Thursday, October 19, 2017

People v. Rodriguez (Cal. Ct. App. - Oct. 19, 2017)

Maybe when you're wearing an active ankle monitor and aren't allowed to leave the county or the state you should temporarily give up your job as a long-haul truck driver.

Just a suggestion.

Wednesday, October 18, 2017

U.S. v. Preston (9th Cir. - Oct. 17, 2017)

The panel here does a lot of work to reverse this child molestation conviction.  A lot.

I'm not certain that a lot of panels would reach the same result.  This one's Judges Reinhardt, Kozinski, and Berg (sitting by designation from the Eastern District of Michigan).

Tuesday, October 17, 2017

People v. Lewelling (Cal. Ct. App. - Oct. 17, 2017)

One great thing about Court of Appeal opinions is that they sometimes give you a real-world glimpse into portions of society that you'd otherwise know little about.  Today's opinion, for example, takes the reader into the emergency room at San Francisco General Hospital:

"San Francisco General Hospital is a renowned safety net hospital, particularly well known for its emergency department. That department has a diverse and unpredictable patient population, much of it consisting of the homeless, the mentally ill, and those suffering from substance abuse problems. The chaotic population can make the emergency department a dangerous place: staff have been strangled, sexually assaulted, punched, kicked, and spit upon. Abuse by patients, both physical and verbal, is a daily, sometimes hourly, occurrence. As a result, patient behavior is tracked in a database provided by the Department of Public Health, so staff can communicate with others to alert them of potentially violent or abusive patients.

This has also resulted in the development of protocols and procedures to protect staff and patients. For example, patients without pending business in the emergency department are not permitted to loiter. People who are sleeping or lingering in the waiting area in the early morning hours without medical necessity are asked to leave. And once they are screened and cleared for discharge, verbally abusive or physically threatening patients are removed.

The emergency department is overseen by armed deputies from the San Francisco Sheriff’s Department, who are on the premises 24 hours a day to provide security. During the midnight shift, three officers are on duty, one at a podium just outside the department waiting area, another at a post behind the security doors to the department, and a third on foot patrol around the campus. There is also a dispatcher who monitors security cameras throughout the facility, one of which is pointed at the emergency department waiting room. . . . Generally speaking, on a nightly basis several people are escorted off campus for verbally or physically abusing the staff or other patients."

Better to read about it than have to go there.

Monday, October 16, 2017

Morales v. Fry (9th Cir. - Oct. 16, 2017)

Sometimes procedure can be a sly way to cut back on substance.  Here's a good example.

The Ninth Circuit holds -- as have most (but not all) circuits -- that it's error to submit a "qualified immunity" issue to the jury.  Instead, that issue is supposed to be decided by a judge.

Fair enough.  That's indeed how most qualified immunity issues are decided anyway:  on summary judgment.  It also makes sense.  An officer is entitled to qualified immunity if it was not "clearly established" that what he or she did violated the person's constitutional rights.  That inquiry in turn substantially relies on evaluating precedent to see which principles are clearly established and which are not.  That's a task that's well-suited to a judge and poorly suited to a jury.

Hence the holding.

The thing is, though, that lots of times, the issue of whether a certain violation is "clearly established" relies a ton on disputed facts.  Plaintiff says X, Defendant says Y.  X is a clearly established violation of rights, but Y is not.  You can't grant summary judgment since there's a genuine issue of material fact.  Which is why there's an incentive to turn the issue over to the jury and let them decide which is which.  Particularly when the facts do not involve a clear-cut choice between X and Y, but instead involves lots of factual gradations in between.

So when the facts are what determine whether there's qualified immunity, you can see why you might want to turn it over to the jury.  Since it's the one who gets to decide the facts.

But the Ninth Circuit says that's improper.  It's only for the judge.

You see the complexity there, though.  So does the judge get to resolve the disputed facts?

No, says the Ninth Circuit.  The jury still decides that.

But how?  And how do they communicate those findings to the judge if the qualified immunity issue is not submitted to it?

The Ninth Circuit suggests that a district court might want to submit special interrogatories to the jury.  That works.  But the district court isn't required to do so.  It can just have the jury render a general verdict instead.  Then we're back to square one.  Plus, there are some cases in which special interrogatories may not be particularly helpful -- or, worse still, confusing.  Maybe the relevant facts regarding qualified immunity are somewhat different than those involved in the underlying violation.  Or maybe it's just too difficult to say to the jury, for example, "Okay, I know you just found that there was excessive force, but can you please tell me how much excessive force, because that's what's going to tell us whether the underlying right was clearly established."  Some questions just can't be asked with the required precision.

So what happens then?

The Ninth Circuit (not surprisingly) has an answer.  It says that if you don't have the jury expressly find the relevant facts -- either because you can't or you choose not to have 'em do it -- then the judge who's deciding the qualified immunity issue adjudicates it viewing all inferences in favor of the non-moving party (i.e., the plaintiff).

And now you get what I mean when I said that sometimes procedure can be used to affect, sometimes dramatically, the substance.

Because now you're importing the summary judgment standard into the resolution of the merits at and after a trial.  Once you do that, qualified immunity is hard to win.  Because the defendant who claims such a defense already (presumably) lost that issue on summary judgment (as well as on interlocutory appeal), and was at this point to get the facts resolved by a jury and then -- with that actual resolution in hand (not merely a hypothetical one with all facts resolved against him) -- prevail on the defense.

No dice, however.  Now, unless there's an express factual finding by the jury, the judge does the same thing she did before on the summary judgment motion.  E.g., deny the motion, since you view all of the disputed facts in favor of the non-moving party.

Procedure makes a difference.

Wednesday, October 11, 2017

Teixeria v. County of Alameda (9th Cir. - Oct. 10, 2017)

When the panel issued its original opinion, I thought that Judge Silverman's dissent was spot on.  In a concise, targeted way that was infinitely better than anything I could ever write myself.  The entirety of that panel dissent reads as follows:

"The first thing you need to know about this case is who the plaintiffs are. They are not individuals who claim the right to keep and bear arms for self-defense or for other lawful purposes. Rather, they are entrepreneurs (and their supporters) who want to operate a gun shop in an area of Alameda County that is not zoned for that use.

The next thing you need to know is that there is no claim that, due to the zoning ordinance in question, individuals cannot lawfully buy guns in Alameda County. It is undisputed that they can. The record shows that there are at least ten gun stores already operating lawfully in Alameda County.

When you clear away all the smoke, what we’re dealing with here is a mundane zoning dispute dressed up as a Second Amendment challenge.

The Supreme Court has held that the Second Amendment confers an individual right to keep and bear arms. District of Columbia v. Heller, 554 U.S. 570, 595 (2008). Even assuming for the sake of discussion that merchants who want to sell guns commercially have standing to assert the personal, individual rights of wholly hypothetical would-be buyers – a dubious assumption, in my opinion – the first amended complaint does not explain how Alameda County’s zoning ordinance, on its face or as applied, impairs any actual person’s individual right to bear arms, no matter what level of scrutiny is applied. Instead, the first amended complaint alleges that would-be buyers are entitled to the enhanced customer service experience that plaintiffs could provide. Now, I like good customer service as much as the next guy, but it is not a constitutional right. What’s more, the Supreme Court specifically held in Heller that “nothing in our opinion should be taken to cast doubt on . . . laws imposing conditions and qualifications on the commercial sale of arms.” Id. at 626–27.

Conspicuously missing from this lawsuit is any honest-to-God resident of Alameda County complaining that he or she cannot lawfully buy a gun nearby. The district court was right on target in dismissing the plaintiffs’ zoning case for failure to state a Second Amendment claim, because the district court correctly ruled that the ordinance restricting the location of a gun store is “quite literally a ‘law[] imposing conditions and qualifications on the commercial sale of arms . . . .’” Therefore, I respectfully dissent from that portion of the majority’s opinion."

Pretty persuasive, right?

Not to the majority.  But the problem with having Judge O'Scannlain, joined by Judge Bea, author the majority opinion in a Second Amendment case is that these judges are not representative.  Not of the judiciary as a whole nor, particularly, the judges on the Ninth Circuit.

So when the case get taken en banc, as it predictably does, the vote's not even close.  9-1-1.  With only Judge Bea himself agreeing with the panel opinion, with Judge Tallman concurring in part and saying that at least an as-applied challenge should prevail.

But that's, at best, 2 out of 11.  Because, in truth, on the merits, this one's not especially difficult.

Tuesday, October 10, 2017

Kirkpatrick v. Chappell (9th Cir. - Oct. 10, 2017)

I seriously thought about quoting Judge Kozinski's dissent in this death penalty case in toto.

But even though it's deliberately concise (to the point of being staccato -- though powerfully so), it's still eight single-spaced pages long.

So I'll instead merely recommend, strongly, that you read it in its entirety.

It's pretty darn powerful.  Regardless of which side you're on in the global death penalty debate.

The guy's a great writer.  No doubt.

Longoria v. Pinal County (9th Cir. - Oct. 10, 2017)

Sometimes you write impassioned pleas to justice.  Sometimes you're writing to the Supreme Court to try to convince it not to reverse you.

Today's opinion reads like the latter.

It's a Judge Reinhardt opinion in a police shooting case that reverses the district court's grant of summary judgment in favor of the defendants.

That single sentence is all you have to know to understand why the opinion is moderate, restrained, and extraordinarily careful in its analysis.

Judge Reinhardt has three things going for him in this regard.  First, it's a unanimous opinion, with no dissent.  Second, he's got Judge Kozinski -- who's on the panel -- on his side.  Would it be even better if he had a law-and-order, don't-care-about-civil-rights-in-the-slightest conservative on the panel and on his side as well?  Sure.  But Judge Kozinski helps at least a little.

Finally, there are the actual facts.  Summed up by Judge Reinhardt as follows:  "Pinal County Deputy Sheriff Heath Rankin fired two shots into Manuel Longoria’s back and killed him just as he was raising his hands above his head. . . . Rankin shot Longoria after the car chase had ended. Longoria’s car was fully immobilized; he was surrounded by armed officers, and his erratic driving no longer posed any threat to bystanders. He had been hit by several bean bag rounds shot from close range as well as a taser dart. Viewing the circumstances in the light most favorable to Longoria, the inquiry is thus whether he posed an immediate threat to Rankin or the many officers around him, or whether a reasonable officer would have perceived Longoria to be an immediate threat, after the non-lethal force was used but before Rankin shot him dead."

Plus there's a video of the whole thing.

All that's very helpful to Judge Reinhardt's opinion.

We'll see soon enough if that's enough to avoid en banc review (or dissents from the denial of such review) and/or a grant of certiorari from the Supreme Court.

But one thing's for sure.  Judge Reinhardt's trying his best.

Monday, October 09, 2017

In Re Marriage of Kalinawan (Cal. Ct. App. - Oct. 6, 2017)

There's a lot fishy going on here.  But I think the Court of Appeal got the doctrine right when it held that the trial court overly extended the doctrine of estoppel.

Cesar marries Minerva, and then they get divorced.  But in those divorce proceedings, Cesar wants to claim that the marriage was a nullity because Minerva was essentially a bigamist because the divorce of her prior marriage was procured by fraud.

That prior marriage indeed seems sketch.  That happened when Minerva (a U.S. citizen) married Gerry (who was in the Philippines) so Gerry could come to the U.S.  Oh, and Gary's ex-wife was Minerva's sister.

After five years living in the U.S., Gerry files for divorce from Minerva.  The only reason why Gerry files for divorce appears to be so that Minerva can be allowed to marry Cesar.  Gerry files in Nevada, claiming that he's a bona fide resident of Nevada and has been so for quite a while.  The divorce gets granted, but that's the divorce that Cesar says was procured by fraud.

The trial court says that Cesar can't attack that prior divorce essentially because he "took advantage of it" to get married.  But the Court of Appeal seems right to me in saying that's wrong.  You can apply estoppel if the party to be estopped participated in the fraud, or was a party to that proceeding (so had a chance to contest it), or knew of the fraud.  That's one thing.

But if Cesar doesn't know about the fraud, then he's been victimized by the fraud (by marrying a "bigamist") and should have standing to object to it.  He wasn't a participant.

Justice Mihara's opinion is concise and looks to me to correctly distinguish the relevant contrary precedent.  You've got to cabin those estoppel cases to certain principles.  And they don't extend to cases like this one.

Maybe, when examining the facts under the proper legal lens, it'll turn out that the divorce was fine, or that Cesar is estopped, or whatever.

But you've got to apply the right law.

Friday, October 06, 2017

Jennifer S. v. Superior Court (Cal. Ct. App. - Oct. 3, 2017)

Sometimes these dependency cases must seem hopeless.

Here's a little background vis-a-vis the seven relevant prior children, plus this one (the eighth):

"K.S., the minor who is the subject of these proceedings, was detained by the San Francisco Human Services Agency (Agency) shortly after her birth in January 2017, due to a referral indicating that mother had tested positive for methamphetamines during a recent prenatal visit. According to the underlying dependency petition—as it was ultimately sustained by the juvenile court—K.S. (the couple’s only child in common) was described by subdivisions (b) and (j) of section 300 due to: mother’s long history of substance abuse for which she failed to receive treatment; the termination of mother’s parental rights with respect to four previous children based on her untreated polysubstance abuse; the parents’ history of domestic violence; father’s history of substance abuse, for which he failed to seek treatment until June 2017; and the termination of father’s parental rights to three other children in 2008."

A few more details about the mother's previous kids:

"According to records supplied by the Agency, in 2010 mother gave birth to a daughter, C.S., who was detained after mother and baby tested positive for cocaine at birth. Mother was found to have an on-going substance abuse problem, a history of psychiatric hospitalizations, and a lack of stable housing. Reunification services were ordered for mother, including residential drug treatment, individual therapy, a psychological evaluation, and parenting classes. Unfortunately, those services were terminated as unsuccessful, and mother’s parental rights were terminated with respect to C.S. in January 2012. Thereafter, in July 2012, mother’s next child, K.G., was detained shortly after birth due to mother’s unresolved problems with substance abuse, mental health issues, homelessness, criminality, and child welfare involvement. Mother was bypassed for reunification with respect to K.G., and her parental rights were ultimately terminated. In 2013, mother gave birth to twins—J.S. and R.S.—who were immediately detained due to positive toxicology screens for crack cocaine and marijuana (for mother and both babies) and mother’s substance abuse history. Mother was bypassed for reunification with respect to the twins, and her parental rights were terminated in July 2014."

Here's some information about the mother:

"Mother’s criminal history includes arrests for receiving stolen property, taking a vehicle without consent, and threatening a crime with intent to terrorize (2000); failure to obey a juvenile court order and loitering with the intent to commit prostitution (2001); possession of marijuana for sale (2003); battery on a person and obstructing/resisting a public officer (2008); assault with a deadly weapon (not a firearm) with great bodily injury likely (2008); domestic battery and vandalism (2008); transportation/sale of narcotics (2011); and possession of a controlled substance (2016)."

As for the father:

"Father’s criminal history spanned almost 30 years, with multiple arrests for possession of narcotics for sale, possession of a controlled substance, and possession of crack cocaine. Recent arrests include petty theft (2010); possession of a controlled substance and violation of probation (2010); second degree robbery, possession of a controlled substance, and trespass (2012); possession of a controlled substance for sale, possession of paraphernalia, and carrying dirk/dagger (2012); burglary, assault with great bodily injury, receiving known stolen property, and committing an offense while on bail (2012); unlawful driving/taking of a vehicle, possession of a controlled substance, and probation violation (2013); second degree burglary, vandalism, and battery (2014); possession of a controlled substance (2015); domestic violence (2015); assault with great bodily injury, possession of a switch blade, and resisting/obstructing police officer/EMT (2016); reckless driving, forgery of registration, driving without a valid license, and receiving stolen property (2016); and petty theft (2016)."

"Hopeless" may even be a bit of an understatement.  How incredibly, incredibly hard it must be to try to deal with these sorts of cases and get everyone's lives on track.

Wednesday, October 04, 2017

People v. Cruz (Cal. Ct. App. - Oct. 3, 2017)

"Juan Alexander Cruz, a three strikes offender, was sentenced to 26.5 years to life in state prison. He appeals a postjudgment order denying his petition to recall his sentence pursuant the Three Strikes Reform Act of 2012 (the Act), also known as Proposition 36."

Okay, there are lots of those types of cases.  Twenty-six years is indeed a lot of time.  Let's see what he's in prison for.

"In 2001, appellant was convicted by jury of false imprisonment by violence after he forced his way into a single mother’s (L.S.) home, clutched her two-year-old son, and threatened to rape him. L.S. begged appellant to let the boy go free. Appellant grabbed a kitchen knife, punched L.S. in the head, and tried to stab her in the stomach. He had ready access to other knives as well. Appellant ordered L.S. to her knees, struck her several times with his fists, and forced her to disrobe and lie down. Appellant then ran the kitchen knife between the victim’s legs and asked how she would feel if he put the knife into her. L.S. escaped when appellant was taking off his backpack."

Uh, yeah.  Those are bad facts.  Really bad facts.  He's not getting let out.

People v. Jo (Cal. Ct. App. - Oct. 3, 2017)

Why watch soap operas when you can read real-life appellate cases instead?

"Defendant and J.C. became friends, and eventually began dating. J.C. moved into defendant’s trailer shortly thereafter. In late 2007, defendant discovered she was pregnant. Defendant, then thirty-five years old, was overjoyed at the news. J.C. was decidedly less enthusiastic. At twenty-four years old, J.C. felt he was not ready to become a father. . . ."

("Decidedly less enthusiastic."  Love it.)

"Defendant’s one-year visa was due to expire in July 2009. In July 2009, defendant received a letter from immigration authorities indicating that her application to extend her stay had been denied. Defendant telephoned immigration authorities and learned that she was required to leave the country immediately.  Around the same time, defendant proposed marriage to J.C. J.C. thought the proposal was “absurd,” especially in light of the fact that defendant was still married to someone else."

Being married to someone else does seem sort of like a complicating factor vis-a-vis an engagement, no?

You can read the rest of the opinion if you'd like.  Drama, baby drama, baby abduction, etc.

Our lives are tame in comparison


Monday, October 02, 2017

In Re Matter of Walldesign (9th Cir. - Oct. 2, 2017)

The majority opinion, written by Judge Marbley (sitting by designation from the Southern District of Ohio), begins by saying that "bad facts make bad law" and that this case "tests that maxim".  That's a nice way of saying that the horrible, facially inequitable result reached in the opinion allegedly makes sense notwithstanding that result.  Judge Tashima joins that opinion.

Judge Nguyen dissents.  She begins her opinion by saying:

"Bankruptcy courts 'are courts of equity' that 'appl[y] the principles and rules of equity jurisprudence.' [Cite] There is nothing equitable about today’s decision. Donald Buresh, Sharon Phillips, and Lisa Henry are not Michael Bello’s family members, friends, or even close associates. They are a married couple who sold their property to Bello to fund their retirement and a small business owner who performed design and construction services for him. Unbeknownst to them, the checks with which Bello paid them, which bore the name of his company, were in fact drawn from a sham bank account that he created to fraudulently siphon money away from his company and use for his personal expenses. Their dealings with Bello were legitimate, arms-length transactions. Yet they each now owe Bello’s creditors hundreds of thousands of dollars—a ruinous sum for most retirees and small businesses. I strongly disagree with this result."

Those are fairly starkly divergent ways of viewing the same case.

The majority's central argument is that it makes sense to impose liability on the innocent, bona fide recipients of these funds because they had "some" ability to root out the fraud, and hence "allocates the monitoring costs and risks of repayment" to the appropriate person.  And, in truth, there were at least some events that -- in retrospect -- might raise "red flags"; namely, the fact that the recipients were paid with a company check for seemingly personal services.

But two points.

First, I strongly doubt that most people would automatically think that a corporate officer had two sets of books and was siphoning money out of a company just because they received a company check.  Imagine that you're a groundskeeper, or (as here) a designer, and receive a company check for your services.  Would you say:  "No, sorry, I can't take this as payment, at least until you show me all the books for your corporation that proves that you're not illegally siphoning off funds?"  Or would you assume -- as I would -- that the guy was probably authorized to do it, or was paying you out of the business for tax reasons, or simply realized that it wasn't your province to try to decide how you got paid?  (Oh, and, as far as I can tell, the majority's holding would equally apply to cash payments from the company's tiller, right?  It doesn't rely on the fact that it was a company check, but only that the funds came from the company.)

So I think the majority's belief that "allocating" the responsibility to the recipients of the funds makes for good policy and/or best roots out fraud doesn't really work.  It defies what we know from our own experiences and common sense.

Second, the majority says that these innocent purchasers have a greater ability and incentive to root out fraud that then alternatives.  Really?  Remember:  the funds here are going to the creditors of the company (and/or the stockholders).  People who rationally invested -- at some level -- in the actual company itself.  Unlike an interior designer that, at the end of the process, merely receives a check, these people actually did conduct due diligence on the company before extending it credit.  Or at least easily could have.

What the majority is saying is that it makes more sense to allocate monitoring costs to a bona fide seller like the individuals here -- who, in truth, have absolutely no leverage or ability to monitor the transaction -- as opposed to creditors who routinely engage in precisely such monitoring.  I'm not so sure I'm persuaded by either the rationality or equity of that allocation.

Sure, if Congress had clearly and unambiguously said that any time you take money from anyone, you're hereby on notice that you're at risk of having to give that money back if the guy turns out to have stolen it, then, yeah, I'd be compelled to follow that rule.  But it clearly hasn't said that.  Not only is there is a majority and minority rule amongst the circuits, but bankruptcy courts get to both develop and apply equitable principles.  Including here.

As between business creditors who are hosed by a company versus third parties who just get money retrospectively from a person who secretly stole from that company, I'm not sure it doesn't make more sense to allocate losses to the former rather than the latter.

Even though the Ninth Circuit does the exact opposite here.

Friday, September 29, 2017

People v. Thomas (Cal. Ct. App. - Sept. 29, 2017)

"Defendant Edward Lewis Thomas repeatedly molested his daughter for 10 years, beginning when she was four or five years old. He admitted his conduct in a pretextual telephone call with his daughter and in a letter to her mother. A jury convicted defendant of nine counts of aggravated sexual assault on a child. The court sentenced him to a total indeterminate sentence of 135 years to life."

Doesn't matter if you're truly apologetic, admit your crimes, and have no apparent criminal history.  You're going away forever.

Wednesday, September 27, 2017

In Re Marriage of Berman (Cal. Ct. App. - Sept. 27, 2017)

This opinion is so, so right.  And I'd have been harsher -- in tone if not in content -- to the appellant, Kevin J. Berman.

Of course Mr. Berman was trying to shaft his ex-wife out of alimony when he transferred his business that had over $200,000 of annual income to his current wife for absolutely no consideration.  When I read the facts of the opinion, I thought that this was an obvious sham.  Sure, Berman said that he was merely old and decided to retire -- all of this on top of the $30,000+ disability payment he receives every year from his prior career as a police officer.  But the trial court found him uncredible and said he was in fact doing this merely he could reduce his alimony yet simultaneously retain all the benefits (through his current wife) of the business that he was now ostensibly "giving up".

Darn tootin'.

Every word the Court of Appeal says in affirming the decision below is spot on.  As Justice Flier recounts:

"It is undisputed that Kevin transferred to his wife an asset that had generated $220,000 in business income the previous year. It is undisputed that there was no consideration for the transfer of this apparently valuable asset. As the court noted, Kevin presented no evidence to explain the lack of consideration for the transfer. The court could reasonably infer that Kevin had arranged this transaction to eliminate his business income on paper while still enjoying its benefits through his wife’s ownership. Similarly, the court could infer that Kevin’s wife “could . . . be expected to act at his behest” (Dick, supra, 15 Cal.App.4th at pp. 164-165), and therefore Kevin had the ability to pay spousal support despite the transfer of his business. The only evidence that the transfer was in good faith came from Kevin’s declarations and papers below, in which he insisted that he did not transfer the business to avoid his support obligations. The court did not believe him, and that credibility determination is binding on this court."

Totally, indisputably right.  As is the remainder of the opinion.

If I was Mr. Berman, I'd be embarrassed to even bring this appeal.  And if I were on the Court of Appeal, you could be darn sure that I'd award his ex-wife her attorney's fees, an issue that the opinion (in a footnote) leaves to the trial court to resolve on remand.

Tuesday, September 26, 2017

In Re: J.P. (Cal. Ct. App. - Sept. 26, 2017)

Meanwhile, in the "it just keeps getting worse and worse the more you read" department . . . .

"J.P. is the youngest of nine children. All his siblings were involved in dependency proceedings at one time or another, and two found adoptive homes several years before J.P. was born. J.P. was born in 2006 and has been in the juvenile dependency system almost his entire life. . . . He was removed from mother’s home in May 2011 after she was arrested for assaulting her boyfriend with a deadly weapon. . . . Adoption was originally identified as the permanent plan for J.P., but his mental and emotional health never stabilized to the point where a long-term foster home, let alone a prospective adoptive home, could be identified. Between November 2011 and July 2014, J.P. attempted suicide and had numerous involuntary psychiatric hospitalizations."

Man oh man.

U.S. v. Jayavarman (9th Cir. - Sept. 26, 2017)

You can see why this opinion comes out where it does.  Judge Clifton begins the thing with a nice little summary:

"It is a crime to produce outside the United States a visual depiction of a minor engaged in sexually explicit conduct and to then transport that visual depiction into the United States. 18 U.S.C. § 2251(c). It is also a crime to attempt to produce and transport into the United States a visual depiction of a minor engaged in sexually explicit conduct. 18 U.S.C. § 2251(e).

In this case, we consider what happens when a defendant believes that the victim appearing in a depiction is a minor but the victim turns out to be an adult. That defendant cannot be convicted of the completed version of the crime, but can he be convicted of attempt? We answer that question in the affirmative: a defendant attempts to produce and transport a visual depiction of a minor engaged in sexually explicit conduct when he believes that the victim is a minor, regardless of the victim’s actual age."

That holding largely follows from the nature of attempt crimes.  Mistakes of fact don't generally stop you from being guilty of attempt.  So there you have it.

Just note that -- as is often the case -- the real fights are in the footnotes.  Particularly this one:

"This case does not present, and we do not decide, the issue of whether a defendant may be convicted of an attempt to violate § 2251(c) if he believes that the victim is an adult but the victim turns out to be a minor."

Ditto for the substantive offense, right?  I could easily see courts imposing strict liability for sex offenses with minors; e.g., you don't get to claim that you thought she was an adult.

The net effect of which -- if it comes out that way -- would be to make this a one-way ratchet.  You're guilty if you thought she was a minor (even if she wasn't) and you're guilty if you thought she was an adult (but she wasn't).

Monday, September 25, 2017

Howard v. City of Coos Bay (9th Cir. - Sept. 25, 2017)

If you remember your first-year Civil Procedure class, my guess is that you'll recall that res judicata -- issue and claim preclusion -- was a somewhat difficult subject.

But I bet your final exam on the topic was nowhere near as complicated as this one.  And I'm pretty much certain that your final exam answer wasn't -- as here -- 33 single-spaced pages.

It involves claim preclusion.  It involves issue preclusion.  It involves the merits.  It's got everything a complicated law school hypothetical would present.  Plus a whole lot more.

It's even an unfair law school hypothetical.  Which are the ones I love best.  Since part of the opinion is about complicated issues of first impression; e.g., whether there should be a bright-line (or, in the alternative, a flexible) rule regarding when post-filing events should potentially be subject to claim preclusion.

(You'll be happy to know that the Ninth Circuit adopts the bright-line rule.  Which, by definition, is easier to both remember and apply.  "We now confirm that for purposes of federal common law, claim preclusion does not apply to claims that accrue after the filing of the operative complaint.")

Interestingly, most of the 33-opinion is actually dicta.  Important, still.  But dicta nonetheless.  The district court dismissed the plaintiff's second suit as barred by both claim preclusion as well as issue preclusion.  The Ninth Circuit disagreed -- at least in part -- on both points.  Claim preclusion didn't apply because the cause of action accrued after the first suit (even though there was undeniably some overlap), and issue preclusion only applied to certain portions of the damages claims.

But the Ninth Circuit nonetheless affirmed the district court, holding that the plaintiff's claim was barred on the merits.  Her First Amendment conduct was not, the court held, a substantial factor in the City's refusal to hire her.  Instead, it refused to hire her because she had previously been fired by the City for cause.  Despite the fact that the first jury concluded that this firing was pretextual.  It still works, the panel says, to bar her from recovery on the merits.

All interesting stuff.  Even for readers whose eyes might gloss over every time the word "preclusion" rears its ugly head in the opinion.

Thursday, September 21, 2017

In Re Joiquin C. (Cal. Ct. App. - Sept. 20, 2017)

I know that we're talking in this opinion about someone who's confused a lot, but I too was confused by this sentence (with an additional sentence for context):

"Carrasco offered Veronica C. an appointment book, but she said she would not forget her appointment. She told Carrasco that said she had been wearing her mother’s gold earrings, which confused her; she took them off and was fine."

Wait. Who's wearing the earrings, whose mother owned them, and who was confused?

Pronouns pronouns everywhere.

Wednesday, September 20, 2017

In Re Destiny D. (Cal. Ct. App. - Sept. 11, 2017)

Lest there be any doubt, domestic violence doesn't only harm the direct participants thereto:

"Sergio D., the presumed father of 15-year-old Destiny D., had a history of alcohol abuse and was a current abuser of alcohol . . . . Sergio and Claudia have a long history of engaging in domestic violence in Destiny’s presence. During one incident in August 2016 Sergio held a knife to Claudia’s throat. Destiny intervened to protect her mother; Sergio shoved Destiny, injuring her. . . .

During an interview Claudia told the social worker Sergio had been violent throughout their 18-year relationship, but she had remained with him to keep her family together. Following the August 2016 incident, however, she finally had had enough and obtained the restraining and custody orders to protect herself and Destiny from Sergio.

Destiny confirmed her father’s history of violent behavior toward her mother, stating he had “[p]ut his hands on my mom more times than I can count.” Destiny reported Sergio typically did not hit her, but he did shove and injure her during the August 2016 incident when she tried to defend her mother. Destiny also admitted to engaging in self-harming “cutting” behaviors when she was 13 years old because she had been unable to cope with her parents’ marital conflict."

As a bonus:  "Both Claudia and Destiny stated Sergio abused alcohol regularly and had a history of driving while intoxicated with Destiny in the car."

Children are at least somewhat products of their environment.  Sometimes that's great.  Sometimes not so much.

Tuesday, September 19, 2017

R.E.V. v. City of Anaheim (Cal. Ct. App. - Sept. 19, 2017)

I'm sympathetic to -- and on board with -- the result of this opinion.  Which involves res judicata and a ton of other civil procedure stuff that's near and dear to my heart.

But I'm not at all certain that the holding of the case is doctrinally right.

You can see why the panel comes out the way it does.  Plaintiff files a federal civil rights case that asserts a federal claim and some supplemental state law claims.  The district court grants summary judgment to defendants, and then (with the federal claim dismissed) predictably declines to exercise supplemental jurisdiction over the pendent state law claims.  So those get litigated in state court.

The plaintiff (again, predictably) appeals the dismissal of the federal claims, and the state claims go forward in state court) at the same time.  The Ninth Circuit affirms the dismissal of the federal claims, and the state courts then hold that the federal holdings preclude the state suit (issue preclusion, etc.) since they're basically the same thing.

End of story.  Lawsuits gone.  Both state and federal.  Federal on the merits, state because of issue preclusion given the federal result.

But then something unexpected happens.

The federal claims rise from the dead.

The Ninth Circuit takes the case en banc and reverses the grant of summary judgment.  So now the federal claims are alive again, and there's no adverse issue preclusion.

Except for one thing.  The state claims are now over.  Their dismissal has been affirmed by the Court of Appeal.  And the mandate has issued.  So there's nothing left to do.

You see the injustice there.  The state claims got dismissed for X reason, but X no longer exists.  So the state claims should be revived.  Yet they're dead, and the timeline to petition for rehearing etc. in the Court of Appeal is over.  So what to do?

The Court of Appeal today has an answer.  It doesn't like this result.  Understandably so.  A person has potentially important claims that have merit that were wrongly dismissed, for a reason we now know is wrong.  So the Court of Appeal wants them to be addressed on the merits, rather than doing an injustice by keeping them dead.

I feel the same way.

So the Court of Appeal has a way to accomplish this end.  Plaintiff in the present case filed a new state court lawsuit.  One identical to the one that was dismissed.  Normally that'd be totally barred by res judicata.  As indeed the trial court held.

But the Court of Appeal holds that res judicata doesn't apply.  That "exceptional circumstances" mean that it's okay, in this case, to file an identical suit to the one that's dismissed, and yet that suit gets to go forward.  Because those exceptional circumstances -- the injustice that would result by not letting plaintiff have his day in court -- justify an exception to the usual res judicata rules.

That makes sense.  On its own terms, anyway.  We want people to have their claims heard on the merits, rather than dismissed for a legal reason that we got wrong, and denying res judicata to the second (totally identical) suit solves the problem.  Plaintiff gets its claims adjudicated on the merits.

Problem solved.

The Court of Appeal discusses at length what it believes to be the primary arguments in opposition to that principle; namely, that the plaintiff should have sought a stay, tried to keep the first suit alive, etc.  To be clear:  Those are decent arguments.  In lots of cases, that's in fact a better approach.  And not granting res judicata effect does indeed diminish the incentive for plaintiffs to adopt these alternative (superior) approaches.

But the Court of Appeal nonetheless thinks that these counterarguments as a whole don't justify doing an injustice and depriving plaintiffs of their day in court.

And I get that.  Both the sentiment as well as the doctrinal holding.

Here's the thing, though.

The procedural mechanism that the Court of Appeal adopts to deal with this problem is to create an exception to prevailing res judicata principles.  Yes, that's one way to do it.  But it's a procedure that creates lots of problems and inefficiencies of its own.  It allows (indeed, requires) plaintiffs to file a duplicative second suit that's identical to their first (dismissed) one.  It allows plaintiffs to potentially forum shop by filing that second suit in a different forum with different (perhaps more sympathetic) judge.  It requires a new tribunal to get totally up to speed on a case that the first tribunal has already fully considered and has some familiarity with.  There are, in short, definite downsides -- practical as well as doctrinal -- in permitting multiple duplicative lawsuits about the very same thing.

The Court of Appeal's holding will nonetheless engender these downsides in the service of a greater good:  adjudication on the merits.  And it gets those benefits by creating an exception to res judicata.

But there's a different way.  A way that doesn't change res judicata law, that's simpler, and that doesn't engender the downsides of permitting multiple (potentially forum-shopped) adjudications.

And, as a bonus, it's the way the federal courts deal with this issue.  Without tinkering in the slightest with res judicata law or requiring duplicative (identical) lawsuits.

Rule 60(b)(5).

See, in federal court, we have a principle -- backed up, even, by an express rule -- that says that the way we avoid this injustice is to permit the losing party to file a motion in the trial court for relief from the underlying judgment.  And Rule 60(b)(5) involves precisely the situation presented here: when (in the express words of the rule) "the judgment . . . is based on an earlier judgment that has been reversed or vacated;" i.e., when (as here) the final judgment was based on applying res judicata from a prior judgment that was subsequently reversed.

So in federal court, you don't file a second duplicative suit.  You file a post-trial, post-judgment motion in the trial court that says that the judgment should be changed because the other suit that formed the basis for the res judicata finding is now no more.  And you'd win.  Ergo getting your day in court.

And, unlike paragraphs (1) through (3) of Rule 60, there's no temporal limit on Rule 60(b)(5) motions.  They can be filed at any time, not merely within a year.

Problem solved.  Without the (substantial) difficulties necessarily engendered by the Court of Appeal's res judicata holding here.

The Court of Appeal never cites Rule 60(b)(5), nor does the opinion ever mention or discuss how the federal courts deal with this exact issue.  Nor do I see anywhere in the opinion a case that holds that the federal way of dealing with things is foreclosed by California law.  (And if I was going to find, or create, an exception for "exceptional circumstances," I would personally be just as willing -- or more so -- to do so in California's analogue to Rule 60 as I would to California's longstanding res judicata principles.)  Admittedly, the Court of Appeal says that because the mandate had already issued in the Court of Appeal, the deadline to petition for rehearing there was already gone.  But Rule 60, or the California judicial analogue, doesn't involve filings (or deadlines) in the appellate courts.  It's a filing in the district court.  And it's timely even when a similar filing in the appellate court would be time-barred.

So, in a nutshell, I agree with the result reached by the Court of Appeal.  Plaintiff should have his day in court.  And, in federal court, he definitely would.

But unless there's a California Supreme Court that's on all fours with this exact case, I'd get there via the Rule 60 route, not by fundamentally tinkering with res judicata.

That's a much better way.

(Oh, and if, perchance, there's a square California Supreme Court holding of which I'm unaware that says that you can't file a Rule 60-ish motion on the basis of the reversal of the judgment to which the prior court gave res judicata effect, then I'm confident that exact same reasoning would apply to the Court of Appeal's holding here.  There's no way that the underlying equities don't permit you to file a motion for relief from the judgment and yet those exact same equities permit you to file an entirely separate lawsuit about the very same thing.  So if the Court of Appeal for some reason couldn't adopt the Rule 60 route that I suggest here, then it can't backdoor this same result by creating an exception to res judicata principles to do the same thing.)

Monday, September 18, 2017

People v. Romero (Cal. Ct. App. - Aug. 23, 2017)

It's a slow start of the week here in California.  Nothing published from the Ninth Circuit.  Only one published opinion thus far from the California Court of Appeal, and that one's not especially worth reading -- that is, unless you're keenly interested in finding out whether someone who tried to help the Shingle Springs Band of Miwok Indians open a casino gets paid.  (Summary:  No.)

So we can start out the week on the slow side as well.  And maybe just give what might otherwise seem to be an easy reminder to trial courts when they're deciding whether or not to bounce a juror for cause.

Because you'd think that a trial court would totally understand that it should definitely excuse a juror who says that she had the victim in an alleged rape case as a student of hers three years ago and has positive recollections of her.  Especially when the defense challenges her and says, yep, she needs to be replaced.

But apparently not every trial court would similarly so conclude.

And, as a result, now we need to do an entire new trial.

Just replace the juror with an alternate.  It's that easy.  Pretty darn clear, even.

Friday, September 15, 2017

Ass'n Des Eleveurs v. Becerra (9th Cir. - Sept. 15, 2017)

In 2004, California passed a law that prohibited force-feeding ducks or geese to produce foie gras (or, more significantly, prohibited sale in California of foie gras produced in this manner.)  The industry was given seven years to transition to a different manner of producing this product.  Predictably, the industry sued.  But although the district court concluded that California's prohibition didn't violate the Due Process or dormant Commerce Clause, after that plaintiffs amended their complaint, the court held that the statute was nonetheless preempted by the federal Wholesome Poultry Products Act.

The Ninth Circuit reverses.  Which should pretty much put an end to both this litigation as well as the sale of foie gras produced in this particular manner.

Judge Nguyen writes a fairly comprehensive and scholarly opinion.  It's worth a read.  You'll likely get other opinions written on the same subject as additional states join the anti-foie gras bandwagon, but this one's a pretty good template for how the analysis will go.

Judge Nguyen does make an interesting observation in upholding California's prohibition.  She says that California's ban on foie gras was inspired in part by California's related ban on horsemeat.  And when it passed the bill, the California Assembly did indeed argue that these provisions are similar in intent.  Judge Nguyen says that "as societal values change, so too do our notions of acceptable food products. Like foie gras, horsemeat was once a delicacy. Today, many states, including California, ban horsemeat because they consider the idea of eating horse repugnant. California, like a growing number of countries around the world, has concluded that forcefed foie gras is similarly repugnant."

All that's right.  Though I think that there's a qualitative difference between the horsemeat and foie gras statutes.  We can horsemeat because -- at a superficial level -- we like horses.  So we think it's disgusting (or "wrong") to eat them.  Or at least to use them directly as food.  The ban is based upon our reaction to the nature of the species.  We like dogs, we like cats, we like horses.  We deal with them all the time.  We societally consider them to have a certain level of sentience or what have you.  So we have a visceral reaction to eating them.

Ducks and geese are different.  We're totally happy to eat them.  (Or at least most of us are, though I personally don't.)  We don't think of them as having the requisite level of sentience or familiarity or whatever it is that puts 'em in the "eating them is disgusting" category.

The prohibition on foie gras is instead based entirely on "unnnecessary or unusually high suffering" grounds.  In other words, the correct analogy is to animal cruelty laws, not species-specific reactions to consuming their flesh.  California banned foie gras -- or this particular manner of foie gras -- for the way in which these animals were killed for food.  A way that, in my mind, at least, does seem to be incredibly cruel:

"Force-feeding commonly requires a worker to hold the bird between her knees, grasp the bird’s head, insert a 10- to 12-inch metal or plastic tube into the bird’s esophagus, and deliver large amounts of concentrated meal and compressed air into the bird. The bird is force-fed up to three times a day for several weeks and its liver grows to ten times the size of a normal liver. This process is [] so hard on the birds that they would die from the pathological damage it inflicts if they weren’t slaughtered first.”

Dude!  Bodily violations so severe that you would literally die of mental distress if they didn't kill you first.  That sounds pretty darn bad, no?

My point is that this isn't like the ban on horsemeat.  We generally don't eat dogs or horses no matter how humanely they're raised or killed for a certain set of social reasons.  Whereas we do eat (at least as a society) ducks and geese if they're humanely raised and killed.  The two are materially different.

Not that any of this matters to the opinion, which is entirely about preemption.

But when we're dealing with an important issue like when our species elects to kill (or not kill) particular other species, I thought it might at least be worth setting the descriptive story straight.

Thursday, September 14, 2017

In Re J.T. Thorpe (9th Cir. - Sept. 14, 2017)

Sometimes the chambers of one of the judges on a panel writes a lengthy bench memorandum/draft opinion, which it hopes will eventually become the backbone of the ultimate opinion by the panel.  In tons of cases, that in fact transpires.  Efficient for everyone.

But sometimes it doesn't.  Occasionally leading to opinions that look, well, a bit different.

So, for example, for the most part, dissents are concise and targeted.  They're shorter than the majority opinion and, except for additional relevant details, don't recite a full-fledged "Statement of Facts" about the overall cases.  There are other typical characteristics of dissents as well.

But, sometimes, you see opinions like this.

The majority opinion is a crisp five pages long, and contains as its first section the usual factual summary of the case.  It's exactly what you'd expect from a majority opinion.

The dissent, by Judge Korman (sitting by designation from the Eastern District of New York), is 32 pages long.  Over six times the length of the majority opinion.  And around a full nine of those pages -- yes, nine -- simply recite the underlying facts and procedural history in exhaustive detail.

That's fine for a majority (or panel) opinion.  But for a dissent, it's distracting.  To me, anyway.  A ton.

Maybe that's simply Judge Korman's writing style.  Or what you're used to when you've been writing district court opinions for over thirty years.

Readers just typically see something different in Ninth Circuit dissents.  For better, IMHO.

Wednesday, September 13, 2017

Roth v. Plikaytis (Cal. Ct. App. - Sept. 13, 2017)

Sometimes cases are worth mentioning not because they're particularly interesting, but rather simply because they might be helpful to the reader.

Which is why I mention this one.

The relevant part of the holding is a simple one:  You're allowed to incorporate by reference prior motions and supporting evidence.  That's something that attorneys do somewhat routinely, and yet, other attorneys prefer to be on the safe side and refile the entire shebang.

Good to know that you have a choice.

As Justice Dato explains:

"Rule 3.1110(d) states that "[a]ny paper previously filed must be referred to by date of execution and title." Rule 3.1113 provides rules for the memorandum in support of the motion, and rule 3.1113(j) states that "[t]o the extent practicable, all supporting memorandums and declarations must be attached to the notice of motion." Consistent with these rules, a litigant may incorporate previously filed documents and, where practicable, should file them with the motion. But a litigant is not required to do so absent a rule precluding incorporation by reference. (Cf. rule 3.1345(a) & (c) [requiring separate statement for certain discovery motions and stating "[m]aterial must not be incorporated into the separate statement by reference"].) . . . .

Code of Civil Procedure section 437c now expressly contemplates incorporation by reference in summary judgment papers. (Code Civ. Proc. § 437c, subd. (b)(7).) We see no reason why incorporation by reference would be any less appropriate for a fee motion. . . . .

Refiling materials to support fee motions may be typical, and even prudent, but it is not required. Denied motions are part of the record. And even assuming record size imposes an additional burden, to aid the court Plikaytis did provide courtesy copies. At a minimum, if the court felt Plikaytis's efforts were insufficient to rely on incorporation by reference, it could have permitted her to refile the documents. Simply refusing to review the materials was an abuse of discretion."

So there you have it.  The rule.  As well as some practical advice from the Court of Appeal about that same rule.

Tuesday, September 12, 2017

People v. Hunter (Cal. Ct. App. - Sept. 11, 2017)

This isn't what you expect to see at all.

A group of seven people decide to rob Monaco Jewelers in lovely San Juan Capistrano.  A pretty heavy crew.  Seize the location, take the high-end jewelry, grab the security tape, and leave.

So the crew enters the store and starts pointing guns.  At which point the shooting starts.

But the shooting isn't from the perpetrators.  It's from multiple employees in the store itself, who shoot and kill two of the would-be robbers.  At which point the others (wisely) flee.

Nor was this a meek little crew.  One of the robbers was Robert Avery, who " towered over Pashaian [the store manager] even though Pashaian stood six feet tall" and who pointed a gun at the manager's head as he told him to "Come here, you motherf****r."

Which turned out to be Mr. Avery's last words, as he was then promptly shot three times by the father of one of the store's employees who was in the back room with the manager.

Two robbers dead and the others fleeing, desperate to escape.  Two of whom (Mssrs. Hunter and Paschall) are then caught and convicted of first-degree murder under the provocative act doctrine.  Because even though neither of the defendants were shooters -- indeed, even though neither of them were even in the store, since Paschall was acting as the lookout and Hunter was the getaway driver -- that doesn't matter.  They're sentenced to 30-to-life because one (indeed, two) of their accomplices died.

And there's more.

As is often the case, there's a plea deal for some of the participants, who then agree to testify against the others.  The defense attorneys who represent the remaining defendants then turn on the counsel for the "rat" and demand their interview notes, but counsel for the pled-out defendant refuses to turn over those notes.  Because even though everyone's in the same boat for a while, once there's the plea deal, everyone looks out exclusively for their own client.  At which point there's fighting and an appeal.

Though for naught.  Everything's affirmed.

But nonetheless and unusual case.  Not the usual result of a seven-person robbery.

Monday, September 11, 2017

People v. Lujano (Cal. Ct. App. - Sept. 11, 2017)

I had to read this morning's opinion from the Court of Appeal a couple of times just to make clear that I was reading it correctly.  I thought that the victim was initially a certain age, then later I thought that I must have gotten it wrong, only to find out (upon further review) that I was right all along.

Regardless, it's not the fact pattern that might instantly spring to mind when you read the first line:

"A jury convicted Andres Lujano of sodomy of an intoxicated person (Pen. Code, § 286, subd. (i)),1 and the trial court sentenced him to six years in state prison.  He appeals . . . .

The victim, Marco M., testified Lujano had lived next door to Marco’s family for three years, and Marco trusted him. . . . Marco testified that on May 26, 2015, he was sad because his baby was in the hospital with respiratory problems. Sitting in his truck in front of his house, he started drinking beer with his friend Jose at about 8:00 p.m. At around 11:00 p.m., he tried methamphetamine (provided by Jose) for the first time, and it made him feel more awake. Jose went home around midnight, but Marco did not go to sleep that night. Between 8:00 p.m. and about 5:30 a.m., in addition to the methamphetamine he ingested, Marco smoked marijuana and drank more than 20 beers. Marco testified he is five feet, five inches tall and weighs about 130 pounds."

Okay.  Let me just stop there for a second.  Marco smokes methamphetamine for the first time, is emotional, and then has more than twenty beers?!  And only weighs 130 pounds?!

This is not going to end well.  Things like that never end well.

"At about 5:30 a.m. on May 27, Lujano approached Marco in the truck and asked him if he wanted another beer; Marco had socialized with and drunk beer with Lujano previously. Marco said he did want another beer, and Lujano told him to come get it from his house. Marco went inside Lujano’s home to get the beer and sat down in the living room while Lujano was in the kitchen washing dishes. Marco was “pretty intoxicated” and dozed off sitting on Lujano’s couch."

So it's 5:30 in the morning, you've already had over 20 beers, and you're thinking:  "Yeah, you know what I really need at this point?  Another beer.  That'll probably help things."  Oh my.

"Marco testified he woke up because he felt “hard pain” “in [his] butt.” When he opened his eyes, he saw Lujano’s hands on top of his hands, he was face down over the side of the couch with his pants below his waist, and Lujano’s body was on top of him. When Lujano saw that Marco had opened his eyes, Lujano immediately stopped, got up, and started putting on his clothes. Marco got up, said he had to leave, and tried to go through the front door, but the door required a key to unlock it from the inside. Lujano could not find his keys and told Marco to go through the window. He gave Marco $6 and told him not to tell anyone. Marco was “still hurting” and “wasn’t able to walk right.”"

Ugh.  Terrible.

The next part of the opinion's factual recitation is the one that got me wondering whether my mental impression of Marco's age was totally off:

"Immediately after climbing through Lujano’s window, Marco went inside his own house and told his mother what had happened—that he “got raped.” She started crying and told him to call 911, which he did at 6:54 a.m. While Marco was still on the witness stand, the prosecutor played the recording of the 911 call, in which Marco told the operator “my neighbor just raped me.” Crying throughout the call, Marco said he was drunk and “just woke up and he was on top of me.” Police officers arrived about five minutes later, spoke with Marco, and took him to the hospital. Officers also took Lujano into custody that morning."

Nonetheless, I get it.  It's a traumatizing series of events at a definitely traumatic time.  Especially given the underlying physical symptoms:  "The supervising nurse practitioner who performed Marco’s sexual assault exam two to three hours after his 911 call testified Marco had an actively bleeding anal laceration—a “fairly significant injury.” She noted Marco was “shut down” and had difficulty talking about what had happened but told her he had had a lot of alcohol and was going to have a beer at Lujano’s house but “passed out” on the couch; when he “awoke,” Lujano was penetrating him. She testified Marco’s examination was consistent with his report. The parties stipulated that sperm found on Marco’s anal swab matched Lujano’s DNA profile."

Oh, man.  What a horrible, horrible night.

Friday, September 08, 2017

People v. Williams (Cal. Ct. App. - Sept. 8, 2017)

I'm usually not a fan of the California Supreme Court reaching out to depublish an opinion by the Court of Appeal.

But here's a good candidate for precisely that.

There's a loose horse out in a rural area, so police officers (understandably) investigate.  The horse seems trying to get back into a particular property, and the police follow it around, block it off, call for backup, try to contact anyone at the house (by knocking on doors, windows, calling the property, etc.).  Eventually the authorities succeed in getting the horse into a horse trailer that they've brought to impound the horse.

Cool.  Great work.  I have absolutely no problem with any of that.

While they're doing all of this, they hear some dogs barking, see some dogs that appear to be fairly poorly kept up (when they peek inside the windows), and generally just get a sense that there might be something going on with respect to the dogs.  Now, truthfully, they already know that already, as they'd previously been out to this same house on a couple of prior occasions, and knew that there were lots of dogs.  But the owner showed 'em the proper permits etc., so everything passed.

But now the authorities feel like they've got free reign of the place.  The owner's not home.  They've already done everything that conservative Supreme Court precedent allows 'em to do -- enter a home property without consent, repeatedly knock on every door, peek inside all the windows, etc.  Stuff that'd freak you out if you saw a stranger doing to your home, but that nonetheless the judiciary says is okay, since it's the "curtilage" of your home and hence involves a "sidewalk, pathway, common entrance or similar passageway [that] offers an implied permission to the public to enter which necessarily negates any reasonable expectancy of privacy in regard to observations made there."


But then the police cross the line, in my view.  Both literally and metaphorically.  There's a fenced in back yard.  Something that clearly doesn't offer "implied permission" for anyone to enter.  The police nonetheless enter the back yard, at which point they see some dogs with scars and a missing lip and some additional evidence that makes 'em think that there might be dog fighting.

And then, two weeks later, based on these observations, they go back to the property and take some more (entirely permissible) pictures.  Then they wait another three weeks, and finally get a search warrant, which they obtain by reciting all the evidence described above.  And during the search, they find evidence of dog fighting and charge the defendant.

The critical issue is whether the search was permissible; in particular, the officers crossing into the back yard.

The Court of Appeal says that was okay -- proper -- because of "exigent circumstances".  Based on the presence of several barking dogs and one letting out some whines somewhere.  Justice Grimes relies on an "exigent circumstances" case that said that it was okay for a police officer to hop over a fence when he saw a gun lying on the ground and says it's the same thing here:  gun, barking and/or whining dogs, no difference.  Exigent circumstances.

But the two are radically distinct.  Particularly here.

First off, of course there are barking dogs.  Come to pretty much any house with a dog -- or more of 'em -- and knock on doors and windows and peer in and see what happens.  They'll bark because (1) that's what they do, and (2) that's why (in part) we have 'em.  Because we want them to bark their heads off when random dudes go traipsing around our front hard for an hour knocking and peeking into every window.

So that's hardly exigent circumstances.  That's hardly reason to fear that the dogs are in mortal danger, which is the "exigent circumstance" that the Court of Appeal finds.

Now, there's also a dog that whines a little, and some dogs that look a little thin and the like.  Now, mind you, that exact same stuff -- and worse -- was there last time the authorities were called to the place, and the authorities did absolutely nothing.  So I'm not really sure how "exigent" all this stuff is.  But even ignoring past history, it'd be one thing if there really was a dog that was about to die or who was yelping like it was in mortal danger or whatever.  But that's not what was happening, and was definitely not what the police perceived.  The dogs were just doing what we'd totally expect them to do with randoms on their lawn who weren't leaving.  And, yeah, there might perhaps have been some systemic problems with the alleged weight of the dogs or a smell of feces or whatever.

So you know what you do in that situation?  Get a warrant.  It takes, like, hours.  Maybe a day, tops. There's absolutely no reason to believe that one of these dogs is in such distress that it's going to die or the like in the time it takes to get a warrant.  And it's nowwhere near as dangerous as a gun lying unsupervised on the ground.  Get a warrant, get a warrant, get a warrant.  Because we want a neutral magistrate to decide -- except in the most extreme cases -- whether circumstances truly warrant (pun intended) making people no longer "secure in their persons, houses, papers and effects."  Not merely the unilateral whim of the police.

But the Court of Appeal thinks that the dog situation is so extreme -- so exigent -- that it warrants the police exceeding their normal authority and invading the back yard.  And let's be crystal clear what's at stake in his holding.  If exigent circumstances -- the alleged dying dogs or whatever -- permit the police to invade the back yard, those same exigent circumstances permit them to bust down the door and enter the house.  Because both places are the "home" under the Fourth Amendment.  The fact that the police here only elected to invade the fenced back yard, rather than the home itself, doesn't make the Court of Appeal's holding any less dangerous, because what's good for the former is good for the latter as well.  If barking, smelly dogs are exigent circumstances that negate the need for a warrant, that's a view that's not limited to merely inspecting the back yard; you get to go full out at that point.

So it's an opinion that really does matter.

Oh, and lest you think that the "dangers" of the barking dogs were really all that substantial -- that I'm understating their perceived seriousness -- let me just remind you of just how serious the police who witnessed them first-hand thought they were.  How "exigent" and critical the circumstances were.  Those facts were so serious that after the police invaded the back yard and did all their stuff, they promptly left and did absolutely nothing.  Those "critically at risk" dogs were just left to their own devices.  For weeks.  Until the police did another drive-by and took some more pictures.  And then let three more weeks pass until seeking and obtaining a warrant.

When that's how serious the police perceive the matter to be in real time -- i.e., not at all -- I think it's super difficult to argue that on the facts of this case, the barking dogs were really so exigent that they authorized entirely dispensing with the requirement of a warrant.  Because every fact you'll mention to identify how allegedly "serious" the circumstances might have been were not, in fact, perceived to be at all that serious -- that requiring of immediate intervention -- by the people who were actually there and perceived them.

Anyway, that's my take.

And, in the end, the Court of Appeal concludes its opinion by saying that the seized evidence was permissibly introduced in any event because even if you excise the impermissible stuff from the affidavit (i.e, the back yard stuff), the remaining (proper) evidence was more than sufficient to justify the warrant's issuance.

Which totally negates the need for the rest of the opinion.  The bad -- and dangerous -- part about why exigent circumstances allegedly permit the police to invade your home whenever analogous circumstances like this exist.

Which in turn is why, even though I'm not normally a fan of depublication, I think this is a perfect candidate.

Thursday, September 07, 2017

U.S. v. Del Mundo Faagai (9th Cir. - Sept. 7, 2017)

It's a natural human tendency to become more persuaded over time about the validity of your own articulated beliefs.  Not everyone does it.  But lots of people do.  The reality is that as time passes, people start believing their own bull.  A lot.

It happens to regular people.  It happens to lawyers.  (Which explains in part why litigators often overestimate their probability of success.)  And it happens to judges.

Once initially seemed like the "right" conclusion to you over time becomes "obvious" and then "crystal clear" and then "so undisputably true that only a moron could possibly disagree."

And if you're a judge -- especially one writing a dissent -- that evolution sometimes affects the ultimate tone and content of your opinion.

Those are some of the thoughts when I read Judge Kozinski's dissent from today's Ninth Circuit opinion.

It's not that Judge Kozinski doesn't have a point.  He definitely does.  He might even be right.  It's certainly not crystal clear that there's probable cause to believe that the defendant here would have some drugs in his car.  Sure, there's some prior (recent) history of drugs, and some suspicious stuff, and a lot of talk on the wiretaps that sounds a bit weird and might be code for a drug deal.  But there may well be an innocent explanation for all this stuff as well.  Which Judge Kozinski spells out at length.

So I could definitely see someone coming to Judge Kozinski's conclusion.  The quantum of proof here may not meet the standard for probable cause.

But here's the thing:  It might not meeet that standard, but it totally might as well.  That's what two neutral judges on the panel think, after all.  And, as I read the competing opinions, I can see where the majority is coming from.  There's definitely stuff in there that's suspicious.

But not to Judge Kozinski.  He admits that probable cause "is not a high standard," but says that the government "came nowhere close to meeting it here."  And the tone and content of his dissent is very much consistent with that expressed view.  That this is a totally easy case.

Except it's not.  Reasonable minds can differ.  If the government's evidence didn't show probable cause, I gotta say, at a minimum, it at least came close.  As I read the facts, there's definitely stuff that's suspicious there.  That makes you think that, yeah, they may well be talking about doing a drug deal.  Notwithstanding the fact that I definitely agree that someone reviewing those facts would in no way, shape or form be certain that they were doing a drug deal, since the evidence was indeed subject to multiple reasonable interpretations.

Judge Kozinski does a great job parsing out the innocent explanations for the evidence that the government was able to identify.  He'd have been a great defense attorney.  But his pursuit of those innocent explanations blinds him, in my view, to arguments he makes that just aren't that persuasive.  In the vernacular, it looks like he just starts strongly believing his own bull.  (And, yes, I know that there are another four letters that often conclude that final word.)

I'll mention just one example.  The two alleged conspirators talk about setting up a meet to shop for some "food".  The majority (and government) think that "food" is a code word for drugs, and Judge Kozinski thinks it's a code word for . . . food.  So they arrange to meet at a particular Costco.  But that Costco is a full half hour away from their location, and there's a much closer Costco nearby.  To me (and the majority), that seems weird.  Suspicious, even -- at least in the context of the other evidence.

But that fact doesn't bother Judge Kozinski at all.  He says that not all Costco's are the same, and says that it would make sense to meet at the farther-away Costco because it's relatively newer and also has a fresh deli.

Is that possible?  Sure.  Maybe.  That's possible.  But the guys don't mention the deli, don't talk about it being newer, and don't give any reason at all why they're chosing that one over the closer one.  With all due respect to Judge Kozinski, that's unusual.   If you're really just shopping for actual "food," you usually don't inexplicably drive half an hour out of your way to a Costco when there's a much closer one nearer.  Because, yes, they're all different, but they're also quite similar.

Let's put it this way.  If my wife -- or, I imagine, Judge Kozinski's wife -- said she was going to shop for some food at Costco, and then mentioned that she was going to the Costco that was 40 minutes way from us (rather than the one 10 minutes away), wouldn't that seem at least a little strange?  At least enough to say, "Hey, that's cool with me, but why are you going to that one?"  I promise you I'd ask the question.  If she said it was because it was newer, or had a deli, fine.  I wouldn't suspect that she was buying a pound of meth.  But it's still something.  Yet Judge Kozinski's dissent doesn't admit that it's even that.  Which I think is a downside of his vision, and is the type of stuff that helps gives rise to his thinking that this isn't even a close case.

Of course, as usual, there's some great stuff in what Judge Kozinski says as well.  Like taking the government to task for saying that it was suspicious that the guys were setting up to meet in a not-very-busy place (thus supporting probable cause) where in other cases the government has said the exact opposite -- that drug dealers like to set up in busy places where there's a lot of traffic.  That's spot on.  Damned if you do and damned if you don't.  Everything's suspicious and support probable cause.

But in the overall context of this case, I can definitely see people disagreeing about whether the evidence here was merely "suspicious" or whether it satisifed the quantum of proof necessary for "probable cause".  That's a fine line, and smart people could (and would) argue about whether that line was crossed here.

But the line was at least approached.  It's a close case.  Not an easy one at all.

Notwithstanding Judge Kozinski's stridently articulated view to the contrary.

Tuesday, September 05, 2017

People v. Washington (Cal. Ct. App. - Sept. 5, 2017)

There have been only two published Court of Appeal opinions thus far in September.

The one published today, after the long Labor Day weekend, should definitely be reviewed by the California Supreme Court.

It's an opinion that decides to ditch a central constitutional principle that's stood for over half a century.  The opinion itself accurately describes the contours of this rule:

"Under the so-called Aranda/Bruton doctrine, a trial court may generally not allow a jury in a joint criminal trial of a defendant and codefendant to hear the unredacted confession of the codefendant that also directly implicates the defendant—even if the jury is instructed not to consider the confession as evidence against the defendant. (People v. Aranda (1965) 63 Cal.2d 518, 529-531 (Aranda), abrogated in part by Cal. Const., art. I, § 28, subd. (d); Bruton v. United States (1968) 391 U.S. 123, 128-136 (Bruton).) Such a confession is so 'powerfully incriminating,' the doctrine provides, that the jury cannot be expected to heed the court’s instruction and put it out of its collective mind when evaluating the defendant’s guilt."

That rule has not only been consistently applied for the last fifty-plus years, but it's also one that's at issue in a relatively large number of cases.  And it's critically important, as it involves what's thought to be the pinnacle of reliable testimony:  a suspect's confession.

The Court of Appeal holds that this longstanding precedent is no longer good law after the Supreme Court's 13-year old decision in Crawford, which limited the Sixth Amendment right to cross-examine witnesses to "testimonial" statements.  You might rightly think that the fact that confessions are surely "testimonial" means that Crawford doesn't abrogate the Aranda/Burton doctrine at all.  But the Court of Appeal believes that the necessarily implication of that decision (and its progeny) mean that the 50 years of precedent that followed Aranda and Burton are no longer good law.

There are definitely those who will find Justice Hoffstadt's reasoning persuasive.  And there are definitely those who will find it unpersuasive.  To me, given those facts, before we ditch a critical principle of criminal procedure and constitutional law, the California Supreme Court should definitely weigh in, rather than let a panel of the Court of Appeal conclusively decide this issue.

There's a lot to be said for the other side of this dispute.  If only because I think that even if the Sixth Amendment didn't apply here (which it may well), then the Due Process Clause might require the same result.  The Court of Appeal thinks it doesn't, arguing that if a more specific clause doesn't apply, then a more general one shouldn't require a different rule.  But my view is that even if there's not a specific right to cross-examine a particular witness, to admit testimony with a required limiting instruction that we practically know the jury will ignore is indeed something that the Due Process Clause cares about.  Quite a bit.

Moreover, if, indeed, there's no constitutional barrier to admitting the testimony here, then I surely think that separate trials (or at least separate juries) should be required.  Particuilarly in high-stakes cases like the first-degree murder trial here.  The Court of Appeal holds that one trial was just fine.  But if we're indeed going to revolutionize confession admissibility like the panel does here, my own view is that -- at a minimum -- the burden of two juries is definitely worth it.  If only to avoid the manifest prejudice that we all recognize will otherwise arise from admitting the confession.

There are powerful reasons for the Aranda/Burton rule.  There's the Sixth Amendment at stake.  As the opinions recognized, there's also a Due Process issue.  And that rule was also adopted by the judiciary in part pursuant to its inherent supervisory powers.  All those principles are still in play.

The Court of Appeal holds that the law now is different -- beneficially different -- than that of the last fifty years.

The California Supreme Court should grant review and decide whether it agrees.

Thursday, August 31, 2017

Updike v. Multnomah County (9th Cir. - Aug. 31, 2017)

I'm just fine with soft pedaling the facts a bit when the issue is a legal one.  Particularly when you're dealing with a grant of summary judgment, where you have to view the facts in the way that's the most favorable to the non-moving party.  So if an opinion paints a particular picture of one of the parties that's a little bit one-sided, generally, I'm totally fine with that.

That said, the facts of today's opinion may still seem just a bit too shaded even for my flexible tastes.

Not that the plaintiff doesn't have a lot of sympathetic facts going for him.  He's been totally deaf since birth, doesn't read or speak English well, and isn't very good at reading lips (since he's not too familiar with the English words, so don't necessarily know what they look like).  So he relies on American Sign Language (ASL).  That's his basic world, especially since "[a]ll of [his] friends are deaf and [his] ex-wife is deaf."

And when he's arrested and booked and in associated proceedings, he doesn't receive an ASL interpreter, and allegedly suffers harm as a result.  That's definitely too bad.

Judge Gould's opinion recites all of these facts, as well as others.  An opinion that ultimately reverses (in part) the district court's grant of summary judgment to the state.

Okay.  Fair enough.

But, as I said, I have a feeling that what facts are included and what facts are left out may be partly driven by the result Judge Gould reaches.  To take but one example:  you get lots of details about the plaintiff's life and tribulations, but only a glimmer (if that) into why the plaintiff was arrested during a "disturbance" at his home, and learn only late in the opinion that he had also "been booked at MCDC on five previous occasions."

Similarly, Judge Gould's reaction to the plaintiff's interactions with the relevant court personnel might also be viewed as potentially one-sided.  For example, Judge Gould recounts what he describes as a "series of miscommunications" with his pretrial release officer, but my strong sense is that others did not view these events as "miscommunications" but rather simply plaintiff's refusal to do stuff.  Maybe that's why plaintiff himself thought that this officer believed that he "used his hearing impairment as an excuse to violate conditions of his pretrial release."

And when Judge Gould notes that the pretrial officer's log entries noted that the plaintiff had "poor reporting during his time with pretrial services, that [he] used his hearing impairment as the reason for not complying with the conditions of supervision, and that their interactions were challenging because [he] “argued” everything," Judge Gould had a definite response to this impression, saying: "The “hearing impaired, learning impaired, and developmentally disabled individuals engage in a range of coping mechanisms that can give the false impression of uncooperative behavior or lack of remorse.” Armstrong v. Davis, 275 F.3d 849, 867 (9th Cir. 2001), abrogated on other grounds by Johnson v. California, 543 U.S. 499, 504–05 (2005). As a result, it is likely that such individuals may have difficulty interacting with personnel who supervise them. Id. This is one basis that may explain why the interactions between Sacomano and Updike were challenging."  Yeah, maybe.  That's surely one possible explanation.  Though another -- unmentioned -- one might simply be that Updike was in fact an arse, and was actually challenging in the exact same ways a non-deaf person can be challenging.

Again, all this is fine; it's okay, especially on summary judgment, to have a particular take on the facts, and to highlight those that favor the non-moving party as well as the ultimate dispensation of the opinion.

It's just that, when I was reading this opinion, I got a more palpable sense of that reality than I sometimes get reading other opinions about the same subject matter.  So I thought it worth mention.

(None of which, of course, says that Judge Gould's impression is the wrong one.  Just that's it's not necessarily the right one either.)

Wednesday, August 30, 2017

People v. Seals (Cal. Ct. App. - Aug. 27, 2017)

Someone steals something (a phone) that costs $900, but with sales tax, it would cost $972.

Whether that's commercial burglary (a felony) or shoplifting (a misdemeanor) depends on whether  "the value of the property that is taken . . . exceed[s] nine hundred fifty dollars ($950)."

Well?  Does it?

Do you count the sales tax, or not?

I definitely could see competing visions here.  On the one hand, the "value" of the property could be seen as only the $900, since that's the "worth" of the "thing".  On the other hand, its value could be the whole $972, since that's what it would in fact cost -- what a willing buyer and seller would agree on.

The Court of Appeal agrees with the latter approach.  Which is different than courts in some other jurisdictions.

Its reasoning (in part):

"Unlike the sales tax law and administration described in several of the cases from other jurisdictions, California law does not obligate a merchant to collect a sales tax from the customer. This is a significant distinguishing factor. In California, whether the retailer seeks a sales tax reimbursement from the customer is a matter of contract between the buyer and seller. Under this sales tax framework, the addition of sales tax reimbursement to the cost of an item is an indication of that item’s fair market value: the total and highest price to which the willing buyer and seller agree."

That makes sense.  The retailer is paying the tax, so adds it to the cost of the product.  Just like the retailer is paying rent, which is also (albeit less expressly) added to the cost of the product.

Though you see the other side as well:  that the "value" of the property is still only $900, if only as established by (1) the fact that that's what this same product would indeed be sold for (in places with no sales tax, or when exempt from tax), and (2) that's all the retailer loses if the phone is stolen -- as here (since no sales tax is paid).

Tough call.  Though I like the scope and coherence of the Court of Appeal's view here.  It takes the matter seriously, and its analysis is pretty darn good.

Even as I understand that the other side has definitely good arguments as well.

(At minimum, the lesson learned here is (1) don't steal something worth $900, or (2) if you do, steal it from someplace that doesn't charge sales tax.)

Avilez-Rodriguez v. LA Community College District (Cal. Ct. App. - Aug. 29, 2017)

It's not that I don't disagree with the result of this case.  I do.  Or its reasoning.  Which is indeed based on a correct reading and interpretation of the underlying cases.

My only point of divergence is with the panel's reluctance.

Here's the scoop:

When a typical employee gets fired, her time to sue runs from the last day of her work.  Not the date she was notified she was being fired:  her last day of work.  Even if she continues to work for the company a bit after she was notified that she was being terminated.

Here, a tenured professor gets fired.  More concretely, he gets notified that he was denied tenure, which effectively means he's fired.  He continued to work for the university for a little bit after he was notified that his tenured was denied.

When does his time to sue run?

The answer seems obvious to me:  From the date of his last day of work.  And that's exactly what the Court of Appeal holds.  A holding that follows directly from precedent, which the panel's opinion explores at length.

But after reaching that conclusion, the Court of Appeal says:

"We acknowledge that both case law and rational policy considerations may militate in favor of a rule that in cases involving an allegedly discriminatory denial of tenure, the statute of limitations for filing an administrative complaint runs from the date the employee is notified of the final tenure decision. Had our Supreme Court in Romano merely distinguished denial of-tenure cases from the case before it, we might well adopt such a rule. But we cannot ignore the language of Romano or the fact that our highest court expressly questioned and unequivocally criticized cases adopting that approach."

Why so timid?

In my view, "case law and rational policy considerations" militate in favor of precisely the rule the Court of Appeal articulates here, not the other way around.  If the clock for normal employees does not start ticking until they actually leave the company -- even if they're definitively notified on an earlier date that they're being fired -- then that exact same reasoning applies equally to employees who work for a university and who are denied tenure.  They're similarly-situated.  They should be treated the same.

What'd be weird is if they were subject to a different rule.  That's what wouldn't be "rational" or consistent with public policy.  Because being told that you aren't getting tenure (and hence have to stop work on Day Y) and being told that you're being fired (and hence have to stop work on Day Y) are the same thing.  The exact same clock should apply.

So good result.  But an even better one than the panel perceives it to be, IMHO.

Tuesday, August 29, 2017

People v. Drew (Cal. Ct. App. - Aug. 29, 2017)

Sometimes even someone as jaded as I am can't believe what I'm reading:

"Appellant Charles Patrick Drew sexually assaulted Amber Oceja while she was in a diabetic coma, and within two hours of the assault, Oceja died from diabetic ketoacidosis."

What?!  Someone's in a diabetic coma and you take that opportunity to sexually assault her?!  Wow.

Then there's the resulting legal quandry:

"The experts all agreed that since Oceja was already unconscious when the sex crimes occurred, they did not materially contribute to her death. Indeed, it appears she would have died when she did even if appellant had not sexually assaulted her. However, appellant did not just sexually assault Oceja while she was unconscious, he failed to seek medical assistance for her knowing she was in dire physical condition – a fact which would remain hidden as long as she was confined in his motel room."

So does that mean he's guilty of first degree murder?  Even though he didn't contribute to her death (apart from doing nothing -- which, ordinarily, is not a criminal offense)?

Apparently so.

"We hold there was a sufficient causal relationship between this fatal omission and appellant’s sex crimes to support his conviction for first degree felony murder."

Oh, and just when you thought the facts couldn't be any more bizarre:

"At the time this case arose in 2012, appellant was 62 years old and Oceja was 29."

Yep.  That's a 62-year old man sexually assaulting a 29 year old woman when the latter is in a coma and about to die.

What a world.

Monday, August 28, 2017

State of North Dakota v. McCarthy (9th Cir. - Aug. 28, 2017)

I thought that I had suddenly lost substantial intellectual function when I read the caption of today's opinion by the Ninth Circuit.  Or at least needed a new pair of glasses.  Is the plaintiff in this case really North Dakota?!  Because last time I checked, I'm pretty sure North Dakota isn't in the Ninth Circuit.

But yes.  It's true.  North Dakota.  That North Dakota.


So I gotta admit, I was so befuddled by the caption, I skimmed the opinion at first to just figure out how the heck the case was in the Ninth Circuit if it involves North Dakota.  And I had to read a lot of pages just to figure it out.

But then it all made sense.

North Dakota wasn't the plaintiff to begin with.  The Sierra Club was.  It sued to compel the EPA to do something about sulfer dioxide emissions.  And then a bunch of states, led by North Dakota, that didn't want the EPA to do anything intervened in the lawsuit.

Hence why North Dakota leads the caption and argued the case.  Since it was objecting to a consent decree that the EPA and the Sierra Club had entered into to resolve the suit.

Okay, then.  Welcome to California, North Dakota.  You'll find that it's a bit warmer out here than what you're used to.  Especially (at least down here) this week.

As for the merits, though, uh, sorry about that.  North Dakota loses in the district court.  And loses on appeal as well.

Sorry about that.  But I hope that your lawyers at least enjoyed their stay here.

And wore lots of sunscreen.