You can drink beer, or vodka, or both, and buy a gun. Heck, you can even drink a beer, have a shot (or two), and directly walk on over and buy a gun. Nothing wrong with that.
But if you have a medical marijuana card, forget it. You can't buy a gun. And the Ninth Circuit holds that doesn't violate the Second Amendment.
Now, practically, the decision doesn't actually mean much. The person who's selling you the gun has to know you have a card before they're obligated to refuse to sell you the weapon. Moreover, the form that you fill out to buy a gun doesn't actually ask you whether you've got a medical marijuana card; it instead asks "Are you an unlawful user of, or addicted
to, marijuana or any depressant, stimulant, narcotic drug, or
any other controlled substance?"
So, realistically, as long as you answer "No," and as long as you don't (stupidly) show your medical marijuana card to every gun dealer in the area, this particular rule isn't going to stop you from getting the weapon of your choice. Or a dozen of 'em.
Still. It's the rule.
Wednesday, August 31, 2016
SEC v. Jensen (9th Cir. - Aug. 31, 2016)
When I read Judge Clifton's opinion this morning, my most prominent thought was: "Well, of course the Ninth Circuit's right here. Who could possibly have thought that there was no right to a jury trial in this case? The law's pretty darn clear."
I had an inkling, though, and then looked back at the caption.
Yep. Intuition was correct. The district judge was Judge Real.
I had an inkling, though, and then looked back at the caption.
Yep. Intuition was correct. The district judge was Judge Real.
Tuesday, August 30, 2016
J.F. v. Superior Court (Cal. Ct. App. - Aug. 30, 2016)
I really liked how Justice Ikola began this opinion. It reads:
"Mother’s petition for writ of mandate arises from an order terminating reunification services and setting a Welfare & Institutions Code section 366.26 hearing (.26 hearing). Mother was offered reunification services for six months. For the first three months, her participation in her case plan was minimal. For the last three months, it was excellent. Nonetheless, the court terminated reunification services, finding mother had “failed to participate regularly and make substantive progress” in her case plan. (§ 366.21, subd. (e)(3).) We conclude that finding is not supported by substantial evidence and thus we will issue the requested writ of mandate."
That's really good. Short. To the point. And sounds spot on. Everything you want from an opening paragraph of an opinion.
So then I continue to read the opinion. Yep, during the first three weeks, things are bad. Very bad. I am sitting here reading about all the terrible things that have happened to the kid, all the incredibly bad parenting, the escalating methamphetamine abuse by the mother, etc. And I'm thinking: "Whoa. This is not good. I totally understand why they want to take away her kid. This is not good. Not at all. I get it." At the same time, I remember the introduction. Justice Ikola told me at the outset that things stunk for a while. Moreover, that during those first three months, things were not good. Fear not, I'm assured. Things will get better.
Still, before Social Services intervenes, things are really, really bad.
And, true enough, even after they intervene, things continue to stink. And I think that Justice Ikola may even undersell how bad those first three months are. He says that the mother's participation in the case plan is "minimal". Yeah, I guess that's one word you could use for missing every single drug test, and also getting arrested and convicted during this period for spousal battery. You might even want to use a little harsher word to describe this pregnant-at-15-continuing-methamphetamine-addict-who-neglects-and-harms-her-children. But okay. For now, we'll just say that her progress during the first three months was "minimal".
But, remember, she gets better. During the next three months, her progress "was excellent". That's why the Court of Appeal reverses.
And, indeed, excellent it was. During those subsequent three months, Mother was indeed doing a ton of good things. Wasn't using methamphetamine any more, and, as a result, was making real progress.
Just one more thing. One thing that Justice Ikoka doesn't mention in the sparking introduction.
During those "excellent" three months, she's in jail.
To me, that makes a difference. A big one.
If you were to write an introduction that says "Yeah, Mom was a mess for three months, but then for the next three months cleaned up her act," I'd think one thing. But it's a fair piece different to say "Yes, Mom was a mess for three months, and then got thrown into jail, but in jail, when she finally was no longer able to use, she actually did a good job." Because when you're in jail, your drug use really isn't under your control anymore. So the fact that you're now "clean" when you're compelled to be is a far less accurate predictor of what you'll be once you're released. Especially when, as here, the person at issue was previously in prison, got clean and did incredibly well there, and then promptly relapsed and did all the events at issue in the present action once released.
The Court of Appeal says that there's "no substantial evidence" to support the trial court's ruling. But I wonder if that's really right. There's a technical argument that perhaps the Court of Appeal's ruling, since there's an underlying two-step doctrinal process that's not all that worth getting into. But on a larger level, at a minimum, the introduction nonetheless seems a bit misleading to me. Or at least I was somewhat surprised when I first read the introduction and then read the rest of the case.
Because I can't see why a trial court would deny reunification services to a parent who simply messed up for three months but then got her act together for the next three. But I totally can see why a trial court might deny reunification services to a parent who is entirely off the rails for three months (even after getting busted by Social Services), gets her act marginally together only while incarcerated, and has a demonstrated history of relapsing -- in an incredibly bad and dangerous way to her kids -- once she's no longer in prison and again has access to her drug of choice.
Those two situations feel very, very different to me.
"Mother’s petition for writ of mandate arises from an order terminating reunification services and setting a Welfare & Institutions Code section 366.26 hearing (.26 hearing). Mother was offered reunification services for six months. For the first three months, her participation in her case plan was minimal. For the last three months, it was excellent. Nonetheless, the court terminated reunification services, finding mother had “failed to participate regularly and make substantive progress” in her case plan. (§ 366.21, subd. (e)(3).) We conclude that finding is not supported by substantial evidence and thus we will issue the requested writ of mandate."
That's really good. Short. To the point. And sounds spot on. Everything you want from an opening paragraph of an opinion.
So then I continue to read the opinion. Yep, during the first three weeks, things are bad. Very bad. I am sitting here reading about all the terrible things that have happened to the kid, all the incredibly bad parenting, the escalating methamphetamine abuse by the mother, etc. And I'm thinking: "Whoa. This is not good. I totally understand why they want to take away her kid. This is not good. Not at all. I get it." At the same time, I remember the introduction. Justice Ikola told me at the outset that things stunk for a while. Moreover, that during those first three months, things were not good. Fear not, I'm assured. Things will get better.
Still, before Social Services intervenes, things are really, really bad.
And, true enough, even after they intervene, things continue to stink. And I think that Justice Ikola may even undersell how bad those first three months are. He says that the mother's participation in the case plan is "minimal". Yeah, I guess that's one word you could use for missing every single drug test, and also getting arrested and convicted during this period for spousal battery. You might even want to use a little harsher word to describe this pregnant-at-15-continuing-methamphetamine-addict-who-neglects-and-harms-her-children. But okay. For now, we'll just say that her progress during the first three months was "minimal".
But, remember, she gets better. During the next three months, her progress "was excellent". That's why the Court of Appeal reverses.
And, indeed, excellent it was. During those subsequent three months, Mother was indeed doing a ton of good things. Wasn't using methamphetamine any more, and, as a result, was making real progress.
Just one more thing. One thing that Justice Ikoka doesn't mention in the sparking introduction.
During those "excellent" three months, she's in jail.
To me, that makes a difference. A big one.
If you were to write an introduction that says "Yeah, Mom was a mess for three months, but then for the next three months cleaned up her act," I'd think one thing. But it's a fair piece different to say "Yes, Mom was a mess for three months, and then got thrown into jail, but in jail, when she finally was no longer able to use, she actually did a good job." Because when you're in jail, your drug use really isn't under your control anymore. So the fact that you're now "clean" when you're compelled to be is a far less accurate predictor of what you'll be once you're released. Especially when, as here, the person at issue was previously in prison, got clean and did incredibly well there, and then promptly relapsed and did all the events at issue in the present action once released.
The Court of Appeal says that there's "no substantial evidence" to support the trial court's ruling. But I wonder if that's really right. There's a technical argument that perhaps the Court of Appeal's ruling, since there's an underlying two-step doctrinal process that's not all that worth getting into. But on a larger level, at a minimum, the introduction nonetheless seems a bit misleading to me. Or at least I was somewhat surprised when I first read the introduction and then read the rest of the case.
Because I can't see why a trial court would deny reunification services to a parent who simply messed up for three months but then got her act together for the next three. But I totally can see why a trial court might deny reunification services to a parent who is entirely off the rails for three months (even after getting busted by Social Services), gets her act marginally together only while incarcerated, and has a demonstrated history of relapsing -- in an incredibly bad and dangerous way to her kids -- once she's no longer in prison and again has access to her drug of choice.
Those two situations feel very, very different to me.
People v. Spiller (Cal. Ct. App. - Aug. 29, 2016)
Thomas Spiller wins this appeal. The California Court of Appeal understandably concludes that his subsequent conviction for attempted murder does not automatically disqualify him for relief under Prop. 36.
But Mr. Spiller shouldn't celebrate just yet. Because I can virtually promise you that, on remand, the trial court will find him ineligible for Prop. 36 relief on the ground that his release would pose an unreasonable risk to public safety.
Which is what'll happen when you're convicted of (1) smuggling methamphetamine into prison, and (2) attempted murder while serving a life sentence.
Now, I could perhaps be wrong.
But I bet I'm not.
But Mr. Spiller shouldn't celebrate just yet. Because I can virtually promise you that, on remand, the trial court will find him ineligible for Prop. 36 relief on the ground that his release would pose an unreasonable risk to public safety.
Which is what'll happen when you're convicted of (1) smuggling methamphetamine into prison, and (2) attempted murder while serving a life sentence.
Now, I could perhaps be wrong.
But I bet I'm not.
Monday, August 29, 2016
Akina v. State of Hawaii (9th Cir. - Aug. 29, 2016)
I like a ton of things about Hawaii. But here's a case that I'm more than glad to get rid of.
The Ninth Circuit feels the same way.
The Ninth Circuit feels the same way.
FTC v. AT&T Mobility (9th Cir. - Aug. 29, 2016)
"In July 2011, AT&T decided to begin reducing the speed
at which unlimited data plan users receive data on their
smartphones. Under AT&T’s data throttling program,
unlimited data plan customers are throttled for the remainder
of a billing cycle once their data usage during that cycle
exceeds a certain threshold. Although AT&T attempts to
justify this program as necessary to prevent harm to the
network, AT&T’s throttling program is not actually tethered
to real-time network congestion. Instead, customers are
subject to throttling even if AT&T’s network is capable of carrying the customers’ data. AT&T does not regularly
throttle its tiered plan customers, no matter how much data
those customers use."
Yet, as the Ninth Circuit holds today, there's nothing the FTC can do about AT&T's conduct.
Yet, as the Ninth Circuit holds today, there's nothing the FTC can do about AT&T's conduct.
Friday, August 26, 2016
Trader Joe's Co. v. Hallatt (9th Cir. - Aug. 26, 2016)
Here's a neat little trademark case from earlier today.
Michael Hallett lives in Washington state, buys a ton of products from Trader Joe's stores, drives 'em across the border to Canada, and then sells them (at a huge markup) in his own store -- called "Pirate Joe's" -- that has a nearly identical logo to Trader Joe's. Trader Joe's isn't psyched about that, tries to stop Mr. Hallett from shopping at its stores, but Mr. Hallett uses disguises and other means to keep buying Trader Joe's products and supplying his own "Pirate Joe's" stores.
So Trader Joe's sues, claiming that Mr. Hallett is infringing its trademark.
The question here is whether U.S. trademark laws apply to Mr. Hallett's activities, a ton of which are in Canada.
The Ninth Circuit says that they do, reversing the district court's decision to the contrary.
So it's Traders 1, Pirates 0.
Oh, one more thing.
Judge Christen's opinion cites a particular Ninth Circuit case -- Reebok v. Marnatech, 972 F.2d 552 (9th Cir. 1992) -- around ten times or so. That's not especially surprising, because Reebok involved a similar issue involving the extraterritorial reach of U.S. trademark laws over someone who allegedly sold counterfeit Reebok shoes over the border in Mexico. I was particularly pleased to see that case cited so much if only because that opinion was authored by Judge Reinhardt during my clerkship with him. So very, very long ago. Yet I knew that case well.
So that was nice. A blast from the past, as it were.
But my fond memories suddenly turned to horror on page 26 of Judge Christen's opinion.
In the middle of that page, Judge Christen includes a particular quote from Judge Reinhardt's prior Reebok opinion. That quote reads: "See Reebok, 970 F.2d at 557 (finding American court to be in a superior enforcement position vis-à-vis its Mexican counterparts because '[e]ach of the defendants, their principle places of business, and the vast majority of their assets are located in the United States'")." (My emphasis added.)
No. Please God, no. Please don't tell me that when that opinion was drafted and published, it used the erroneous word "principle" for the term "principal place of business". Yes, I fully understand that I am terrible at spelling, and grammar, and pretty much everything else remotely associated with the English language. But if an opinion by Judge Reinhardt during my clerkship went out that made that mistake -- and I can assure you that it wouldn't have been Judge Reinhardt's mistake -- and then that mistake was reiterated yet again in other subsequent published opinions, I'd be embarrassed as well as horrified. Please tell me it's not true.
So I went back to the original opinion and looked it up.
Whew.
The Reebok opinion uses the words "principal" and "principle" an even dozen times. And uses the right word every single time. Today's opinion by Judge Christen quotes Judge Reinhardt as writing "principle places of business," but -- thankfully -- that's not what he actually wrote. His opinion says "principal places of business."
And I let out a huge sigh of relief when I saw that.
Judge Christen can leave the opinion as it is if she wants, of course. But she might want to do Judge Reinhardt a solid and edit the quote.
That way no one feels shame.
Michael Hallett lives in Washington state, buys a ton of products from Trader Joe's stores, drives 'em across the border to Canada, and then sells them (at a huge markup) in his own store -- called "Pirate Joe's" -- that has a nearly identical logo to Trader Joe's. Trader Joe's isn't psyched about that, tries to stop Mr. Hallett from shopping at its stores, but Mr. Hallett uses disguises and other means to keep buying Trader Joe's products and supplying his own "Pirate Joe's" stores.
So Trader Joe's sues, claiming that Mr. Hallett is infringing its trademark.
The question here is whether U.S. trademark laws apply to Mr. Hallett's activities, a ton of which are in Canada.
The Ninth Circuit says that they do, reversing the district court's decision to the contrary.
So it's Traders 1, Pirates 0.
Oh, one more thing.
Judge Christen's opinion cites a particular Ninth Circuit case -- Reebok v. Marnatech, 972 F.2d 552 (9th Cir. 1992) -- around ten times or so. That's not especially surprising, because Reebok involved a similar issue involving the extraterritorial reach of U.S. trademark laws over someone who allegedly sold counterfeit Reebok shoes over the border in Mexico. I was particularly pleased to see that case cited so much if only because that opinion was authored by Judge Reinhardt during my clerkship with him. So very, very long ago. Yet I knew that case well.
So that was nice. A blast from the past, as it were.
But my fond memories suddenly turned to horror on page 26 of Judge Christen's opinion.
In the middle of that page, Judge Christen includes a particular quote from Judge Reinhardt's prior Reebok opinion. That quote reads: "See Reebok, 970 F.2d at 557 (finding American court to be in a superior enforcement position vis-à-vis its Mexican counterparts because '[e]ach of the defendants, their principle places of business, and the vast majority of their assets are located in the United States'")." (My emphasis added.)
No. Please God, no. Please don't tell me that when that opinion was drafted and published, it used the erroneous word "principle" for the term "principal place of business". Yes, I fully understand that I am terrible at spelling, and grammar, and pretty much everything else remotely associated with the English language. But if an opinion by Judge Reinhardt during my clerkship went out that made that mistake -- and I can assure you that it wouldn't have been Judge Reinhardt's mistake -- and then that mistake was reiterated yet again in other subsequent published opinions, I'd be embarrassed as well as horrified. Please tell me it's not true.
So I went back to the original opinion and looked it up.
Whew.
The Reebok opinion uses the words "principal" and "principle" an even dozen times. And uses the right word every single time. Today's opinion by Judge Christen quotes Judge Reinhardt as writing "principle places of business," but -- thankfully -- that's not what he actually wrote. His opinion says "principal places of business."
And I let out a huge sigh of relief when I saw that.
Judge Christen can leave the opinion as it is if she wants, of course. But she might want to do Judge Reinhardt a solid and edit the quote.
That way no one feels shame.
Thursday, August 25, 2016
Reyes v. Lynch (9th Cir. - Aug. 25, 2016)
I think this line from today's opinion by Judge Kleinfeld is even funnier when read in isolation.
He's describing the "normal" liberties that "regular" people have (as opposed to, say, people on probation). He says:
"Those of us who have not been convicted of a crime are not required to attend Alcoholics Anonymous meetings or keep some probation office advised of our address, we may own firearms if we choose, and we can go to a restaurant even if we know that servers or other customers may be drug users."
Freedom! That's pretty much a comprehensive list.
Parenthetically, maybe I have a somewhat distorted perspective on things because I live in California. But I think you'd be hard pressed to find a restaurant -- any restaurant -- where it's not the case that "servers or other customers may be drug users." At least low-level, joint-on-occasion types.
That's probably mostly true even if you look at only the servers in isolation. But once you add the customers as well? No brainer.
He's describing the "normal" liberties that "regular" people have (as opposed to, say, people on probation). He says:
"Those of us who have not been convicted of a crime are not required to attend Alcoholics Anonymous meetings or keep some probation office advised of our address, we may own firearms if we choose, and we can go to a restaurant even if we know that servers or other customers may be drug users."
Freedom! That's pretty much a comprehensive list.
Parenthetically, maybe I have a somewhat distorted perspective on things because I live in California. But I think you'd be hard pressed to find a restaurant -- any restaurant -- where it's not the case that "servers or other customers may be drug users." At least low-level, joint-on-occasion types.
That's probably mostly true even if you look at only the servers in isolation. But once you add the customers as well? No brainer.
Wednesday, August 24, 2016
Randall v. Mousseau (Cal. Ct. App. - Aug. 24, 2016)
Now that many (if not most) trial courts no longer provide a court reporter, it's gotten tougher to prepare and transmit the record to the Court of Appeal -- something that's a prerequisite to success on appeal. You can't just simply order the transcript, like you used to be able to do. You either have to provide a court reporter of your own (in advance) or agree upon a settled statement.
Justice Zelon's opinion today gives a primer on how to go through the process of getting a settled statement. It's spot on, incredibly concise (seven pages), and incredibly useful.
You should read it. (Or, at a minimum, read it the next time you decide to appeal and need to prepare a settled statement.)
Super helpful opinion.
Justice Zelon's opinion today gives a primer on how to go through the process of getting a settled statement. It's spot on, incredibly concise (seven pages), and incredibly useful.
You should read it. (Or, at a minimum, read it the next time you decide to appeal and need to prepare a settled statement.)
Super helpful opinion.
Tuesday, August 23, 2016
Ortega-Lopez v. Lynch (9th Cir. - Aug. 23, 2016)
The question is whether cockfighting is categorically a crime of moral turpitude such that it gets you deported and ineligible for relief.
The particular case isn't an especially heinous one either. Judge Owens artfully puts it this way, the first sentence of which (especially the parenthetical) brought a smile to my face:
"[Defendant] was hardly the Don Corleone (or even the Fredo) of this enterprise. Rather, as the government’s sentencing position detailed: 'his involvement in the overall crime was relatively minor compared to' the other defendants in the case. His punishment—one year of probation with no jail time—reflected his limited culpability. He has no other convictions."
Fredo. Too funny.
One other portion of the opinion also curled the sides of my mouth upward, albeit less intentionally. In the midst of holding the cockfighting is probably not categorically a crime of moral turpitude, Judge Owens says: "Congress has declared cockfighting a scourge that warrants prosecution, and we have no quarrel with that." A sentiment that I personally happen to agree with.
But then he drops a footnote that says: "Unlike dogfighting, which is illegal everywhere in the United States, cockfighting remains legal in Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands." Well, yeah. That footnote seems an important caveat. Especially when the relevant inquiry includes the fact that "[t]he BIA defined moral turpitude as “'conduct which is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.'" If there are jurisdictions in the United States that allow the thing, that's some evidence that it's not necessarily "contrary to the accepted rules of morality," no?
The particular case isn't an especially heinous one either. Judge Owens artfully puts it this way, the first sentence of which (especially the parenthetical) brought a smile to my face:
"[Defendant] was hardly the Don Corleone (or even the Fredo) of this enterprise. Rather, as the government’s sentencing position detailed: 'his involvement in the overall crime was relatively minor compared to' the other defendants in the case. His punishment—one year of probation with no jail time—reflected his limited culpability. He has no other convictions."
Fredo. Too funny.
One other portion of the opinion also curled the sides of my mouth upward, albeit less intentionally. In the midst of holding the cockfighting is probably not categorically a crime of moral turpitude, Judge Owens says: "Congress has declared cockfighting a scourge that warrants prosecution, and we have no quarrel with that." A sentiment that I personally happen to agree with.
But then he drops a footnote that says: "Unlike dogfighting, which is illegal everywhere in the United States, cockfighting remains legal in Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands." Well, yeah. That footnote seems an important caveat. Especially when the relevant inquiry includes the fact that "[t]he BIA defined moral turpitude as “'conduct which is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.'" If there are jurisdictions in the United States that allow the thing, that's some evidence that it's not necessarily "contrary to the accepted rules of morality," no?
People v. Miranda (Cal. Ct. App. - Aug. 23, 2016)
"This case involves a razor-blade-shank attack by 'Southside' gang
members on a Los Angeles County jail inmate who refused to stab another inmate at the
gang’s behest."
Yikes. More evidence that being in jail is no fun at all. Stab or be stabbed, apparently.
The three attackers get fairly long sentences; Miranda gets 17 years, Vega gets almost 12, and Rangel gets over 7.
But it's not going to matter much. Miranda's already serving life in prison. Vega's still got a 37-year bit to serve. And Rangel's existing sentence is a quarter century.
Tough to deter people with very little to lose.
Yikes. More evidence that being in jail is no fun at all. Stab or be stabbed, apparently.
The three attackers get fairly long sentences; Miranda gets 17 years, Vega gets almost 12, and Rangel gets over 7.
But it's not going to matter much. Miranda's already serving life in prison. Vega's still got a 37-year bit to serve. And Rangel's existing sentence is a quarter century.
Tough to deter people with very little to lose.
Monday, August 22, 2016
People v. Grimes (Cal. Supreme Ct. - Aug. 22, 2016)
Can you sometimes attribute changes in the composition of a particular judicial tribunal with the difference between life and death of a given criminal defendant?
In Re Biaggio (9th Cir. - Aug. 22, 2016)
Ah, the problems of bringing an NHL franchise to Nashville, Tennessee. Particularly when your major investor is allegedly a fraudster. Problems litigated in, of all places, the Ninth Circuit.
Thus are the vagaries of bankruptcy law.
Thus are the vagaries of bankruptcy law.
Friday, August 19, 2016
People v. Wagner (Cal. Ct. App. - Aug. 19, 2016)
Jesse Wagner files a motion for relief under Penal Code 1473.6, but the trial court denies it on the ground that it had no jurisdiction to consider the motion.
Wagner is appointed counsel on appeal, and appointed counsel files a Wende brief because she can find no non-frivolous arguments to assert. Wagner files his own supplemental brief.
The Court of Appeal then reverses, finding that there was indeed jurisdiction to consider the motion.
So apparently there was a non-frivolous argument to be made. A meritorious one, even.
Wagner is appointed counsel on appeal, and appointed counsel files a Wende brief because she can find no non-frivolous arguments to assert. Wagner files his own supplemental brief.
The Court of Appeal then reverses, finding that there was indeed jurisdiction to consider the motion.
So apparently there was a non-frivolous argument to be made. A meritorious one, even.
Thursday, August 18, 2016
Polo v. Innoventions Int'l (9th Cir. - Aug. 18, 2016)
Judge Milan Smith authors a smart opinion today about when (if ever) you have to remand a putative class action case that was removed under CAFA once you find out that Article III standing is absent over the named plaintiff. That's a neat little topic for civil procedure academics (and/or buffs), and I count myself as at least one of these. It's also practically important for class action practitioners.
So the opinion stands on its own as one potentially worth reading in full.
I generally find Judge Smith's opinion pretty darn persuasive. I nonetheless wanted to identify one particular paragraph that stuck out to me as much less powerful than the rest of the opinion, as well as being potentially dispositive.
The question is whether Section 1447(c) requires the district court to remand a CAFA-removed case to state court, rather than dismissing it, once the plaintiff is found to lack standing. There are a wide variety of arguments that Judge Smith dismisses about why Section 1447(c) is allegedly inapplicable to cases removed under CAFA, and those I totally understand, and he seems right.
But then there's this paragraph:
"Finally, Innoventions argues that because Polo’s lack of injury was established as part of the summary-judgment process, it was established at final judgment, rather than “before final judgment” as required by § 1447(c). What the statute requires is remand “[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction”—and the district court necessarily must have determined that it lacked subject-matter jurisdiction before entering judgment to that effect. [Footnote: Indeed, the record shows that the district court made its determination on May 1, 2014, but entered judgment almost two weeks later on May 12, 2014.] Therefore, this case falls within the purview of § 1447(c)."
Wait a minute. Not so fast. I'm not sure this is right at all.
Here, defendant moved for entry of summary judgment -- a dismissal on the merits -- because the plaintiff lacked any actual injury. That's indeed an element of the cause of action. So if defendant is right, then, yeah, they're entitled to a dismissal on the merits.
So defendant says that Section 1447(c) only requires a remand if it appears before a final judgment, whereas here, the court found out that the cause of action was deficient -- as, not so coincidentally, was subject matter jurisdiction -- once it resolved the summary judgment motion. As a result, says the defendant, the court only found out that subject matter jurisdiction was lacking once it resolved the summary judgment motion, but once it resolved the summary judgment motion, that was a decision on the merits that entitled defendant to entry of a final judgment in its favor. So, the argument goes, the decision on the merits transpired first, or (at worst) at the same time, as the determination that there was no subject matter jurisdiction. So the latter determination wasn't "before" the final judgment on the merits, hence Section 1447(c) doesn't apply. That's the argument.
Judge Smith's opinion responds by saying that the district court "necessarily must have determined that it lacked subject-matter jurisdiction before entering judgment" on the merits, hence that it indeed found out about the lack of jurisdiction "before" that judgment and thus Section 1447(c) applies. But I'm not at all sure that's the case -- much less "necessarily" the case.
Defendant moved for summary judgment. The court read the papers for and against. Yes, at some point -- Time X -- the court must have decided "Yes, defendant is right. There's no standing here." And at that exact moment, Time X, the district court necessarily "decided" (at least in its own mind) that both (1) defendant was entitled to win on the merits (since the required element of injury in fact was absent), and (2) there was no subject matter jurisdiction (since there was no Article III standing).
In other words, those determinations happen -- indeed, necessarily happen -- at the same time. One is the other side of the coin of the other. The one means the other, and vice-versa.
Which in turns means that a court doesn't decide the absence of subject matter jurisdiction "before" the determination of the merits. Which is what Section 1447(c) requires in order to compel a remand instead of a dismissal. Which seems to mean that defendant is right; the requirements of that statute don't apply, and the district court is free to adjudicate the merits instead of remanding, since the two determinations happen at the same time.
Now, the footnote he drops might perhaps reveal Judge Smith's potential reasoning to the contrary. He points out that, in the present case, the actual final judgment wasn't actually entered until 11 days after the entry of the order on the summary judgment motion. So I think he's thinking that since a final judgment was entered after the motion was resolved, and the statute says "before", Section 1447(c) must be satisfied.
Okay, I get that. At least here.
But the truth is that once you've decided the summary judgment motion, that's the end of the case. It is an adjudication on the merits. The entry of a final judgment is a ministerial matter at that point. I don't see that the temporal difference there -- even an 11 day one -- matters.
Plus, Judge Smith says that the decision on subject matter jurisdiction "necessarily" comes before the decision on the merits. Really? What if the trial judge here simultaneously filed her decision on the summary judgment motion as well as the final judgment that reflected that decision? Then it wouldn't be "before", right? I can't fathom that whether you're entitled to a remand and the resulting ability to continue to litigate in state court, on the one hand, versus a dismissal on the merits on the other is in fact meant to depend under Section 1447(c) on which document the district court decides to file first, or whether one document is filed 11 days, 11 minutes, or 11 seconds after the other (or at the same time). Seems to me the actual decision is made at the same time; once there's no injury, there's no standing and no ability to prevail on the merits. One's not actually "before" the other at all.
Moreover, wouldn't Judge Smith have the same view about other adjudications on the merits, where the law is clear that you're not entitled to a remand under Section 1447(c)? For example, imagine that the district court decides a summary judgment motion that holds that the underlying federal cause of action that authorized the removal is meritless, but the clerk or court holds off (as here) on entering the actual resulting final judgment for 11 days. Whoopsies! Under Judge Smith's view, the absence of federal subject matter jurisdiction (since the federal claim is now gone) was now "before" the entry of a final judgment, so Section 1447(c) applies and requires a remand. Fine. But it's crystal clear that that's not the current rule. So it seems like Judge Smith's rule is inconsistent with the remand cases with respect to other entries of summary judgment and merit-based determinations.
As a result, I just really wonder about this one paragraph. As well as how the today's decision is consistent (or inconsistent) with how we read 1447(c) in analogous precedent.
'Cause I'm just not sure that you "necessarily" decide subject matter jurisdiction before you decide the merits when the two are just different sides of the same coin. Seems to me you almost "necessarily" decide 'em at the same time.
So the opinion stands on its own as one potentially worth reading in full.
I generally find Judge Smith's opinion pretty darn persuasive. I nonetheless wanted to identify one particular paragraph that stuck out to me as much less powerful than the rest of the opinion, as well as being potentially dispositive.
The question is whether Section 1447(c) requires the district court to remand a CAFA-removed case to state court, rather than dismissing it, once the plaintiff is found to lack standing. There are a wide variety of arguments that Judge Smith dismisses about why Section 1447(c) is allegedly inapplicable to cases removed under CAFA, and those I totally understand, and he seems right.
But then there's this paragraph:
"Finally, Innoventions argues that because Polo’s lack of injury was established as part of the summary-judgment process, it was established at final judgment, rather than “before final judgment” as required by § 1447(c). What the statute requires is remand “[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction”—and the district court necessarily must have determined that it lacked subject-matter jurisdiction before entering judgment to that effect. [Footnote: Indeed, the record shows that the district court made its determination on May 1, 2014, but entered judgment almost two weeks later on May 12, 2014.] Therefore, this case falls within the purview of § 1447(c)."
Wait a minute. Not so fast. I'm not sure this is right at all.
Here, defendant moved for entry of summary judgment -- a dismissal on the merits -- because the plaintiff lacked any actual injury. That's indeed an element of the cause of action. So if defendant is right, then, yeah, they're entitled to a dismissal on the merits.
So defendant says that Section 1447(c) only requires a remand if it appears before a final judgment, whereas here, the court found out that the cause of action was deficient -- as, not so coincidentally, was subject matter jurisdiction -- once it resolved the summary judgment motion. As a result, says the defendant, the court only found out that subject matter jurisdiction was lacking once it resolved the summary judgment motion, but once it resolved the summary judgment motion, that was a decision on the merits that entitled defendant to entry of a final judgment in its favor. So, the argument goes, the decision on the merits transpired first, or (at worst) at the same time, as the determination that there was no subject matter jurisdiction. So the latter determination wasn't "before" the final judgment on the merits, hence Section 1447(c) doesn't apply. That's the argument.
Judge Smith's opinion responds by saying that the district court "necessarily must have determined that it lacked subject-matter jurisdiction before entering judgment" on the merits, hence that it indeed found out about the lack of jurisdiction "before" that judgment and thus Section 1447(c) applies. But I'm not at all sure that's the case -- much less "necessarily" the case.
Defendant moved for summary judgment. The court read the papers for and against. Yes, at some point -- Time X -- the court must have decided "Yes, defendant is right. There's no standing here." And at that exact moment, Time X, the district court necessarily "decided" (at least in its own mind) that both (1) defendant was entitled to win on the merits (since the required element of injury in fact was absent), and (2) there was no subject matter jurisdiction (since there was no Article III standing).
In other words, those determinations happen -- indeed, necessarily happen -- at the same time. One is the other side of the coin of the other. The one means the other, and vice-versa.
Which in turns means that a court doesn't decide the absence of subject matter jurisdiction "before" the determination of the merits. Which is what Section 1447(c) requires in order to compel a remand instead of a dismissal. Which seems to mean that defendant is right; the requirements of that statute don't apply, and the district court is free to adjudicate the merits instead of remanding, since the two determinations happen at the same time.
Now, the footnote he drops might perhaps reveal Judge Smith's potential reasoning to the contrary. He points out that, in the present case, the actual final judgment wasn't actually entered until 11 days after the entry of the order on the summary judgment motion. So I think he's thinking that since a final judgment was entered after the motion was resolved, and the statute says "before", Section 1447(c) must be satisfied.
Okay, I get that. At least here.
But the truth is that once you've decided the summary judgment motion, that's the end of the case. It is an adjudication on the merits. The entry of a final judgment is a ministerial matter at that point. I don't see that the temporal difference there -- even an 11 day one -- matters.
Plus, Judge Smith says that the decision on subject matter jurisdiction "necessarily" comes before the decision on the merits. Really? What if the trial judge here simultaneously filed her decision on the summary judgment motion as well as the final judgment that reflected that decision? Then it wouldn't be "before", right? I can't fathom that whether you're entitled to a remand and the resulting ability to continue to litigate in state court, on the one hand, versus a dismissal on the merits on the other is in fact meant to depend under Section 1447(c) on which document the district court decides to file first, or whether one document is filed 11 days, 11 minutes, or 11 seconds after the other (or at the same time). Seems to me the actual decision is made at the same time; once there's no injury, there's no standing and no ability to prevail on the merits. One's not actually "before" the other at all.
Moreover, wouldn't Judge Smith have the same view about other adjudications on the merits, where the law is clear that you're not entitled to a remand under Section 1447(c)? For example, imagine that the district court decides a summary judgment motion that holds that the underlying federal cause of action that authorized the removal is meritless, but the clerk or court holds off (as here) on entering the actual resulting final judgment for 11 days. Whoopsies! Under Judge Smith's view, the absence of federal subject matter jurisdiction (since the federal claim is now gone) was now "before" the entry of a final judgment, so Section 1447(c) applies and requires a remand. Fine. But it's crystal clear that that's not the current rule. So it seems like Judge Smith's rule is inconsistent with the remand cases with respect to other entries of summary judgment and merit-based determinations.
As a result, I just really wonder about this one paragraph. As well as how the today's decision is consistent (or inconsistent) with how we read 1447(c) in analogous precedent.
'Cause I'm just not sure that you "necessarily" decide subject matter jurisdiction before you decide the merits when the two are just different sides of the same coin. Seems to me you almost "necessarily" decide 'em at the same time.
Wednesday, August 17, 2016
Nichols v. Century West (Cal. Ct. App. - Aug. 16, 2016)
When this is the fact pattern in your civil case, you don't come off as an overly sympathetic person, in my view.
Michelle Nichols leases a BMW 640 (MSRP around $70,000+) in 2012. She quickly tires of it.
Later that year, she decides to get a new car, deciding that “the 640 was a little small for me.” So in September, she leases a new BMW 750Li -- an even more expensive vehicle -- even though she's a little "concerned it might not fit into her garage."
It does not, in fact, fit. But she nonetheless drives it for nearly a month, putting 1,700 miles on it, before taking it back to the dealership and trying to exchange it for yet a third (incredibly expensive) vehicle -- this time, a BMW X6. She does, in fact, get the third car, but as a result, she owes a bit more money, since she's now leased three different brand new cars, and as you know, they depreciate a ton the second you drive 'em off the lot.
She thereafter tries to get out of the deal that she struck, arguing on appeal only that she was able to rescind the contract because the dealership allegedly put her down payment on the wrong line of the contract (since it was a "deferred" down payment since at least one of the checks was postdated by a couple of weeks).
That argument persuaded neither the trial court nor the Court of Appeal.
The case is nonetheless a great example of First World Problems in the City of Angels.
Michelle Nichols leases a BMW 640 (MSRP around $70,000+) in 2012. She quickly tires of it.
Later that year, she decides to get a new car, deciding that “the 640 was a little small for me.” So in September, she leases a new BMW 750Li -- an even more expensive vehicle -- even though she's a little "concerned it might not fit into her garage."
It does not, in fact, fit. But she nonetheless drives it for nearly a month, putting 1,700 miles on it, before taking it back to the dealership and trying to exchange it for yet a third (incredibly expensive) vehicle -- this time, a BMW X6. She does, in fact, get the third car, but as a result, she owes a bit more money, since she's now leased three different brand new cars, and as you know, they depreciate a ton the second you drive 'em off the lot.
She thereafter tries to get out of the deal that she struck, arguing on appeal only that she was able to rescind the contract because the dealership allegedly put her down payment on the wrong line of the contract (since it was a "deferred" down payment since at least one of the checks was postdated by a couple of weeks).
That argument persuaded neither the trial court nor the Court of Appeal.
The case is nonetheless a great example of First World Problems in the City of Angels.
Tuesday, August 16, 2016
U.S. v. McIntosh (9th Cir. - Aug.16, 2016)
Congress has precluded the federal government from spending money to prosecute individuals on federal drug charges when the conduct of the defendant at issue was permitted by the relevant state marijuana laws. The Ninth Circuit decides this morning that (1) individuals are entitled to a hearing if they're indicted and claim that their conduct was permitted by state law, but (2) they better be able to prove that they fully complied with state law; otherwise, they're not going to get any relief.
Judge O'Scannlain, who authors the majority opinion, ends his discussion with a practical -- as well as linguistic -- observation. Don't think that the relevant statute, he says, means that federal law permits or authorizes you to possess marijuana. It doesn't. He says:
"To be clear, § 542 does not provide immunity from prosecution for federal marijuana offenses. The CSAprohibits the manufacture, distribution, and possession of marijuana. Anyone in any state who possesses, distributes, or manufactures marijuana for medical or recreational purposes (or attempts or conspires to do so) is committing a federal crime. The federal government can prosecute such offenses for up to five years after they occur. See 18 U.S.C. § 3282. Congress currently restricts the government from spending certain funds to prosecute certain individuals. But Congress could restore funding tomorrow, a year from now, or four years from now, and the government could then prosecute individuals who committed offenses while the government lacked funding. Moreover, a new president will be elected soon, and a new administration could shift enforcement priorities to place greater emphasis on prosecuting marijuana offenses.
Nor does any state law “legalize” possession, distribution, or manufacture of marijuana. Under the Supremacy Clause of the Constitution, state laws cannot permit what federal law prohibits. U.S. Const. art VI, cl. 2. Thus, while the CSA remains in effect, states cannot actually authorize the manufacture, distribution, or possession of marijuana. Such activity remains prohibited by federal law."
That said, at least for now, if you're fully complying with state law, the states can't prosecute you, and the federal government can't either.
Judge O'Scannlain, who authors the majority opinion, ends his discussion with a practical -- as well as linguistic -- observation. Don't think that the relevant statute, he says, means that federal law permits or authorizes you to possess marijuana. It doesn't. He says:
"To be clear, § 542 does not provide immunity from prosecution for federal marijuana offenses. The CSAprohibits the manufacture, distribution, and possession of marijuana. Anyone in any state who possesses, distributes, or manufactures marijuana for medical or recreational purposes (or attempts or conspires to do so) is committing a federal crime. The federal government can prosecute such offenses for up to five years after they occur. See 18 U.S.C. § 3282. Congress currently restricts the government from spending certain funds to prosecute certain individuals. But Congress could restore funding tomorrow, a year from now, or four years from now, and the government could then prosecute individuals who committed offenses while the government lacked funding. Moreover, a new president will be elected soon, and a new administration could shift enforcement priorities to place greater emphasis on prosecuting marijuana offenses.
Nor does any state law “legalize” possession, distribution, or manufacture of marijuana. Under the Supremacy Clause of the Constitution, state laws cannot permit what federal law prohibits. U.S. Const. art VI, cl. 2. Thus, while the CSA remains in effect, states cannot actually authorize the manufacture, distribution, or possession of marijuana. Such activity remains prohibited by federal law."
That said, at least for now, if you're fully complying with state law, the states can't prosecute you, and the federal government can't either.
Monday, August 15, 2016
People v. Stylz (Cal. Ct. App. - Aug. 15, 2016)
If you break into a storage unit (e.g., one at Public Storage), that's felony burglary. You can't later ask to reduce it to misdemeanor shoplifting. Because that's not what it is.
It only takes Justice Manella around five double-spaced pages to explain why.
It only takes Justice Manella around five double-spaced pages to explain why.
People v. Nelson (Cal. Supreme Ct. - Aug. 15, 2016)
There's some sense from today's opinion that the California Supreme Court's approach to death penalty cases may be slowly shifting.
Five justices vote to vacate the death sentence. Two justices -- Justices Corrigan and Chin -- dissent. In an opinion that is only three pages long.
Every case is different, of course. And one view of today's opinion would be to simply conclude that this particular case was a strong one for the defendant.
But my personal opinion is that there's something -- albeit maybe something marginal -- at stake as well. That in part explains the 5-2 vote.
It's definitely not that the California Supreme Court is about to start vacating every single death sentence. But I do think that the era of virtually every single death sentence being unanimously affirmed is pretty much over at this point.
Thursday, August 11, 2016
People v. Becerra (Cal. Supreme Ct. - June 27, 2016)
Defendant is representing himself (with the court's permission) for a while, but then the trial court relieves him and appoints counsel, finding that the defendant has been dilatory. The defendant then tells the court:
"I haven't done nothing to take this privilege away from me. You‟re taking my constitutional rights from me and that is a reversible error in [sic] your part. And I‟m going to take this on a writ. And if this is all you have to say, this is all I have to say. I'll take this . . . up on a writ. You‟re not going to take my constitutional rights when I have the rights to represent myself. This is my life, your Honor. You're dealing with my life. . . . You want to fuck with me, I'll fuck with you."
Now, I know what you're thinking. It's not good to threaten a judge. Doesn't work. Rarely, if ever, productive.
All true.
But you know what the weird part is here?
Defendant turns out to be right.
He gets sentenced to death, but the California Supreme Court reverses. Unanimously, no less. And in an opinion (1) by Justice Corrigan, that's (2) less than a dozen double-spaced pages. Wow. (Compare that opinion, by the way, to the other unanimous death penalty opinion that the California Supreme Court published today, which tops out at 162 pages.)
Mr. Becerra was correct. There were, in fact, insufficient grounds for the trial court to relieve him of his pro per status.
Death penalty reversed. Retrial. After nearly twenty years in the California Supreme Court.
Crazily enough.
"I haven't done nothing to take this privilege away from me. You‟re taking my constitutional rights from me and that is a reversible error in [sic] your part. And I‟m going to take this on a writ. And if this is all you have to say, this is all I have to say. I'll take this . . . up on a writ. You‟re not going to take my constitutional rights when I have the rights to represent myself. This is my life, your Honor. You're dealing with my life. . . . You want to fuck with me, I'll fuck with you."
Now, I know what you're thinking. It's not good to threaten a judge. Doesn't work. Rarely, if ever, productive.
All true.
But you know what the weird part is here?
Defendant turns out to be right.
He gets sentenced to death, but the California Supreme Court reverses. Unanimously, no less. And in an opinion (1) by Justice Corrigan, that's (2) less than a dozen double-spaced pages. Wow. (Compare that opinion, by the way, to the other unanimous death penalty opinion that the California Supreme Court published today, which tops out at 162 pages.)
Mr. Becerra was correct. There were, in fact, insufficient grounds for the trial court to relieve him of his pro per status.
Death penalty reversed. Retrial. After nearly twenty years in the California Supreme Court.
Crazily enough.
Wednesday, August 10, 2016
Weiss v. City of Los Angeles (Cal. Ct. App. - Aug. 8, 2016)
Cody Weiss got a parking ticket on La Jolla Avenue in Los Angeles for exceeding the two hour limit. He contested the ticket -- as you're allowed to do -- by filing a statement online that simply denied that he was parked for more than two hours. But the people who the City hired to conduct this initial review decided that Mr. Weiss was responsible, so he then paid the $55 ticket.
Most of the time, that'd be the end of the story.
But not for Mr. Weiss.
Mr. Weiss promptly files a lawsuit that claims that, pursuant to statute, the City of Los Angeles is required to conduct the initial review of tickets like his itself, and can't outsource this task -- as the City does -- to other outside entities (here, Xerox Business Services).
The trial court not only agrees with Mr. Weiss, but also awards him his attorney's fees in filing the suit. All $722,000 of them.
The Court of Appeal affirms.
Getting $722,000 in fees pursuant to your challenge to a $55 parking ticket. Not bad for Mr. Weiss.
Not bad at all.
Most of the time, that'd be the end of the story.
But not for Mr. Weiss.
Mr. Weiss promptly files a lawsuit that claims that, pursuant to statute, the City of Los Angeles is required to conduct the initial review of tickets like his itself, and can't outsource this task -- as the City does -- to other outside entities (here, Xerox Business Services).
The trial court not only agrees with Mr. Weiss, but also awards him his attorney's fees in filing the suit. All $722,000 of them.
The Court of Appeal affirms.
Getting $722,000 in fees pursuant to your challenge to a $55 parking ticket. Not bad for Mr. Weiss.
Not bad at all.
Tuesday, August 09, 2016
People v. J.E. (Cal. Ct. App. - July 20, 2016)
From this opinion:
"Minor’s [and] two of his friends. . . . entered an Oakland home through a back window and rear door and took a watch, a camera, and loose change from a large jar. A neighbor reported the burglary, and Minor and his friends were apprehended a few blocks away. . . . Minor began smoking marijuana when he was nine years old and had begun smoking it almost daily, including the date of his arrest. . . . Minor denied involvement in gangs, but said he associated with members of the Norteños gang a year prior to his arrest.
[] Minor was in danger of failing most of his middle school classes. Minor did not turn in class work or attend his classes regularly. He also had various suspensions and reprimands for behavioral issues, including refusing to go to his workshops after class, cursing at the school principal and his staff, taking a knife and other contraband to school, and having gang-related graffiti in his locker; matching graffiti was also found on the wall around the corner from Minor’s locker."
Sadly, I fear that, in all probability, this life will not go, or end, well.
"Minor’s [and] two of his friends. . . . entered an Oakland home through a back window and rear door and took a watch, a camera, and loose change from a large jar. A neighbor reported the burglary, and Minor and his friends were apprehended a few blocks away. . . . Minor began smoking marijuana when he was nine years old and had begun smoking it almost daily, including the date of his arrest. . . . Minor denied involvement in gangs, but said he associated with members of the Norteños gang a year prior to his arrest.
[] Minor was in danger of failing most of his middle school classes. Minor did not turn in class work or attend his classes regularly. He also had various suspensions and reprimands for behavioral issues, including refusing to go to his workshops after class, cursing at the school principal and his staff, taking a knife and other contraband to school, and having gang-related graffiti in his locker; matching graffiti was also found on the wall around the corner from Minor’s locker."
Sadly, I fear that, in all probability, this life will not go, or end, well.
Monday, August 08, 2016
U.S. v. Sanchez-Gomez (9th Cir. - Aug. 5, 2016)
Down here in San Diego, in federal court, we put pretty much everyone in full-body shackles. Even at arraignment. Sure, a federal judge can order 'em off if s/he wants to, but the ordinary rule is that you get shackled. Regardless of your dangerousness (or lack thereof).
Almost exactly a year ago, the Ninth Circuit unanimously held that on the record presented, that policy was unconstitutional.
But not so fast. The Ninth Circuit now takes the case en banc.
So we'll see soon enough if uniform shackling persists in San Diego.
Almost exactly a year ago, the Ninth Circuit unanimously held that on the record presented, that policy was unconstitutional.
But not so fast. The Ninth Circuit now takes the case en banc.
So we'll see soon enough if uniform shackling persists in San Diego.
Thursday, August 04, 2016
Cuevas v. Hartley (9th Cir. - Aug. 4, 2016)
Here's a neat little dissent by Judge Kozinski.
The panel decides to allow the respondent to file an overlength brief. Judge Kozinski, by contrast, is not persuaded. He says:
"I do not consent to the filing of a fat brief because the state’s motion is wholly inadequate. The state had previously filed a compliant brief that covered many of the same points, but we ordered replacement briefs in light of Daire v. Lattimore, 812 F.3d 766 (9th Cir. 2016) (en banc). The discussion of Daire in the state’s oversized brief takes up only 3 pages; the state’s lawyer gives no coherent explanation for why she needed to add 14 pages. The state mentions the complexity of the facts it wishes us to consider, but those facts were contained in the earlier version of the state’s brief. Its remaining explanations are equally unconvincing. To me, it seems perfectly clear that the state filed an overly long brief because it thought it could get away with it."
I find that plausible. You decide that there are things you need (or want) to say, those things take up space, so you ask for extra pages, thinking that the court will go ahead and say "Yes".
Judge Kozinski continues:
"This has become a common and rather lamentable practice: Instead of getting leave to file an oversized brief before the deadline, lawyers wait for the last minute to file chubby briefs and dare us to bounce them. Of course, it’s hard to decide cases without a brief from one of the parties, and denying the motion usually knocks the briefing and argument schedule out of kilter. Denying the motion is thus more trouble than allowing the brief to be filed and putting up with the additional unnecessary pages. Sly lawyers take advantage of this institutional inertia to flout our page limits with impunity. This encourages disdain for our rules and penalizes lawyers, like petitioner’s counsel, who make the effort to comply."
I find Judge Kozinski's point here even more plausible. It is indeed more of a hassle to bounce a brief and require a substitute than it is to simply allow the oversized brief. And attorneys know that. This reality encourages the practice that Judge Kozinski identifies. Seems right to me.
But there's an alternative explanation as well. One that Judge Kozinski doesn't explore, but that to me may be an even more likely explanation for most (but not all) oversize brief requests.
The reality is that lawyers -- like many other people -- are fairly lazy. And/or overworked. So if a brief is due on a given day, it often doesn't start coming together until shortly before that day. That's not to say that there's not work done on the thing beforehand. But a complete draft often doesn't get created until fairly close to the deadline. Sometimes very, very close.
As a result, my strong belief is that lawyers often don't know they'll need the extra pages until very close to the deadline. Now, should they know earlier? Sure. And people should procrastinate less, should be more friendly in restaurants and while driving, etc. But the reality is the reality. Lawyers often don't know -- or at least know for sure -- that they'll need the extra space until the very end.
Which is why Judge Kozinski sees what he sees: lawyers waiting until the last minute to file briefs that are oversized, alongside a request for the extra pages.
It's not that those lawyers are deliberately violating the rules. If they'd have known they'd need the extra pages earlier, they'd have asked for 'em. They just didn't know.
Which is not to say that Judge Kozinski's alternate explanation isn't somewhat true as well. Lawyers may well feel comfortable waiting until the last minute in part because they're fairly confident that last-minute requests will be granted. But the recognition that lawyers procrastinate nonetheless makes a complete explanation of the process, in my mind, less "evil" than the partially incomplete story that Judge Kozinski lays out.
So, yeah, lawyers should get it together earlier, and at present, there isn't a big "hammer" to make 'em do so. Fair enough.
But I think the true story is a little more complicated than the explanation from Judge Kozinski's side of the bench.
Judge Kozinski ends his dissent with the following:
"For my part, I don’t feel bound to read beyond the 14,000 words allowed by our rules, so I won’t read past page 66 of the state’s brief. If counsel for the state wishes me to consider any argument in the remaining portion of her brief, she should feel free to file a substitute brief, no longer than 14,000 words, which I will read in lieu of her oversized brief, so long as it is filed no later than 7 days from the date of this order."
Well, I guess Judge Kozinski can do whatever he wants. No one's going to strap him down and make him read anything he doesn't feel like reading. On that same level, if he wants, he can refuse to read the entire brief, make funny faces at counsel at oral argument, put a frowny face on any opinion he writes in the matter, etc. That's all within his power.
But I do wonder whether that power's rightfully exercised here. I mean, whether the brief is accepted is subject to a vote of the panel. And they voted to accept the brief. Judge Kozinski disagreed, but he lost.
Now, again, that doesn't mean that the other two judges can physically force their colleague to read the brief. But I wonder if it doesn't mean that Judge Kozinski has a moral obligation to recognize that he has been outvoted and accede to the will of the majority, at least on this point. Imagine, for example, that the panel voted to require the parties to brief X, but Judge Kozinski dissented from that particular order. Would it really be okay for Judge Kozinski to say "I'm not even going to read the briefs on that issue?" I think not. And this isn't just a hypothetical: the Supreme Court grants certiorari (or adds) particular issues all the time, and the dissenting justices on the Court have never (in my mind) said in response that since they disagree with that order, they're going to refuse to follow it. In matters such as these, it seems to me like the majority rules. And probably should.
Now, I could probably come up with some hypotheticals in which a judge would entirely rightly refuse to follow the orders of his colleagues. Because there are, for sure, limits upon the ability of two of the three judges to force the third to do what they want.
But it doesn't seem to me that this is one of those cases. This is an issue of page limits, for goodness sakes. It's a minor point. Yeah, I may prefer briefs that are double spaced and in Times New Roman font. But if my colleagues vote to allow briefs that are single spaced and in Courier, you know what, I'll just deal with it. Rather than saying that, even though I'm outvoted, I'm going to refuse to read the brief unless I get a special one for me that complies with my particularized desires.
Look, I don't like overlength briefs any more than Judge Kozinski does. And, as I said, I think he has a decent point about the incentive effects of the existing practice (despite the fact that I think the story is actually a bit more complicated that the one he lays out).
I'm just not sure that the right solution is the one that Judge Kozinski adopts at the end of his dissent. It may not be a petulant response. But it does seem to me one that may be unjustified on the facts of the present case.
The panel decides to allow the respondent to file an overlength brief. Judge Kozinski, by contrast, is not persuaded. He says:
"I do not consent to the filing of a fat brief because the state’s motion is wholly inadequate. The state had previously filed a compliant brief that covered many of the same points, but we ordered replacement briefs in light of Daire v. Lattimore, 812 F.3d 766 (9th Cir. 2016) (en banc). The discussion of Daire in the state’s oversized brief takes up only 3 pages; the state’s lawyer gives no coherent explanation for why she needed to add 14 pages. The state mentions the complexity of the facts it wishes us to consider, but those facts were contained in the earlier version of the state’s brief. Its remaining explanations are equally unconvincing. To me, it seems perfectly clear that the state filed an overly long brief because it thought it could get away with it."
I find that plausible. You decide that there are things you need (or want) to say, those things take up space, so you ask for extra pages, thinking that the court will go ahead and say "Yes".
Judge Kozinski continues:
"This has become a common and rather lamentable practice: Instead of getting leave to file an oversized brief before the deadline, lawyers wait for the last minute to file chubby briefs and dare us to bounce them. Of course, it’s hard to decide cases without a brief from one of the parties, and denying the motion usually knocks the briefing and argument schedule out of kilter. Denying the motion is thus more trouble than allowing the brief to be filed and putting up with the additional unnecessary pages. Sly lawyers take advantage of this institutional inertia to flout our page limits with impunity. This encourages disdain for our rules and penalizes lawyers, like petitioner’s counsel, who make the effort to comply."
I find Judge Kozinski's point here even more plausible. It is indeed more of a hassle to bounce a brief and require a substitute than it is to simply allow the oversized brief. And attorneys know that. This reality encourages the practice that Judge Kozinski identifies. Seems right to me.
But there's an alternative explanation as well. One that Judge Kozinski doesn't explore, but that to me may be an even more likely explanation for most (but not all) oversize brief requests.
The reality is that lawyers -- like many other people -- are fairly lazy. And/or overworked. So if a brief is due on a given day, it often doesn't start coming together until shortly before that day. That's not to say that there's not work done on the thing beforehand. But a complete draft often doesn't get created until fairly close to the deadline. Sometimes very, very close.
As a result, my strong belief is that lawyers often don't know they'll need the extra pages until very close to the deadline. Now, should they know earlier? Sure. And people should procrastinate less, should be more friendly in restaurants and while driving, etc. But the reality is the reality. Lawyers often don't know -- or at least know for sure -- that they'll need the extra space until the very end.
Which is why Judge Kozinski sees what he sees: lawyers waiting until the last minute to file briefs that are oversized, alongside a request for the extra pages.
It's not that those lawyers are deliberately violating the rules. If they'd have known they'd need the extra pages earlier, they'd have asked for 'em. They just didn't know.
Which is not to say that Judge Kozinski's alternate explanation isn't somewhat true as well. Lawyers may well feel comfortable waiting until the last minute in part because they're fairly confident that last-minute requests will be granted. But the recognition that lawyers procrastinate nonetheless makes a complete explanation of the process, in my mind, less "evil" than the partially incomplete story that Judge Kozinski lays out.
So, yeah, lawyers should get it together earlier, and at present, there isn't a big "hammer" to make 'em do so. Fair enough.
But I think the true story is a little more complicated than the explanation from Judge Kozinski's side of the bench.
Judge Kozinski ends his dissent with the following:
"For my part, I don’t feel bound to read beyond the 14,000 words allowed by our rules, so I won’t read past page 66 of the state’s brief. If counsel for the state wishes me to consider any argument in the remaining portion of her brief, she should feel free to file a substitute brief, no longer than 14,000 words, which I will read in lieu of her oversized brief, so long as it is filed no later than 7 days from the date of this order."
Well, I guess Judge Kozinski can do whatever he wants. No one's going to strap him down and make him read anything he doesn't feel like reading. On that same level, if he wants, he can refuse to read the entire brief, make funny faces at counsel at oral argument, put a frowny face on any opinion he writes in the matter, etc. That's all within his power.
But I do wonder whether that power's rightfully exercised here. I mean, whether the brief is accepted is subject to a vote of the panel. And they voted to accept the brief. Judge Kozinski disagreed, but he lost.
Now, again, that doesn't mean that the other two judges can physically force their colleague to read the brief. But I wonder if it doesn't mean that Judge Kozinski has a moral obligation to recognize that he has been outvoted and accede to the will of the majority, at least on this point. Imagine, for example, that the panel voted to require the parties to brief X, but Judge Kozinski dissented from that particular order. Would it really be okay for Judge Kozinski to say "I'm not even going to read the briefs on that issue?" I think not. And this isn't just a hypothetical: the Supreme Court grants certiorari (or adds) particular issues all the time, and the dissenting justices on the Court have never (in my mind) said in response that since they disagree with that order, they're going to refuse to follow it. In matters such as these, it seems to me like the majority rules. And probably should.
Now, I could probably come up with some hypotheticals in which a judge would entirely rightly refuse to follow the orders of his colleagues. Because there are, for sure, limits upon the ability of two of the three judges to force the third to do what they want.
But it doesn't seem to me that this is one of those cases. This is an issue of page limits, for goodness sakes. It's a minor point. Yeah, I may prefer briefs that are double spaced and in Times New Roman font. But if my colleagues vote to allow briefs that are single spaced and in Courier, you know what, I'll just deal with it. Rather than saying that, even though I'm outvoted, I'm going to refuse to read the brief unless I get a special one for me that complies with my particularized desires.
Look, I don't like overlength briefs any more than Judge Kozinski does. And, as I said, I think he has a decent point about the incentive effects of the existing practice (despite the fact that I think the story is actually a bit more complicated that the one he lays out).
I'm just not sure that the right solution is the one that Judge Kozinski adopts at the end of his dissent. It may not be a petulant response. But it does seem to me one that may be unjustified on the facts of the present case.
Wednesday, August 03, 2016
Aldana v. Stillwagon (Cal. Ct. App. - Aug. 3, 2016)
"Mike Stillwagon, a paramedic supervisor, was driving his employer’s
pickup truck. He was en route to the location of an injured fall victim to supervise the
responding emergency medical technicians (EMTs) and, if necessary, provide assistance.
At an intersection in Oxnard, he collided with a vehicle being driven by Gerardo Aldana.
A year and a half later, Aldana sued him for negligence."
That seems like a pretty ordinary lawsuit, no? I wonder what the appeal is about.
"The Medical Injury Compensation Reform Act (MICRA) limits the time to file suit against a health care provider for professional negligence to one year from the date the injury is discoverable. (Code Civ. Proc., § 340.5.) The trial court found that Aldana’s suit was subject to MICRA’s one-year statute of limitations rather than the two-year limitations period for general negligence (§ 335.1), and therefore was time-barred."
Seriously?! It's an auto accident, for goodness sake. I can barely fathom how MICRA could even possibly be relevant. I mean, I can fathom it. But barely. It seems obvious to me that this is an auto accident case, with its usual statute of limitations, and not a professional negligence case.
"After briefing was complete and before we heard oral argument, our Supreme Court decided Flores v. Presbyterian Intercommunity Hospital (2016) 63 Cal.4th 75 (Flores), which clarified the issue. Flores held that “the special statute of limitations for professional negligence actions against health care providers applies only to actions alleging injury suffered as a result of negligence in rendering the professional services that hospitals and others provide by virtue of being health care professionals: that is, the provision of medical care to patients.” (Id. at p. 88.)"
Okay. I agree that's helpful. But I wouldn't have needed the "clarification". The right answer seems clear to me even without it.
"Aldana contends that the trial court erred in applying MICRA because he had no connection to the professional services being rendered and because Stillwagon was not rendering professional services at the time of the accident. We agree with the latter contention. While Stillwagon’s status as a paramedic may demonstrate that he was a medical professional, the automobile collision remains a “garden-variety” accident not resulting from the violation of a professional obligation but from a failure to exercise reasonable care in the operation of a motor vehicle. (Flores, supra, 63 Cal.4th at p. 87, fn. 4; see Lee v. Hanley (2015) 61 Cal.4th 1225, 1237.) The obligation was one that he owed to the general public by virtue of being a driver and not one that he owed to a patient by virtue of being a paramedic. Therefore, we reverse."
Exactly right.
That seems like a pretty ordinary lawsuit, no? I wonder what the appeal is about.
"The Medical Injury Compensation Reform Act (MICRA) limits the time to file suit against a health care provider for professional negligence to one year from the date the injury is discoverable. (Code Civ. Proc., § 340.5.) The trial court found that Aldana’s suit was subject to MICRA’s one-year statute of limitations rather than the two-year limitations period for general negligence (§ 335.1), and therefore was time-barred."
Seriously?! It's an auto accident, for goodness sake. I can barely fathom how MICRA could even possibly be relevant. I mean, I can fathom it. But barely. It seems obvious to me that this is an auto accident case, with its usual statute of limitations, and not a professional negligence case.
"After briefing was complete and before we heard oral argument, our Supreme Court decided Flores v. Presbyterian Intercommunity Hospital (2016) 63 Cal.4th 75 (Flores), which clarified the issue. Flores held that “the special statute of limitations for professional negligence actions against health care providers applies only to actions alleging injury suffered as a result of negligence in rendering the professional services that hospitals and others provide by virtue of being health care professionals: that is, the provision of medical care to patients.” (Id. at p. 88.)"
Okay. I agree that's helpful. But I wouldn't have needed the "clarification". The right answer seems clear to me even without it.
"Aldana contends that the trial court erred in applying MICRA because he had no connection to the professional services being rendered and because Stillwagon was not rendering professional services at the time of the accident. We agree with the latter contention. While Stillwagon’s status as a paramedic may demonstrate that he was a medical professional, the automobile collision remains a “garden-variety” accident not resulting from the violation of a professional obligation but from a failure to exercise reasonable care in the operation of a motor vehicle. (Flores, supra, 63 Cal.4th at p. 87, fn. 4; see Lee v. Hanley (2015) 61 Cal.4th 1225, 1237.) The obligation was one that he owed to the general public by virtue of being a driver and not one that he owed to a patient by virtue of being a paramedic. Therefore, we reverse."
Exactly right.
ALDF v. FDA (9th Cir. - Aug. 3, 2016)
I said when the original opinion came out that the smart money was on the case being taken en banc.
Today, that smart money gets paid.
Today, that smart money gets paid.
Monday, August 01, 2016
Baral v. Schnitt (Cal. Supreme Ct. - Aug. 1, 2016)
This is an opinion that resolves a highly contested issue in the Court of Appeal: Whether a "mixed" cause of action -- one that alleges both protected and non-protected activity -- is subject to an anti-SLAPP motion. The California Supreme Court concludes, unanimously, that it is.
That's definitely an important holding. It broadens the anti-SLAPP statute, and I think it does so in a beneficial way. Moreover, Justice Corrigan's reasoning in this regard seems very persuasive to me.
So I'm definitely pleased with the result.
Yet the structure of the opinion itself leaves me somewhat hollow.
There's essentially seventeen pages of extensive history -- in particular, the various conflicting opinions by the Court of Appeal on the subject -- followed by six pages of analysis and result.
I understand why opinions are sometimes written that way. But it seems unnecessarily plodding, at least here.
We are where we are. Yes, it's perhaps interesting, in a way, to see how we got there. How language from X opinion was thought by the Court of Appeal in Y opinion to mean Z even though later Court of Appeal opinion A thought that B might not follow from C. As an historical matter, I get it, and I personally like to see how law changes over time. Particularly when, as a result, it gets confused (as here).
That said, it's an opinion from the California Supreme Court. Once we're there, it seems more important to me to expand upon the analysis rather than a (somewhat distracting) discourse on the particular path through which we wound up in our present predicament. The "backstory" just seems not especially important at this point.
My take, anyway.
But, again, an important case. And one that resolves the issue both conclusively as well as correctly.
That's definitely an important holding. It broadens the anti-SLAPP statute, and I think it does so in a beneficial way. Moreover, Justice Corrigan's reasoning in this regard seems very persuasive to me.
So I'm definitely pleased with the result.
Yet the structure of the opinion itself leaves me somewhat hollow.
There's essentially seventeen pages of extensive history -- in particular, the various conflicting opinions by the Court of Appeal on the subject -- followed by six pages of analysis and result.
I understand why opinions are sometimes written that way. But it seems unnecessarily plodding, at least here.
We are where we are. Yes, it's perhaps interesting, in a way, to see how we got there. How language from X opinion was thought by the Court of Appeal in Y opinion to mean Z even though later Court of Appeal opinion A thought that B might not follow from C. As an historical matter, I get it, and I personally like to see how law changes over time. Particularly when, as a result, it gets confused (as here).
That said, it's an opinion from the California Supreme Court. Once we're there, it seems more important to me to expand upon the analysis rather than a (somewhat distracting) discourse on the particular path through which we wound up in our present predicament. The "backstory" just seems not especially important at this point.
My take, anyway.
But, again, an important case. And one that resolves the issue both conclusively as well as correctly.
Schmidt v. California Highway Patrol (Cal. Ct. App. - Aug. 1, 2016)
Here's the first paragraph of today's opinion:
"Penal Code section 849.5 provides that if a person is arrested and released and no accusatory pleading is filed, the arrest shall be deemed a detention only. 1 Section 851.6, subdivision (b) provides that the arresting law enforcement agency shall issue the person a certificate describing the action as a detention. Subdivision (d) of the section provides that the official criminal records shall delete any reference to an arrest and refer to the action as a detention."
Interesting. Didn't know that.
Next sentence:
"The California Highway Patrol (CHP) does not comply with sections 849.5 and 851.6."
Uh, really?
"John J. Schmidt brought a class action against the CHP for a writ of mandate to compel the CHP to comply."
Yeah. That sounds like a pretty good lawsuit.
"The trial court certified the class and granted Schmidt’s writ petition. The court also awarded Schmidt attorney fees pursuant to Code of Civil Procedure section 1021.5, the private attorney general statute."
I'm not surprised.
"We affirm."
I can see why.
"Penal Code section 849.5 provides that if a person is arrested and released and no accusatory pleading is filed, the arrest shall be deemed a detention only. 1 Section 851.6, subdivision (b) provides that the arresting law enforcement agency shall issue the person a certificate describing the action as a detention. Subdivision (d) of the section provides that the official criminal records shall delete any reference to an arrest and refer to the action as a detention."
Interesting. Didn't know that.
Next sentence:
"The California Highway Patrol (CHP) does not comply with sections 849.5 and 851.6."
Uh, really?
"John J. Schmidt brought a class action against the CHP for a writ of mandate to compel the CHP to comply."
Yeah. That sounds like a pretty good lawsuit.
"The trial court certified the class and granted Schmidt’s writ petition. The court also awarded Schmidt attorney fees pursuant to Code of Civil Procedure section 1021.5, the private attorney general statute."
I'm not surprised.
"We affirm."
I can see why.
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