Thursday, June 30, 2011

Behnke v. State Farm (Cal. Ct. App. - June 29, 2011)

In these days of clients suing their lawyers (and screaming at, and even occasionally shooting at, them), I guess it's nice to see a client totally believing in their attorney, even after the attorney allegedly bills "grossly excessive" amounts to defend a seemingly simple case of "You sold me a house after painting over the mold."

There were lots of things that might have shaken Michael Behnke's confidence in the lawyers at English & Gloven here in San Diego.  The fees charged.  The fact that the firm foreclosed on his house (!).  The firm's losing a demurrer when it sued State Farm (on Behnke's behalf) to recover fees allegedly owed.

But heaven help him, Behnke stuck with 'em, and English & Gloven continues to represent him on appeal.  An appeal which it loses.

Still, I guess you have to admire the confidence of a client in his lawyer.  Even when many would find that confidence misplaced.

People v. Jonigan (Cal. Ct. App. - June 23, 2011)

Here's how you get 15 years in prison for your first DUI arrest notwithstanding having no criminal history.


Wednesday, June 29, 2011

Van Sickle v. Gilbert (Cal. Ct. App. - June 29, 2011)

How can an attorney get sued, repeatedly sanctioned, and then have his answer stricken as a terminating sanction and face a $2 million-plus default judgment?  Like this.

What Northern California attorney Gregory Gilbert does to get himself in this situation is truly impressive.  A string of incredibly bad decisions and incredibly bad lawyering.

He ultimately gets out of the default judgment on appeal because the plaintiff didn't request an actual dollar amount in the complaint.  But only for now.  The panel's not sympathetic (and rightly so), and he's still facing sanctions and RFAs deemed admitted etc.  So it's largely only a question of time.

Surprisingly, Gilbert's still an active member of the Bar notwithstanding everything I've read.  He's also apparently the CEO of several companies, including Diabetic Innovations.  Read his bio.  Which paints him, not at all surprisingly, in a much more favorable light than he comes off in the Court of Appeal.  (Though when you bother to mention in your handcrafted biography that you were previously in a law firm that had a partner who subsequently became a justice on the California Court of Appeal, well, that just comes off as lame)

Bible v. Schriro (9th Cir. - June 28, 2011)

Don't you read this blog, Richard?  You killed a 9-year old girl utterly without reason.  As I said a couple of years ago, given this fact, no panel -- much less Judges Gould, Clifton and Bybee -- are going to care much about what you say or any alleged errors at trial.  Which, as I said, is why your convicted and sentenced were affirmed back then.

Even less are they likely to delay your execution or allow you to file a second habeas petition seeking to have some hair fibers tested for DNA.  Again, as I (and they) said two years ago, your guilt is clear.  So your efforts to postpone your execution are hardly going to be viewed favorably.  Which is why, yet again, the panel tells you to pound sand.

Richard Bible's last dinner will be this evening.  Neither the en banc Ninth Circuit nor the Supreme Court will step in.  Tomorrow will be his last day.  

Tuesday, June 28, 2011

People v. Sherow (Cal. Ct. App. - June 28, 2011)

You can make a lot of money, apparently, shoplifting DVDs.  Even if all you do is stuff them down your pants and walk out the store.  Timothy Sherow, Sr. and his son, Timothy Sherow, Jr., probably made a hundred thousand or more doing so.  A not insubstantial haul

Of course, you also run a risk.  Like here.  In which the father gets over 19 years in prison.  (Of course, that's his ninth time back there.  Which undoubtedly enhanced the sentence quite a bit.)

Good job, I guess, teaching your "skills" to your son, Dad.  He only gets 6 years in prison.  Way to go.

Parenthetically, I loved the trial court judge here, Craig Riemer (in Riverside).  There's a dispute about jury instructions with respect to two counts of "burglary" based upon Sherow's entry into a pawn shop.  The prosecution argues that he's guilty because he entered the store with intent to commit a felony (i.e., selling stolen goods).  But the defense says that's not true because there was consent, since the pawn shop owner -- who had sold $100,000 worth of DVDs from this one guy -- knew the items were stolen.

The pawn shop owner testified that it "entered his mind" that the DVDs might be stolen, but didn't really know.  So the prosecution an instruction on consent isn't necessary because there's no evidence the pawn shop owners knew that the DVDs were stolen.  To which Judge Riemer responds:  "Oh sure they did. . . . Was there any direct testimony of that?  Of course not.  Do I have any doubt of that fact?  None whatsoever.  Could I think that the jury has any doubt of that fact?  I don't think any whatsoever."

Totally true.

Monday, June 27, 2011

White v. DMV (Cal. Ct. App. - June 15, 2011)

When is a choice not a choice?  Like here.

When you're suspected of drunk driving, you can choose between a blood test or a breath test.  A statute gives you that option.

Linda White gets stopped.  She chooses the blood test.  The officers take her to get her blood taken and the person on duty -- angry about it -- is totally incompetent.  Can't find a vein.  Repeatedly jams the needle all around White's arm.  Painful.  So inappropriate that even the hardened officers say "Enough."

The officers presumably could try to find someone else to take White's blood.  But instead say:  "Now you have to take the breath test."  White says:  "But I thought I had the option?"  The officers say:  "Nope.  Not any more."  She refuses, her license gets suspended, and the Court of Appeal affirms, holding that it wasn't a "plan" to deprive her of her statutory option and wasn't the "officer's" fault.  Never mind that it wasn't White's fault either, and that the fault was clearly entirely with the government.

Sorry.  No choice for you.  You'll do what we say instead.

Friday, June 24, 2011

People v. Moore (Cal. Supreme Court - June 23, 2011)

How do you stay on death row for 37 years in California?  Like this.

Remember:  It's not even over yet.  He's still got state habeas petitions to file.  Then first (and potentially successive) federal habeas petitions.

Murders were committed in 1977.  The guy's going to die a natural death in California.  After we spend how many millions of dollars?

Not good.  On any level.

There's also an interesting attorney-related wrinkle I've never seen before, and that's also not mentioned anywhere in the Court's opinion.

Oral argument in the California Supreme Court is initially in December 2008.  The California Supreme Court appoints attorney Cynthia Thomas to represent Moore on appeal (he wants to represent himself, but we don't do that), and she does the oral argument.

One problem.  Ms. Thomas was suspended from the practice of law in 2007 and ordered to take the MPRE.  She didn't do so.  So, shortly before oral argument, was again suspended from the practice of law.

In short, a non-attorney argued a death penalty case in the California Supreme Court.


Once she told the Court this (about a month after the argument), the Court appointed a new attorney, there was a new round of briefs, etc.  And Ms. Thomas hasn't practiced law since then.

And remember, this wasn't a retained attorney.  This was someone appointed by the Court.

Nothing about this case exactly gives one confidence in how the death penalty gets applied, eh?

Thursday, June 23, 2011

Shalant v. Gilardi (Cal. Supreme Ct. - June 23, 2011)

I'm liking the California Supreme Court more and more these days.

At a minimum, I like the fact that the Court's taking its error-correction role seriously.  Sometimes you take a case because the decision below is simply wrong, and although it's not the most harmful decision in the universe, it has consequences to at least some other folks.  You could simply depublish it, of course, and that's what the California Supreme Court routinely did in the old days.  But that neither solves the problem in the particular case nor tells the Court of Appeal what its mistake was.  So I like it when the California Supreme Court reviews cases that many state supreme courts would let go.  A court is never too busy, in my view, to review something that's clearly wrong.  If only because, if it's that easy (as they often are), it doesn't take all that much time to correct. 

I'm motivated to make this observation by this case.  It's about whether a vexatious litigant who has a prefiling order that says he can't file new litigation in pro per can have his lawsuit dismissed when he initially files the lawsuit with an attorney but that attorney later withdraws.  In my mind, the statute's pretty clear:  No.  You can force that person to file a bond if the lawsuit's unmeritorious.  But they didn't violate the prefiling order, since they had an attorney, so you can't dismiss the lawsuit.

Now, that's what the Court of Appeal here held, and given that fact, it would have been easy enough for the California Supreme Court to simply let the case stand.  No injustice, after all, since the right result was reached below.  But, as I said last year when the Court of Appeal's decision came out, I thought it was nonetheless a case in which review should be granted.  If only to clarify the rule.

Which is precisely what the California Supreme Court did.  Deciding the case unanimously, and within a year of when the petition for review was filed.

I like that.  I like it a lot.

Wednesday, June 22, 2011

Gunderson v. Wall (Cal. Ct. App. - June 22, 2011)

I think this decision is totally correct.  It's probably correct even without a statute that expressly allows the court to consider equitable considerations.  But particuarly given the presence of that statute, I couldn't agree more with Justice Zelon.

Sure, normally, when the other side has collected on a trial court's judgment and part of that judgment is reversed on appeal, you should get interest on the part of the judgment that's reversed.   So if, as in this case, plaintiff obtains a judgment of $1.7 million for compensatory damages and $800,000 for punitive damages, defendant eventually pays $2.6 million in an attempt to satisfy the judgment, and the punitive damages award is subsequently reversed on appeal, I'd normally give 'em the $800,000 back and tack on some interest.  That seems fair.  (I'm not at all sure I'd award statutory interest at 10%, but the appropriate rate's another question.)

But where, as here, the defendant's sleazy efforts to evade a prior judgment (by illegally transferring assets) were the reason for the judgment in the first place, and then defendant continued its sleazy efforts to avoid the new judgment, I agree that equity doesn't at all require interest on the reversed punitive damages award.  Yes, defendant, if you'd like, you can secret away all your computers and financial documents when a receiver gets appointed, you can go into hiding to avoid service of a subpoena, and you can even refuse to appear in court once they catch you, but if you do, don't come whining to me about "missing interest" when you get the punitive damages award reversed.

In life, we call that karma.  In law, we call it equity.

Tuesday, June 21, 2011

Aronson v. Advanced Cell Technologies (Cal. Ct. App. - June 21, 2011)

I can summarize this case in six words:

You can't have it both ways.

In Re R.C. (Cal. Ct. App. - June 14, 2011)

On the upside, Edwin -- who's 32 years old -- apparently understands that he's not allowed to "be" with the 12-year old daughter of his baby momma (who lives with him).  Which I guess is something.  He says he's willing to "wait until she's 18" to sleep with her.  Nice concession.

On the downside, however, he seems not to understand that it's not okay to be "in love" with his (essentially) step-daughter.  It's okay to "love" her, but not to "love" her, if you know what I mean.  There's a fine line.  A line that's nonetheless important.

Including in that line, by the way, is how you kiss such a 12-year old.  Pecks on the cheek are okay.  But French-kissing is not.  Which is what Edwin concedes he's done.  The Court of Appeal holds that such conduct is "sexual abuse" as a matter of law, reversing the trial court.

There's a lot of interesting discussion about what "kissing" entails and what's socially okay and what's not.  All physical contact, of course, is a social construct, at least as far as propriety is concerned.  Particularly with respect to contact that doesn't have a functional sexual purpose.  There's nothing intrinsically different about kissing versus French kissing.  Or a back massage, for that matter.  It's all about how we define it.

So it's neat to see a judicial opinion try to deconstruct what we mean -- intrinsically, no less -- by X versus Y.  There's nothing that's in fact intrinsic about it.  Though I agree that, as a general matter, as well as here, the Court of Appeal's probably right that it's very uncool for Edwin to be doing what he's doing to the 12-year old child here.

So if you want to check out what people in black robes think about tongues, here's the opinion for you.

Monday, June 20, 2011

People v. Reyes (Cal. Ct. App. - June 17, 2011)

I'm not a police officer.  But even I know that many states don't require front license plates.  How do I know?  Because I've seen many cars with out-of-state license plates without them.

So when a police officer sees a car with Florida tags and stops it because it's "missing" a front license plate, that's not a permissible stop.  As virtually every other court in the universe has also held. 

It doesn't seem overly burdensome to me to require officers to know the same laws that even regular citizens can figure out.  Even if (as is not, in fact, the case) ignorance of the law was an excuse that permitted officers to violate the Fourth Amendment.  Seems to me that you could go over the laws of the various states about front versus rear license plates in five minutes or so when you're training someone about the other traffic laws they need to know.  They could even write it down and take it with them in their cruiser.  So I'm not really sympathetic with the contrary position of the Calfornia Attorney General here, which I think the Court of Appeal properly rejects.

Now, mind you, I don't think the officer was the only one who made a stupid mistake here.  The driver probably shouldn't keep his cocaine in his sun visor either, at least if that's where he keeps his registration papers too.  Seems pretty common sense that you don't want your drugs dropping down whenever you have to pull out your registration.  Cops take a dim view of that.

Desert Outdoor Advertising v. Superior Court (Cal. Ct. App. - June 17, 2011)

The Court of Appeal isn't going to look fondly upon you if you try to get out of an arbitration clause with your lawyer because the engagement letter "had too many pages" so you didn't bother to read it.

That's true even if you had a previous engagement letter before your lawyer changed firms that didn't contain an arbitration clause.  And even if you hire a legal ethics expert to say that the lawyer had a duty to specifically point out the new arbitration clause.

They like you to actually read these things.  Arbitration clause enforced.

Friday, June 17, 2011

U.S. v. Wiles (9th Cir. - June 17, 2011)

Justice doesn't have to be delayed.  Here's a case with a "10" number on appeal (i.e., was filed in 2010) and an "09" in the district court (i.e., was filed in 2009).  That's pretty speedy justice.  Not totally unprecedented either.  Plus the appeal's resolved in a nice little eight-page opinion.

Sometimes things go as hoped.

Ball v. Steadfast BLK (Cal. Ct. App. - June 14, 2011)

I couldn't agree more with Justice Blease.

It's true that unlicensed contractors can't recover money, even for work they've done.  But David Ball was licensed.  Sure, his d/b/a was "Clark Heating and Air Conditioning," whereas here he did the work as "Clark Air Conditioning and Heating" -- essentially, transposing the two types of work.

But he still has a license.  He should be paid.

Judge Chang (up in Sacramento) held otherwise.  Glad she was reversed.

Doctrinally, Justice Blease is correct.  Ditto for the equities.

Thursday, June 16, 2011

Lacey v. Maricopa County (9th Cir. - June 9, 2011)

Here's a pretty darn good opening salvo in the partial dissent by Judge Bybee:

"This case concerns an investigation initiated by 'America’s toughest sheriff,' Joseph Arpaio, against his political enemies in the local news media. In the words of Arpaio’s own director of legal affairs, Arpaio had targeted the Phoenix New Times because the paper had been 'historically anti-Arpaio.' Arpaio’s excuse for demanding prosecution of the Phoenix New Times was that its decision to post Arpaio’s home address on its website allegedly violated an obscure Arizona statute that prohibits dissemination of a law enforcement officer’s 'personal information,' if doing so would pose an 'imminent and serious threat' to the officer or his family, and such threat is 'reasonably apparent' to the publisher. Ariz. Rev. Stat. § 13-2401(A). Never mind that Arpaio’s address was already publicly available through numerous other websites, including the websites of Maricopa County and the local Republican Party. Despite this and the fact that no one had ever been prosecuted under the statute, Arpaio used his considerable political clout in an attempt to pressure various prosecutors into charging the Phoenix New Times. After years of investigation, two different County Attorneys found no grounds for prosecution and refused to cave into Arpaio’s demands. Undeterred, Arpaio eventually managed to persuade Maricopa County Attorney Andrew Thomas to appoint Dennis Wilenchik as special prosecutor to investigate the Phoenix New Times. When Wilenchik issued subpoenas to the Phoenix New Times, the paper responded by publicizing the content of the subpoenas. Arpaio obliged by ordering the arrest, without a warrant, of Phoenix New Times publishers Michael Lacey and Jim Larkin for violating Arizona’s grand jury secrecy laws. The only problem was that no grand jury had ever been empaneled. Thus, the subpoenas were invalid ab initio.

Accepting the Plaintiffs’ version of the facts—which at this stage of the litigation we must—this is a sordid tale of abuse of public office. Nevertheless, despite the complaint’s detailed allegations of reprehensible conduct, the majority concludes that Arpaio is entitled to qualified immunity on the grounds that Plaintiffs failed to adequately plead that Arpaio was personally involved in the arrests. Since the complaint details Arpaio’s extensive involvement in the alleged violations of Plaintiffs’ clearly established constitutional rights, I respectfully dissent from the majority’s conclusion that Arpaio is entitled to qualified immunity."

Even the majority opinion doesn't like what it sees here, and the dispute is really not about whether Apraio is a good guy or not; everyone seems to agree that he seems utterly uninterested in anyone's rights but his own.  It's instead whether his conduct satisfies the tough test to overcome qualified immunity.  But Judge Bybee has a pretty decent argument that it does.

The majority opinion has some additional details about what Apraio allegedly did.  Really shameful stuff.  Worth a read.  Especially if you're ever thinking about going to Phoenix or being in his jurisdiction.

Wednesday, June 15, 2011

Yu v. University of La Verne (Cal. Ct. App. - June 15, 2011)

If I was a law student at the University of La Verne and in my last semester of law school and was assigned to draft a contract for one of my classes, I know what I'd do:  Go on the internet and plagarize what's there.  Once I was caught, rather than express remorse and learn from what I've done, I'd fight the charges, and follow up by attacking my professor, saying it was really his fault, not mine.

Then, at the hearing, when the student prosecutor recommends explusion, but I escape with only a failing grade for the class, I'd definitely appeal to the Dean.  When the Dean affirms this penalty, as well as suspends me for the summer, I'd then file a lawsuit, claiming that I'd been "targeted" based upon exercising my right to "free speech".

Then, after moving for and being denied a preliminary injunction, I'd definitely appeal.  Because I'm totally going to win, and want nothing more than a published opinion that recounts my plagarism for everyone to see.  Since I'm going to be an attorney any day now, after all.

Such are the thoughts, I imagine, of Katrina Yu.  Who -- shockingly -- loses her appeal.  And who's not listed as a member of the Bar of the State of California either.

Surprises everywhere.

Tuesday, June 14, 2011

Hayes v. County of San Diego (9th Cir. - June 14, 2011)

Here's another way to get out of an en banc call.

The Ninth Circuit initially renders a split opinion on an issue of California law.  There's a petition for rehearing and rehearing en banc.  Presumably one that's getting some traction.

The initial opinion had dealt with this issue on the merits.  Neither the majority nor the dissent thought it was important to get the California Supreme Court's take.

But given the resulting fight, they -- as well as (presumably) the losing party -- now thought:  "Let's moot this thing.  Let's certify the question to the California Supremes."

So today, that's what they do.

Monday, June 13, 2011

Lopez v. City of Los Angeles (Cal. Ct. App. - June 13, 2011)

I understand the nonsuit.  It's a tragedy.  But I can see why the Court of Appeal would hold that there was no evidence of negligence when the SWAT team accidentally kills the hostage, a 19-month old baby girl.  Her father was threatening to kill her, and bursting in and trying to save her was once acceptable option.

At the same time, the officers fired over fifty bullets during a three to six second period.  The father was holding the baby, using her as a shield.  Of course you're going to hit the child.  There's no doubt.  I don't care that you were trying to shoot on the "other" side of the father's body.  Fifty bullets.  You're going to kill the child you're trying to save.

Extremely unfortunate.

Friday, June 10, 2011

Sander v. State Bar of California (Cal. Ct. App. - June 10, 2011)

A member of the public wants to get bar passage data so he can study differential pass rates for various ethnic groups.  Do you think he should get it?  There's no First Amendment right of access, but maybe a common law right.  Should we extend that right to the data?

Does it matter which side of the debate he's on; e.g., whether he's trying to argue that the bar exam discriminates against minorities or -- as here -- that affirmative action is a bad idea?  Hopefully the content doesn't matter.  Though the Court of Appeal carefully avoids saying which side of the debate the petitioner here is on in a way that makes you think it might well be relevant to at least some readers.

The trial court thought he shouldn't get the data.  The Court of Appeal reverses, remanding for an assessment of privacy and other interests.

This one attracted (as you might imagine) a not-insignificant number of amici, including several law professors here in California.  Needless to say, it's a somewhat contentious dispute.  One that's far from finally resolved.

Thursday, June 09, 2011

Prudential v. HUD (9th Cir. - June 7, 2011)

Next time you feel like anonymously blowing the whistle on someone who's doing something illegal, read this case first.  Because your identity may well be disclosed.

You're essentially at the whim of the government (and the Ninth Circuit), and they'll decide whether the target of your ire -- the entity that's (allegedly) engaging in a crime -- gets to find out who you are under the FOIA.  If the target's someone like Prudential Real Estate, as it is here, they're going to go after you.  Even if -- as is the case here -- Prudential was indeed doing something illegal.  They're going to want to find out who ratted them out, or who continues to rat them out.

Think about that next time you feel like disclosing a crime.  Or when you're selecting a real estate broker.

People v. Villanueva (Cal. Ct. App. - June 8, 2011)

Villanueva gets convicted of attempted murder and mayhem.  Bummer for him.  Plus there's some firearm enhancements.  But at least the jury hangs on the most serious of those enhancements.  He's sentenced to 20 years in prison.

He appeals.  He prevails.  Huge celebration, presumably.  He gets a retrial.

Further victories for Villanueva.  The prosecution has 60 days to retry him.  At the end of that period, they can't find the victim.  So they dismiss the charges.  More celebration for Villanueva!

But they promptly refile them, thus getting another 60 days.  Which they can do.  And this time, the trial goes on time.  Sorry about that, V.

But yet more good news for Villanueva.  At the second trial, the jury acquits him of attempted murder, though it still convicts him of mayhem and attempted involuntary manslaughter.  So at least a partial victory, right?  Sure, the jury finds him guilty on all the enhancements, but he's only convicted this time of a lesser offense.  So things are looking up, eh?

Uh oh.  That's not how California works.  Because, you see, the enhancements are big.  So while Villanueva was "only" sentenced to 20 years previously, even with his lesser conviction, after the retrial, he now receives a sentence of 25 years to life -- plus eight additional years for mayhem -- rather than the set 20 he previously received.  He argues that that's vindictive, but the Court of Appeal disagrees.  Nope, we just retried you and got a harsher result this time.  That's the way of the world.

Oh, by the way.  Villanueva was offered a plea deal before his second trial.  16 years.  He turned it down.


Sometimes victory ain't victory in the end.

Wednesday, June 08, 2011

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

There are few opinions that you'll have occasion to employ in your everyday life, but this is one of them.

I always assumed it was the law that you have to use your turn signal whenever you're turning.  Not so, apparently.  At least according to the Court of Appeal.  Resolving what is unquestionably an ambiguous statutory scheme, the Court holds that you only have to use your turn signal if other traffic will or might be affected by your turn, and if (but only if) that's the case, the turn signal needs to be on for 100 feet.  As a result, if there's no traffic -- or no traffic that might be impacted by your turn -- you don't have to signal.

Good to know.  Especially since I don't always use my turn signal.  At least when I'm on a deserted road, I'm apparently safe from getting a ticket.  Or, as here, a traffic stop so they can search my car.

Tuesday, June 07, 2011

Advanced Real Estate Services v. Superior Court (Cal. Ct. App. - June 7, 2011)

I didn't know anything about the sale of the Orange County Fairgrounds before I read this case.  All I would assume (and I continue to do so) is that it's simply another component of the fake "budget balancing" that the state and numerous municipalities are doing nowadays in light of the Great Recession.

But the more I read about this particular sale, the more I'm glad that the Court of Appeal vacated it.  Not only is Justice Rylaarsdam correct that the sale violated the relevant statutes -- fairly clearly, I might add -- but the entire bidding process seemed to me a crock.  Everyone just happens to bid almost the identical amount ($97, $98, $100 and $100 million, respectively), and every bidder was totally manipulating the terms to look like the highest bid but with absurd present valuation and credit risk.

For example, the "highest" bidder in terms of present value was Advanced Real Estate, who bid an "actual" $100 million (i.e., a bid with a present value of $100 million), as opposed to the other "$100 million" bid, which had an actual present value of $20 million less since its payments both escalated and were spread out over time.  But Advanced Real Estate's bid said that it'd pay nothing for the first eight years, and then at the end of 40 years, would owe -- and allegedly pay -- over a half billion dollars.  Yeah, right.  I'm totally sure you wouldn't just file for bankruptcy at that point, having already pocketed the proceeds from the fairground over the past 40 years.  I'll definitely take your word for it that you'll for sure pay the half-billion dollar note.

Maybe all of these public bidding schemes are manipulative shams.  I don't know.  But this one sounded like that to me.  In spades.

So not sad to see it disappear.  At least for now.

Absmeier v. Simi Valley USD (Cal. Ct. App. - June 7, 2011)

Here's a nightmare of a hearing officer.

His name is Carl Lange.  The Simi Valley Unified School District retains him to conduct a hearing when one of its employees challenges his dismissal.  The rules require the hearing officer to render a decision within 10 days.  Mr. Lange doesn't do so.  You've got to read the Court of Appeal's decision to learn why.  Priceless.  Basically, an abject and totally inexplicable refusal to ever decide the case.

The Court of Appeal agrees that it was reasonable for the school district to boot Lange at that point.  I couldn't agree more.  I might have added that it'd be more than reasonable to sue him as well.

The Court of Appeal also holds that the school district could not, however, then hire its attorneys to review the transcript of the hearing and decide the case.  Totally right as well.  Conduct a new hearing.  This time with a hearing officer that's marginally competent.

I assume that the Carl Lange in question is the same Mr. Lange who now works for "Schools Legal Service".  Part-time.  Which seems pretty well suited to his disposition, at least in this case.

Monday, June 06, 2011

Kimes v. Gosser (Cal. Ct. App. - May 31, 2011)

Cats are more like scrapbooks than automobiles.  So holds the Court of Appeal.

Seems right to me.  You shouldn't be able to kill or injure a pet and only have to pay $10 (or whatever) because that's the "market value" of a stray.  They're a special form of property, with idiosyncratic value.  If the owner spends $1000 to save the pet's life, a reasonable jury might find such expenses reasonable.  And if so, you've got to pay.

U.S. v. Pool (9th Cir. - June 2, 2011)

The day this opinion came out in September 2010, I wrote:  "Given the significance of the case, as well as the lineup of the panel, I think you'll see this one taken en banc. Which makes sense, and the substantial tension between the majority opinion and prior Ninth Circuit precedent gives additional reason to take the case up."

So who's surprised that the Ninth Circuit indeed takes the case en banc.  Surely not me.  Nor any of my incredibly informed readers.

My further prognostication was that you'd see a split opinion en banc, and -- depending on result -- maybe even have the Surpeme Court step in.

Stay tuned.  We'll see if my crystal ball stays clear or starts to get cloudy.

Friday, June 03, 2011

Sessoms v. Runnels (9th Cir. - June 3, 2011)

Sometimes you write a majority opinion and try to be pretty moderate.  Saying that it's a "close case" but that you come out a certain way.  Knowing that there's a dissent, and that the dissent is pretty reasonable.

Then, after you circulate your opinion, you read the dissent.  Which hacks you off.  Because you read your colleage as slamming what you've written.  Even if she's ordinarily an extremely collegial person.

So you add footnotes responding to the dissent.  In which you're not nearly as nice (or moderate) as you were in your original opinion.  Slamming your colleage in turn.

That, in a nutshell, is what it looks to me happens here.  The author of the majority opinion being Judge Tallman and the dissent being written by Betty Fletcher.

Read the opinions, including the footnotes, and see if you agree.

Chay Ixcot v. Holder (9th Cir. - June 1, 2011)

Who looks good in this one?  No one.

Francisco Chay Ixcot ("Chay") hops over the border in San Ysidro in 1989 and is immediately busted by the INS.  He gives a fake name and says he's from El Salvador.  He's held in detention and ordered deported, but he files a Notice of Appeal, and then he's released from detention five days later.

Then a year goes by.  Nothing.  (Not very impressive or speedy.)  Finally, in 1990, the BIA instructs him to file a brief, he doesn't do so, so they dismiss his appeal.  So now time to deport him.  Nothing happens.  For three years.

Then, in 1993, Chay files an affirmative asylum application.  Using his real name, this time, and saying he's from Guatamala rather than El Salvador.  With new claims.  He then goes to Guatamala to marry his fiancee, comes back (again without inspection), and hangs out.  For twelve years.  During this decade-plus, nothing at all -- absolutely nothing -- happens.  Again, impressive.

Finally, in 2005, the INS interviews him and finds him ineligible for certain relief.  Then another couple of years pass, with another interview and him adding his wife and child to the application.  (See, this is one of many problems with letting things linger.  Oh, he's also got another U.S. citizen child at this point, who was born in the U.S.  More problems.)

Then, in 2007, another interview.  Followed by another two years of nothing.  Then, in 2009, the INS finally fingerprints Chay.  Discovering his prior deportation, leading to his renewed deportation and, after another couple of years, the present appeal.

You'd think that there'd be more urgency in these things.  That someone who the INS knows is present in the United States without authorization would have things resolved in, oh, I don't know, under two decades.

Not so, apparently.

Impressive on all fronts.

P.S. - The Ninth Circuit grants Chay's petition in part and remands.  So fear not.  The saga will continue.

Wednesday, June 01, 2011

McCollum v. California Department of Corrections (9th Cir. - June 1, 2011)

My initial reaction to this case was a negative one.  Not the opinion, but the case.  I'm not surprised that the California Department of Corrections pays for Catholic, Protestant, Jewish, Muslim, etc. chaplains but does not retain a specialized Wiccan chaplain.  Some religions are popular.  Some aren't.  It makes sense that a prison might retain a specialist in the popular areas (and have 'em serve the unpopular ones as well) but not the unpopular ones.  After all, you can have a religion of one, if you'd like.  But you can't expect your prison to necessarily cater to your individual religion by appointing a specialist.  It doesn't work like that.  So I'm not particularly sympathetic to the plaintiff here.

The Ninth Circuit gets rid of the case on procedural grounds, which is what it is.  My reaction was largely to the merits.  It's not that I'm not sympathetic to the problem of religious discrimination.  I am.  Truly.  But in a context like a prison, I think it makes more sense to do what California has done than to pay for a specialist in every religion.  That's unduly burdensome, and not required by either the Constitution or federal law.

I was, however, fascinated by the statistics the Ninth Circuit cites with respect to the religious preferences of inmates in California.  According to these statistics, in 2002, there were 20,901 Protestant inmates, 11,351 Catholics, 1,773 Muslims, 1,482 Native American, 306 Jews, and 4,155 "others".  Those numbers don't seem radically far off from the overall U.S. demographics.  More Native Americans (obviously) than in the U.S. generally, but that's presumably because of federalization of tribal offenses, and more Muslims (I rankly speculate) because of the overrepresentation of African-Americans both in that religion and in prision.

But the first thing that shocked me was this:  598 Wiccans.  Seriously?  More Wiccans than, for example, Jewish inmates?  Wow.  The former clearly seems to be a religion that attracts the "bad boys".

So that was my first surprise  But here was the second.  Look at the 2007 figures:  42,666 Protestant inmates, 28,884 Muslims, 23,160 Catholics, 8,296 Native American inmates, 3,296 Jews, 183 Wiccans, and 2,678 others.  First, what an explosion in sheer numbers, and in five short years.  Virtually every group more than doubles.  Second, look at the explosion of Muslim inmates.  Increases sixteen-fold in five years.  Maybe that's the result of conversions and/or post-9/11 incarcerations.  Regardless, it's pretty shocking.  Plus, what's the deal with the tenfold rise in Jewish prisoners?  Again, in simply five years.  Wow.  I can't even figure out what's going on there.

The only group that's on the decline is the Wiccans.  Which is either because they're getting their act together  or because it's a religion on the downslope.  Less cool in 2007 than in 2002, most likely.  Sorry about that.  Don't even get your own chaplain.

Interesting numbers and interesting constitutional challenges.

People v. Cordell (Cal. Ct. App. - June 1, 2011)

It's June.  And here's another guy who's never getting out of prison.  Thankfully.