Friday, June 28, 2013

In Re Marshall (9th Cir. - June 28, 2013)

Who knew that a marriage between a stripper and an octogenerian would create so much litigation?  Three trips to the Ninth Circuit and one in the United States Supreme Court.  Not to mention all of the various -- incredibly expensive -- proceedings in trial and bankruptcy courts throughout the nation.  A series of litigations that, as the Ninth Circuit artfully noted, "pitt[ed] wife against son and brothers against each other, has defied resolution for nearly two decades, and has survived almost all of its original players."

This the latest, and hopefully last, installment of the Howard/Vicki Lynn Marshall saga.  Yet another bankruptcy filing by one of the participants.  In which the sordid details again play themselves out.

The Ninth Circuit affirms.  Here's hoping that the litigations, as well as the participants who have now passed, rest in peace.

Thursday, June 27, 2013

People v. Linton (Cal. Supreme Ct. - June 27, 2013)

On the one hand, we have a severely emotionally disturbed 20-year old.  A loner.  Unable to really handle high school.  Who inexplicably strangles his next-door neighbor, and promptly confesses.  Someone without any criminal history whatsoever.  Someone who, while in prison, seems to be a model inmate.  A kid who profoundly regrets what he's inexplicably done.

On the other hand, we have the victim.  A twelve-year old girl.  Murdered in her home, in her bed.

For the judge and jury, the second hand outweighs the first.  Daniel Linton gets sentenced to death.  The California Supreme Court unanimously affirms.

The case highlights for me the incredible difficulty of determining who lives and who dies.  How to separate the monsters from those who have committed monstrous acts.  As well as how much rides on that determination.

A depressing case on every level.

POSTSCRIPT - I'll add that, as with every case, there are additional details on both sides.  On the victim's side, there's the impact of the girl's death on her family, the fact that the defendant had likely been in the house (and attempted to molest the little girl as she slept) previously, and semen from the defendant found on a discarded pair of the victim's underpants.  For me, those circumstances are less relevant than the actual killing -- which is incredibly bad enough -- and don't change my perception that it's incredibly hard to tell who deserves to live and who deserves to die.  Particularly when, as here, the murder seems out of character, and hence potentially the product less of an irredeemably bad heart than something else.  But an informed (and superemely intelligent) reader thought the various grusome details of the case might matter to him or her (or others), and that seemed a more than fair point, so I thought I'd include a little bit more of a description.

Three Writs (9th Cir. - June 27, 2013)

It's not a good morning for Littler Mendelson.  Rarely have I seen a day from the Ninth Circuit that made me so strongly wince.

Here's the first thing I read this morning.  With a reminder that it's a published order, for everyone to see:

(1)  [No. 13-71162]  [From San Diego]  "The court has considered the 'amici curiae' letters submitted in support of this petition for writ of mandamus. Petitioner has not demonstrated that this case warrants the intervention of this court by means of the extraordinary remedy of mandamus. [Cite]. Indeed, we find the petition to be frivolous and wholly without merit. Accordingly, the petition, including the request for an immediate stay of district court proceedings, is denied.

Within 21 days after the date of this order, counsel Julie A. Dunne, Lara K. Strauss, and Joshua D. Levine of Littler Mendelson P.C. shall show cause in writing why monetary sanctions should not be imposed against counsel individually for filing a frivolous petition for writ of mandamus. [Cites]  Counsel’s failure to file a timely response to this order will result in the imposition of sanctions without further notice.

Counsel’s response to the order to show cause is referred to the Appellate Commissioner, who shall conduct whatever proceedings he deems appropriate and shall have authority to enter an order, including an order imposing monetary sanctions."

The pain is palpable.  Just imagine getting called out like that.  Not to mention the likely hit in your wallet.  Add to all that the fact that the whole firm (and legal world) sees it, the firm has to mobilize to respond to the OSC(and so you have to repeat again and again what you've done and why), the fact that you're essentially compelled to grovel -- or at least should -- at this point, etc. etc.  The pain.  The huge, massive pain.

Then I read another opinion.  Same morning:

(2) [No. 13-71160]  [From San Francisco]  "The court has considered the 'amicus curiae' letter submitted in support of this petition for writ of mandamus by Downtown LA Motors LP.  The motion of American Trucking Associations, Inc. and California Trucking Association for leave to file a brief amici curiae is granted. The Clerk shall amend the docket to reflect this status and shall file the amicus brief submitted on April 9, 2013. Petitioner’s request for judicial notice is granted.

Petitioner has not demonstrated that this case warrants the intervention of this court by means of the extraordinary remedy of mandamus. [Cite]  Indeed, we find the petition to be frivolous and wholly without merit.  Accordingly, the petition is denied.

Within 21 days after the date of this order, counsel Barrett Green, Richard H. Rahm, and Angela J. Rafoth of Littler Mendelson P.C. shall show cause in writing why monetary sanctions should not be imposed against counsel individually for filing a frivolous petition for writ of mandamus. [Cites] Counsel’s failure to file a timely response will result in the imposition of sanctions without further notice.
Counsel’s response to the order to show cause is referred to the Appellate Commissioner, who shall conduct whatever proceedings he deems appropriate and shall have authority to enter an order, including an order imposing monetary sanctions."

OUCH!  Two different cases.  Two published opinions.  Two sanction OSCs.  Different lawyers, but same firm.  Talk about hacking off the Ninth Circuit!

Then Littler hits the trifecta:

(3)  [No. 13-71163]  [From San Diego, again]  "The court has considered the 'amici curiae' letters submitted in support of this petition for writ of mandamus.  Petitioner has not demonstrated that this case warrants the intervention of this court by means of the extraordinary remedy of mandamus. [Cite]  Indeed, we find the petition to be frivolous and wholly without merit. Accordingly, the petition, including the request for an immediate stay of district court proceedings, is denied.

Within 21 days after the date of this order, counsel Julie A. Dunne, Lara K. Strauss, and Joshua D. Levine of Littler Mendelson P.C. shall show cause in writing why monetary sanctions should not be imposed against counsel individually for filing a frivolous petition for writ of mandamus.  [Cites] Counsel’s failure to file a timely response to this order will result in the imposition of sanctions without further notice.

Counsel’s response to the order to show cause is referred to the Appellate Commissioner, who shall conduct whatever proceedings he deems appropriate and shall have authority to enter an order, including an order imposing monetary sanctions."

Dude!!  Exact same lawyers as the first one.  Exact same language.  Exact same order.  But a different mandamus petition.  Wow.

I don't recall seeing a single published sanction OSC arising out of a mandamus petition to the motions panel during the past decade.  To see three on the same day -- issued against the same firm, no less -- is nothing short of shocking.

It makes me wonder what the petitions were about.  Unfortunately, I can't find them online.  I can only imagine, however, that the Ninth Circuit simply got fed up with repeated, meritless mandamus petitions filed by the same firm.  Sufficiently fed up that it decided that enough was enough.

Which I can understand.  Mandamus petitions are truly for extraordinary relief.  My guess is that these were run-of-the-mill complaints styled as mandamus petitions by attorneys who were way too riled up and accordingly thought a mandamus petition was the way to go.

They've learned otherwise now.   As should others.

Calm down.  Take your lumps -- if necessary -- in the district court.  Don't waste your time, as well as your client's money, on petitions that essentially serve to merely vent and waste judicial resources.

One other unsolicited piece of advice.  When you're called out like this, fall on your sword.  Don't try to justify what you've done.  It so ain't gonna work.  Just say that you got caught up by the perceived error and your zealous advocacy and accordingly made a mistake.  Apologize.  Sincerely.  Offer to pay.

Anything else will just make things worse.

The trifecta today offers some lessons.  Learn 'em.  Take something away from Littler's pain.  Without -- thankfully -- having to incur it yourself.


POSTSCRIPT - A reader helpfully e-mailed me a copy of one of the petitions for mandamus, which I read.  It's exactly as -- albeit even longer than -- I expected.  Defendant thinks it should have obtained summary judgment, which was denied.  Doesn't want to go to trial (or fight class certification), so on that basis files a writ of mandamus.  Does defendant have a somewhat tolerable story on the merits?  Sure.  They've got a claim.  But notwithstanding that fact, the Ninth Circuit's right that it's clear that it's not an appropriate case for mandamus case.  Indeed, were it otherwise, pretty much every class case with a reasonable dispute on the merits would be subject to mandamus.  That's clearly not the law.  So I agree that it's overboard to seek mandamus here.

At the same time, my initial impression was that Littler was filing a flood of mandamus petitions, and that the Ninth Circuit was -- entirely appropriately -- responding accordingly.  At least from the one petitions, however, it may be that two (or three) of the petitions were "coordinated" in an attempt to get a single-(ish) issue before the Court of Appeals.  If true, that's less sanction-worthy, in my mind, than reflexively filing writs whenever you lose below.  It's still worthy of sanction if you file a clearly meritless petition a single time.  But the number of times you do it is nonetheless relevant.  And here, it's possible that I might treat these as a single "group" were I to think about the appropriate penalty.

My advice nonetheless remains the same.  Indeed, may be even more relevant.  Even if you're totally convinced you're right, stay away from mandamus petitions.  Or at least get careful consideration by an uninterested outsider; one who's entirely separate from the emotions of the case (as well as willing to tell you the truth).  Because otherwise you risk suffering the same fate as here.

Wednesday, June 26, 2013

In Re S.E. (Cal. Ct. App. - June 26, 2013)

I'm a bit fearful that I may well be perceived as completely lazy if all I do today is quote some opinions.  But I'm going to do it anyway.  Because the things really speak for themselves.

Like this one.

"On April 16, 2008, DCFS received a referral alleging neglect of S.E. (born Oct. 2005)by Mother. The list of medical concerns for the boy included: failure to thrive/oral aversion, delayed speech, anemia, eczema, undescended testes, severe tooth decay, and asthma. Mother signed a voluntary family maintenance contract but, over the ensuing months, she repeatedly failed to adequately care for him and told social workers that her religious beliefs were not compatible with conventional medicine. . . .

On April 25, 2009, the parents abducted S.E. from the site of a monitored visit. The court issued a protective custody warrant for S.E. and arrest warrants for the parents. . . . On February 20, 2011, Father was arrested in New Orleans and provided information as to the whereabouts of Mother and S.E. On March 4, Mother and S.E. were located in the New Orleans area and Mother was arrested. DCFS picked up S.E. and transported him back to Los Angeles, again placing him with the maternal grandparents.

In its disposition report, DCFS recommended that no reunification services be provided to the parents pursuant to section 361.5, subdivision (b)(15), which states that reunification services may be denied when a parent abducts the child from his or her placement and refuses to disclose the child‟s whereabouts or return the child to his or her placement or the social worker. DCFS noted that the physical problems S.E. had at the time of his initial detention were not addressed during the two years following his abduction. The child continued to be at risk for failure to thrive, as he had gained only five pounds in two years. DCFS informed the court that S.E. was in therapy to address issues related to past trauma and separation from his parents. The therapist told the social worker, 'There has been no progress in meeting the goals. He continues to be mute in all environments outside his home and immediate family.' The child was extremely fearful, which the therapist attributed to mental health issues and lack of trust."


In Re Griffin (9th Cir. - June 26, 2013)

I've just finished reading this morning's marriage opinions from the United States Supreme Court.   Fascinating stuff.  On multiple levels.  I won't say anything about them, since others will already do so.  In spades.  But I encourage people to read the opinions.  The competing positions are laid out nicely.

Meanwhile, for a little contrast, here's a one-and-a-half page opinon that's obviously, unquestionably right.  To hold otherwise would have been incredibly -- incredibly -- silly.

Good to see that some appeals can still be dealt with fairly and efficiently.

Tuesday, June 25, 2013

U.S. v. Hernandez-Meza (9th Cir. - June 21, 2013)

The Ninth Circuit didn't publish anything today.  Or yesterday.  So I thought I'd write something lengthy -- and somewhat digressive -- about an opinion that it rendered on Friday.  Something about which I had an initial reaction when it was published and I then thought about on and off over the weekend.

But I'll start off with an observation.

One of the downsides of writing commentary about published opinions is that you're necessarily going to offend people.  Maybe that's not the case were one to simply write gushing prose about how each and every opinion ever rendered is absolutely wonderful.  But that'd both be boring as well as not particularly helpful to anyone.

By contrast, whenever you take sides, the losing party -- as well as anyone who agrees with them -- may well take offense.  Particularly when you express your agreement with one side or the other strongly.  As I occasionally (but by no means always) do.

The result is a non-trivial amount of hate mail.  Generally from lawyers and litigants.  More often from the latter, as litigants tend to take their cases extremely personally.  But occasionally the former as well.  Sometimes lawyers have really strong positions about the merits of their case.  A view that is sometimes quite different from the view that might be reached by a neutral outside observer.  So when confronted by the latter, the former sometimes feels aggrieved.  Really, really, really aggrieved.

Not always, of course.  Some attorneys and litigants send e-mails that are quite informed and polite.  I appreciate those.  It occasionally gives me additional insight into the dynamics of the case.  It doesn't always change my opinion, of course.  But it's additional information, and that's often good.

But it'd be quite an exaggeration to say that everyone is calm and dispassionate.  It would put things mildly to say that people occasionally have strong -- and strongly articulated -- views about my take on particular cases.
It's not just lawyers, litigants, and interested observers who occasionally get hacked off, however.  A substantial downside of taking positions on particular opinions is that, on occasion, an expression of disagreement with that opinion may evoke a reaction by its author.  Understandably so.  When someone publicly disagrees with you, you can react in one of two ways.  You can view the disagreement as part of a (potentially) vibrant and productive debate.  Or you can perceive the views of the dissenter as utter crap written by an ignorant hack.  Sometimes both.

I take some solace in the belief -- one which I readily concede may be erroneous (either generally or in particular cases) -- that the reaction of judges tends to fall into the former category.  Judges not only author a ton of different opinions, but also tend to have quite healthy egos.  When someone outside the system says the judge got something wrong, hey, that's part of the process.  Happens every day.  No big deal.  A reaction with which I'm eminently familiar on the academic side.  We write law review articles all the time that other academics then trash.  That's the way things work.  Better to be noticed and then slammed than not to be noticed at all.  That's the theory, anyway.

So why this lengthy introduction?

Well, initially, because it in part sets up one of the exceptions to the rule.  Despite the healthy egos of those involved, when something becomes "personal," people occasionally get riled up.  There's a fine line between an intellectual critique and a personal slam.  Moreover, that line is almost exclusively in the eye of the beholder.  What's honestly intended by the author as entirely conceptual comments on a published opinion may nonetheless be perceived by the recipient as a personal attack.  That's a result that is, quite unfortunately, unavoidable.  It's the nature of the beast.  Whenever someone perceives comments to be about not just the opinion, but also about the person who wrote it, tempers sometimes flare.
Why bother saying that?  Well, for one thing, merely as an expression of what's in fact true.  It describes one of the consequences of making almost a decade now of comments on literally thousands of different opinions.

But it also has a more discrete purpose.  Because I'm about to make some personal observations about one particular author of one particular opinion.  Chief Judge Kozinski.  So before I did so, I wanted to get out at the outset that what follows may not be viewed especially kindly.

With this caveat.  As regular readers may know, I'm generally a big fan of AK.  Always have been.  I first met him in law school during one of his "recruiting" poker games, got to interact with his chambers more during my clerkship (since my judge, Judge Reinhardt, and he were -- and are -- both buds and did various things together), and have often interacted with the Chief since then.  Moreover, on the merits, I not only like the way the guy writes, but also very much appreciate his take on things.  Judge K's not a guy you can invariably predict.  He has -- as everyone knows -- a distinct judicial philosophy and ideology.  But he's not an ideologue.  He can surprise you.  I like that.  That makes for more interesting opinions than some other judges -- on both sides of the spectrum -- whose opinions can instantly (and accurately) be predicted based purely on ideology.  When someone gives you surprising results on occasion, that tends to suggest that "reason" may be motivating them to a substantial degree.  That's good.  I'm a big fan of that.  And Judge Kozinski fits that bill.

So that's my overall take on the guy.  One that's sincerely held.

Now let me get to the caveat.  As well as the opinion on Friday that prompts its expression.

We all know that AK's smart, funny, informal, and -- for lack of a better word -- a "character."  Love it or hate it, that's him.  I can't imagine he'd disagree.

But I'll add one more thing into the mix.  Something I also think will (or at least should) be largely undisputed.

Judge Kozinski feels things strongly.  He's far from the only judge on the Ninth for whom that could be accurately said.  But it's nonetheless true.  There are, moreover, particular things about which he is more likely to feel strongly than some other judges.

Since AK likes to make up words (see, e.g., "dissental"), it's probably appropriate to describe one of his attributes accordingly.  Judge Kozinski possesses, in my view, a healthy dose of "jusmeanger."   He is a keen fan of justice.  He can get mean -- really mean -- when he perceives that justice has not been done.  An emotion that in part derives from anger at the resulting injustice.  Jusmeanger.

I think that's an accurate description of a portion of Judge Kozinski's personality.  I'll add one final attribute as well.  Judge Kozinski's justmeanger has increased over time.  He had a healthy dose of it when he was first on the court.  He's got even more of it now.

You see it in oral arguments and in written opinions.  My view -- right or wrong -- is that AK has a streak of jusmeanger in him.  A mile long.

Lots of that I like.  I like justice.  I like striving for it.  I like not accepting injustice.  I too get angry (at least on occasion) when I perceive continuing injustice.

But perhaps, on occasion, Yoda was right.  Jusmeanger can potentially lead one astray.

As in this opinion.

Judge Kozinski's opinion takes a particular view of what transpired here.  A view that's consistent, in my view, with a jusmeanger philosophy.  The AUSA in this otherwise routine border case says that the defendant was an alien who illegally reentered the U.S.  The AUSA's almost certainly right.  He was found in the U.S. and he's not a citizen.  Done deal.  True, his parents eventually became citizens, and if that happens when you're a minor (i.e., under 18), you can sometimes obtain derivative citizenship.  But that didn't happen.  The AUSA knew that the defendant's parents only became citizens when defendant was like 38 or so.  So the guy's an alien.  Hence his criminal prosecution for illegal reentry after being deported.  Relatively straightforward.

The problem, however, arose because the federal public defender here was pretty darn smart.  Since it came out in the government's case-in-chief that defendant's parents may have at some point become U.S. citizens, once the government rested, she moved for a judgment of acquittal, arguing it had not been established beyond a reasonable doubt that the defendant was an alien, since his parents might have become citizens before he turned 18.  Now, we all know, that wasn't, in fact, the case.  He was actually 38.  But what matters is the evidence.  And there was no evidence introduced about when the parents became naturalized.  So, the argument went, the defendant's entitled to an acquittal.

The AUSA didn't anticipate this argument.  Most likely because he knew the defendant was in fact 38 when his parents were naturalized, so "of course" he wasn't 18.  But now realizing that, yeah, I get it, the AUSA moved to reopen the evidence so he could introduce the parent's naturalization certificate that conclusively showed that, yep, the defendant was way over 18 when his parents finally became citizens.

The district court didn't anticipate the public defender's argument either.  He said that he, like the AUSA, was totally surprised by it.  So he indeed let the AUSA reopen the evidence and introduce the certificate, and thereafter, the defendant was convicted.  Hence the appeal.

The Ninth Circuit ultimately decides that the government brought Hendandez-Meza to trial two days late, thereby violating the Speedy Trial Act.  As a result, his conviction gets reversed and remanded.  So that's what happens to the conviction here.  The district court thought a couple of days got excluded when the parties were close to (or had struck) a plea deal.  But it was wrong.  Fair enough.  Seems right to me.

But it's possible that the speedy trial violation might just merely result in a dismissal of the indictment without prejudice.  So the panel goes on to decide whether anything that transpired at trial might result in a dismissal with prejudice.  Hence the opinion's lengthy discussion of the naturalization dispute.

Judge Kozinski decides that even though the trial court has discretion to reopen the evidence, that should nonetheless not have transpired here.  The AUSA and district court said they were surprised by the claim that defendant might have had derivative citizenship.  Judge Kozinski's opinion does a really good job of demonstrating that given the defendant's arguments at trial, no one should have been surprised.  So I'm on board for this result.

Mind you, it's often much easier for an outsider to say -- especially in retrospect -- that a particular defense had been "clearly" set up than it is for a contemporaneous participant to come to a similar conclusion in the midst of a trial.  Especially when one's mind may potentially be clouded by the underlying knowledge that any such defense would be a crock.  When you know that something is demonstrably untrue, it's sometimes harder to pick up on the fact that someone else might be attempting to implicitly claim that the thing's actually true.  That's a flaw, to be sure.  One that lawyers should be both aware of and used to dealing with.  But human nature nonetheless.

But okay.  The AUSA and district court should not have been surprised at the defense.  So reopening the evidence was an abuse of discretion.  I'm fine with this result.  So far, so good.

Again, all this is moot anyway, since the panel's already decided to reverse the conviction on the speedy trial ground.  But okay.  Error on this basis as well.

But it's at this point in the opinion that things start to go sideways.  And jusmeanger rears its head.

Because Judge Kozinski doesn't just stop at saying that the AUSA should have been more attentive.  Or with making the slam that "[n]o competent prosecutor" would have been surprised.  Or even with saying -- without support, in my view -- that "the record is clear that the government was not surprised" by the defense.  (Emphasis in original).  That factual claim -- essentially, calling the prosecutor a liar -- was based solely on statements by the defense counsel that Judge Kozinski thought made the defense clear.  I'm again on board with the concept that the defense likely should have been anticipated.  But the truth of that statement doesn't demonstrate that the AUSA was fibbing when he said that he was in fact totally surprised.  The two are not the same thing.  You can be telling the truth that you were surprised even if your surprise was unreasonable.  In fact, here, I find it totally plausible.  Especially since the district judge said that he too was surprised.  Are they both lying?  Or, instead, is it that both of them are in fact telling the truth, but simply should have been more attentive.  Seems to me that the latter is exceedingly more likely than the former.  Or that the AUSA was lying but the district court was merely mistaken in having the exact same response.

But Judge Kozinski doesn't stop there.  He argues that the government should have known that the mother's naturalization certificate was material and turned it over prior to trial, which it didn't.  That seems plausible.  With the caveat, however, that the defendant almost certainly knew full well that his mother didn't become a citizen until he was 38, two decades after the relevant cutoff date.  So I can see why the AUSA might not have thought it was relevant, and hence didn't disclose it.  Again, he didn't think it was an actual defense.  But okay.  He should have nonetheless turned it over.  I can get on board for that conclusion as well.  As a legal matter, maybe it was, in fact, Rule 16 material.

But Judge Kozinski says not only that it was erroneously not turned over, but that the AUSA might have deliberately refused to comply with his pretrial discovery obligations in an effort to unjustifably convict the defendant.  Here's what he says:  "The record suggests that the government may have deliberately withheld the naturalization certificate from Hernandez-Meza, perhaps hoping to lock him into a defense he couldn't win."  On Judge Kozinski's theory, then, not only was the AUSA lying when he said he didn't realize that the defendant was trying to claim derivative citizenship, but this was his whole plan from the outset.  Trick the defendant into claiming he might be a citizen and then, bam, sock him with evidence the AUSA deliberately withheld during discovery.


Judge Kozinski says that he's not making such a finding.  That's a factual matter that only the trial court can decide.  But the court reaches the inference of deliberate misconduct "from the record as a whole." And if the trial court agrees on remand that that's what in fact transpired -- that "the government willfully withheld the certificate" -- "then it should be precluded from introducing the document at any retrial of Hernandez-Meza, or perhaps even suffer a dismissal of the indictment with prejudice."

Oh, and it doesn't stop there.  I was stunned when, at the end of the decision, the panel takes the case away from the district judge on remand, and reassigns it to a different judge.  It's true that the district judge didn't necessarily give a ton of reasons for his decision, and perhaps should have.  But if that's a basis for reassignment, I'll respectfully suggest that around half of reversals should result in similar reassignments.  District court judges during trial don't necessarily articulate at length their reasons.  Especially when, as here, they think that something (e.g., surprise) is "obvious" to everyone.

For an academic conference last year, I went back and read every Ninth Circuit case during the past thrity years that resulted in a reassignment to a district judge on remand.  There aren't many of them.  And quite a large portion of them are what I call "Judge Real" reassignments; i.e., reassignments that are ordered on the de facto (albeit not de jure) ground that the district judge is crazy.

Not one of them involved a reassignment for anything like the error made here.  It's almost as if Judge Kozinski thinks that Judge Anello is as out of control as Judge Real.  Which simply ain't the case.  By a long shot.

How, if at all, does jusmeanger play into this?  I think a lot.

Judge Kozinski cares deeply that the US Attorney's Office play by the rules.  That it uphold the high standards of integrity that we rightfully expect from prosecutors.  He expects similar performance by attorneys in general.  But understandably holds AUSAs to an even higher standard.  He also gets angry -- extremely angry -- when he thinks that they have fallen short of this goal.

He's also suspicious.  Suspicious of the government.  Suspicious of motivations  Suspicious of incompetence.  Suspicious when something that seems so clearly and utterly obvious to someone of his intellectual caliber is alleged to be not so obvious at all.

Lots of this is good.  Many of these attributes I share.

But they can go overboard.  They can result in jusmeanger taking over, and clouding one's judgment.  And that's what I think transpired here.

Is it possible that the AUSA in this cadse is a lying, unethical, manipulative bastard?  Perhaps.  That's within the realm of the possible, anyway.

But in my worldview, at least, that's exceptionally -- exceptionally -- unlikely.

This is a seemingly straightforward border case in an overworked judicial district that sees hundreds of identical cases every single week.  Border crimes get prosecuted by entry-level AUSAs; in other words, kids fresh out of law school.  The AUSA here had been an attorney for less than six years.  Hadn't even gotten out of border crimes yet.  Was, in short, entirely wet behind the ears.

Do we expect even young AUSAs to know and follow the rules?  Of course we do.  But there are two very different versions of what went on here.  Under the first version, you've got a young kid who's doing  a routine case who's inattentive to a possible defense and who's just as surprised as the district judge, a jurist who's been an attorney for four decades and on the state and federal benches for fifteen years.  The competing version is that the AUSA instead deliberately withheld evidence and lied about it, all in order to "trap" a defendant who was crystal clearly guilty anyway.

I find the first version eminently likely.  So much so that I place the odds of the second as not only insubstantial, but perhaps not worth even mention.

Maybe I read the opinion erroneously.  Maybe Judge Kozinski only thinks the "misconduct" version is only 20% likely, rather than 70-80% likely (as the opinion seems to read).  Regardless, that's still twenty or more times more likely than I think is plausible.  Things simply don't work that way in the real world.  At least in my worldview.  Which I readily concede may be different than the panel's.

None of this is to say that the values Judge Kozinski expresses aren't important.  They are.  A ton.

There's just a time and place for jusmeanger.  And when it arises in a case like this one, I have the firm sense that it's overboard.  Leading, as here, to erroneous results.

So that's my overly long, armchair psychoanalysis of Chief Judge Kozinski and its implications for Ninth Circuit doctrine.  Take it for what it's worth.

POSTSCRIPT - A wise reader reminded me of the opportunity to listen to the oral argument.  So I went back and did so.  It was one of those oral arguments where you just cringe.  What Judge Kozinski (along with Judge Wardlaw) said at oral argument was -- not surprisingly -- entirely consistent with what's in the final opinion.  As well as, I might add, with much of what I wrote above.  Indeed, Judge Kozinski was (to his credit) repeatedly forthright about his feelings and reactions to the case.  The AUSA arguing the case in the Ninth Circuit was capable, but was (I think) simply not ready for the attack that came.  As a result, he just didn't have good answers to the panel's questions.  Which in turn led the panel not only to often be frustrated -- and to express that frustration -- with the answers given, but to also (on Judge Kozinski's part) to expressly question whether the AUSA at oral argument was "in on it".   Ouch.  So the argument essentially went exactly as I would have expected from the opinion.  Perhaps even more so.

Monday, June 24, 2013

Cann v. Stefanec (Cal. Ct. App. - June 24, 2013)

When you go to a weight room to do pushups, you assume the risk that someone will drop a set of weights on your head.

So holds the Court of Appeal.

Friday, June 21, 2013

In Re John M. (Cal. Ct. App. - June 21, 2013)

Here's a depressing set of facts to begin the weekend:

"On February 21, 2012, DCFS filed a petition alleging that Toni R. (mother) had bipolar disorder, a 25-year history of substance abuse, and was a current daily abuser of heroin, alcohol, and prescription medication. . . . The detention report stated that John was placed in foster care, and that John‘s older sibling, J.R., had been removed from mother‘s care in 1998 and adopted as a result of mother‘s substance abuse in 2002. At the time of J.R.‘s detention, mother and father had custody of John, but father was in prison. John‘s parents‘ home was in an unsanitary and unsafe condition, with no utilities and no bed for the minor to sleep on. Mother, in addition to a history of substance abuse, had a history of arrests and convictions for drug related offenses, including possession of a controlled substance."

Hopefully it can at least make us all thankful for what we have.

As well as what we lack.

Thursday, June 20, 2013

Henry v. Ryan (9th Cir. - June 19, 2013)

Graham Henry is going to die.

Upon reflection, that's not really much of a statement.  We're all going to die, after all.

It's perhaps more accurate to say that Henry's going to be killed.  By the state.

That puts him into a much smaller class.

One might respond that Henry's presumably already in a much smaller class; namely, the class of people who've killed another person.  It probably bears mention that this class is somewhat larger than one might initially conceive, given pervasive wars and the like.  But I take the point.  "Unlawful" killing.  (For now, I'll leave to one side the fact that different eras tend to take very different approaches to the concept of lawful versus unlawful killing, and what conduct falls into which category.  This reality might suggest that our contemporary thoughts on this topic might not be as self-evidently correct as we perhaps perceive.  But let's leave that thought for another day.)

So Henry's in that small group of people who killed someone and who's going to in turn be killed for it.  It's probably worth mention that it's unclear that Henry actually did kill anyone, since there's some reason to believe that his confederate actually pulled the trigger (or, more accurately here, stabbed the knife).  I nonetheless again appreciate the response.  Henry's nonetheless in the small group of people who took part in the taking of another human life.

(I'll mention again that this class of people is also not nearly as small as one might initially conceive.  Think about it.)

Regardless.  Since Henry's going to die at our hands, we take his appeals seriously.  We both (generally) do and definitely should.

I could tell that Henry was going to die when I saw (1) that it was a death penalty case, (2) that there was no dissent, and (3) the panel.  Maybe there's a case in which Judge Fisher, Tallman and Callahan were a panel that unanimously reversed a death penalty.  But I doubt it.

(This is not unique to these particular three judges.  There are lots of three judge Ninth Circuit panels about which I could say the same thing.  Nor is it a one-way ratchet.  There are also three judge death penalty cases where I could figure out that the defendant would prevail by composition of the panel.  I merely note that this is one of those cases where you can almost certainly figure out the result merely by reading the tea leaves.)

Okay, so I know the result in advance.  That doesn't necessarily mean the panel gets it right (or wrong).  How's the analysis?  Again, we want to take these things seriously.

I won't go through the entire thing.  For some reason, I've been writing especially lengthy posts lately.  I can already feel this one won't be an exception.  But I'll at least try to not make it worse.  So I'll just talk about one portion of the opinion.

It's a habeas case.  Arizona.  Roy Estes got stabbed to death in the desert.  Estes gave Henry and a man named Foote a ride from Henderson, Nevada to Arizona.  On that everyone agrees.

The question is whether Henry killed Estes, Foote killed Estes, or both of them killed him.

Henry says that during the ride he was "sleeping it off" in the trailer of Estes' truck when he heard Foote and Estes argue, and that when the truck stopped, Foote killed Estes -- to the total surprise of Henry, who wasn't at all involved.  Arizona says that's not true; that it was either Henry or (more likely) both Henry and Foote that did the killing.

That's why we have a trial.  At trial, the two sides presented their respective theories.  The jury sentenced Henry to death.

There's some interesting parts of the opinion about the state allegedly deliberately fabricating evidence and some other stuff.  But, again, I'm leaving that all to the side, and just focusing on one (short) portion of the opinion.

One of the other things that's undisputed that, at trial, it was unclear whether Estes could really hear (as he claimed) an argument between Foote and Estes when he was sitting in the back of the truck (i.e., in the camper shell) and they were in the cab.  It's also undisputed -- at least on this procedural posture -- that during the trial, two of the jurors conducted an "experiment" on their own in which they drove down a similar gravel road in a similar car to try to ascertain whether Henry was telling the truth and could really hear something like that taking place in the front.  Everyone agrees -- and it's crystal clear -- that's totally improper.  Jurors can't do "experiments" like that.  You've got to decide cases on the evidence at trial, not on stuff that's not introduced and that none of the parties knows about or has any opportunity to refute.  Totally clear.

This seems like a pretty serious claim.  Particularly since a juror testifies that not only did the jurors conduct this experiment, but shared the results with the jury in an attempt to convince them that Henry was lying and should be found guilty and sentenced to death.  Should we be worried about that?

Not according to the Ninth Circuit.  The panel rejects this claim incredibly concisely.  Here's what it says.  Helpfully labelling its arguments "First," "Second," "Third," and "Fourth," with a paragraph devoted to each.

The panel "first" says that many juror misconduct cases that result in reversal involve introduction of evidence that was expressly deemed inadmissible; e.g., prior convictions, inflammatory photographs, etc.  Okay.  I'll accept that as a descriptive matter.  But so what?  I bet lots of these cases also involved defendants without a "y" in their last name, or in states other than Arizona, or where the victim was shot rather than stabbed.  That doesn't matter.  Yes, juror misconduct can take a lot of forms.  Maybe there are cases in which the jury was paid cash -- or plied with alcohol -- in return for returning a death sentence.  I readily concede those would be even worse cases than this one.  Who cares?  That doesn't answer at all whether what transpired here was proper, or constitutes reversible error.  To put it differently, that's an entirely descriptive, rather than normative, assertion.  Moreover, even as a descriptive matter, there are reversals in lots of juror misconduct cases where the misconduct does not involve evidence that was expressly excluded or inflammatory.   Again, that the claims here are in category X or Y don't matter.  Imagine that the jury had collectively gone to the scene and reenacted the murder and concluded, yep, given the topography of the area, it'd have taken two people to drag someone up the hill and kill them, despite the fact that there was no evidence at trial at all about whether the area had hills, and convicted the defendant accordingly.  That'd clearly be reversible error despite the fact that this evidence was not expressly excluded (rather than simply not introduced) or inflammatory.  The argument that the claim here isn't the same as that raised in some other cases simply holds no water.  It's either reversible error or it's not, and the fact that other cases on other facts have reversed for other errors is irrelevant.

The panel "second" says that "whether a person lying in the camper of a truck could hear an argument occurring in the cab fell within the common knowledge of most jurors."  Seriously?  I've been a juror.  I've got some common knowledge.  I have no freaking idea whether you can hear an argument in the front from the back.  Indeed, to the extent I have an idea, based upon my own (quite limited) experience in a camper shell, I'd have thought you totally could hear an argument in the front -- the exact opposite of what the juror's "experiment" purportedly established.  The argument that "everyone already knows that you can't hear an argument in the front when you're in the camper shell" just seems flatly, demonstrably wrong.  Moreover, it's clearly not just me.  If it was so totally obvious, why'd the two jurors feel the need to conduct the experiment in the first place, and/or share it with the others?!  You violate your sworn oath as a juror so you can confirm what everyone already clearly knows?  Seriously?  If somone says something says something obvious, you don't go out and conduct an experiment to prove it.  That the jurors felt the need to prove something -- to themselves and/or other jurors -- seems to me pretty strong (indeed, virtually irrefutable) evidence that it wasn't "within the common knowledge" of most jurors.  A conclusion only supported by my preexisting belief that I'm not the only one who couldn't tell you off the top of my head -- without any evidence introduced at trial on the subject -- whether you can hear an argument from the cab when you're in the shell.

So the first argument the panel makes seems entirely irrelvant, and the second one seems totally wrong.

The "third" argument the panel makes, fortunately, isn't nearly as absurd.  The opinion says that the illegal experiment probably didn't matter because Henry wasn't very credible anyway.  This is an argument that I can potentially buy.  Based largely on the fact that the trial judge thought Henry was "one of the most inherently incredible witnesses [the court] has ever seen testify in a courtroom."  There's no prejudice if Henry's clearly a liar, and the jury already knows it.

But even though this is a potentially plausible story, it's belied to a large extent by what we already know.  That at least some jurors didn't already think that Henry was a big, fat liar since they bothered to go out and conduct an illegal experiment to see if he was lying.  You don't do that if you already know they're a liar.  If I'm a juror and the defendant says "I was in the desert and lifted a 800 pound rock with a twig," and that's in addition to a ton of other things the defendant says about how he has x-ray vision and can predict the future, I don't go out in the desert and try to lift the rock.  That one bothers to investigate is darn good reason to believe that the result is not preordained and that credibility is still at issue.  Moreover, each of the reasons the panel gives for finding Henry totally uncredible seem exceptionally weak to me.  "He left the scene of a murder without reporting it to the police, provided false information to the police and agreed not to tell the police about a murder and then reneged on that agreement once it was advantageous for him to do so."  Really?  Innocent people who have just seen their friend suddenly kill someone could never possibly do that?  Everyone would stay at the scene and turn in their friend?  No one would simply hope the friend wouldn't get caught, and would only rat out their friend once they themselves were told they'd be charged with the murder?  That you don't report a crime and provide a false i.d. to the police necessarily means that you're the murderer?  All I'll say is that that's a very different vision of human nature than the one that I have, anyway.

The panel concludes with its "fourth" argument that the jury could have convicted Henry anyway "under a felony-murder or accomplice theory even if it believed Henry's story that he was in the camper."  That's somewhat true, I guess.  Yes, if Henry's in the camper shell, then gets woken up and starts helping to kill the victim, sure, he's guilty.  But that's not what either side said went down.  Was Henry was sleeping it off in the back (as he said) or was an active participant at the outset (as the state said) is a pretty relevant fact, no?  Some of the jurors certainly thought so.  So much so that two of them bothered to conduct a clearly improper experiment to try to figure out which version was the truth.  Why do so if you're already going to convict someone on a felony murder theory anyway?  Plus, isn't it exceedingly relevant to the appropriate sentence whether Henry's involved at the outset and/or the actual stabber, as opposed merely someone who drags a lifeless (or dying) body up a hill?  You're telling me that couldn't possibly matter at all?  The fact that a jury could have found Henry guilty even if we was sleeping it off in the back doesn't tell us much at all about whether it would have done so.  That's the prejudice inquiry, and the panel's final argument doesn't address that dispositive point at all.

This is all a long-winded way of saying that the panel's analysis on this point seems incredibly weak.  As well as doesn't exactly display the sort of incredibly serious, deliberate inquiry that one would hope and expect when we're dealing with whether someone lives or dies.  Casual, specious arguments thrown out in one-sentence paragraphs -- which is what exists here -- is certainly not what I would hope for were my life the one at issue.

One final point.  Whether or not you think the arguments above have merit, do you really think that every reasonable person would uniformly agree that the panel's arguments here are clearly right?  That there's no legitimate ground for debate about whether the jurors' illegal experiments might have influenced the verdict?  That the issues are simply not "debatable among jurists of reason?"

Because that's the standard.  The panel denies even a certificate of appealability on this point.  Because the answer's so crystal clear that no reasonably objective person could possibly disagree.  You'd have to be, oh, I don't know, so academic nutjob from the southern portion of some fruity state to fail to get that this one's a total no-brainer.  Someone absurd like that.  No actual jurist could find the issue even subject to legitimate debate.

That's the panel's holding.

I guess I can sum up my quite-extended thoughts on that point fairly simply.  I'm going to have to pretty clearly disagree about that.

Flores v. Chevron USA (Cal. Ct. App. - June 20, 2013)

There are several meritorious class action out there.  Then there are ones like this.

There's a reason it only takes the Court of Appeal six double-spaced pages to dispose of the matter.  It's true that retailers generally can't obtain ZIP code information from customers unless it's for a special purpose.  But one of those legitimate special purposes is to make sure there's no fraud.  Which is why, here, gas stations can't require that you enter your ZIP code when you make a purchase.  Particularly when -- again, as here -- they don't use that information for any other purpose, and then delete it after the transactions are verified.

Entirely reasonable.

Wednesday, June 19, 2013

In Re Stake Center Locating (9th Cir. - June 19, 2013)

This one brought a smile to my face

Everyone on the panel agrees that the petition is meritless.  They just disagree about how meritless it is; whether it's unripe/premature, or manifestly silly on the merits as well.

On the upside, it didn't take much effort to resolve.  The whole petition gets decided within three weeks or so, soup to nuts.  Those Crime Victim Rights Act cases definitely get cranked out! 

That's admittedly what the underlying statute requires.  But I'm happy to see that the time pressure doesn't really affect quality much.  Sure, the opinions are shorter.  But they're no less right.

Tuesday, June 18, 2013

Lopez-Valenzuela v. County of Maricopa (9th Cir. - June 18, 2013)

Arizona is probably happy that, after losing in the Supreme Court yesterday, it won in the Ninth Circuit today.

But its celebration should be tempered.  Because my sense is that this one's going en banc.

U.S. v. Vasquez (9th Cir. - June 18, 2013)

Let me say at the outset that I have little to no knowledge of the practical details of criminal law.  I read the various cases, I know the underlying substantive offenses, and I generally know everything one would expect from an appellate perspective.  But when it comes to practical things like where one serves one's sentence, what attitude probation officers take, and similar details, I'm utterly clueless.  No experience in that realm.

Let me also say that, in particular, I know next to nothing about the intricacies of the State of Washington as regards these matters.  I've been there.  Beautiful place.  But I understand that they do there own thing there, in a variety of different areas.  Don't know the details.  Probably never will.  (Assuming, as is quite likely the case, that I will never elect unsuccessfully to mule drugs from British Columbia to Seattle.)

So with those (important) caveats aside:

Is this really right?

Judge Kleinfeld's opinion certainly reads persuasively.  I totally get it.  The question is whether a federal defendant with a previous state conviction for driving with a suspended license gets his criminal history bumped up a point when his sentence for that previous crime was "90 days custody imposed with 84 days suspended for 24 months."  The sentencing guidelines say, in relevant part, that your history gets bumped if you spend more than 30 days in custody -- everyone agrees that doesn't apply -- or you're on probation for more than a year.  Does having your sentence suspended for two years count?

Let me be honest.  Let me forthrightly concede my ignorance.  Before reading this opinion, I had failed to recognize that suspended sentences were "suspended" for particular periods of time.  Instead, I thought they were simply "suspended."  Like being suspended from school.  We imposed the sentence, perhaps as required by law.  But didn't make you serve it.  Just being nice to you.

If that was what a suspended sentence actually was, the case would be easy.  Obviously that doesn't count as probation.  It's just time not served.

I realize now that my prior understanding doesn't really make much sense.  Maybe that's still the law somewhere.  I have a vague recollection, for example, that a speeding ticket I once received when I was 16 resulted in a "suspended" sentence.  (P.S. -- Thank you for that, Mike Arif.  Mike went on to defend D.C. sniper Lee Malvo, in what was undoubtedly a letdown from Mike's high-profile representation of me in traffic court many years earlier.)  Maybe that's where my understanding of the concept arose.

But now I get it.  It's "suspended" for a period of time, and if you do something bad during that period, it can come back and be reimposed.  Makes sense.

But I gotta say:  That sounds an awful lot like probation.  Which is the exact same concept.  You do something wrong during this period and you go back to jail.  Same concept, right?

Which is why the U.S. thinks that, yeah, 24 months of "suspension" counts as 24 months of "probation".  You do something wrong, your sentence gets served.  Same deal.

Judge Kleinfeld has a facially persuasive response to that.  A distinction that makes some sense.  He says -- and the rest of the panel agrees -- that probation generally comes with conditions.  Things that restrict your preexisting liberty.  Like mandatory reporting to your P.O.  Not going out of state.  Not hanging out with gang members.  Things like that.  By contrast, with a suspended sentence (at least of the type here), the only thing you can't do is commit another crime.  Which you're not at liberty to do anyway.  So, the Ninth Circuit holds, that's not "probation" so don't count against your criminal history.

There's a lot to be said for that.  It makes for a decent distinction.  And it obtains the assent of all of the members of the panel, a reasonably diverse one at that.

I nonetheless wonder if it's right.

There are two problems with this position.  Judge Kleinfeld recognizes one of them.  Albeit buried in a footnote.  Lots of other circuits have apparently held to the contrary.  The Sixth.  The Seventh.  The Eighth.  Indeed, every circuit to have addressed the issue appears to have decided that a suspended sentence can indeed count as probation.  Now, Judge Kleinfeld says that some of these same circuits have held that, for other states within them, certain types of suspended sentences may not count.  Okay.  So maybe there's some split.  But it does seem that (1) the Ninth Circuit's view might be a minority one, and (2) there may be some basis to think that Judge Kleinfeld's purported distinction might not be as persuasive as otherwise thought, as other circuits apparently aren't on board.

So I tried to think of why other circuits might go the other way.  Which brings me to the second, more fundamental, problem.  One that makes me wonder whether Judge Kleinfeld's position is the right one.  (As well as left me wishing he'd have at least addressed the potential counterarguments; that way, I could have a more informed view of the matter, rather than being forced to come up sua sponte with the competing positions that created the circuit split.)

Here's my basic problem.  Is the distinction actually a difference?

It's true, for example, that probation often comes with the conditions that Judge Kleinfeld discusses.  But not always.  Probation's sometimes "unsupervised".  Especially in this era of pervasive budget cuts, in which taxpayers often don't feel like paying for things.  What about someone sentenced to probation who doesn't have to report to a P.O.?  Those people clearly have been sentenced to probation, after all.  The court expressly did so.  Yet under the Ninth Circuit's view, it seems that unsupervised "probation" wouldn't count as "probation".  Yet that makes no sense.  Clearly probation is probation.

Judge Kleinfeld likely has a decent response.  He'd likely say that even with unsupervised probation, there are often other conditions.  Staying employed, not drinking alcohol, etc.  Things that restrain your liberty, and that normal people are allowed to do.  Hence, he'd say, probation is really probation, unlike a suspended sentence.

Suspended sentences are admittedly conditional as well.  But the Ninth Circuit would say that the only condition thereto is that you don't commit a crime, which you're not at liberty to do anyway.  Hence it's not "probation" because that doesn't additionally constrain your liberty.

Okay thus far.

But here's the tough part:  What about unsupervised probation that doesn't include those often-applied provisions?  Cases in which the trial judge hasn't checked those particular boxes, but nonetheless has still clearly (and expressly) placed the defendant on probation?  What does the Ninth Circuit's rule coherently -- or otherwise -- say about those?

That seems to me to strike at the heart of the Ninth Circuit's holding.  Because I'm confident that there are, in virtually every state, precisely such cases.  Probation where the only imposed condition is the exact same one as that of a suspended sentence:  Commit no future crimes.

Judge Kleinfeld doesn't say how that one would comes out.  And there's really no good answer under the Ninth Circuit's test.  Unlike the test proposed by the U.S., where there's a totally easy answer:  "Yep, that's probation."

Plus, I can easily come up with a variety of standard probation conditions that are beyond those imposed alongside a suspended sentence and yet still would not seem to constitute "probation" under the Ninth Circuit's view.  Imagine, for example, a domestic violence offender sentenced to probation with the only condition that he not contact, and that he stay away from, the victim.  Normally that'd be a restraint on liberty.  But what if there was already a preexisting restraining order?  (Maybe even the one the the defendant violated that led to the criminal charge.)  In that case, "probation" wouldn't restrain defendant's preexisting liberty.  So it's not really "probation," right?  Really?!

Other conditions -- conditions that I have no doubt whatsoever (after a little research, anyway) are actually imposed -- operate the same way.  What about the standard probation condition that the probationer not use illegal drugs?  Not really "probation" since that's illegal anyway?  Or, for minors, the standard probation condition that they enroll in (and/or attend) school?  Is that not really "probation" either since schooling is already compulsory for most minors?  Is it really possible that you could have someone expressly sentenced to probation, and have the trial judge check a wide variety of the standard boxes on the form -- as well as add some new ones -- and yet this clear "probation" not be "probation"?  Under the Ninth Circuit's view, the answer is clearly "yes".  Which is troubling.

Especially since there's a clear, bright-line alternative.  One that doesn't run into these difficult definitional and counterintuitive problems.  The one advanced by the United States.  Probation is when the serving of a sentence is conditional.  Which, apparently, includes a sentence that's described as "suspended".  Turns out, it's just like probation.  Or at least a form of it.  So both count.

That's my thought, anyway.  Judge Kleinfeld's opinion made a great deal of sense to me.  (The first part of the opinion, by the way -- the part about the plea bargain -- was so totally clearly correct that it made me wonder who would even bother to argue the contrary.)  But the more I thought about it, the more problems I discovered.  Which, in the end, left me with a keen sense that the Ninth Circuit's facially appealing decision here might in fact be wrong.

Monday, June 17, 2013

So. Cal. Edison v. Victorville (Cal. Ct. App. - May 17, 2013)

You might think it would -- or at least should -- be relatively easy to figure would whether you can sue a utility for putting a light pole too close to the street, resulting in injury.

If so, you'd be wrong.  At least as regards the former (descriptive) claim.

Four appeals.  Yet still quite a piece away from actually getting a trial and/or judgment.

That's a lot of work.  On everyone's part.

Friday, June 14, 2013

Aleman v. Uribe (9th Cir. - June 14, 2013)

Think being a police officer is easy?  Think again.

Three people rob a person of his wallet and necklace at gunpoint.  LAPD officers receive a report of the crime over the radio and immediately start following a gray Honda that they suspect may contain the perpetrators.  A high-speed chase ensues.

So far, just a regular day in L.A.  The high-speed chase seems a bit excessive for an everyday piece of street crime, but whatever.

The Honda drives into Toonerville territory, an LA street gang.  When the chase reaches the heart of Toonerville, the officers notice a washing machine in the middle of the street.  What the heck?

The officers slow down to avoid the washing machine, and drive around it.  At which point someone throws a bicycle in front of their vehicle as well.  Clearly, this is no accident.  Someone's trying to help the suspects escape the chase.  Presumably colleagues from Toonerville.

But what's shocking to me isn't that.  It's darn, darn bold to essentially set up roadblocks on public streets to try to stop the police.  But what's stunning is what happens next.

The perpetrators aren't just setting up a roadblock.  It's an ambush.

As the officers are slowed and diverted by the washing machine and bicycle, a sniper starts shooting at them.  Plus the occupants of the Honda start shooting at them as well.  The officers immediately call for backup, and try to speed away, but the suspects in the Honda block their escape.

This is like something out of a movie.  Like this one.  Something that happens only in the minds of a Hollywood writer or maybe -- and even then, only maybe -- in Columbia.  A deliberate ambush of the police in Los Angeles?  Over the theft of a wallet and gold chain?  Wow.

Fortunately, the officers make it out, and two of the three suspects in the vehicle are caught.  (Though the third one, and the sniper in Toonerville, are never found.)  The suspects are convicted of attempted first-degree murder of a peace officer and sentenced to two consecutive life terms.  Convictions that are not only affirmed at the state level, but at the federal habeas level as well.

I'd have never thought that a street gang would be so bold (or stupid) to deliberately ambush and try to kill police officers in order to escape a high-speed case.  Apparently I'm wrong.

Pretty stunning.  At least to me.

Thursday, June 13, 2013

Doug C. v. State of Hawaii DOE (9th Cir. - June 13, 2013)

I'm as sympathetic as the next person to the claim that slight administrative hassles don't permit a bureaucracy to infringe fundamental rights.  Probably more so.

That's especially the case when it comes to kids and their right to an appropriate education.  That's important.  Parents should be involved.  A school bureaucracy shouldn't be allowed to use picayune administrative excuses to deprive a parent of their right to be involved in the education that's given to their child.

For this reason, you might think that I'd greet today's Ninth Circuit opinion with a big "Hallelujah."  Since that's what it squarely holds.

That was not, however, my reaction.

At some point, a parent simply goes too far, and administrative reasons are a legitimate basis to move forward without the parent.  And in my mind, this case exemplifies the point.  Or at least comes darn close in a way the Ninth Circuit doesn't recognize.

Here are the facts.  To which -- it bears mention -- everyone substantially agrees.

Spencer C. has an IEP in Maui, and his father (Doug C.) wants to be consulted about where Spencer gets placed in school.  That's their right.  It's a good thing.  As a result, there needs to be a meeting at which Doug and the school administrators discuss where Spencer should be placed.  Fair enough.

Federal law imposes strict guidelines on this issue.  You've got to do an IEP once a year.  Spencer's eighteen years old, so we've got to figure out where's going to go.  Spencer's one-year deadline ends on Saturday, November 13th.  Pursuant to federal law, a decision on Spencer has to be made by then.  So, necessarily, the meeting with his father (Doug) needs to happen by then.  Makes sense.

The support team -- and we're talking about a dozen or so school teachers and administrators that are involved in the decision about what services Spencer needs -- first talks with Doug in September.  A date two months before the deadline.  Everyone, including Doug, agrees to have the final meeting on October 28.  Plenty of time to meet the deadline two weeks later.  Let's write that down:

(1)  October 28.

The school people testify that this was a "firm" date.  But Doug says it was only "tentative."  Based on my personal experience -- as well as what transpires later -- I'm pretty darn confident that I believe the school.  But let's put that to one side.  There's an October 28 meeting date.

On October 22, the school calls Doug -- very kindly -- to remind him about the meeting.  At which point he says:  "Can't make it."  Why?  Whatever.  Okay.  So we'll reschedule.  Everyone then agrees that they'll meet on November 4 or 5 (there's disagreement about which date was chosen).  Mind you, that means that the dozen or so school people who were supposed to be at the October 28 meeting now have to change their schedules.  But okay.  We'll accommodate the parent's preferences and/or whim.  Still plenty of time to meet the deadline.  Let's write this one down too:

(2)  November 4/5.

The next day, Doug calls the school.  He again interprets the November 4/5 date as "tentative" and says that, nope, he's not free on that date either.  So the school says:  "Well, when will you be free?"  He says November 9.  Fair enough.  November 9 it is.  We'll rearrange everyone's schedule again.  Everyone, including Doug, agrees that November 9 is a firm date.  Four days before the deadline.

Let's write it down again:

(3)  November 9.

Can you guess what happens on November 9?  Of course you can.  Doug e-mails the school at 7:27 a.m.  He says he's "sick" and can't make it.  Of course.

So now what does the school do?  They've got four days until the statutory deadline.  They're facing a parent who's missed/blown off/couldn't attend/rescheduled multiple meetings.  They've got to get a dozen people in a room, with a parent who doesn't seem able to actually attend any of the dates they have set.  Oh, and they've already got the dozen school people assembling later that day to meet what was the admittedly "firm" date four days before the deadline.

Does the school at that point simply tell the parent to fork off?  No.  It doesn't.  It tells the parent:  "Look, we've got to do this thing by November 12.  That's the law.  It's now November 9, and you advise us at 7:27 a.m. that you can't make it.  What about tomorrow, November 10?  Or the next day, November 11?  We can't do it on Friday, November 12, because some of the people who need to be there can't make it that day (having repeatedly rearranged their schedules on multiple times already).  Which of November 10 or 11 works for you?"  I'll write those down too:

(4)  November 10/11.

At which point Doug says:  "I don't know.  I can't schedule anything.  I'm sick.  Who knows if I'll be available on those days?"

At that point, what's the school supposed to do?  Blow the deadline?  That's not only bad for Spencer, but a good way to be sued.  Set a new meeting for November 11?  Doug's already said he's unable to commit to be there that day, since he might still be sick.  November 12?  For the same reasons, Doug might still be "sick" that day too, and not everyone's available anyway.  Which presumably matters, as we want the right decision at the meeting, which means that everyone with information should be there.  Which, maximally, includes Doug.  But he's already blown off/rescheduled multiple meetings, and can't commit to attending any before the deadline.

So the school does what it thinks it has to.  It conducts the meeting as "firmly" scheduled on the 9th, and gets in a plan as required by law on the 12th.  They're then finally able to meet with Doug on the 7th of December, and at that point, Doug attends the meeting (finally!), but refuses to substantively participate, claiming that the school screwed him by conducting the earlier meeting without him.

Doug then sues.  The administrative tribunal and the district court find for the school, holding that it didn't do anything wrong.

The Ninth Circuit reverses.

Judge Paez says that the school district was "clearly unreasonable" in not including Doug at its meeting.  Again, I'm partially sympathetic, and definitely want Doug to be included.  But Doug's repeatedly flaked.  Repeatedly rescheduled.  What's the school supposed to have done?!

Judge Paez says that the school improperly refused to schedule the meeting for November 10 or 11.  Seriously?  Doug expressly said he might well still be "sick" either of those days.  Judge Paez seems to say that the school should have nonetheless schedule a meeting for either (or both) of those days, gotten the 13 school people together in a room, and waited for the (likely inevitable) last-minute e-mail.  I find that unreasonable.  Parental involvement matters.  But so does administrative burden.  When a parent expressly says he can't commit to showing up at a meeting on a particular day, having already missed a meeting one or two days earlier, I don't think it's unreasonable not to have a dozen employees sitting around in the almost certainly vain hope that the parent decides to make it that day.

Judge Paez also says that the school improperly refused to schedule the meeting for November 12.  Really?  Not only were some important participants unvailable, but if Doug could not commit to showing up on November 10 or 11 -- as he expressly said -- because be "might still be sick," why in the world would the school have any reason to think that things would be any different a single day later?  It boggles the mind to think that Doug would say:  "I'm 'sick' to can't promise I'll make it on the 10th or 11th, since I might still be sick, but don't worry, I'm positive I'll be better on the 12th."  Paticularly given the history described above. 

If Doug was a doctor, or hadn't flaked on multiple prior meetings, or the school had any reason to believe that Doug's "sickness" as a one-time thing, that'd be something.  In particular circumstances, when an IEP meeting is coming up, I could well see a parent saying "I've got a cold, so I'm sorry I can't make it today, but don't worry, I should be better by Friday at the latest, and come hell or high water, I'll make it."  In those circumstances, yeah, I'm totally on board for the school having to do a meeting on Friday, the day before the deadline.  Regardless of whether everyone could be there.

That ain't this case.  By a longshot.

Judge Paez finally says that the school could have just ignored the statutory deadline, and done the meeting thereafter.  This part, surprisingly enough, isn't crazy.  I think that in some cases, that's right.  The school would potentially be opening itself up to liability, so I don't think it's an awesome choice, or that the decision to avoid such a consequence would be unreasonable.  But, yeah, in a particular case, I get Judge Paez's point.  So the meeting's a couple of days late.  Big deal.  Just get the parent involved.  As long as delaying the meeting won't harm the child, a couple of days won't matter.

Here's the thing, though.  I'm not sure that this is the best case -- or potentially, even an appropriate one -- in which to make such a holding.  Because there was ample reason for the school to think that the issue was not about a "couple of days" or so.  Doug had been blowing off meetings for a month.  There was absolutely no reason to think that he'd show up for a "firm" meeting on, say, November 16th any more than the "firm" meeting on November 9 or, prior to that, the one in October (which he interpreted as "tentative").  Given Doug's history, the school district could quite reasonably, in my view, think that there was simply no way of knowing when, if ever, Doug would show up.  That's a sufficient basis, at least for me, for the school to conclude that Doug had effectively "affirmatively declined" to attend the required IEP meeting.  End of story.

At an absolute minimum, I think it's overboard to hold -- as the Ninth Circuit does -- that the school district "clearly" acted unreasonably and violated the IDEA.  Couldn't a reasonable factfinder decide, on an appropriate record, that Doug was perhaps not really "sick" on November 9, but was instead making excuses just like he had repeatedly done previously?  Couldn't a reasonable factfinder hold that the school district, when faced with a difficult decision, acted reasonably, given that there was no certainty that Doug would ever actually show up for a meeting?  There seem to be lots of fact issues here.  And I'm bummed that they're decided the way the Ninth Circuit implicitly decides them.  Even more so since, were I the factfinder, my initial belief, upon reading the facts of this case, would be to draw a conclusion directly opposite to the one the Ninth Circuit draws.  It at least seems a question of fact.  Particularly on these, somewhat egregious, facts.

(I forthrightly concede, by the way, that part of this is driven by the revulsion that Doug will almost certainly use the school district's "violation" of the IDEA to (1) obtain a potentially substantial cost and attorney fee award, and (2) get his son's private school paid for by taxpayers.  I'd be fine with (2) if that were the right result.  But to have it transpire not because it's in Spencer's interest, but instead potentially due to Doug's deliberate procedural manipulation of the meeting schdule, somewhat galls me.)

What's particuarly frustrating -- not only to me, but, I'm sure, even more so to the school district -- is that the district essentially did precisely what Judge Paez suggested, and indeed went forward with a successful meeting with Doug in December after he failed to show up for the scheduled meetings in October and November.  I understand what Judge Paez says about that -- that, doctrinally, that does not "count" since the IEP had already been created, so the parent wasn't allowed to "participate" in the process.  But it's still frustrating.  Especially since that same doctrine would presumably apply equally to the statutory violation of not getting the IEP in by the statutory deadline.  The district is essentially in a damned-if-you-do-damned-if-you-don't dilemma.  They've got to provide a plan and services by the deadline, so they have to decide on what those services are, and if they don't, they get sued (and the child suffers).  But if they follow that rule, and do indeed decide by the deadline, then they get sued by a come-lately parent even after they follow the Ninth Circuit's advice and say "Well, we decided by the deadline, but we still want your input," even when the parent says (as Doug did in this case) "Screw you.  You violated the statute by not including me.  I'm not talking to you."

Not my sense of justice.

Really, truly, and sincerely:  I could not appreciate and agree more with the sentiment expressed by Judge Paez's opinion.  But even someone as sympathetic as I am is unsure that this sentiment is the appropriate response to this case.

Wednesday, June 12, 2013

In Re Marriage of Ficke (Cal Ct. App. - June 12, 2013)

There were slim pickings today.  The Ninth Circuit didn't publish anything at all -- for the second day in a row.  The California Court of Appeal was silent in the morning.  It looked like it might be a lazy, relaxing Wednesday.

Then this opinion came along.

One might write about this opinion just because it concerns the divorce case of a political figure -- Aliso Viejo City Council member Greg Ficke.  A little (political) celebrity in the Court of Appeal.

But even beyond the "star" factor, it's a strongly-worded opinion.  Which is far from surprising given its author, Justice Bedsworth.  The Court of Appeal was not happy that the trial court imputed some income to the custodial mother.  At all.  So it reversed and remanded.

I can understand the Court of Appeal's holding.  As well as its sentiment.  We generally want -- or are at least fine with -- custodial parents spending some time at home with their children.  For this reason we might generally be loathe to impute income to a nonworking parent.  On the theory that we like it that they're not working.  I get it.

At least as a general theory.

But that theory can nonetheless go too far.

Let me give you an example.  Imagine that father and mother divorce, and there's a 17-year old child.  Father gets 95% custody.  Father generally makes a ton of money -- $500,000 a year -- as a CEO, but got laid off just before the divorce, so now just hangs out at home.  Mother makes a relatively small amount of money -- $100,000 a year -- and busts her hump to do so.  Father could easily take a job that pays $300,000 (i.e., triple what Mother makes), but doesn't feel like doing so.

Should Mother really have to pay support ("alimony") to Father?  Or should we instead impute some income to Father, which would mean that Father either gets little (or no) support or instead has to pay something to Mother?

I think we should.  Even if Father isn't just sitting on his butt, but is instead (1) playing catch with his 17-year old son, and (2) earning $60 a week -- rather than the $6,000 a week he could make -- since he took a job as a part-time baseball coach so he could "be there" for his son.

Yes, we value hanging out with your kids.  But not exclusively.  It's not fair to the $100,000/year Mother to make her pay $300,000+/year Father alimony.  Imputation would instead be proper.

The facts I just mentioned are fictional.  But they demonstrate the point.

They're also not too far off from the facts of this case.

I admittedly deliberately switched genders.  Here, Mother obtained 95% custody.  But she's also the high earner.  She was a VP at a dental implant manufacturer.  Her 2007 W-2 showed over $725,000 (!) in income.  She got over $200,000 in severance when she was terminated in 2008.  But despite the fact that she could very easily get another six-figure job, she instead decided to start a "pet insurance" business similar to her mother's business in Arizona.  A job that nets her only $250 a month.

Father, meanwhile, is a real estate broker and City Council member.  He makes less than $100,000 a year.

The only other difference between the hypothetical and the actual facts of this case is that there are in reality two kids instead of one:  a 16-year old and a 17-year old.

The trial court made Father pay child support to Mother.  But the trial court also made Mother pay support ("alimony") to Father because it imputed $160,000 of income -- the amount that it thought $700,000+ Mother could easily make -- to Mother, which meant that she made more than him.

That latter ruling was what made the Court of Appeal go quasi-ballistic, and reverse.

I'd be somewhat sympathetic to this ruling, to be honest, if the kids were younger.  If there's a two-year old kid who needs full-time support, I'm hesitant to impute income to the custodial parent, as it may well effectively coerce that parent to enter the workplace and leave the child.  I get that.  I could see refusing imputation in such a situation.

But here, it's different.  We're dealing with kids in high school.  Late high school, at that.  The stark reality is that while those kids definitely need support (and rearing) as well, it's not nearly a full-time job.  The need to "be there" for those kids 24/7 by opting out of the workforce simply doesn't exist.  Or if it does, someone needs to tell that to the millions of two-earner couples and single parents out there who nonetheless manage to raise their kids -- well -- without a full-time stay at home parent.

In short, you can raise your high-school kid just fine even if you work.  Yes, there's some value in a parent being home at 3:30 p.m., rather than 5:30 p.m., so they can hand the keys to the kid (who can already drive) to go with their friends and do their extracurriculars, and -- on those exceptionally rare occasions when the teenager desires it -- play catch with them in the backyard.  I'm not denying that those things are good and valuable.

But to say that they're so essential that we should categorically impute no income to the custodial parent just seems wrong.  It seems more case-by-case to me.  For a young child with a mother who stays at home and could otherwise make only $35,000 at work, yeah, I'm on board for imputing no income.  For a 17-year old with a parent who could make $200,000 or $750,000, uh, no, I'm pretty much just fine with imputing income.

The Court of Appeal adds a caveat, but I don't think it has any substantial practical effect.  It limits its holding by saying that a trial court can sometimes impute income when imputation would benefit the child (i.e., be in their best interests).  But let's be real.  That will never be the case.  It will never help the child to reduce the amount of money their custodial parent receives.  Just doesn't happen.

Let me make a suggestion.  Something I think would make the Court of Appeal's opinion better, and yet be consistent with its overall theme -- as well the overriding thrust of family law.

Rather than saying (as the Court of Appeal does) that a trial court can't impute income unless it's affirmatively in the best interests of the child, I think it makes much more sense to say that you can only impute income when it doesn't conflict with the best interests of the children.  In some cases -- as with the young child (and, potentially, even with older children), imputation might be a bad idea, and harm the kids.  If it meant that kids were routinely left alone on nights and weekends, then, sure, no imputation.  I'm on board for that.

By contrast, if imputing income meant that, on an occasional evening, when the custodial parent had to work late, the kids would have to be picked up (or stay with) a noncustodial parent who was more than happy to spend time with them, well, you know, that seems totally fine with me.  Permitting the could-easily-be-richer parent to obtain funds from the poorer parent when such a consequences is not affirmatively justified by the best interests of the child seems wrong.  If the kids will be totally fine with imputation or without, then it seems like it makes sense to me to go ahead and impute.

Parenthetically, that also seems precisely the case here.  Mother's rich.  She can make a ton of money whenever she wants, and also received over a million bucks in the divorce.  Father's rich too, and he's got the million bucks he got in the divorce plus another million or so in separate property.  Father has to pay child support to Mother as well.

The stark reality is that these O.C. teenagers are going to do just fine regardless of whether their could-be richer parent has a fraction of the income she used to make imputed to her for purposes of calculating support.  The parents have a million bucks each to blow on their kids during the year or two of child support left, and even thereafter, I've got no doubt whatsoever that giving the poorer parent $700 a month in support (i.e., a whopping $8,400 a year) -- which is what the trial court did here -- will not matter one iota to the kids.  Mother's not going to do anything different, Father's not going to do anything different, and the kids won't notice the transfer in the slightest. 

As a result, on Shaun's Modified Rule, since imputing income won't be inconsistent with the best interests of the children, absent other countervailing considerations, that's what one should do.  It's what we do in every other support context, and it's fair.

Oh, and parenthetically, my proposed modification of the Court of Appeal's holding is also consistent with the actual statute.  Section 4058 of the Family Code says that a court's determination of earning capacity must be "consistent with the best interests of the children."  Notice that it says "consistent with," not "advance".  My rule says that imputation is permitted if it's "consistent with" the interests of the children.  The Court of Appeal's rule says that imputation is permitted only if it advances the interests of the children (e.g., "no imputation of income should be made to the custodial parent unless it benefited the children").  Which of these seems more consistent with the statutory text?

In short, I'm on board for a lot of what the Court of Appeals says.  In particular contexts.  But not as a uniform rule, and not in each and every case.  And as for the rule itself, I think that one that's slightly different than the one articulated by the Court of Appeal would be superior.  Not only as a general principle, but also -- at least potentially -- as applied to the present case.

Tuesday, June 11, 2013

People v. Barnes (Cal. Ct. App. - June 11, 2013)

Here's another decision that seems obviously right.

Defendant steals a purse with a smartphone in it.  The smartphone has a GPS in it (like many such phones), and the owner consents to have Sprint "ping" it, which reveals its location:  in the possession of defendant.  Defendant moves to suppress, claiming a violation of the Fourth Amendment.

But there was no trespass or intrusion by the police.  You can't have a subjectively reasonable privacy interest in stuff you just stole.  And the only person with a legitimate privacy interest -- the owner -- consented to the search.

Good police work.  Easy case.  Right result.

State Farm v. Huff (Cal. Ct. App. - June 11, 2013)

Sometimes you lose cases at trial because your attorney either doesn't bother to introduce the necessary evidence or doesn't understand what the law requires.

Case in point.

Monday, June 10, 2013

Martinez v. Brownco (Cal. Supreme Ct. - June 10, 2013)

Here's a decision from the California Supreme Court that makes total sense.

You don't even need to know anything about anything to figure out the right answer.  Let's make it a multiple choice question:

On May 1, Plaintiff makes a pretrial Section 998 settlement offer for $200,00.  That offer expires by not being accepted within 30 days.  On December 1, right before trial, plaintiff makes a lower 998 offer for $100,000, which defendant rejects as well.  At trial, plaintiff recovers $250,000.

After trial, Plaintiff moves to recover $50,000 in expert witness fees that she incurred in October.  Section 998 allows parties to recover such postoffer expenses if they obtain a judgment at trial more favorable than their pretrial offer.  The policy justification for this rule is to encourage settlement.

Can Plaintiff recover these expenses?

A.  Yes, because her pre-October offer of $200,000 was less than the amount ($250,000) she successfully recovered at trial.

B.  No, because her December offer wiped out her expired May offer, so there was no pre-October offer that was less than the amount she recovered at trial.

(If this was a real law school multiple choice exam, I'd manufacture distracting (C) and (D) choices that made no sense, but I'm going to make things easy.  It's either (A) or (B).)

Whatcha think?

The correct answer is (A).  Which makes eminent, total sense to me.  As well as to each of the justices of the California Supreme Court.

There's a series of opinions in the Court of Appeal that adopt the underlying reasoning of (B) and say that when a party makes a second 998 offer any previous offer is deemed to have never existed.  Those cases never made any sense at all to me, either as a matter of contractual doctrine or settlement policy.  So I'm glad to see the California Supreme Court hold otherwise.  (POSTSCRIPT - A reader rightly e-mailed me and noted that I had urged the California Supreme Court to grant review in this case last year.  So I'm glad to see that happen as well.  Though sad to see that my memory is apparently so utterly shot.)

You can make two (or more) 998 offers without necessarily totally negating the initial offers.  That's a good rule.  Glad to see it's (now) the law.