.

Makes sense to me.

Irigoyen-Briones v. Holder (9th Cir. - May 31, 2011)

From dissent to majority opinion.  Only takes two years.

Appeals of immigration judge decisions have to be filed within 30 days.  An immigration lawyer does everything right and mails the appeal with guaranteed next day delivery (for delivery on the 30th day) via the USPS.  Predictably -- otherwise we wouldn't be in this jam -- the USPS takes an extra day, which means the appeal is one day late.

The BIA holds that it lacks jurisdiction to decide the appeal.  In 2009, the Ninth Circuit affirms, in an opinion by Judge Milan Smith.  Judge Kleinfeld dissents.

There's a motion for rehearing and rehearing en banc.  That gets a fair piece of internal attention in the Ninth Circuit.  The two judges in the majority start to rethink their position.  Or, at a minimum, see the handwriting on the wall.  So in 2010, the opinion is withdrawn.

And, earlier today, a new opinion is issued in its stead.  Written by . . . Judge Kleinfeld.  A majority opinion that looks very similar to the dissent he filed in 2009 (but that includes even more details and arguments).  But this time, he's not writing for himself.  It's unanimous.  It wasn't persuasive to anyone else on the panel in 2009, but in 2011, they're on board.

Stuff like this is rare.  But it happens.  And when it does, it's nice to see.  At least in cases like this one, which which the original dissent seems both a proper interpretation of the law as well as eminently reasonable.  (Back when the original Ninth Circuit opinion came out, I talked about the case, and particularly Judge Kleinfeld's dissent, by saying that "I have never liked and respected Judge Kleinfeld more than I do today."  I was glad to see that my view of the dissent was shared by a nontrivial number of judges on the Ninth Circuit -- even enough to make an en banc call a serious possibility.)

Plus, I like the changes that Judge Kleinfeld makes.  To give but one example, in 2009, his dissent said:  "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."  He's got that same thought in 2011, but drops a footnote that reads:  "But see Maples v. Allen, 586 F.3d 879, 884, 886-90 (11th Cir. 2009) (denying relief to prisoner in part because his lawyers, from the large New York firm Sullivan & Cromwell, caused his notice of appeal to be filed late)."  Gotta love the slam -- albeit an entirely relevant one -- on S&C.

Monday, May 30, 2011

People v. Guzman (Cal. Ct. App. - May 27, 2011)

Here's a timely reminder for Memorial Day:  Don't drink and boat.

Guzman's lucky.  I might well have given him more than the two years in prison he received.  Though the million-dollar-plus restitution order seems about right.

Ugly facts.

Feel free to drink.  Just don't drive -- anything -- if you do.

Enjoy the remainder of the long weekend.

Thursday, May 26, 2011

Puerta v. Torres (Cal. Ct. App. - May 25, 2011)

Law sometimes requires formalities.  Which means we have to follow them.

This doesn't just apply to wills, trusts, etc.  It also applies even in litigation.  For example, here, the statute that governs Section 998 offers (CCP 998, obviously) says that these offers have to be made in writing and contain a provision that allows acceptance by signing a statement that the offer is accepted.  The reason for this rule is to make clear how an offer is accepted (in writing) and, presumably, to make it easy to file with the court if necessary.

The defendant here makes a 998 offer that doesn't contain a line about acceptance.  Previously, the Court of Appeal had held that since the policy behind CCP 998 is to encourage settlement, we're not going to be too picky about the details.  But the Court of Appeal here says, nope, on this point, the statute is clear:  You've got to have that line.  Otherwise the offer is ineffective.  Sorry, defendant.  You lose your expert witness costs.

Which is, again, a good reason why lawyers should read the statute and follow the rules therein.  Or, failing that, use the forms, including but not limited to the CCP 998 form.  That's (in part) why we have 'em.  And it's usually even easier to fill in the blank than it is to figure out what the law requires.

People v. Villatoro (Cal. Ct. App. - April 12, 2011)

It's no fun being a prostitute.

Wednesday, May 25, 2011

Leavitt v. Arave (9th Cir. - May 17, 2011)

It's a death penalty case.  2-1.  The majority opinion, written by Judge Kozinski, starts out by saying:

"With fifteen strokes of his knife, Richard Leavitt slashed and stabbed Danette Elg to death in her bedroom. Then, as Ms. Elg lay dying on top of her punctured waterbed, Leavitt hacked out her womanhood—just as his ex-wife had seen him do to 'play[ ] with the female sexual organs of a deer.'"

Whenever a criminal opinion begins by describing the horrible facts of the case, you know which way the author's coming out.  (Judge Rymer's the third judge on the panel, so you know she's on board for the way Judge Kozinski begins.)

The dissent, written by Judge Reinhardt, doesn't shirk from those horrible facts, and indeed, embraces them.  He begins his dissent with:  "The circumstances of Richard Leavitt’s murder of Danette Elg are indeed horrendous. That alone should have been a signal that there was something radically wrong with Leavitt, who was otherwise a law-abiding citizen, a father and a husband. I agree with the trial judge who sentenced Leavitt to death that 'the fact that' such a person 'would do this act leaves one[ ] asking why.'"  And says that the reason why was because Leavitt had organic brain disorder and that the failure of his attorney to request a MRI that the court-appointed neurologist had recommended was ineffective assistance of counsel.

Proving that, in many cases, your view depends very much on your perspective.  Same facts.  Different take.

Tuesday, May 24, 2011

Dacy v. Taraday (Cal. Ct. App. - May 19, 2011)

Struggling contingency fee lawyers take note.  That huge case of yours may be a burden.  It may cost you hundreds of thousands of dollars in expenses (as it did here).  It may bankrupt your firm and force it to dissolve (as it did here).  It may even kill and outlive you (as it did here).  You may even lose repeatedly in the trial court, both initially and on remand.

But when you die.  On your deathbed.  You shall receive . . . $64 million.

Of course, then they'll be the inevitable litigation about how to split those fees.  Despite your best efforts to write things down clearly.

But fear not.  The Court of Appeal will eventually decide.  And, in the end, a check will be cut.

The light at the end of the tunnel.

Monday, May 23, 2011

In Re Pham (Cal. Ct. App. - May 16, 2011)

Silly trial court!  Sex offenders aren't "banished" from Los Angeles simply because state law says that they can't reside within half a mile or so of any school or park where children regularly gather.  There are still plenty of places where they can live in L.A. -- in particular, thre are plenty of bushes and a couple of $5000/month rental homes that are indeed located 2000 feet away from the barred locales.

So if, upon being released from prison as a sex offender, you're able to afford a $5000/month rental, you're totally golden.  Welcome to L.A.!  And if not, you're still not "banished" from L.A.  It just means you have the pleasure of being homeless and living inside a bush.  Call it a permanent "camping" trip and enjoy!

Friday, May 20, 2011

People v. Law (Cal. Ct. App. - May 21, 2011)

It's the People of the State of California versus Law.  The People win.  Law goes to jail for 13 years.

Poor Law.  Back in the 60s (Bobby Fuller) and the 70s (The Clash), people fought the law and the law won.  But in the 2000s, apparently, the tide has turned.

(Though in each case, someone ended up in prison.  So maybe things aren't so different after all.)

People v. Vines (Cal. Supreme Court - May 19, 2011)

I'm reading this case, which is in the California Supreme Court, and I had an inkling that, since it was there, it was probably a death case.  Maybe even read a line that said so.  But when I'm reading the facts, I'm thinking:  "Wait, they sentenced this guy to death?  This looks identical to virtually every single murder that's ever been committed."  A reaction that was only reaffirmed when I read the evidence in aggravation, which was basically none.

Vines shot a guy while robbing a McDonald's.  He was a 21-year old African-American in Watts.  He was previously convicted of burglary.  No torture.  No sadism.  No nothing, except (obviously) a murder.

Apparently that's good enough to distinguish you from everyone else who only gets life in prison.

(Again, I know there are those who say that virtually every murderer deserves death, and I get that.  But it's not the law.  How we differentiate those who live from those who die seems to me a continuing problem.)

Thursday, May 19, 2011

Richards v. Sequoia Ins. Co. (Cal. Ct. App. - May 20, 2011)

It's a simple rule:  You can't get attorney's fees from your insurance company when you represent yourself during the brief period the insurance company is pondering your tender.  Now it's one that's published.

The lawyers who briefly represented themselves, by the way, are the owners of the Jack London Lodge in Glen Ellen, Thomas and Linda Richards.  So ponder that gig the next time you're thinking about ditching the law.  Except also realize that, as here, the law may follow you everywhere.  Especially if you allegedly serve alcohol to a 20-year old who then ends up dying in a car accident on the way home, and even more so when your insurance company doesn't do what you want it to do (or at least fast enough).

Wednesday, May 18, 2011

In Re Marriage of Valli (Cal. Ct. App. - May 18, 2011)

The setup was so sweet.  The case involves the divorce of Frankie and Randy Valli.  That's right, that Franie Valli.  The question is who gets a $3.75 million life insurance policy on Frankie's life; the husband or wife.

Yet, to the credit of Justice Mosk, there's no a single reference in the opinion to Frankie Valli, his music, or even his occupation.  It's just another case.

Particularly since Randy wins, who could resist saying something like:  "Big Girls Don't Cry.  Especially not Frankie Valli's wife, since we now reverse the judgment of the trial court and award her a million-dollar insurance policy."

Certainly not me.

Tuesday, May 17, 2011

Glasser v. Volkswagen of America (9th Cir. - May 17, 2011)

It's undeniable that complex issues of constitutional law are sometimes difficult to understand.  Lawyers are generally able to read statutes and rules to figure out basic procedural stuff.  Or read the Rutter Group.  By contrast, figuring out what "due process" or Article III means requires a lot more than just looking at the words.  Which, quite frankly, don't even help much.  And sure, we all took constitutional law in law school, and vaguely recall various things therefrom.  But that doesn't typically get one very far.

Which is a problem.  Because not understanding this stuff can mean you've pled yourself right out of court.

Take this case, for example.  There's a class action against VW alleging that VW failed to disclose how hard it would be for buyers to get replacement smart keys for the vehicle and didn't provide that technology to locksmiths, which jacked up the price for losing the keys to your VW astronomically.  But it turned out that VW hadn't, in fact, done that, and the parties enter into a proposed settlement agreement that basically says so, and that resolves the dispute with token relief to the class (as is typical in these kind of cases).

The class action lawyers then move for attorney's fees.  Unlike most of these cases, because the claims were so weak, the defendants haven't agreed to pay 'em, and the settlement agreement reserves defendant's right to oppose the fee request.  Several class members oppose the settlement, including several who say that it's absurd that the plaintiff's lawyer should get fees for a case and settlement like this one.  It's just another example, he argues, of a lawyer filing a frivolous lawsuit and striking a deal with the other side that provides the class nothing just so the lawyer can obtain some fees.

But the district court awards class counsel almost half a million in fees.  The objector appeals.

That's typically no problem.  Objectors are allowed to appeal.  Moreover, he's got a nonfrivolous claim on the merits.

But that's when Article III rears its ugly head.  (Sorry for calling parts of you "ugly," Article III.  You know I love you.)

Article III requires that a party suffer injury before s/he's allowed in federal court; moreover, injury resulting from the other side's conduct.  Normally, in the class objection context, this is no problem.  For example, if it's a common fund class action, and the attorney takes an allegedly oversized piece of your pie in fees, you've been "injured," hence Article III standing.  Or -- in a situation very close to what allegedly happens here -- when the attorney sells out the class by entering into a terrible settlement that provides the class nothing but gets him fees, you're injured (and have Article III standing) because you were harmed by the crappy settlement "your" lawyer obtained.  Thus satisfying Article III.

The objector may (or may not) have known all this when he and his lawyer objected.  But what they apparently didn't know -- but that the Ninth Circuit tells them (in a holding that I haven't seen before, but that makes sense) -- is that this principle doesn't apply when the objector claims, as he did here, that the class lawsuit by the lawyer was meritless in the first place, and was filed just to generate fees.

You just pled yourself out of Article III.  Because if the lawsuit was meritless, you didn't lose anything by its crappy settlement.  You were entitled to nothing, and you got nothing.  End of story.

The lesson being that it makes sense to pay attention in Constitutional Law rather than surf the internet during class.  Or, for those of us a bit older (and for whom that ship long ago sailed -- without the internet, no less), to have someone inside or outside the firm who's pretty well read give you a "head's up" for complex issues that might derail your objectives.  The objector here could have easily gone forward by the simple expedient of saying that while the merits of the class action were not the greatest he'd ever read, they weren't completely meritless.  I'm sure he would have said that had he knew about the Article III problem.  But he didn't.  So he loses.

It's a tough field.

P.S. - There's a more subtle constitutional question generated by the holding that relates to whether the Ninth Circuit's rule would mean that there's no Article III standing if the opposing party could prove (rather than simply rely on the objector's admission) that the lawsuit was meritless, since that would also establish no Article III injury, and if that principle was accepted, it'd have a novel (and fairly radical) impact on class action practice.  But I'll leave the scholarly details aside for now.  Today's just a lesson that it pays to know smart people, because sometimes they can get you out of jams.

Monday, May 16, 2011

Richards v. Sequoia Ins. Co. (Cal. Ct. App. - May 20, 2011)

It's a simple rule:  You can't get attorney's fees from your insurance company when you represent yourself during the brief period the insurance company is pondering your tender.  Now it's one that's published.

The lawyers who briefly represented themselves, by the way, are the owners of the Jack London Lodge in Glen Ellen, Thomas and Linda Richards.  So ponder that gig the next time you're thinking about ditching the law.  Except also realize that, as here, the law may follow you everywhere.  Especially if you allegedly serve alcohol to a 20-year old who then ends up dying in a car accident on the way home, and even more so when your insurance company doesn't do what you want it to do (or at least fast enough).

People v. Arevalo-Iraheta (Cal. Ct. App. - April 5, 2011)

Your 13-year old stepdaughter hates you.  Admits she hates you.  Admits she thinks her mother can do better than you, and in any event wants her mother to get back with her father.

Sucks to be you, I know.

Here's how you can make things worse:  Sleep with her.

Doesn't matter if you say she "started" it.  Doesn't matter if you say it was only six times, not the 75 she says.  Doesn't matter if you say she flirted and dressed suggestively.  Doesn't matter if you say you did it with her initially because you were scared of her and then later fell in love with her.

Once you say "Yes, we did it," you're done.  Over.  In prison.  For 16 years.

Nothing else matters.

Friday, May 13, 2011

In Re Christian G. (Cal. Ct. App. - May 12, 2011)

Here's a good example of something we call a "Morton's Fork":

"The difficult question ultimately presented by this case is whether a four-year-old developmentally-delayed, possibly autistic child should be kept under the guardianship of his ex-convict uncle and his wife, who both have a history of substance abuse, or whether he should be returned to his father, who appears to be mentally ill."

Or, for non-academics, being between a rock and a hard place.

I'm not going to even mention the stuff from the rest of the case.  Too depressing.  Read it all if you'd like.  But I warn you that the most uplifting thing you'll read is when you hear about someone offering to build a fence so the four-year old child wouldn't need to be kept on a leash in the front yard any more.

Thursday, May 12, 2011

People v. Butler (Cal. Ct. App. - May 11, 2011)

Here's a scam that I hadn't considered.

Cut yourself shaving.  Maybe legitimately, maybe not.  Doesn't matter.  Sue Gilette in small claims court claiming that Gilette's electric shaver caused your injury.  Attach pictures.  Settle for $4700.

Two months later, sue Phillips in small claims court claiming that it was Phillips' electric shaver.  Attach the same pictures.  Settle for $4800.

Wait three months and then file the same lawsuit against Schick.  Then, a month later, against Panasonic. 

As you can tell, it worked for a while.  But as you can also tell by the fact I'm writing about it, eventually the guy gets caught, and charged (and convicted) of both theft and perjury.

The sentence is also actually pretty striking:  14 years.  But that's only because of the Three Strikes Law and the fact he had been in prison three times previously.

Still, it's an easier (and safer) crime than robbing a bank, eh?  As well as more remunerative.

Wednesday, May 11, 2011

People v. Riazati (Cal. Ct. App. - May 11, 2011)

You may well like animals.  Or even love them.  I get it.  Really, I do.

But I'll offer the following rule, which although not categorical, is at least subject to a very heavy presumption:

If you have more than 50 animals as pets, you're doing something wrong.

I make this observation after reading this case.  From San Diego.  Involving 90 pets.  In not good condition.

Anything over 50 and there's simply too much pee and poop for one person -- or even several -- to deal with.  Got a farm and 400 acres?  Good job.  That's why the presumption's rebuttable.  But I'd still worry that you're not doing that great of a job, and you really need to take a step back and ask yourself:  "Am I nutty?  Or at least a little obsessive, perhaps to the detriment of the very animals I love?"

You probably won't be going to jail.  Even here, after getting convicted, Riazati is simply sentenced to probation.  But that's not the point.  The point is that you may well be doing bad instead of good.  That's hopefully something you care about.  Worth considering.  Even beyond the expense and hassle of trial.

Tuesday, May 10, 2011

Carpenter & Zuckerman v. Cohen (Cal. Ct. App. - May 10, 2011)

It's a neat trick.  But it doesn't work.

Party A files a lawsuit against Party B -- both A and B are law firms -- and Party B wins an anti-SLAPP motion dismissing the lawsuit.  Party A files an untimely appeal and Party B prevails.

Party B then moves for $33,000 in attorney's fees on appeal.  Party B knows that if it defends itself (remember: B is a law firm), it won't be entitled to fees.  That's the rule.  So Party B "hires" someone to defend it; namely, an associate at B.  B promises the associate that she'll get the fees if she wins.  That way B's lawyer is an "outside" entity, and B allegedly isn't defending itself.

The trial court says:  "No dice."  The Court of Appeal agrees.

The lesson being:  Hire a true outside lawyer to defend you on a contingency.  That way you'll get paid.

P.S. - For a little flavor:  Party A is "Personal Injury Solutions, Inc.," a law firm that apparently recently changed its name to "Adult Entertainment Law, Inc."  Hopefully that reflects a change in  the law firm's specialty.  (You'll be shocked to find out where the lawyer in charge of that firm -- Paul J. Cohen -- does business.  Van Nuys.  Whodathunk?"

People v. Nunez (Cal. Ct. App. - May 10, 2011)

It's unusual for an actual case to mimick a joke.  This one does.

The Supreme Court has held that you can't sentence a minor to life without the possibility of parole, at least for non-murder offenses.  So in this case, that required the Court of Appeal to grant a habeas petition for a 14-year old sentenced to LWOP for aggravated kidnapping.

On remand, the trial court said:  "No problem.  I'll sentence you to something other than LWOP.  I hereby grant you five consecutive life sentences, plus five consecutive 20-year enhancements for using a gun.  That way you're technically eligible for parole.  After 175 years."

Which reminded Justice Aaronson of a hypothetical that Justice Mosk authored in the NYU Law Review:

"Judge:  I sentence you to 200 years in state prison.  After that you will be a free man.
Defendant:  But Judge, I cannot possibly serve out that sentence and win my freedom.
Judge:  Just do the best you can."


The Court of Appeal holds that this doesn't work:  That a sentence that allows parole only after 175 years is impermissible just like an equivalent LWOP.

Look for the California Supreme Court to grant review.  This holding conflicts with a contrary holding earlier this year by the Court of Appeal in Ramirez.  Both involve minors (this one, a 14-year old, and in Ramirez a 16-year old).  Both involve horrible offenses.  Seems to me you have to review both of them and decide what the right rule is.

So read the published opinion in this one while you can.  It's pretty good.  Plus includes an appropriate joke.

Monday, May 09, 2011

Freedom from Religion Foundation v. Geithner (9th Cir. - May 9, 2011)

Somebody's out of it here.  Maybe me.  Maybe the district court judge.  Maybe the panel.  Maybe all three.

It's a pretty straightforward -- and entirely correct -- opinion, at least with respect to Part I.  Plaintiff sues to declare that allowing religious figures (but almost no one else) to exclude the value of a home or rental payments from their taxable wages violates the Establishment Clause.   Pastor Michael Rodgers, a minister in Sacramento, then sought to intervene as a defendant in order to defend the statute.  The district court didn't let him, holding that the United States and California were already defendants and had more than adequate incentives to defend the relevant tax statutes.  The panel holds that the district court got that right, since adequate representation precludes mandatory intervention under Rule 24.  Totally correct.  Judge O'Scannlain's opinion on this point is perfect.

It's the second part of the opinion where someone's out of it.  Rodgers may not be permitted mandatory intervention, but he alternately claims that he's allowed to permissively intervene, and that type of intervention doesn't have an adequate representation prong.  You do, however, have to demonstrate that there's subject matter jurisdiction.  For example, in a diversity case, if someone from Texas sues someone from Illinois, someone from New Jersey might be permitted to intervene as a defendant (since diversity won't thereby be destroyed), but not someone from Texas.  That's a pretty basic point, and one that we go over in first-year Civil Procedure.  It's also something that I'm confident both the district court as well as the panel understands.

It's also the panel's approach to the issue.  The panel says that this principle doesn't apply in federal question cases -- like the one here -- because diversity isn't detroyed.  If someone from Texas sues someone from Illinois in a federal question case, someone else from Texas can indeed intervene as a defendant, since that doesn't destroy diversity (or, more accurately, the destruction of diversity doesn't matter because that's not how the court gets jurisdiction).  To use the modern terminology, in federal question cases (unlike diversity cases), there's supplemental jurisdiction over the intervenor pursuant to 28 U.S.C. 1367, so the rules don't prohibit intervention.

The panel's exactly right in that regard.  I've got utterly no objection to that explication, which is spot on.  And if the district court refused to allow permissive intervention pursuant to a contrary analysis, it was wrong.

The problem is that that's not what the district court did.  It sounds to me like the district court did something far more complicated and subtle -- something that, to tell the truth, may be right, or may be wrong (I'm not entirely sure), but that isn't answered by the typical jurisdictional mantra applied by the panel.

According to the panel, the district court denied permissive intervention "because Rogers could not demonstrate constitutional standing," thus depriving the district court of jurisdiction to allow his intervention as a defendant.  This is not your typical jurisdictional problem in intervention cases.  The district court's not saying that Rogers destroys diversity or fails to satisfy Section 1367 (which the panel's right is not a problem).  It's instead arguing that even if Rogers satisfies traditional congressional and judicial intervention principles, Article III prohbits intervention.  That's a different claim than the one that's usually made.  And it also means that the panel's typical jurisdictional response is totally irrelevant.

Similarly irrelevant (or simply untrue) is the panel's caveat that it matters whether Rogers seeks to articulate "new claims" (or counterclaims, etc.) as an intervenor.  An intervenor inherently creates new claims, at least pursuant to Article III, because his intervention creates claims that didn't otherwise exist; namely, between the plaintiff and the new defendant.  To be sure, those claims are largely identical to ones that existed before -- the same basic claim that was made between the plaintiff and the original defendant.  But it's still a new claim.  When you add a party, you add a claim.  That's how it works.

So I think the panel has to at least respond to the district court's argument.  Especially since it has at least some facial appeal.  Standing is a constitutional requirement.  Congress can't obviate it.  Nor can a party (or, collectively, the parties) get around constitutional standing requirements by intervening instead of being sued initially.  If, for example, Article III does not allow P to sue D, it makes sense that P can't get around that principle by first having P2 sue D and then moving to intervene in the lawsuit.  Ditto for Ds.

Now, it may be that Rodgers in fact has standing; I don't know.  Nor are we likely to find out, since I'm confident that the district court, on remand, will decide that weighing the discretionary permissive intervention factors counsels against Rodger's intervention, particularly given the advanced stage of the action at this point (which wasn't stayed pending Rodger's appeal).

But that's not the point.  The district court made a pretty insightful holding, one that I wouldn't have initially thought of and one that, even after some reflection, I'm not sure about one way or the other.  It's something that makes a difference, both doctrinally and practically.  Does the Constitution really allow parties without standing to become parties so long as they're attached to an existing party?  It's an insufficient answer to say:  "Well, in federal question cases, congress did not deprive the federal courts of subject matter jurisdiction over such intervention in Rule 24."  Which is all the panel says.

Which is too bad.  Not only because it matters.  But because there are only a few really interesting intervention cases and questions.  This is one of them.  To ignore the question (or, I think, more accurately, overlook it) is disappointing.

Thursday, May 05, 2011

U.S. v. Li (9th Cir. - May 2, 2011)

Here's a nice little stumper for you.  One that shows that crazy law school hypotheticals don't just arise in law schools.

An alien gets to the Commonwealth of the Northern Mariana Islands ("CMNI"), which is part of the United States.  She then takes a boat to the nearby island of Guam, which is also a part of the United States, but in doing so, has to travel through international waters.  She's convicted of illegally entering the United States (in Guam). 

She says on appeal that he didn't illegally "enter" the United States in Guam because she was already in the United States in the CMNI.  The United States responds that she did because she was initially in the U.S., but then left it when she went into international waters, so is guilty.

Who's right?  The alien or the government?  Whatcha think?

Well, my friends, the answer is an easy one.  Or at least it's easy for the Ninth Circuit.  Think I'm just rambling on so you can't easily see the answer in the line after the question, and hence have to come up with an initial answer yourself.  You know me too well.  That's exactly what I'm doing.  That way I can bury the correct answer in a morass of text.  The winner, according to the Ninth Circuit, is the alien.  Conviction overturned.  That's the right answer.  Then I just have to type a couple of additional sentences of text so that the correct answer is buried.  Which I've now done.  Expertly.

It's really fairly straightforward, according to the Ninth Circuit.  Just as precedent holds that you don't "enter" the United States if you travel from California to Alaska -- even if doign so requires you to be in international waters (on a ship) or over Canadian airspace (in an airplane or, more uncomfortably, a balloon) -- so too does the same rule apply with respect to Guam and the CMNI.  Different lands.  Same rule.

Now you know.

Wednesday, May 04, 2011

People v. Kennedy (Cal. Ct. App. - May 4, 2011)

I've said it so many times that I'm not going to say it again.  Okay, once more.  Engendered by this case earlier today.  But that's it.

That "13-year old" girl on the internet is a police officer.  Don't flirt with her.  Definitely don't send her pictures of your erect penis.  Definitely, under no circumstances, schedule a meeting with her for sex.  And for God's sake, man, don't take cocaine with you when you do.  It's a bust, you moron.

But can I say one additional thing as well, this time to the police?  Two things, actually.  One a compliment and one a critique.

First, good job catching these people.  Proud of you.  Second, a little constructive criticism.  Be a little bit more creative in the fake names you give yourself.  Here, the name you used for the alleged 13-year old girl was "Dawn Meadows".  You're conducting a sting operation, not shooting a porno flick.  Just stick with the classics.  "Jane Simpson".  "Ashley Wilson".  Names like that.

I know it worked this time.  But trust me that you'll catch more flies with more routine names like those than you will when you start using "Debbie Juggs".  Yeah, "Dawn Meadows" is a bit more subtle.  But only a bit.

(Apologies, obviously, to everyone out there named Dawn Meadows.  Or Debra Juggs.)

GCB Communications v. U.S. South Communications (9th Cir. - April 29, 2011)

I have to admit that I had not a clue -- not even a clue, I reiterate -- as to whether owners of pay phones got paid when callers used their phones to make calls with prepaid cards.  Not.  A.  Clue.

Sure, I knew the callers didn't have to put in a quarter.  But had no idea whether the pay phone owner simply got stiffed -- the pay phone business not being what it used to be, after all -- or got a piece the pie.  Much less did I know how the pay phone owner might technically be able to figure out what (if anything it's owed).

But today, my friends, I am the wiser.  For I have that knowledge.  Available to you as well.  Just read this.

It's a fascinating tale of PSPs (which stands for Payphone Service Providers, not the Sony PlayStationPortable, you gaming freaks), LECs (Local Exchange Carriers), IXCs (Interexchange Carriers), and SBRs (Switch-Based Resellers).  As well as, on the technical side, ANIs and Flex-ANIs.  In the end, it -- alongside regulations by the FCC -- decides who gets paid what and how.

Your local pay phone.  It's complicated.  And not just something used to hold graffiti.  Even if, nowadays, that -- and drug deals -- is its principal function.

Tuesday, May 03, 2011

Goodman v. Staples The Office Superstore (9th Cir. - May 3, 2011)

Let me identify a middle ground between the slightly competing positions in this case.

Judges Silverman (who writes the majority opinion) and Tashima (who concurs) both agree that a treating physician who becomes a testimonial expert because s/he's expressing opinions at trial beyond the scope of her treatment is required to be designated under Rule 26 and prepare an expert report.  I do too.  It makes sense.  It's consistent with both the text and spirit of Rule 26.

Judges Silverman and Tashima also agree, however, that the law in this area was fairly unclear, and that it's thus not surprising that the plaintiff didn't so designate her treating physician.  True as well.  Moreover, both agree that the resulting consequence -- that, without this expert testimony, plaintiff didn't have evidence that would survive summary judgment -- seems unfair.  It's making a reasonable mistake about unclear law into something dispositive.  That's true as well.  For this reason, both Judges Silverman and Tashima also agree that while the law is indeed that plaintiff should have designated her experts under Rule 26, they're going to make this principle prospective only, and thus reverse the dismissal below.  I'm on board as well.

Where Judges Silverman and Tashima differ is how excited they are about this result.  Judge Silverman is fully on board.  Judge Tashima goes along only reluctantly.

I'm in the middle.  I'll explain why.

Judge Silverman is totally happy with prospective-only application of the resulting rule because he thinks that a contrary application would unfairly penalize the plaintiff.  As I said, I get that.  But what Judge Silverman's opinion (as well as Judge Tashima's) fails to address are the resulting incentive effects.  The reason we give most opinions retrospective effect is because (1) the winning party was "right" on the law, and thus they're "entitled" (as a general legal matter) to the benefit of that law, and (2) because unless we do so, they'll have no incentive to litigate these things.  If we tell people:  "Yes, you're right, but the law was unclear, so we're only going to apply this rule to people in the future," it's not worth expending tens of thousands of dollars in legal fees (or more) on the underlying battle just to benefit others.  Hence no incentive to appeal and to start the process necessary for clarifying the law.  That's why we generally make decisions -- even about unclear legal principles -- apply to the parties at hand.  Not because we don't recognize that the law is subject to a reasonable dispute.  But rather because, institutionally, to do so otherwise would reduce our systemic ability to modify and rationalize and clarify the resulting legal rules.  It might be different if we provided everyone with state-paid lawyers who had a duty to file appeals even if it would only benefit others.  But we don't.  So we need an incentive.  That incentive is retrospective application.  Something that Judge Silverman doesn't address in his opinion, and that he should care about.

At the same time, I don't want to go overboard on this.  I'm not against purely prospective application in every case.  It's appropriate sometimes.  Including this one.  And while I agree with Judge Tashima that purely prospective application should be reserved for the unusual case, I don't agree with his reluctance to find this one precisely such a case.  So I'm not entirely sympatico with his opinion either.

For me, what matters here is the actual rule at stake, not just the (allegedly "unfair" or otherwise) results that are engendered by its application.  Rule 26 says that when you fail to designate a trial expert, that expert isn't permitted to testify unless the failure to designate was "substantially justified" or harmless.  So it's inherently a flexible test; moreover, one that expressly incorporates an inquiry into the justification -- and its reasonable or unreasonable nature -- for the party's conduct.  One way, I would hold, that a party could be "substantially justified" in doing what it did was if the law was unclear.  As indeed it was here.  When that's the statutory (or rule-based) scheme, it makes sense to grant (and apply) more flexibility when deciding whether to apply a new legal principle purely prospectively.

To put it a slightly different way, another -- slightly different -- way that the panel could have resolved this case (but with the same result) would be to say:  "We find that, given the uncertainty of the law, plaintiff's failure to designate the expert was indeed substantially justified, so the grant of summary judgment was improper under existing law, and plaintiff is entitled to relief under that law.  However, since, as a result of this opinion, the law is now clear that you've got to designate, in the future, a failure to designate will not be substantially justified."  So that way you're not just prospectively applying the rule. You're applying it here, but the application of that holding will nonetheless be different going forward.

So it matters to me what the Rule says.  Which is why I come out somewhere in between the majority and concurring opinion here.  Not reluctantly.  But with a view towards both the incentive effects of the principles we apply as well as in light of the actual words used in the rule or statute at issue.

Make sense?

P.S. - Regardless, in the future, designate your experts, okay?

People v. Spector (Cal. Ct. App. - May 2, 2011)

News flash:  Phil Spector's conviction for second-degree murder and 19-year sentence for killing Lana Clarkson is affirmed by the Court of Appeal.

Not surprising.  But still takes 81 pages.

Read the full thing for the sordid details.

Monday, May 02, 2011

In Re Marriage of Greenberg (Cal. Ct. App. - April 28, 2011)

Whoever said "All press is good press" clearly never read this case

It's about Simi Valley attorney Robert N. Greenberg.  He's not only the president of the Hairclub for Men, but he's also a client.  Which is to say that he's both the attorney and client in this appeal, which concerns a $2800 sanction and fee award imposed against him in his marital dissolution against his former spouse.

Greenberg appeals the sanction, hoping to get it reversed, or perhaps to at least his require his ex-wife to spend to time, money and aggravation in responding.  But not only doesn't she respond, and not only does he lose, but here's what the Court of Appeal writes:

"Abraham Lincoln once said, 'He who represents himself has a fool for a client.' Here, the client is an attorney who represented himself in the trial court. He now represents himself on appeal. He is unschooled on the basics of appellate law, suggesting that Lincoln's observation applies on appeal. We understand that emotions run high in family law litigation and that this may cloud the judgment of a party. But this does not excuse the filing of a 'creative' (i.e. misleading or incomplete or inaccurate) income and expense declaration; or perjury, as referenced by the trial court; or the filing of a frivolous appeal."

So let's recount what the Court of Appeal says about him.  That he's a fool.  That he's unschooled on even the basics of appellate law.  He fudges court documents.  That he commits perjury.  And that's just in the opening paragraph of the opinion.

The rest of the opinion spells out these conclusions.  In a published opinion, no less.  Adding, for good measure, details about the facts of Greenberg's alleged perjury:  that he lied when he said he didn't have a sexual relationship with someone when he totally did (who, coincidentally, was involved in the dispute that gave rise to the sanction award).

Who does Greenberg think he is?  A former president?  ("I did not have sexual relations with that woman.")  Hope he at least said it in a Southern drawl.

Oh, one more thing.  The Court of Appeal not only affirms the sanction and fee awards, not only insults Greenberg repeatedly, and not only recounts his not-so-stellar attributes -- all the while publishing the whole thing -- but then it ends up by reporting him to the State Bar.  An entity that already censured Greenberg for the underlying perjury.

Not good press.  Not good press at all.

Sometimes you've got to let things go.  Sometimes getting an outside view from another attorney does you a world of good.

Nordyke v. King (9th Cir. - May 2, 2011)

What's the right test for a Second Amendment claim?

This case has been around for over a decade, and has repeatedly bounced around the Ninth Circuit, from panel to en banc court to panel (and all points in between) for the last eight years.  In the end, Judge O'Scannlain writes a majority opinion (joined by Judge Alarcon) that says there should be heightened scrutiny for virtually all Second Amendment claims, while Judge Gould concurs and argues -- borrowing from First Amendment principles -- that there should be heightened scrutiny only for "core" Second Amendments claims (like "core" speech) and that (as with speech) reasonable time, place and manner restrictions should be fine.

It's an extremely powerful concurrence.  Written by someone who's hardly a gun control freak.

I wouldn't be surprised to see the en banc court take it up again.  If they're not too tired of the thing by now.