Wednesday, November 30, 2011

Carlos Lezama-Garcia v. Holder (9th Cir. - Nov. 5, 2011)

Petitioner is from Nicaragua.  He's been in the United States since 1993.  He has no criminal history.  So under the Nicaraguan Adjustment and Central American Relief Act, he's entitled to become a permanent resident.  We have a special deal for people who came from (then-) Sandinista-controlled Nicaragua.  So he files the appropriate petition.

There's only one problem.  Petitioner lives in Long Beach.  In 2004, he was driving a company truck from Long Beach to San Diego.  He had never been to San Diego before, and got confused.  He was on the I-5, which is the main interstate from L.A. to San Diego, and was trying to find his exit in San Ysidro, which is on the border with Mexico.  He's trying to find the exit, and all of the sudden, time runs out; he's still searching for his exit on the I-5, when all of the sudden a big sign appears:  "Mexico".  He tries to find a place to turn around before heading into Mexico, but can't find one, and a police officer is telling traffic to keep moving.  So, having no alternative, he enters Mexico, and immediately turns around at the next exit to get back to the United States.

The problem, of course, is that he's not a resident of the United States.  He tries to explain that he just came from the United States in his company's truck, and is only there on accident.  But that doesn't matter; if you don't have a visa and aren't a citizen, we don't let you in.  He tries again several days later -- this time using a fake identification -- and that doesn't work either.  They detain him, and then move to kick him back to Nicaragua.

But his problems get worse.  Sure, he was categorically entitled to permanent residency, and had filed the relevant petition.  But a federal regulation says that if you file a pending petition, and then "depart" from the United States without permission, you're deemed to have abandoned that petition.  So the IJ holds that he's no longer eligible for relief because he left the U.S, and the BIA affirms.  Shouldn't have missed that exit, buddy.

The Ninth Circuit, in a split decision, reverses.  Judge Seabright, sitting by designation from Hawaii, writes an opinion (joined by Judge Goodwin) that holds that you haven't really "departed" the United States when you do it by accident and immediately turn around.  Judge Rawlinson dissents, arguing, inter alia, that yes, that counts as a departure, and that we should defer to the BIA on this point in any event.

I'll let the competition opinions speak for themselves.  Obviously the equities favor the petitioner (at least in my view), and the question is whether the statute permits us to do the right thing.  Assuming that his story is accurate, it seems pretty harsh to deport a guy from the country in which he's lived for the past 18 years -- and in which he is entitled to live -- merely because he missed an exit one fateful day.

I'll just add one personal observation.  I live in San Diego.  There is, in fact, a big sign (at least nowadays) that says "Last Exit in the United States" on the 1-5 as you approach that last exit, as well as a U-Turn lane right before the big "Mexico" sign that gives you one last chance to turn around if you've made a mistake.  So you might well think that Lezama-Garcia's story is facially incredible.

But the exact same thing happened to my friend Judybeth Tropp, who lives in San Diego, not that long ago.  She's driving along the I-5, heading to Chula Vista to a birthday party with her kids, gets confused, is trying to find her exit, and wham, suddenly she sees the big "Mexico" sign and can't find a way to get over to the U-Turn lane.  So there she is, in a minivan with two little kids, in Mexico.  Without, obviously, a passport or anything at all about the kids.  Desperately hoping that they'll let her back in.

Fortunately, they do.  Though I'm not sure they would after the recent heightened security on the border.  My only point is that it's quite, quite possible for people to accidentally end up in Mexico if they're driving on the I-5 and looking for an exit near the border.  Even if they've graduated from Smith College.

Tuesday, November 29, 2011

Lang v. Roche (Cal. Ct. App. - Nov. 29, 2011)

What's another way the judicial process can become a mess?  When neighbors repeatedly sue each other, abuse the legal system to advance their hate, and represent themselves pro per.

As in this 16-year -- and counting -- saga.

Yavapai-Apache Nation v. IIpay Nation (Cal. Ct. App. - Nov. 29, 2011)

Rarely do two sovereign nations sue each other in state court.  And when they do, it's a mess.

Monday, November 28, 2011

People v. Engstrom (Cal. Ct. App. - Nov. 28, 2011)

Doing a little math doesn't constitute jury misconduct.

People v. Dement (Cal. Supreme Ct. - Nov. 28, 2011)

The opinion took a long time to load, comes from the California Supreme Court, and has the word "People" in the caption.  Which suggested to me that it's likely (1) a death penalty case, (2) that's unanimously affirmed.

Right on both counts.

Some tangential points.  First, the defendant gets convicted of a death penalty murder offense.  As well as oral copulation in a detention facility.  Seems like the latter is piling on.

Second, the case provides yet another good reason why you don't want to go to jail.  For anything.  Ever.  Greg Andrews gets sent to jail and, as he and the other new inmates arrive, the defendant says to a nearby inmate (referring to Andrews):  "I hope they don't move him in my cell.  If they do, I'm going to do him."  "Do" as in "kill".  And, as (bad) luck has it, Andrews does indeed get assigned to the defendant's cell.  Defendant's upset because it's a three-bunk cell already occupied by three people, and there's allegedly only two people in a cell on a lower tier.  So defendant decides to invoke a self-help remedy to prison overcrowding.  So kills Andrews that night.

Argument Number One Thousand as to why you should stay out of jail.

Finally, what I just said apparently goes double for the Fresno County jail.  What could possibly be going on there?!  The murder of Andrews doesn't happen quickly.  It takes a long time.  Defendant drinks some pruno in his jail cell.  He starts slapping defendant in their cell (once everyone's locked down for the evening).  He interrogates him.  He rips off his boxer shorts.  He forces him to kiss his genitals.  He starts hitting him again.  He slams him against the cell lockers.  Andrews starts screaming.  Defendant starts choking him with a towel.  The cellmates pull defendant off, and another uses a call button to alert the officers to contact the cell.  Remember:  All this is happening right out in the open, in a jail cell, no less.

The officer dutifully gets on the speaker and asks what's up, at which point defendant asks him what time it is, and the officer tells him.  Inquiry finished.  So defendant then again wraps the towel around Andrews and starts choking him a second time.  The cellies again try to stop him.  Another pause and discussion.  Then defendant starts jumping on Andrews.  Starts choking him for a third time.  Finally killing him.

What are the jailhouse guards doing all of this?  Nothing.  Or at least nothing relevant.  No inquiry.  No looking at the cells.  No hearing the screams -- screams which other inmates hear (and so testify at the defendant's trial).  An hour or so after the murder, it's breakfast time.  At which point the guards open up the cells and everyone leaves.  You'd think at this point they'd at least notice the dead body.  Nope.  That happens only after the cellies return to the cell from breakfast call and use the contact button to say:  "There's a dead body in the cell."  Then the guards show up.

Defendant, by the way, is hardly an angel.  He beat his wife.  He murdered his brother.  He committed a variety of other offenses.  Thank goodness he's virtually unsupervised.  How shocking that the jury sentences him to death.  Apparently being unpersuaded that the rigors of prison will prevent him from killing in a detention facility yet again.

In the spirit of the season, I will now add to my prior refrain from Thursday the following:  "And I also give thanks that during this past year I did not find myself in a local jail.  Lord, if you are willing, please make that continue to be the case during the upcoming year as well."

Happy Thanksgiving.

Wednesday, November 23, 2011

People v. Crivello (Cal. Ct. App. - Nov. 1, 2011)

Justice Robie ends this opinion with:

"The record before us indicates that this latest effort to commit defendant is the fourth time in as many years that the board has determined defendant is an MDO and the People have sought his commitment based on his 2003 robbery conviction. Twice before the court has rejected that commitment based on the res judicata and collateral estoppel effect of the 2006 determination that defendant’s crime was not an aggravating or causative factor in his underlying offense. In the face of these determinations and existing legal authority, it is inexplicable why the board and the People continue to seek defendant’s commitment using this particular statutory scheme and underlying offense as the basis. They must know such a commitment cannot stand.
But, just in case, let us make this perfectly clear. The predicate basis for defendant to be committed as an MDO based on his 2003 robbery conviction does not exist. Because the court found in 2006 that defendant’s mental disorder was not a causative or aggravating factor in that 2003 robbery, defendant cannot now, or ever, be committed as an MDO under sections 2962 or 2970 based on that conviction. Continued attempts to commit defendant on this basis violate the principles of res judicata and collateral estoppel, and represent an enormous waste of resources.
The judgment ordering defendant committed is reversed. The circumstances of this case compel us to remind the parties of the availability of California Rules of Court, rule 8.272(c)(1) whereby the parties can stipulate to the immediate issuance of a remittitur."
Not very difficult to figure out where the Court of Appeal stands on this one, eh?
To its credit, the Attorney General's Office did concede error.  Though that doesn't explain why the People did what they did before, or excuse the conduct below.  As the Court of Appeal makes clear.

Tuesday, November 22, 2011

Linear Technology Corp. v. Tokyo Electron, Ltd. (Cal. Ct. App. - Nov. 22, 2011)

Well, geeze.  I just don't know.

The Court of Appeal's holding definitely has some appeal.  I unquestionably agree with the first part.  Linear lost its warranty lawsuit at trial.  The evidence supported the jury's verdict.  Linear's claim that it was entitled to a j.n.o.v. lacks merit.  Definitely right. 

The harder part is the attorney fee question.  The trial court granted $8 million-plus in attorney's fees against Linear pursuant to Section 1717, the reciprocal fee statute.  And there's indeed some basis for that.  Linear definitely asked for attorney's fees if it won.  So arguably the other side's entitled to them as well.  That's the whole point of reciprocity.

Linear argues that it waived its request for fees.  But it didn't.  Its counsel was being a typical attorney, and engaged in a tactical strategy that I'm sure seemed to made sense at the time.  Linear stipulated to a certain thing (involving a battle-of-the-forms) prior to trial, but as part of that stipulation -- one that, as a practical matter, would probably mean it couldn't recover attorney fees -- the attorney piped up and said that this stipulation was without prejudice to seeking fees if they prevailed.  In short, the attorney entered into a stipulation that effectively said his side couldn't get fees, but nonetheless said that he was not giving up the right to seek fees.  No harm "preserving your rights," right?

Wrong.  That's all fine if you win.  But when you instead lose, the other side then hoists you on your own petards.  Saying that since you still claimed to be entitled to fees, so are they.  And, in this case, getting them.  To the tune of over eight million dollars.  And the Court of Appeal affirms.

Like I said, that makes a certain intuitive sense.  You said you were entitled to fees, so the reciprocity provision means the other side's entitled to it as well.

But here's the problem.  It's almost certain, in my view, that Linear was not entitled to fees.  They may have said they were entitled to them, but the stipulation meant they weren't.  That's its effect, and even if you say that X doesn't do Y, if it does, then Y's the rule.  So Linear wasn't entitled to fees.

Given that fact, it seems bizarre to say that the reciprocity provision of Section 1717 means that the other side is entitled to fees when Linear isn't.  Sure, when one side is entitled to fees, the other side should be entitled to them as well (as a matter of fairness), even if that side doesn't have an attorney fees provision in its contract.  But when that side both doesn't have an attorney fee provision in its favor and the other side's attorney fee provision doesn't apply, how can fairness require that one side but not the other be entitled to attorney's fees pursuant to Section 1717, the entire purpose of which is to make things equal?  That just seems not only bizarre, but the exact opposite of what the statute is designed to accomplish.

Justice Elia says -- in a response that makes some sense -- that Linear shouldn't be allowed to claim that its own request for fees was meritless in order to get out of paying the other side's fees.  I surely understand that.  It seems somewhat wrong to let you attack your own case once you lose.  So I see the equities there.

But it's not like this is judicial estoppel or anything; none of the relevant prerequisites would be met.  And the consequence of the Court of Appeal's holding is, again, to let fees be nonreciprocal; Linear would have to prove its entitlement to fees -- which it couldn't do -- if it had won, but the other side here doesn't have to prove its entitlement to fees.  Which matters, since there's actually no applicable attorney fee provision.

As a doctrinal matter, this case seems no different than a garden-variety slip-and-fall case in which the plaintiff said, as part of a boilerplate complaint (as they often do), "I demand $50,000 plus attorney's fees," despite the fact that fees unquestionably aren't recoverable.  I'm quite confident that the Court of Appeal would not hold that a defendant in such cases was entitled to fees if it prevails, notwithstanding Section 1717, because the plaintiff was not, in fact, entitled to fees, even though she had indisputably requested them.  Why should there be a different result here?  After all, the slip-and-fall plaintiff would be "disputing his own request" just as much as Linear is doing here.

So, as I said at the outset, I'm in a bit of a quandary.  I understand the equities on both sides.  But I come to the problem with a belief that (1) it's the moving party's burden to prove that they're entitled to fees, (2) the mere fact that the other side asked for fees themselves isn't sufficient to establish (1), and (3) the reciprocity provision of Section 1717 should care -- deeply -- about whether one of the parties was in fact entitled to fees.  All those things seem to suggest that the Court of Appeal's holding here is erroneous.

At the same time, take a different case.  Plaintiff files suit claiming that Defendant signed Contract, which contains an attorney fee provision.  Plaintiff requests damages and attorney's fees.  Defendant alleges that the signature is a forgery, and that Contract was never signed, and prevails at trial.  I think that Defendant in that case is entitled to attorney's fees under Section 1717 even though Plaintiff was in fact not entitled to fees because the Contract was never signed.  Plaintiff would have been entitled to them had she prevailed, so Defendant is also entitled to them.  So the "reality" of whether the contract in fact entitles one side or the other to fees isn't always dispositive.

But this case is different, because unlike in the example above, here, even if Linear had prevailed -- even if the jury had agreed with its version of events -- Linear would still not have been entitled to attorney's fees.  In short, given the stipulation, there were no factual findings that would have given rise to a legitimate claim for attorney's fees.  Which means that the reciprocity provision shouldn't be used to change that already reciprocal state of affairs into something unequal.  Sure, Linear could have filed a motion for fees and had it denied.  So could Linear's opponent.  But the holding here changes that, and means what while one side isn't entitled to fees when it prevails, the other side is.

I have tried to fashion an alternative rule to the Court of Appeal's along the lines of "you get reciprocal attorney's fees under Section 1717 when the other side has a colorable entitlement to attorney's fees on their side" in order to alleviate both the problem I see with its holding as well as the legitimate problems with allowing a party to attack the validity of its own request for fees once it loses.  But I'm not sure I can come up with an intellectually consistent version of such a doctrine.  Maybe brighter minds can do better.

The one thing I know is that the Court of Appeal's holding here -- while I totally get it -- nonetheless seems troubling.  I'm just not sure you can do this.  Or at least can do this and be right.

Which I care about.

The practical lesson nonetheless remains to be careful asking for attorney's fees when you're not sure you're going to obtain them.  Because that can be profoundly counterproductive, and may -- as here -- even create a one-way ratchet.  Heads you don't win, tails you lose.  Which isn't good for you, and darn sure isn't good for your client.  Especially when all you thought you were doing, as here, was "preserving" your client's rights.

And getting bit in the behind for eight million dollars as a result.

Monday, November 21, 2011

Bullis Charter School v. Los Altos School Dist. (Cal. Ct. App. - Nov. 21, 2011)

The respondents' petition for rehearing cites 39 cases that it didn't cite in its underlying brief.  That's indeed some indication, as the Court of Appeal notes in denying the petition, that the arguments made therein might be new.  Not conclusive, mind you.  Maybe they're just bearing down at this point on a key issue raised by the earlier brief.  But still, some evidence.

The Court of Appeal might, however, want to change the third sentence of the new footnote, which currently reads:  "To the extent the petition raises new arguments and cites new authorities, it is an improper."  Either to delete the word "an" or to finish up the sentence.

But the point's nonetheless pretty clear.  You can your chance.  We're not going to let you make new arguments later.

Hopkins & Carley v. Gens (Cal. Ct. App. - Nov. 21, 2011)

This is why you have to be very, very careful about the clients you elect to represent.  Because sometimes you're judged, among other things, by the company you keep.  And when you represent someone who the lower court describes as a sleazeball, often, your attempts to represent that client and advance his interests will transfer that appellation onto you as well.

Here, for example, the trial court described the client as (essentially) a monstrously manipulative liar, saying that his claims that he "sold" his home any hence didn't receive notice of the underlying arbitration -- when the "sale" was to his wife for nothing -- were representatively bogus.  The trial court said that it could not recall "ever seeing more evidence indicating an attempt to avoid service of process by an individual than what I have seen in reviewing this file," and the Court of Appeal expressly agreed with this statement.  In short, the client was not sympathetic.  At all.

Which led, understandably, to the client being sanctioned.  And when the trial court extended those sanctions to the attorneys, the Court of Appeal was happy to affirm.  Stating, among other things, that "nothing short of a book could describe all the ways in which Gens and his attorneys have sought to distract and mislead the courts in this matter."  Ouch.

The attorneys for Gens are J. Michael Matthews and Andrea Kendrick, both from Chapman, Popik & White.  Both of whom undoubtedly regret having taken him on as a client at this point.  Because no matter how much Gens paid them, it's probably not worth getting the huge rebuke they received today by the Court of Appeal.

So be careful the company you keep.

Reliable Tree Experts v. Baker (Cal. Ct. App. - Nov. 7, 2011)

Here's an appeal about $6700 in which it couldn't be more clear that the plaintiff is wrong and the appeal accordingly meritless.

Not frivolous, mind you.  But meritless.

Over $6700.

What an efficient allocation of social resources.

Friday, November 18, 2011

Salehi v. Surfside III Condominium Owner's Ass'n (Cal. Ct. App. - Nov. 14, 2011)

This is why you should be very, very careful about filing suit against your homeowner's (or condo-owner's) association.  Even if you're a smart attorney.  Even if, in fact, you might be right.

Because the HOA has an incentive to fight the lawsuit, and may rack up a quarter million dollars in legal fees that you ultimately might be forced to pay.

That's what Ventura attorney Susan Salehi discovered this week.  As a result of an opinion by Justice Yegan that's unlikely to add him to Salehi's list of Christmas card recipients.

For what it's worth, I think this one could have been shorter, and perhaps a little less harsh to Salehi.  Salehi dismissed all but two of her causes of action without prejudice on the eve of trial.  I agree with Justice Yegan that before deciding whether the Association is the prevailing party (and hence entitled to costs), it should see what happens to the remaining causes of action.  Accordingly, I think it's probably enough to say that a party who dismisses her causes of action without prejudice right before trial may well end up being the loser, and that it was hence an abuse of discretion to categorically deny the Association its fees.  At least at this point.

That way we'd get the right result and perhaps slam Ms. Salehi a little less.

Thursday, November 17, 2011

Perry v. Brown (Cal. Supreme Ct. - Nov. 17, 2011)

The California Supreme Court answers the Ninth Circuit's certified question -- fairly rapidly, even -- and holds that initiative proponents do indeed have standing under state law to defend that initiative.

The opinion is unanimous.  It's also correct.  The whole point of an initiative is to get around the regular representative process.  This would be frustrated if the executive could effectively invalidate an initiative by refusing to defend it in court.

The (much) harder question is whether, notwithstanding state law, there's Article III standing in federal court.  Because just because states might permit a defense doesn't mean that the Constitution allows such a defense in federal court.  My personal view is that (1) Article III standing should exist, but (2) under United States Supreme Court precedent, it probably doesn't.  To put it differently, if I were writing on a blank slate, I'd hold that there's federal Article III standing, but it nonetheless seems to me that such a position can't  be reasonably squared with the Supreme Court's decision in Arizonans for Official Language v. Arizona or the dismissal for lack of jurisdiction in Continental Illinois.  I might well not have signed onto those adjudications, but having been outvoted, I'd be compelled -- either as a lower court (precedent) and perhaps under stare decisis even in the Supreme Court -- to follow it.  Hence no standing.

Which will make it interesting to see what the Ninth Circuit -- and, potentially thereafter, the Supreme Court -- will do.  I think the Ninth Circuit did the right thing to certify the state law issue, and if it adopts a neutral adjudication, I think it should dismiss the appeal on Article III grounds, if what you're doing is deciding the case based upon existing precedent.  What else happens is less clear.  I'm not sure whether the Ninth Circuit will critique Arizonans for Official Language even though they accomplish the same result; I know I would.  And reasonable minds may differ about what an Article III dismissal means as a practical matter for the underlying case.  Though I don't think that either of these things changes the proper outcome.

What the Supreme Court would then do is even less clear.  Because, on the conservative side, you'll have a group of justices hostile to gay marriage who nonetheless agree with strict standing limitations and Arizonans for Official Language.  So they'll be inclined to want to find standing in this case only and for that reason to distinguish the case, but I don't think that's a reasonable interpretation of what the Court said in that case (or in the earlier dismissal).  Did they get it wrong in those prior cases?  Perhaps.  But when you say, as the Court did in Arizonans, that this Court has "[n]ever identified initiative proponents as Article-III-qualified defenders of the measures they advocated," well, that seems a pretty good answer to whether initiative proponents are Article III-qualified defenders of the measures they advocated.  Including here.  Again, I think that's not the right rule, but the Court signed onto it (without dissent), and even if it's dicta and if the prior adjudications on Article III grounds were done in a summary fashion, that nonetheless tells you where the Court has previously stood.

I'm nonetheless quite confident at least some justices would adopt precisely such a view.  Sadly.  And on the liberal side, there are the exact opposite preferences:  not liking strict Article III limits but being pro-gay-marriage.  So they're in a quandry as well:  They might well like to overrule Arizonans for Official Language, but would rather not choose this case in which to do it.

So it'll be interesting to see what transpires.  But so far, things are going as they should.

People v. Mendoza (Cal. Supreme Ct. - Nov. 10, 2011)

Shoot a cop in the face -- for no reason -- and you're going to be sentenced to death.  And the California Supreme Court will unanimously affirm.

Even more so if the key witness tells the jury that the police officer was "really nice," and not like other officers who are mean or sarcastic.

Being a police officer is a tough job.  Massive periods of inaction occasionally interrupted by seconds of extreme danger.

Pomona Police Officer Daniel Fraembs had no idea that he was about to be killed.  He thought he was just stopping a couple of kids who were on the railroad tracks for a curfew violation or something.  He decided to frisk someone who had a knife sheath on his belt, and when he turned his back to the other youths to conduct the frisk, one of them pulled a gun and shot him in the head.  Because he was a felon in possession, knew he was likely to be the next one frisked, and would then have spent 18 months or so in prison.

So Fraembs dies.  As will Mendoza.

Wednesday, November 16, 2011

People v. Ruffin (Cal. Ct. App. - Nov. 4, 2011)

Here's one about which you should have an opinion.

On the one hand, the Court of Appeal has a darn good point.  It's profoundly silly to do what the Legislature has apparently done.  Maurice Ruffin was a prisoner, and a guard saw a female visitor with her head in his lap in the visiting area.  That's a crime.  No oral sex for prisoners while you're in prison.  Even if consensual.  He pleads guilty and gets sentenced to 16 months in prison.

That part's not silly.  Or at least not profoundly so.  We can legitimately say that one of the deprivations that you receive when you're in prison is that oral pleasure is out of bounds.  And punish you accordingly.

What's somewhat absurd, however, is that as a result of the conviction, Ruffin -- who's never before been convicted of a sex-related offense (he's simply a robber) -- is now subject to mandatory lifetime registration as a sex offender.  A penalty that's not only darn severe, but simply bizarre.  The theory behind registration, of course, is that we want to know where you are so we can make sure that you don't reoffend.  But remember:  What Ruffin did was not only consensual, but isn't illegal outside of prison.  So we're forcing him to register forever in order to make sure that he doesn't commit an offense that he's now perfectly entitled to commit.  Wacky.

But it gets worse.  Prison inmates who have consensual relations with anyone while in prison are subject to mandatory registration.  But prison guards who have consensual relations with an inmate aren't.  The latter's a crime, to be sure, and almost assuredly the more serious one -- after all, there are power differentials, the potential for abuse and/or quid pro quos, etc.  Yet we give it the lesser penalty, including no mandatory sex offender registration.  Crazy.

So on the one hand, I can't come up with a valid defense for this disparate treatment that makes sense.  None.  It's just silly.

But the difficult part is remembering that courts aren't the Legislature.  We don't take policy-oriented votes, or decide what's silly and what's not.  Judicial officers have a very circumscribed role. 

So when the Court of Appeal holds -- as it does here -- that the statute is an unconstitutional violation of the Equal Protection Clause, my eyebrows get raised.

Do I agree that the disparate treatment is unwarranted?  Yep.  Without a doubt.  But we're not talking about a suspect class here.  The only relevant inquiry under the Equal Protection Clause is rational basis review.  A review that doesn't require the Legislature to give a reason, that doesn't require the Legislature to get it right, and that doesn't require the Legislature to have a good argument for what it does.  Rather, we ask ourselves only whether there could possibly be some potential reason for the disparate treatment of the two classes:  a group of prison guards, singled out for lesser punishment, and a group of prisoners singled out for more.

And, on that score, I gotta say, yeah, there's an argument.  Personally, yes, I'd punish the guards more.  For all the reasons I identified above.  But a legislator with a different personality might do the exact opposite.  A legislator might think that guards are generally good people; that they operate under stress; that they generally do things for good (rather than bad) reasons; and that even when they make mistakes, they should generally be forgiven, or at least have the option of being forgiven.  Hence justifying no mandatory registration.  At the same time, that legislator might think that incarcerated criminals are already one-time losers; that they tend to do things for bad (rather than good) reasons; that the need for prison rules is critical; and that prisoners who offend while already in prison are the most likely to reoffend.  Such a legislator might also believe that while a guard who mistakenly has consensual contact with an inmate is generally unlikely to commit other sex crimes once caught and punished, an inmate who's so desperate for sex that he's willing to violate the sex rules while in prison might not only engage in similar conduct once released, but other sex-related statutes as well; e.g., sex with minors, with relatives, with unconsenting people, etc.  So such a legislator might well vote to make sex offender registration mandatory for prison inmates but not for guards.

And, in this regard, the standard of review is critical.  The question is not whether that legislator is right, and is not even whether that's why, in fact, the Legislature did what it did.  The issue is simply whether a person could legitimately hold such a view.  And since I'm quite positive that at least one (non-insane) member of the California Legislature does, in fact, hold such a view -- and probably several others as well -- that seems a strong argument in favor of the statute's validity.  As crazy and as silly as it undoubtedly is.

So, look, I like that the Court of Appeal takes these things seriously.  A lot.  But rational basis review can only do so much.  And I'm pretty darn skeptical that it can do the work that the Court of Appeal has it do here.

I could potentially see an argument that consensual sexual activities are fundamental rights, thereby subjecting the disparate treatment here to potentially intermediate review (or at least "rational basis with teeth" -- though that phrase seems somewhat ironic given the underlying context).  But even that's a difficult push, as we are talking about consensual sex relations in prison, and at that level of generality, we're probably no longer on the "fundamental right" grounds.

So while I'm sympathetic to the Court of Appeal's holding, I'm not sure I can agree with it.  It definitely makes for better law.  I just don't believe that the Equal Protection Clause, as currently construed, permits us to get there.

Tuesday, November 15, 2011

Ninth Circuit Goes For the Modern Record (9th Cir. - Nov. 11-15, 2011)

The Ninth Circuit issued no published opinions on Friday, which was not surprising, as it was Veteran's Day.  It then issued no published opinions the following Monday (yesterday).  Veteran's Day hangovers, most likely.  And today, it again issues no published opinions.  Must have been quite a bender.

That's pretty unusual.  Rarely does a day go by with no published Ninth Circuit opinions at all.  It happens around once a month.  It's very rare for this to happen on consecutive days.  Moreover, even then, it tends to occur later in the week.  Thursday and Friday, for example.  My guess being that the clerks and judges may crank out work over the weekend and as the week ends, but might occasionally fade as the weekdays progress.

There was a week back in 2009 which only saw published opinions on one of the five days that workweek:  October 13, 15 and 16 (Tuesday, Thursday and Friday) were blanks, and October 12 was Columbus  Day.  Similarly, just last month, October of 2011 saw another string of blanks, with no published opinions on October 6 and 7 (Thursday and Friday), and none on the following Monday (October 10) either.  October 10 being, yet again, Columbus Day.

So clearly there's something on with Colubus Day.  Lots of partying (and subseqeunt recovery) on that day in 2009, and apparently -- having learned their lesson two years previously -- there was a transition to tons of pre-partying instead this year.  And yeah, yeah, don't give me some cock-and-bull story about new law clerks replacing the old ones during the summer and that explaining the gaps in October arising from the lull between end-of-clerkship opinion issuance and the new clerks writing their new opinions.  We all know the judges do all the writing themselves.  Clearly what we've been seeing is entirely due to Columbus Day.

But that doesn't explain this week.  Maybe now Veteran's Day is the new (additional) Columbus Day.  Regardless, we've now seen three days in a row with no published opinions.  A blank tomorrow will set a new modern record.

Here's hoping the Ninth takes another day off.

POSTSCRIPT - On Wednesday morning, Judge Pregerson broke the streak by issuing a five-page published opinion.  The only one of the day.  But the streak is dead.  Long live the streak.

People v. Nelson (Cal. Ct. App. - Nov. 14, 2011)

This is the most important opinion in the history of California appellate jurisprudence.

Okay, so I exaggerate.  But I bet you that for the majority of Californians, this opinion has greater practical significance than 99.999% of anything else they'll read in the pages of the California Appellate Reporter.

The critical issue is this:  Can you use your cell phone at a red light?

The operative statute provides that you can't talk on a non-hands-free phone when you're "driving."  Carl Nelson's sitting at a stop light, flips up his cell phone, and starts making a call.  Not realizing that a motorcycle cop had pulled alongside him at the light, and so was sitting right outside his driver's side window.  Once Carl saw the cop, he closed the phone and put it down.  But the cop decided to give him a ticket anyway.  (And I know what half of you are now saying to yourselves:  "Jerk."  Though some of you are saying that about the police officer, while others are saying that about Cell Phone Carl.)

But Carl says he shouldn't get a ticket, because the light had never turned green.  So he wasn't talking on the phone while "driving," he says.  And he cites a case from the California Supreme Court that reversed a drunk driving when a dude was found sleeping in his car, with the engine and lights on, that holds that (in that case) a conviction for "driving" while intoxicated requires proof of volitional movement.  So Carl says he was not "driving" while on his cell phone because he wasn't moving.  The Attorney General's Office, by contrast, says that the legislative history of the statute reflects that anyone should be punished who is "operating" a motor vehicle while using a cell phone, and that Carl's ticket should be affirmed on that basis.

First, the holding.  Which you should definitely know.  Carl loses.  You can't use your cell phone at a stop light.  End of story.

I think the Court of Appeal is correct in that regard.  I think that Carl was "driving" even though he was at a stop light.  That counts.

But I say that even though I'm a lot more conflicted in that regard than the Court of Appeal.  And certainly more than the Attorney General's Office.  Carl's best argument, in my view, is his argument that the use of a cell phone is a transient act -- even more transient than driving while intoxicated.  You can use a cell phone at a stop light and not endanger anyone.  It's fine.  Perhaps even more persuasively, you can do lots of stuff at a red light.  Pick your nose.  Look in the glove compartment.  Take off your shirt.  Close your eyes and take a nap.  Do even stupider stuff.  Why would the Legislature allow you do do all these things -- things that are far more dangerous and distracting -- but not allow you to talk on a cell phone?  Doesn't make sense.

I agree with that.  At least in part.  But I still don't think that necessarily means you get to talk on a cell phone at a red light.  Because the Legislature doesn't have to make sense:  it's rational basis review, after all.  And I am pretty confident that the dangers of cell phones are more in the public consciousness than the dangers of nose picking.  That they choose to legislate about the former and not the latter just makes them inconsistent, but that's not fatal to a statute.  More importantly, I think the Legislature might well think that someone who starts talking on a cell phone at a red light might not always stop immediately once the light turns green.  It's harder to stop talking than it is to stop searching the glove box.  Because the former might be interpreted as rude.  So the Legislature could well think -- as I do -- that it makes sense as a prophylactic matter to not allow talking on cell phones, even at red lights, because doing so would advance public safety even though talking at a red light by itself might not be such a bad thing.

That said, I'm not willing to buy the Attorney General's argument that the correct interpretation of the statute is that anyone who's operating a motor vehicle can't use their cell phone.  I think that argument picks loose language from the legislative history to advance unjustified ends.  And I'm more than a little bummed that the Court of Appeal didn't specifically reject this argument.  Because you "operate" a motor vehicle in far more circumstances than just sitting at a red light.  For example, imagine that you want to make a cell phone call, and thus pull over to a parking space on the side of the road and make your call (but stay behind the wheel and leave your engine running).  Under the Attorney General's view, you're guilty of an infraction.

But I don't agree.  Talking on your cell phone while outside of driving lanes seems perfectly fine to me.  You're not "driving" at that point, even if you're "operating" your motor vehicle (as you clearly are).  It's one thing to say that, at a stop light, you're still "driving" even if not moving.  It's another thing to try to argue that even when you've pulled over, that cell phone's got to stay in your pocket.  I'm not on board for that.  And I wish the Court of Appeal had expressly said so as well.  Particularly since the Attorney General's Office was advancing an interpretation of the statute that I don't find plausible, and that might in fact deter people (if not expressly rejected) from doing socially beneficial things like pulling over if they want to make a call.

So know what the lay of the land is here.  And, at a minimum, get a hands-free device.  Or just stay off the phone entirely while driving.  Because even when you're not using your hands, the evidence about accident rates when you're talking on the phone while driving is shocking.  Truly amazing stuff.  It's like being drunk.  Even hands-free.  So don't do it.

But I know this last advice falls on deaf ears.  Such is life.  But at least my counsel about cell phones and red lights might be heeded.  Do it only if you're hands-free.  Otherwise Nelson's fate could well be yours.

Monday, November 14, 2011

Rich v. Thatcher (Cal. Ct. App. - Nov. 14, 2011)

The California Court of Appeal starts the week by issuing an opinion that really should go up to the California Supreme Court.

Sure, maybe it's not as clearly-review-worthy as the health care challenges that the U.S. Supreme Court decided to review today.  But it still involves an issue that cries out for the review by the California Supreme Court:  When do grandparents get to see their children notwithstanding the objection of the child's parent(s)?  Here, for example, Father dies, and Mother doesn't want Father's parents to have any visitation with the kid.  We know the standard, and it's the usual one in these cases.  Best interests of the child.  But what evidentiary standard do we apply?  Preponderance of the evidence?  Clear and convincing evidence?  Something else?

Justice Yegan, in a very short opinion (seven double-spaced pages), holds that the standard should be clear and convincing evidence.  But he does so relying almost exclusively on an opinion by Justice Chin in 2004.  But that was a concurring and dissenting opinion joined by . . . no one else.  At best, Justice Chin had one other potential vote for it (Justice Brown), but the majority clearly didn't want to sign onto this point.  And Justice Chin was perhaps right (in footnote 6 of his opinion) when he argued that it was somewhat strange that the Court did not decide whether the clear and convincing evidence test was applicable even though the issue was raised and briefed by the parties.  But that might have been a pretty good indication of their call on the issue, particularly when Justice Chin decided that he would raise the issue and still couldn't get anyone to formally sign on.

The California Supreme Court instead held that the statutory scheme gave a rebuttable presumption in favor of the parent's decision to exclude the grandparents.  That seems right.  The issue then becomes whether the statute (or the Constitution) requires something more.  Justice Yegan agrees with Justice Chin that it does, arguing that the Due Process Clause grants the parents the primary right to raise the child.  There's a decent argument in that regard.  But it was also one that the California Supreme Court didn't seem to find especially compelling, arguing that granting visitation didn't detract from that right -- that letting grandparents into the kid's life when there was a finding that it was in the kid's best interest did not negate the parent's authority over the child.

So one view might be that what the California Supreme Court did in Marriage of Harris was correct, and that the appropriate test is the rebuttable presumption the Court created therein.  Or another view might be that something more (like the clear and convincing evidence test) is the proper one; that's what Justice Chin argued -- saying that a rebuttable presumption was "meaningless" -- and Justice Yegan and the rest of the panel agrees.

But whatever your view of this issue, its proper resolution should not depend upon which panel one happens to draw on appeal.  The California Supreme Court did something in Marriage of Harris.  Whether that's the right (or sufficient) take was at issue in that case, and prompted a split opinion.  The subsequent resolution of this issue by the Court of Appeal should thus be reviewed.  And it's an issue of sufficient importance that we shouldn't wait to do so.  The California Supreme Court should grant review of this case.

U.S. v. Ceballos (9th Cir. - Nov. 7, 2011)

I agree with the panel that there's no appellate jurisdiction over a nonbinding recommendation made by a district court regarding where an inmate should serve his sentence. It's nonbinding.  It's not part of the sentence.  No appeal.

Given that, I'm not so sure it makes sense to have the first part of the opinion actually decide this question.  Which the panel here does.  It seems particularly anomalous to tell the district court that it has no jurisdiction to amend a sentence as part of your resolving an appeal over which you have no jurisdiction.  It feels sort of like a pot calling the kettle black.

Which isn't to say that the panel can't say whatever it wants.  It can.  The lack of jurisdiction doesn't stop you from making whatever observations you'd like.  Including, when you're on the Ninth Circuit, from saying how you'd resolve an appeal were you in fact to have jurisdiction.

But don't forget that the district court is similarly unconstrained.  The Ninth Circuit decides (in dicta) that the district court wasn't authorized to amend the sentence to recommend a particular placement.  But that doesn't stop the district court from recommending a placement outside the actual judgment, and the Bureau of Prisons appears to give deference to placement recommendations from the sentencing court regardless of in what document such recommendations are made.

So just like the Ninth Circuit can say what it feels, so can the district court.  And while both lack technical legal significance, both have profound practical effect.

Which is what matters.

Friday, November 11, 2011

Lacey v. Maricopa County (9th Cir. - Nov. 10, 2011)

As I said when the original opinion came out earlier this year, Judge Bybee wrote a pretty darn good (partial) dissent in this one.

I was apparently not the only one who thought so.  Because the Ninth Circuit just took the case en banc.

Executive Benefits Ins. Agency v. Arkison (9th Cir. - Nov. 4, 2011)

I love it when the Ninth Circuit invites amicus briefs.  It's awesome.

I'm not going to write one in this case.  As I know little -- wait, make that nothing -- about the relevant issue.

But if you have an opinion, by all means, share it with 'em.  The question is:  "Does Stern v. Marshall, 131 S. Ct. 2594 (2011), prohibit bankruptcy courts from entering a final, binding judgment on an action to avoid a fraudulent conveyance? If so, may the bankruptcy court hear the proceeding and submit a report and recommendation to a federal district court in lieu of entering a final judgment?"

No idea.  But we'd love to find out.

You've got thirty days to submit the brief.

POSTSCRIPT -  The day after Thanksgiving, the Ninth Circuit gives everyone another 45 days.  Yay!  So now you've got until January 19, 2012.  So put that on your holiday to-do list.

Thursday, November 10, 2011

Schad v. Ryan (9th Cir. - Nov. 10, 2011)

Here's an opinion (in 2009).  No, wait.  We want to amend it.  Here's our revised opinion (in 2010).  Which still has the same lineup on the votes, but substitutes a new defendant, since there's a new warden.

Hold on.  We want to amend the opinion again.  Here's the second amended opinion.  Still in 2010.  Same lineup.  But we also include Judge Callahan's dissent from the denial of rehearing en banc.  As well as make some minor changes in the panel opinion.

Wait.  We're not done.  It's 2011.  Time for another amendment.  Here's our third amended opinion.  Which has the same parties as the earlier amended opinions, but now has a different lineup.  Since Judge Graber has now replaced Judge Rymer, making the opinion unanimous.  With Judges Schroeder, Reinhardt, and Graber all agreeing on the result.

Though not the way you'd think.  The previous opinions reversed the denial of habeas relief with respect to the death sentence.  This last opinion affirms the denial of habeas relief.

That's what the panel does today in this per curiam death penalty case.

Three points.  Beyond noting that I don't recall previously seeing an opinion that was amended three different times over a period lasting more than two years.

First, notice that the defendant sentenced to be executed outlives one of the members of the panel.  There's irony for you.

Second, I recall reading a Senate report -- as well as an interview with Judge Reinhardt at some point -- that said that Judge Reinhardt had never voted to affirm a death sentence.  Well, if that was ever true, it's not the case now.  Since Judge Reinhardt's on the panel, and the panel's final opinion affirms.  So Edward Schad will indeed be killed.  With Judge Reinhardt's assent.

Finally, the panel's final amendment is not, as you might expect, due to a change of heart.  But rather a result of a change in precedent.  The Supreme Court held in Cullen that when state courts have decided an issue on the merits, federal courts can't consider additional evidence on habeas.  So that's fatal -- literally -- to Schad.  Which is why the Supreme Court GVR'd the second opinion and sent in back to the Ninth Circuit, which then did what it did.

Technically, I'm not sure that this is the panel's "Third Amended Opinion."  Since the fact that the case went up to the Supreme Court, which then vacated the earlier result, means that this is actually the first opinion on remand.  So I'm not sure I'd style it this way.

Moreover, this may actually have doctrinal (and practical) significance.  The panel enters an order alongside the latest opinion by saying that no future petitions for rehearing or rehearing en banc may be filed.  I'm not sure that's proper.  This is a new opinion on remand.  Heck, it's a different result.  It's one thing to say that when you've made minor changes in an opinion, that doesn't restart the clock.  It's another to say that even when a case (1) goes up to the Supreme Court, (2) gets vacated, and (3) the panel changes the result of the case, no one's permitted to ask for rehearing.  You might, after all, have gotten the new result wrong.  And the judges who might want to ask for a rehearing en banc -- and who might be keenly interested in hearing a petition requested such relief -- are different judges than the ones who previously tried (but failed) to take the case en banc.  Since the sides are now flipped.

It's not that I don't understand the practicalities.  The Supreme Court GVR'd the case. The handwriting's on the wall.  Ed's going to die.  But I think that, procedurally, the case is in a different posture than what exists when an opinion is simply amended.  And the fact that we know that an en banc call (or request for panel rehearing) isn't going to be successful is not a sufficient reason to preclude such a request.  Since, after all, that's true 99% of the time anyway.

Bauman v. DaimlerChrysler Corp. (9th Cir. - Nov. 10, 2011)

Judge O'Scannlain writes a sharply worded dissent from the denial of rehearing en banc -- joined by seven other judges -- of an opinion about . . . wait for it . . . personal jurisdiction.

He's pitching the Supreme Court to take up the case.  And, for selfish reasons, I'm in favor of anything that gets more civil procedure cases before the Court.

Makes my academic job more interesting.

Wednesday, November 09, 2011

Teroso Del Valle Master HOA v. Griffin (Cal. Ct. App. - Nov. 1, 2011)

Get your ugly solar power out of my pretty homeowners association.

Though I actually agree with the Court of Appeal here.  The HOA won at trial.  Its victory should be affirmed on appeal.  The homeowners are wrong.

People v. Nunes (Cal. Ct. App. - Nov. 1, 2011)

Don't steal beer.  Don't drink stolen beer.  Don't drink stolen beer on the railroad tracks and throw rocks at passing Amtrak trains.  Not good lifestyle choices.

But even more important advice:  If you're an engineer on said train, don't stop the train, get off, and confront the perpetrators.  Because these offenders may well be gang members who will beat you within an inch of your life.  As well as the other Amtrak employees on the train who come to your aid.

Tuesday, November 08, 2011

Jaramillo v. County of Orange (Cal. Ct. App. - Nov. 8, 2011)

Sometimes I look in vain for someone sympathetic.  A plaintiff.  A county.  A witness.  A defendant.  Someone.

This is one of those cases.

I don't want anyone to win.  Particularly not Jaramillo or Orange County.  But those are the two litigants.  One of whom has to win.

It's Jaramillo.

Both of 'em did wrong, in my view.  Egregiously wrong.  But someone's gotta win.

In Re Marriage of Seaton (Cal. Ct. App. - Nov. 8, 2011)

There's a quote-worthy line in Fletch (one amongst many) in which Chevy Chase tells Alan's wife, Gail:  "Sally Ann and Alan were married eight years ago.  Never divorced.  Making Alan a bigamist.  Even in Utah."

If only real cases were that simple.  What about in Nevada?

You'd think the case would be easy, right?  Bigamous marriages are void.  No good.  Don't exist.

But how would you decide this one:

Patricia marries Richard in 1973.  She separates from him in 1987, but doesn't divorce him (yet).  She then hangs out with Henry, but in 1988 breaks up with Henry to start dating Jeffrey.  But a couple months later, an apparently persuasive Henry takes her to Reno, sets her up at a buffet, does some tequila shots with her, and boom, they get married that evening.  Remember, by the way, that Patricia's dating Jeffrey at this point and is still married to Richard.  All of which Patricia knows, so she falsely states on her Nevada marriage license that she's had previously divorced Richard.  Not true.

Patricia eventually sobers up and decides, hey, maybe that Henry chap isn't really my cup of tea, and then continues to date Jeffrey.  The next year, Jeffrey finds a picture of Patricia getting married to Henry, and (quite understandably) says:  "What the hell?!"  Patricia tells her the story, and Jeffrey says, babe, you have to get that annulled or something.  Patricia says, yeah, I know, sorry about that, I'll take care of it.

Later that year, Patricia tells Jeffrey:  "Honey, you rock.  I got a divorce from Richard.  I also got the marriage to Henry annulled.  I'm free!"  Jeffrey responds:  "That's great, darling.  Just remember that, for the moment, I'm still married."  Since Jeffrey married Debra in 1970.  Although Jeffrey separated from Debra shortly after he met Patricia, he was still married to her at this point.

Did I mention, by the way, that Patricia was a legal secretary?  And that Jeffrey was, at that time, a law student?  'Cause they were.

Jeffrey then passes the Bar, which is a time of transition for many of us.  And Jeffrey decides to mark the occasion by divorcing his wife, Debra, and marry Patricia.  Which he does.  In 1991, Jeffrey divorces his wife, and the next month, he marries Patricia.  Who had indeed divorced Richard in 1988.

No problem.  Except for one thing.  Debra had indeed divorced Richard, but lied about getting her marriage to Henry annulled.  That hadn't actually transpired.

Fast forward to 2008, at which point Jeffrey files for legal separation from Patricia, and Patricia responds by filing for divorce.  Jeffrey eventually discovers that Patricia did not, in fact, ever out of get her marriage to Henry.  So he then amends his answer to say that the parties don't need to get divorced, since they were never married.  Bigamous marriages being void and all.

To which Patricia responds by essentially saying that Bigamy Plus Bigamy Equals Marriage.  Saying that at the time she married Henry, she was still married to Richard, which meant that she was never really married to Henry, and hence her second bigamy wasn't really bigamy due to the first bigamy.

Which makes for a conundrum.  Because not only do we have to figure out if that's right, but we also have to decide all of the above according to the law of Nevada -- the place where the second marriage transpired. What would Nevada say about all this?

There's a Nevada Supreme Court case that holds, in dicta, that you still need an annulment to get out of your bigamous marriage.  Which Jeffrey and the trial court seize upon to hold that, yep, the parties were not in fact married -- we're talking about Jeffrey and Patricia at this point -- because Patricia never dissolved anything with Henry before marrying Jeffrey.

But the California Court of Appeal reverses.  Holding that, no, that was just dicta, and in a case involving a putative spouse, and that really, Nevada law is probably more like California law, which holds that you don't have to do anything to a bigamous marriage because it was void (not merely voidable) at the outset.  It does not exist, so there's nothing to dissolve.

So Patricia wins.  Even though she's a huge liar.  (I'm crediting Jeffrey's version of the facts here -- as did the trial court -- both because it's eminently more credible as well as because it makes things cleaner.)

But that doesn't end things.  Because, okay, the parties were in fact married.  But does that really mean that Patricia -- the one who entered into the bigamous marriage -- gets to use that bigamy against Jeffrey?  That she gets to defend her marriage to Jeffrey by attacking her marriage to Henry:  a marriage that existed only due to her own fraud?

Because even though we say that bigamous marriages are void -- that they never existed -- that's not, in fact, always the case.  For example, if X has to pay alimony to Y until Y gets remarried, and Y then gets married, a marriage that's bigamous, California holds that Y can't use the bigamy to attack her own marriage:  X gets out of the alimony obligation even though the marriage is in fact void.  Ditto for children:  Kids born during a bigamous marriage are still legitimate (with the appropriate conclusive presumptions) even though we declare the marriage void.  So do we really want to let Patricia take advantage of her own fraud?  Or do these cases suggest that we should instead preclude her from attacking the validity of her own marriage?

Justice Mauro concludes -- and I think correctly -- that it's okay to let Patricia attack her own marriage.  On the ground that, vis-a-vis Jeffrey, he's simply getting what he expected.  He thought that he was marrying someone who wasn't married.  He thought that their marriage was valid.  So it doesn't really create inequity to say, for all intents and purposes, that, yeah, your marriage was indeed valid.  Even though the reason it was valid was not necessarily why you thought it was valid at the time.

There's only one part of the opinion that I would change.  At the end, Justice Mauro awards costs to Patricia.  I'd have had 'em bear their own costs.  Patricia still wins.  But I don't condone what she did.  I think that even though Jeffrey probably should lose, equity would counsel in favor of not making him pay his future-ex-wife's costs.  I figure he's gone through enough.

You'd think that this was a television episode.  Indeed, it should be.  Don't be surprised if you see it on one of those law shows at some point.  But it's real.  Some law firm out there, and one more more lawyers, lived this drama.

Welcome to California.

Monday, November 07, 2011

Ditullio v. Boehm (9th Cir. - Nov. 7, 2011)

My students sometimes ask me why we read dissents, since they're not the law.  I generally respond in part that we read them because they often enlighten us to the policy consequences of the majority's decision, and also identify an alternative way the court could have gone.  I also mention that sometimes dissents may affect future judicial developments, either in the lower courts or in the Supreme Court.  That's especially the case, I add, when the decision is close (e.g., a 5-4).

Here's a good example.

It's not that Justice Rehnquist's dissent made an actual difference in the outcome, as Judge Callahan simply authors a dissent herself.  But read her opinion.  It follows directly from what Justice Rehnquist said.  And if there had been another vote like Judge Callahan's, the law would be different.  At least in the Ninth Circuit, and potentially elsewhere.  Moreover, she expressly notes that the underlying decision was a 5-4, a fact that (as my students realize) is technically totally irrelevant, but which may nonetheless sometimes may a practical difference.

Good to have concrete examples of the things we teach.  Here's one of them.

Friday, November 04, 2011

Glenn v. Washington County (9th Cir. - Nov. 4, 2011)

The more I read this opinion, the more I became convinced that there was utterly no reason why 18-year old Lukus Glenn had to die.  At least viewing the evidence in the light most favorable to the nonmoving party.  I would be horrified -- horrified -- if I were his parents, and watched the police kill him.

I agree with Judge Fisher, who reverses the grant of qualified immunity to the officers.  And then some.  I have rarely seen a case in which I'm more sympathetic to the parents.

Washington County better hope it pulls a jury without parents on it.  Because even just reading the thing would make me think twice before calling the police to assist me with an unruly child.  My reaction to actually hearing the evidence might be even stronger.

Thursday, November 03, 2011

People v. Carlson (Cal. Ct. App. - Nov. 2, 2011)

Don't drink and drive.  You'll eventually be caught and convicted, and (among other penalties) be ordered to participate in drunk driving offender programs.

Don't thereafter drink and drive again.  You'll, again, eventually be caught and convicted, and again punished and ordered to do the programs.

Don't thereafter drink and drive yet again.  You'll yet again eventually be caught and convicted.  You'll again be punished, your license will be suspended, etc. etc.

When of the above happens between 2001 and 2006, to reiterate, don't drink and drive.  Because when, in January 2007, you do, this time, you may kill someone -- in particular, the passenger of your car.  In no small part because you've got a .23 and are weaving in and out of traffic at almost 95 miles an hour.  Which, again, you should not do even in the abstract, and certainly not when drunk.

And when all of that happens, we'll convict you of murder.  And sentence you to fifteen years to life in prison.

And the California Court of Appeal will affirm.

Suzanne Amelia Carson didn't follow this sage counsel.  She was 27.  She'll be a lot older when she gets out of prison.

Mirmehdi v. U.S. (9th Cir. - Nov. 3, 2011)

This introduction almost seems deliberately baiting.

Judge O'Scannlain begins his opinion with the following paragraph:  "We are asked to decide, among other things, whether an alien not lawfully in the United States may sue for monetary damages claiming constitutionally invalid detention."

To which I immediately responded -- out loud, even -- "Of course she can."  The fact that someone's in the country illegally doesn't make her any less of a "person" protected by Due Process Clause.  You can't run over a person with your car just because they're here illegally:  they can sue you.  You can't beat a person just because they're here illegally:  they can still sue.  You can't kidnap them either.  The fact that you're here without permission doesn't deprive you of your constitutional rights or your ability to enforce them.  That'd be a problem if the Constitution only protected "citizens."  But it doesn't.  It protects "persons."  To put it in the way I'd tell my five-year-old, "Illegal aliens are people too."  A fact that's both morally as well as constitutionally relevant.

I know from just the tone of the introductory paragraph as well as the lineup of the panel, however, that the opinion's going to hold that they can't sue.  But I still can't believe that they're going to hold that illegal aliens can't sue because they're illegal aliens.  Do I know some people feel that should be the law?  Sure I do.  But it's not, and I can't fathom that any intellectual respectable person is going to so hold.

It's only halfway through the opinion, however, when I start to realize that the panel's not really going to answer the "Question Presented" in the opening paragraph.  We're not talking about whether illegal aliens "may sue for monetary damages claiming constitutionally invalid detention."  We're instead only addressing whether they may sue for monetary damages claiming an invalid detention in immigration proceedings.  So if you're going through immigration court and are detained as part of those judicial proceedings, do you have a freestanding right to sue under Bivens.

That's a completely different question than the one the opinion initially presents.  Because even though the panel (predictably) says, no, we're not going to grant you a Bivens claim arising from immigration detentions, that most definitively does not mean that an illegal alien cannot "sue for monetary damages claiming constitutionally invalid detention."  Take, for example, an illegally alien put into state prison in an unconstitutional manner.  He can sue under Section 1983.  The panel's holding doesn't change that.  So he can indeed sue for monetary damages claiming constitutionally invalid detention.  And even the panel concedes (in its final footnote) that even in the immigration detention context, an illegal alien can still sue the "officers who made the arrest at an operational level."  Because there's a previous Ninth Circuit case that expressly so holds, and which they can't overrule.  So there's another way to sue.

The question that the panel really answers is whether there should be (1) a freestanding Bivens claim (as opposed to, say, a Section 1983 claim); (2) for immigration detentions in particular.  It's only in this particular context that the panel's adjudicating someone's right to sue.  And that context is entirely omitted from the introductory paragraph, which mentions neither the Bivens aspect nor anything about the fact that we're only talking about immigration cases.

To be sure, the panel's decision disproportionately affects illegal aliens.  They're generally the ones in immigration court and, thus, potentially illegally obtained.  But the fact that they're illegally in the U.S. actually has nothing to do with the court's holding.  For example, even aliens entitled to asylum (and who, as here, successfully obtain it) aren't permitted to sue.  So even if you're "legally" here you still can't sue.  Similarly, even aliens expressly permitted to be here -- e.g., those with tourist visas, green cards, etc. -- who are subsequently put in deportation proceedings (e.g., for committing a crime) are not entitled to sue under Bivens either.  Again, it's not that they're here illegally, it's instead simply that, for whatever reason, they're in immigration court that precludes a Bivens suit.  Indeed, the panel's holding extends even to natural-born U.S. citizens -- they can't sue either -- if they're ever detained in immigration proceedings.  And while that's rare, it happens:  the DHS occasionally seeks to remove people that they think are here illegally but who were in fact born here.  Lots of cases on this.  (And might even happen to President Obama if Donald Trump got his way.)  Those U.S. citizens can't sue  under Bivens either.  Because the whole basis of the panel's holding has nothing whatsoever to do with whether someone's in the country illegally, but rather simply arises out of the fact that the remedies already available in immigration court -- hearings, judicial review, habeas petitions, etc. -- suffice by themselves (according to the panel) to provide an adequate remedy for unconstitutional detentions in those proceedings, thereby negating the need for a Bivens remedy.

Can reasonable people fight about whether that's in fact the case?  Of course they can.  Since none of those existing remedies provide monetary compensation for the harms of prior detention, and instead simply terminate any future detention.  So you can see why some jurists might (and, I'm supremely confident, in fact do) disagree with even the panel's limited holding.  Because what's the incentive not to unconstitutionally incarcerate someone in immigration court if the worse thing that can happen to you is that they eventually get let out?

But regardless of whether that limited holding is normatively correct, the point is that the opinion does not even attempt to answer the question ostensibly presented in the first paragraph.  One that seems to go out of its way to touch hot-button issues:  to advise the reader from the get-go that the result of its opinion will deprive "coddled" illegal aliens of illegitimately obtained rights.  That's unnecessary, as well as inaccurate.

The case isn't about illegal aliens.  It's about immigration court.  And limited to Bivens remedies.  Things nowhere mentioned in that first paragraph, and that affect illegal aliens and non-illegal aliens alike.  And, with deference and respect, I think that introducing the opinion the way it does appeals -- whether deliberately or not -- to prejudice.  And that ain't right.

So it's an inartfully worded introductory paragraph.  It could be better.  I'd have said: "We are asked to decide whether a participant in immigration proceedings has a freestanding claim under Bivens to sue for monetary damages asserting his constitutionally invalid detention."  That's the real question, as well as sufficiently hints to the reader the way the panel's going to come out.  Without interjecting things to which we need not appeal and which we do not, in fact, decide.

Wednesday, November 02, 2011

Conahan v. Sebelius (9th Cir. - Nov. 1, 2011)

Gaye Glazer is diagnosed with liver cancer.  Glazer wants surgery, but Kaiser doesn't want to pay for it, and Kaiser's Tumor Board instead suggests that Glazer undergo chemo.  Which is cheaper, and which the Tumor Board prefers because surgery might leave Glazer with too little liver to survive.

But it's Glazer's life.  She has the surgery.  Which removes seventy percent of her liver.  She files a lawsuit to have Kaiser cover her costs.  She loses below.  She lives almost five years after the surgery.

And dies eight months before the Ninth Circuit affirms Kaiser's denial of coverage.

Kaiser:  Live; Work; Thrive.  But don't expect us to pay for it.