Thursday, June 22, 2017

Arias v. Raimondo (9th Cir. - June 22, 2017)

If you're an attorney representing a defendant in an employment-related case, sometimes you find out -- and have good reason to find out -- that the plaintiff employee is an undocumented alien and hence not allowed to work, or remain, in the United States.

There are definite strategic advantages to bringing that issue up with the authorities and having the plaintiff deported.

Just know this:  If you do so, you -- the lawyer -- can be sued for a ton of money under the retaliation provisions of the FLSA.

Definitely worth knowing.

Wednesday, June 21, 2017

Brewster v. Bick (9th Cir. - June 21, 2017)

I'm genuinely confused.

I'm incredibly sympathetic with the result reached in today's opinion by Judge Kozinski.  It's absurd that Los Angeles has a law that allows the city to impound a vehicle for 30 days -- a minimum of 30 days -- when it's driven by an unlicensed driver.  Sure, the City can impound the thing.  Sure, there's an interest in getting unlicensed drivers off the street.  But once (as here) the actual owner shows up, shows her valid license, and offers to pay all towing and impound costs, there's no doubt in my mind that the City should release the vehicle to her.  If she has to pay a subsequent fine as well, that's fine.  But the City says that even if all that happens, it has the right (and, under the law, a duty) to keep the vehicle in impound for the entire 30 days.  That's absurd, in my view.  Or at least incredibly unjust.

So when the Ninth Circuit today unanimously holds that this practice is unconstitutional, as a former vehicle owner in Los Angeles, I couldn't help but applaud.  Bravo.

Yet I seriously don't get the rationale behind the holding.

The City says that the seizure is an administrative penalty that's designed to stop unlicensed drivers, and also cites a plethora of cases that says that these sorts of things are permissible under the Fifth and Fourteenth Amendments.  Judge Kozinski's opinion, however, says that focuses on the wrong portion of the Constitution, and holds that the seizure here violates the Fourth Amendment because it's excessively lengthy.  Judge Kozinski says that the Fourth Amendment is simply different than the Fifth.

Judge Kozinski's definitely right that these are two different amendments.  He's also definitely right that there are indeed cases that say that an excessively long detention (of either property or a person) may well turn a valid search under the Fourth Amendment into an invalid one.

Okay, so they're different.  At least in part.

Let's put entirely to one side the fact that, in truth, as applied to alleged state misconduct (as here), both amendments are incorporated by the Fourteenth Amendment, so we're in truth actually only talking about the same amendment in both places.

Wholly apart from that, I just remain confused as to why the Fifth Amendment holdings aren't a substantive defense to the Fourth Amendment claim.

Judge Kozinski says that, sure, maybe the administrative penalty here is permissible.  Maybe it's okay under the substantive provisions of the Constitution (e.g., the Fifth Amendment) to punish someone who lets an unlicensed driver use her car by taking away that vehicle for thirty days.  That's an okay and legitimate way to deter such misconduct.  (In truth, you can tell from the footnotes that Judge Kozinski's not entirely sure that's right, but he concedes -- at least for purposes of argument -- that's perhaps true; he instead holds that it's irrelevant.  And the Fifth Amendment precedent here is indeed not so great for the plaintiffs, which likely underlies Judge Kozinski's argumentative concession.)

But, he says, just because you can validly seize a vehicle under the Fifth doesn't mean that a lengthy seizure is okay under the Fourth.

Really?

I gotta say, at least to me, it seems like the two inquiries have to overlap.  And I'm not exactly sure how Judge Kozinski's opinion deals with that overlap.

Let's take an easy example first.  A hypothetical.

Let's say that instead of saying 30 days', LA's ordinance is even harsher than it is, and says that if an unlicensed driver drives a vehicle, the City is allowed to take the vehicle.  It's forfeited.  Period.  That second and forever.  Let's also assume that such a seizure is permissible under the Fifth Amendment.  Then a plaintiff files a class action lawsuit (as here) that alleges that, regardless, that seizure violates the Fourth Amendment.

Well, geeze.  Plaintiff surely loses that one, right?  Because once the City grabbed the vehicle, it was theirs.  You weren't deprived of anything that was yours any more.  So the detention wasn't overly lengthy as far as you were concerned because the vehicle wasn't yours once the City seized it.  Seems to me that the City wins that case.

At a facial level, it would seem bizarre to me that a harsher ordinance that allowed a seizure forever (or for 1000 years) would be constitutional and yet a lesser ordinance that allowed a seizure for 30 days would suddenly become unconstitutional, no?

And the principle behind the hypothetical seems the same regardless of whether we're talking about pure ownership versus possessory interests.  The first thing one learns in Property class is that what we call "ownership" of a vehicle is really just a bundle of sticks.  Temporal possession is simply one of those sticks.  If the Fifth Amendment permits the City to punish you by taking away one of those sticks -- whether that stick is possession forever or for 30 days -- then once you commit the violation, you don't have that stick any longer.  So, to me, I'm not sure it makes sense to say that you've been deprived of that stick for an "excessive" period if we've already held that the City was entitled to take that stick entirely.  If they can seize the thing for 30 days as a penalty, then it's not yours (at least during that period), and you can't complain about that, under the Fourth Amendment or anything else.

So, if only as a doctrinal matter, I'm not entirely confident that Judge Kozinski's claim that the City's "focusing on the wrong Amendment" totally holds water.  Seems to me like there's huge overlap, and I leave the opinion -- even after thinking about it quite a bit -- wondering what the panel's response to this argument entails.

And then there's the additional little problem of precedent.

I don't want to get too much in the weeds here.  But the case that immediately came to my mind when I first read this opinion was Bennis -- a Supreme Court opinion that Judge Kozinski's opinion doesn't (I think) mention at all.  That's no only because that prior opinion squarely involved the analogous seizure of an automobile for (relatively) minor conduct, but also because the Supreme Court's holding in that opinion was memorably harsh.

The state in Bennis passed a statute that allowed the state to seize a vehicle -- forever -- if that car was used to pick up a prostitute.  Sure enough, a husband did just that, the state followed up on its statute and seized the vehicle forever, and the innocent wife, who co-owned the vehicle, claimed that seizure was impermissible.  Surely she hadn't done anything wrong, since she definitely didn't encourage her husband to pick up prostitutes in the car, and so even if you could punish her husband, she said, she thought that it was definitely impermissible to forfeit at least her half of car to the state.  Which was what the statute indeed did.

Pretty good argument, right?

No dice.  The Supreme Court held that it was perfectly okay to make the wife lose her vehicle forever.  The Constitution was completely okay with that.

Well, if a totally innocent person can lose her car forever if it's used for misconduct, I'd think that a partially culpable person (who deliberately loaned her car to an unlicensed driver) could lose her car for a lesser period of time (30 days), right?

Not according to today's opinion.  Which just seems odd to me.

Now, were he to mention it, I'm sure that Judge Kozinski would attempt to distinguish Bennis by saying that that was a case involving the Fifth Amendment, not the Fourth.  But two things would still stick out.  First, when you read Bennis, I think that every objective observer would be a thousand percent confident that a Fourth Amendment argument in that case would have fared no better -- and may even have fared worse -- than the Fifth Amendment argument that was rejected.  So it's a slender reed on which to distinguish a case if the Court itself would have definitely rejected that distinction.

Moreover, again, the rationale of Bennis just seems inconsistent with the Ninth Circuit's underlying holding.  The opinion in Bennis concluded by saying that the statute did not violate the Constitution because "the property in the automobile was transferred by virtue of that proceeding from petitioner to the State."  That underlying doctrinal rationale seems equally applicable to the 30-day possessory interest asserted in the present case; it was gone as a result of the underlying misconduct, so there's no constitutional violation.

Anyway, the long and short of all of this -- perhaps overly long, I admit -- is that I'm not sure that the Ninth Circuit's stark distinction between Fourth and Fifth Amendment claims in the present case is an obvious, or even tenable, one.  Seems to me that there's a darn good argument that if it's okay under the Fifth, it's okay under the Fourth as well.  At least in a case like this.

And that's from someone -- me -- who will freely admit that he'd be quite inclined to find that it violates the Fifth.

Tuesday, June 20, 2017

Jordan-Benel v. Universal City Studios (9th Cir. - June 20, 2017)

Claims that someone stole your screenplay and wrote the same thing are often weak.  This one may be otherwise, at least if you believe what's in today's Ninth Circuit opinion.

Here are the relevant facts:

"Around January 2011, Jordan-Benel wrote a screenplay entitled Settler’s Day about a family’s attempt to survive an annual, state-sanctioned, 24-hour period in which citizens are allowed to commit any crime without legal consequences. He registered the screenplay with the Writers Guild of America and the U.S. Copyright Office.

Around June 2011, Jordan-Benel’s manager, Adam Peck, emailed David Kramer, Managing Director of Feature Productions at United Talent Agency (“UTA”), about Settler’s Day. Kramer responded that Peck should contact Emerson Davis at UTA to discuss the screenplay. Peck then spoke with Davis and asked permission to submit the screenplay. Davis agreed and asked that Peck email the screenplay to both Davis and Kramer. On July 8, 2011, Peck submitted the screenplay.

Based on custom and practice in the industry and prior dealings between UTA and Peck, UTA understood that the submission was not gratuitous and was made for the purpose of selling the screenplay to a UTA client. Around July 13, 2011, Davis emailed Peck to confirm that he had read the screenplay but that he was going to “pass.” Nonetheless, someone at UTA sent the screenplay to UTA client James DeMonaco. DeMonaco and his partner, Sebastian Lemercier (also a UTA client), wrote a script entitled The Purge, which allegedly copies Jordan-Benel’s ideas from Settler’s Day."

That doesn't sound like an absurd claim, does it?  And there's a lot of money at stake, since there's not only the original movie, but also a couple of sequels.

Now, even with a decent claim on the merits, you need to make sure that you don't mess things up.  In the present case, there may well have been a strategic error, since the plaintiff not only sued to obtain damages, but also for declaratory relief that he was the owner of the screenplay and hence entitled to credit.

Two problems.  One, such relief is foreclosed by precedent.  Two, it potentially opens you up to an anti-SLAPP motion.

And an anti-SLAPP motion is precisely what the defendants file.

Plaintiff ultimately (and wisely) abandons the "credit" claim, but defendants press on with the anti-SLAPP motion, both below and on appeal.  And rightly lose.  Asking for money because someone stole your work doesn't arise out of free speech activity.  Judge Pregerson's opinion is spot on.

But it was still a strategic mistake to ask for credit.  One that might have cost the plaintiff on appeal (and still might cost them on remand, since the Ninth Circuit correctly notes that getting one SLAPP claim dismissed still might lead to a fee award even if the rest of the suit has merit.)

A reminder to be careful what you plead.

More is sometimes less.

Thursday, June 15, 2017

Rossdale Group LLC v. Walton (Cal. Ct. App. - June 15, 2017)

I often tell my students that capacity and standing are two different things, with different rules and procedures.  Justice Rushing amply highlights those differences in today's opinion.

The Court of Appeal's limited holding is that -- at least for standing purposes -- it's okay for a corporate entity to sue under a registered d/b/a, even if that's not its formal legal name.  But more broadly, the Court of Appeal also says that (again, for standing purposes anyway) it's even okay to sue under whatever name you'd like, even one that's totally fake.  So if I, Shaun Martin, want to sue as "John Doe", we know that's okay (fictitious names), at least in California.  But apparently I can sue under the name "Barack Obama" if I want to as well, as long as I'm asserting my own claims rather than this.  I can see some practical problems with that, but I concede I'm not exactly sure where they fall in the standing/capacity continuum, and, yeah, I guess it's not an actual standing issue since they are MY claims.  As long as I was the one who was, say, run over and injured, and that injury is what I'm indeed suing for, if I want to call myself Barack Obama, or the Tooth Fairy, in the complaint, I guess at least for purposes of today's holding, that lawsuit gets to go forward.

Interesting stuff.

It gets more complicated when, as here, the underlying corporate entity was dissolved.  Now, that is definitely an issue of capacity.  But there's a dispute about that; the plaintiff says that its assets and liabilities were taken over by another entity, the opposing party says that's not entirely true, etc. etc.

But that's not a standing issue.  That's something else.  SOMEONE was injured.  And SOMEONE is claiming to be that person.  Maybe they are, maybe they aren't.  When you're dealing with admittedly fictional entities like corporations and LLCs, that's maybe not so easy to tell.

So that's an issue.  Just not, as Justice Rushing explains, one that involves standing.





U.S. v. Hernandez (9th Cir. - June 15, 2017)

I seriously don't know how we expect juries to do their job competently.  Because I'm not a moron, and have also been an attorney for a quarter century now, and even I can't fully follow the Ninth Circuit's explanation today as to what it means (or what we have to tell a jury) when we say that someone who ships firearms from one state to another may be acting in "willful"violation of the law.

If even someone like me can't fully understand what we're saying, how in God's Green Earth can we expect a jury of laypeople with absolutely no legal training to figure it out on their own (instructed properly or not)?

I understand why there's sufficient evidence to convict here.  Mr. Hernandez drove a super long way to buy a ton of guns in Arizona that he couldn't have bought in California, and then drove back here and they ended up in the hands of others.  Yeah.  That may well be illegal.

But it's only illegal if it's willful, and, geeze, I'm just at a total loss to explain to a nonlawyer -- or even a lawyer! -- what the true dividing line is between willful knowledge of illegality and lack of such knowledge.  Even after reading the opinion.

Look, I understand, we have to do our best, and I appreciate the Ninth Circuit both caring deeply about the issue (it reverses the conviction here because the instruction, while admittedly "accurate", allegedly wasn't "clear enough") and trying their absolute best.

But lots of the opinion nonetheless reads like eleventh century theological analyses of how many angels can fit on the head of the opinion, and -- worse -- how to explain that reasoning to largely disinterested nontheologians.




Wednesday, June 14, 2017

Weil v. Elliot (9th Cir. - June 14, 2017)

The past decade of Supreme Court "jurisdiction" jurisprudence can largely be summarized as follows:

Every deadline you think is jurisdictional almost certainly isn't.

Yeah, sure, you could read a dozen Supreme Court opinions and literally hundreds of lower court opinions on that precise issue for the details.  But I'm just told you the basic scoop.  And my guess is that ninety percent of more of those opinions come to precisely that conclusion, and just gussy up the law a little bit.

That's not only the relevant law these days, but it's a principle that the judiciary is fairly eager to apply in cases like the one today.  In which a dude gets a bankruptcy discharge by fraudulently omitting his ownership of a home, and then the lower courts say, sorry, there's nothing we can do about that even though we discovered it only after he received his discharge.

Oh yes you can, the Ninth Circuit says.  The relevant motion may have been filed a bit late.  But that's not a "jurisdictional" bar.  The debtor didn't raise that defense at the time, so we're (thankfully) empowered to do the right thing and deny the guy a discharge.

Yep.  That's definitely the state of the law these days.  And you can see why.

Tuesday, June 13, 2017

U.S. v. Gila Valley Irrigation Dist. (9th Cir. - June 13, 2017)

For yet more evidence that water rights matter very much in our (increasingly) dry world, check out today's 44-page, single spaced opinion by the Ninth Circuit.

Even water rights over 1.4 acres of land in a scrubby portion of Arizona are worthy of expansive litigation, analysis, and discourse.  Not to mention all the other properties at issue.

Water.  It's a big deal.

Monday, June 12, 2017

People v. Sperling (Cal. Ct. App. - June 8, 2017)

This opinion, and the underlying facts, are definitely interesting.

Justice Yegan begins the opinion with:  "In this extremely aggravated sexual assault case, . . ."  Oh boy.  I have read some incredibly serious sexual assault cases in my time.  Really, really serious.  I can only imagine what this one is going to be about.  My mind's eye imagines a series of events that are indeed disturbing.

Next I read:  "The dismissed counts were one count of oral copulation and two counts of anal and genital penetration by a foreign object."  Yep.  This is going to be incredibly ugly and serious.

Next:  "Amanda, the victim, is chronologically 25 years old. She is developmentally delayed with an intelligence quotient (IQ) of about 50. “She is blonde and petite and looks and acts like a child.”  My goodness.  So it's going to be vicious, violent abuse of someone like that.  Disgusting.

But it turns out that there's no gun, or punching, or stuff like that, all of which I was expecting from the introduction.  It's instead one of your classic "nonconsensual touching during a message" cases.  Which are absolutely criminal, but I was expecting something else.

The victim apparently suffers from Prader-Willi syndrome, the effects of which cause mental retardation and an insatiable appetite.  “People with this syndrome always feel hungry; no matter what they eat they are never full.” So the victim was "on a strict diet of 850 calories per day."

Okay, I guess that makes sense.  But then I read:  "As a reward for good behavior and 'for following her diet restrictions,' Amanda received a massage each Saturday. Appellant was the masseur."  Uh, okay, I guess.  I might have invented a different positive reinforcement technique, but if people in the field think this is a better technique, I guess I won't disagree.

Next sentence:  "During the massage, she was completely naked, but covered by a blanket.”

Really?  You've got a totally vulnerable person, intellectually disabled, and you're getting her naked very week?  Does that really seem wise?  I was a little dubious about the message to begin with, and thought we might have come up with something better.  But now I'm affirmatively worried.  Even before (as here) I know where this is going to end up since the story is recounted in the California Appellate Reporter.

So nonconsensual touching transpires, and the defendant is convicted.  Good.  You can't do that.  You deserve to be punished.  Inexcusable.

Though defendant tries to at least mitigate his punishment.  And does so successfully.  Imagine in your head a picture of the defendant.  What he looks like, his facial features, his background, etc.

Is this who you were thinking of?  "Appellant noted that he is 68 years old and 'has lived a crime free life up until now.' . . . [He] has Parkinson's disease and suffers from back pain."  He says that what he did was caused at least in part because he “was influenced by the medication he was taking for his Parkinson's disease. A side effect of this medication, Carbidopa-Levodopa, is increased sexual urges. He was taking a high dose of the medication, which caused him to have more sexual impulses."

The trial court ultimately sentences this 68-year old man to 8 years in prison, which is what the prosecutor requested and that constitutes the middle term for the relevant offenses.  That was after the "prosecutor asked that '[appellant] be given the benefit of his early plea and the fact that he waived prelim. [i.e., waived his right to a preliminary hearing].'”  Appellant appeals, claiming that his sentence was excessive.

The Court of Appeal not only affirms, but as you can perhaps tell by the strongly-worded language used in the introduction, isn't sympathetic at all.  Indeed, it drops a footnote that says:  "The appeal is frivolous."  And then also says in the text that "Appellant is fortunate that he was not sentenced to prison for the maximum 10-year term" rather than the eight years he received.

A strong reaction to the facts of this case.  Beyond the reaction that you normally see even in very serious domestic violence and murder cases.

People v. Wilford (Cal. Ct. App. - June 12, 2017)

Here's a 10-page story that describes, in detail, domestic violence between a man and a woman who would not leave him.

It doesn't end as badly as it might.  But it ends badly enough.

Thursday, June 08, 2017

In Re Jesse S. (Cal. Ct. App. - June 7, 2017)

This is another awesome opinion.  One that you know is written by Justice Bedsworth even before you've finished reading the second page.

Great analysis, great thoughts, great caring.

The opening pretty much summarizes the holding, so I'll reprint those first four paragraphs in full:

"This is an unusual case. It is unusual in the nature of the relief sought and even more unusual in our inability to provide that relief, even though we think it warranted. We publish our opinion in the hope the Legislature will either change the law or – by reconsidering it and leaving it unchanged – reassure us that the present system is what they intended.

About four months before his 20th birthday in 2016, appellant Jesse S. filed, in propria persona, a request under section 388.1 of the Welfare and Institutions Code to return to juvenile court jurisdiction and the foster care system. His reason was that the couple who adopted him the day before his 18th birthday were no longer supporting him, even though they were receiving payments on his behalf from California’s Adoption Assistance Program (AAP). (§ 16115 et seq.). The judge denied the request, noting that under the literal language of section 388.1 the very fact the couple were still receiving AAP payments on Jesse’s behalf precluded Jesse from reentry into the juvenile dependency system.

We affirm, though reluctantly. Jesse has pointed out an anomaly in section 388.1 that the Legislature might want to address. The trial judge read current section 388.1, subdivision (a)(4), to mean exactly what it says: A nonminor between 18 and 21 is eligible for reentry into the juvenile dependency and foster care system only if his or her adoptive parents no longer provide ongoing support to that nonminor and also no longer collect AAP benefits on behalf of that minor. Since there was no question Jesse’s adoptive parents were still collecting adoption assistance program payments on Jesse’s behalf, the judge was forced to conclude Jesse was not eligible for reentry under the statute.

We agree with Jesse’s point that the Legislature probably did not intend a former foster youth’s reentry in the dependency system to depend on the glacial bureaucratic processes which govern termination of AAP payments to adoptive parents no longer supporting adopted ex-foster care youth. That said, while the literal application of the statute may yield an anomalous and unintended result in cases like Jesse’s, those results are not so anomalous that we can accept Jesse’s invitation to invoke the common law absurdity rule to delete what the Legislature plainly included when it drafted section 388.1. (See Code Civ. Proc., § 1858.) The problem requires a legislative fix if there is to be one."

Beautiful.  Extraordinarily well done.

I just want to add one tiny additional perspective.

When I first read those opening paragraphs, I thought that we'd be dealing with a case where Jesse was the good guy and the adoptive parents were total jerks.  They were getting paid by the state but not supporting Jesse, yet there was nothing Jesse could do to get back in foster care.  Those bastards!

But as I read the rest of the facts, I gotta tell you, the adoptive parents actually come off pretty darn well, and I had the exact opposite reaction to the parties as I had when I read the opening paragraphs of the opinion.

Justice Bedsworth ends the opinion by saying:  "This appears to be a case without villains," and then explains that both Jesse and the adoptive parents seem to be acting reasonably (or at least within their discretion).  Truth be told, Justice Bedsworth may be being -- in my view, anyway -- overly charitable to Jesse.  You'll have to read the full facts of the opinion to get the details, but suffice it to say that at least one way to interpret these facts -- albeit one that makes Jesse look not so great -- is that he's a kid with a keen sense of entitlement, who's happy to do drugs, leech off the system, would rather be homeless than stop smoking weed in his parents' house, totals cars he's given since he likes to text while driving them, and now just wants to get back at his "controlling" parents by taking away the little money they're given from the state to support him while he nonetheless keeps the cell phone, medical insurance, and other stuff he gets from his parents, all the while now seeking additional benefits from the dependency system as well.

Now, I'll freely admit, I could easily be reading these facts wrongly.  Maybe the adoptive parents are in fact to blame.  Maybe they're overly controlling.  Maybe Jesse is a hardworking, regular 20-year old who just wants what every kid wants.  Maybe my perspective on this comes too much from being a parent myself -- a parent of kids who, while generally awesome (and I truly mean that:  awesome), can rightly on occasion be accused IMHO of feeling entitled to their way a bit too much.

So, yeah, I can agree that there are no one's a villain here.  But it may also be case that at least one party might not be a saint as well.  And that person might potentially be the opposite of the one you thought if you only read the first four paragraphs of the opinion.

Wednesday, June 07, 2017

People v. Ruffin (Cal. Ct. App. - June 6, 2017)

The first couple of paragraphs of today's opinion make clear the problem of rushing through things like advising criminal defendants of their rights.  Haste makes waste, as it were.

"In the master calendar court, on the date set for trial, appellant exercised his right to represent himself under Faretta v. California (1975) 422 U.S. 806, after the court indicated it would find good cause to continue the trial because appellant’s appointed counsel was engaged in another trial. Before the court granted the Faretta request, appellant initialed and signed a written Faretta advisement form. Thereafter, appellant represented himself at trial before a different judge, and a jury convicted him of both counts. The trial court found the strike and prior prison term allegations true, struck one strike at sentencing, and sentenced appellant to total term of eight years in state prison.

On appeal, appellant contends that the master calendar court failed to adequately advise him of the dangers and disadvantages of self-representation. We agree. The court’s inquiry consisted of asking whether appellant initialed and signed the form (he did) and whether he had any questions (he did not). The court did not ascertain on the record that defendant read and understood the written Faretta form. The court also failed to inquire about ambiguities in appellant’s responses regarding his understanding of the nature of the charges against him. And nothing in the record—not the oral proceedings or the written Faretta form—advised defendant of the penal consequences of conviction—27-years-to-life in state prison. Considering all these circumstances and reviewing the entire record de novo, we conclude that appellant’s Faretta waiver was invalid, because the master calendar court’s inquiry about the Faretta form and the remainder of the record fail to adequately demonstrate that that appellant understood the dangers and disadvantages of representing himself consistent with established case authority. Therefore, we reverse the judgment."

So that's a lesson.  One worth noting.

But when I read the rest of the opinion, and got some more details, I think the lesson here is not simply about haste making waste.  Reading between the lines, we might also want to add to that lesson the principle that "anger makes waste" as well.  'Cause I get a sense that this whole thing may have gone down -- awry, even -- because the judge was a bit miffed.  And in "getting back" at the defendant by short shrifting things, the judge ended up making a mess of it.  As well as resulting in the need for an entirely new trial.

Here are the details.  See if you think I'm reading them correctly:

"On September 30, 2015, the last day for trial, appellant’s assigned alternate public defender was engaged in trial in another case. In the master calendar department, a substitute alternate public defender asked the court to continue the case until October 6, when appellant’s assigned attorney would be finished with the other trial. The court asked appellant, “You give up your right to go to trial today and agree to October 6 or not?” When appellant replied “no,” the court stated that it would find good cause to continue the trial.

The alternate public defender then informed the court that appellant wanted to start the trial and proceed in pro. per. The court responded, “You are not that stupid. You have one of the best lawyers in the county.” Appellant stated, “You can’t keep me in jail for allegations. I have rights. You are unconstitutionally keeping me in prison. You are violating my rights to a speedy trial.” The court told appellant, “don’t talk to me anymore. Put him back. Any family here?” Appellant’s father stated that he was present. The court said, “Maybe you can talk to him. He wants to commit suicide. He has a good lawyer. He doesn’t know how to be a lawyer. If he wants to, I will let him. If you want to talk to him, it’s up to you. You want to talk to him?” The father replied, “I can talk to him but he wants a speedy trial.” The court stated, “Okay. Thanks for helping me. We will pass this.” The court then took a recess."

[Okay. So far so good.  The judge wants to do the right thing.  Maybe is being a bit blunt.  And short, even.  But perhaps all in service of a good cause.]

"The court provided appellant with a copy of a document later described by the court as “the pro. per. policy memorandum of Local Rule 6.41,” as well as a written advisement and waiver of right to counsel form. . . . When the court reconvened, the following proceedings occurred:

“THE COURT: Recalling People vs. Ruffin. I have documents by Mr. Ruffin. You understand you are requesting to go to trial today and to represent yourself. Is that your wish?
“THE DEFENDANT: Yes.
“THE COURT: You had an opportunity to read the documents submitted to you. Those were the pro. per. policy memorandum of Local Rule 6.41. Did you read that?
“THE DEFENDANT: Yes.
“THE COURT: Did you understand it?
“THE DEFENDANT: Yes.
“THE COURT: I am holding a document entitled Advisement of Waiver of Right to Counsel of 4 pages. On the right-hand side it has initials E.R. Did you put that in there?
“THE DEFENDANT: Yes.
“THE COURT: That stand for Elijah Ruffin?
“THE DEFENDANT: Yes.
“THE COURT: Is that your signature?
“THE DEFENDANT: Yes.
“THE COURT: You have any questions about anything before I send you to trial forthwith?
“THE DEFENDANT: No.
“THE COURT: Okay. Sent to Department C, Judge Filer for trial today.”

"When the case was called that morning in the trial department, the prosecutor stated his appearance, and the trial court noted that appellant was representing himself. Appellant replied: “Really I don’t want to represent myself pro per. But I have no choice. I’ve been in prison. I wanted a speedy trial. . . . I really would like someone with some type of legal responsibility to represent me because now I have to ask for a couple days to go over this to build a defense for me.” The court replied, “All that should have been taken care of in Department D. Today is day ten of ten. . . . [¶] I’m confident you have been granted pro per status. So we’re here and ready to proceed with the trial, and I intend on going through with the trial.” Appellant stated, “I had no time to go over any paperwork, so if I can ask for some time to go over paperwork, and come back [at] a later date so I can have a defense. This is the first time I’ve seen paperwork regarding this case at all.” The prosecutor replied that appellant had “indicated he was ready today.” Appellant stated, “And what I mean by ready . . . I was ready to go to trial to defend myself with some type of legal help.” The court denied appellant’s request, stating, “No, this has already been litigated and you can’t play games with the court system. I have a waiver form that has been initialed by you and signed by you indicating that you have been properly advised and that you want to represent yourself. Once that determination was made by Judge Cheroske he granted you that right, so the case was sent here for trial.”

So, in short, the first judge had a guy who said he wanted to represent himself because he was not willing to waive his speedy trial rights.  Which was both stupid and created a bit of a hassle for the court.  So the first judge rushed through things.  And then, when it got to the second judge, we had a little of a repeat of the same thing.  A bit rushed.  Probably a bit miffed.  Forced to do a trial at the last minute of a case s/he knew nothing about.  So be it.  Don't really care about all the procedural details. Let's just do this.

Which I understand.  If only at an emotional level.

But it results in wastes like this.  An entire new trial.

To reiterate:  Haste makes waste.

Tuesday, June 06, 2017

Lowry v. City of San Diego (9th Cir. - June 6, 2017)

It's admittedly not an especially good en banc panel draw for Chief Judge Thomas.  But it's still sort of sad (for him, anyway) when the vote is 10-1 and the only person in the en banc draw who dissents is the person who's automatically on the thing -- the Chief.

A split three judge panel decides -- on April Fool's Day of 2016 -- that San Diego's "bite and hold" policy for its police dogs might potentially violate the plaintiff's civil rights in the present case, and on that basis reverses the district court's grant of summary judgment.  The case gets taken en banc in September, and then, today, wham.  10-1.  Summary judgment affirmed.

With Chief Judge Thomas as the 1.

Thursday, June 01, 2017

People v. Gonzalez (Cal. Supreme Ct. - June 1, 2017)

Appellate tribunals often resolve complex issues of constitutional and statutory interpretation.

But sometimes, even at the highest levels, the cases are relatively straightforward.

Take, for example, how the California Supreme Court begins the month of June.  The very first paragraph of today's opinion articulates very succinctly the question presented:

"Under Penal Code section 422, it is a crime to threaten infliction of great bodily injury or death on another "with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat . . . ." (Pen. Code, § 422, subd. (a).) The question here is whether defendant‘s conduct, which included a hand gesture unaccompanied by words or sound, qualifies as a "statement, made verbally.""

Yep.  That's the issue.  Whatchathink?

If it matters, the relevant "gestures" here were made to an off-duty police officer in Indio, and consisted of a gang member running his finger across his neck, making his fingers look like a "gun" and pointing them in the air, and making a "JT" hand sign (which stands for the Jackson Terrace gang in Indio).

The meaning of those gestures is pretty darn clear.  But the question is whether they constitute "statement, made verbally, in writing, or by means of an electronic communication device."

The California Supreme Court doesn't have a difficult time answering that question.

(1) They're clearly not "verbal" statements, because they weren't made verbally.  Nothing oral at all about them.
(2) They're definitely not statements "in writing" since, obviously, no one wrote anything.  And,
(3) They clearly weren't made "by means of an electronic communication device" since no such device was involved.

End of story.  Even if a better (or more comprehensive) statute might cover gestures, this one doesn't.

Not every opinion involves rocket science.

Wednesday, May 31, 2017

U.S. v. Sanchez-Gomez (9th Cir. - May 31, 2017)

By a single vote, the en banc panel holds unconstitutional the Southern District of California's routine practice of shackling every single defendant who appears in court for pretrial proceedings.

Judge Kozinski's majority opinion is, in my view, masterful.  He spends a lot more time on history -- Blackstone, etc. -- than I would, but that's perhaps understandable.  More impressive is that he writes incredibly well; almost lyrically.  In a way that demonstrates that he gets it.  That there's something here that transcends prejudice in front of a jury, inability to take notes, and other assorted practical consequences engendered by shackling.  Instead, he focuses on the dignity of the proceeding:  an intangible, and yet very real and critical, component of criminal justice.  One all-too-often ignored in the modern era of routinized pleas and factory incarceration.  A sample quote from his opinion:

"The most visible and public manifestation of our criminal justice system is the courtroom. Courtrooms are palaces of justice, imbued with a majesty that reflects the gravity of proceedings designed to deprive a person of liberty or even life. A member of the public who wanders into a criminal courtroom must immediately perceive that it is a place where justice is administered with due regard to individuals whom the law presumes to be innocent. That perception cannot prevail if defendants are marched in like convicts on a chain gang. Both the defendant and the public have the right to a dignified, inspiring and open court process. Thus, innocent defendants may not be shackled at any point in the courtroom unless there is an individualized showing of need."

Super impressive.  Made even more so, perhaps, by the fact that Judge Kozinski's vote swung the result.  It was a 6-5 decision.  When (and if) the smart, iconoclastic, libertarian Judge Kozinski is eventually replaced by a knee-jerk partisan, the circuit will be far the worse for it, in my view.

As for who's on the 6 and who's on the 5, it's pretty much what you'd expect.  Though Judge Graber (distressingly) joins the dissent, alongside the usual hardcore conservatives (Ikuta, O'Scannlain, and Callahan) and Judge Silverman, went senior six days after the opinion was taken en banc and hence was eligible to be drawn.

Still, a super close -- and important -- decision.




Tuesday, May 30, 2017

Ledezma-Cosino v. Sessions (9th Cir. - May 30, 2017)

Today's en banc opinion is worth reading in its entirety.  It's about whether it's permissible for Congress to distinguish between "habitual drunkards" and others, and deport the former.  You've got four different opinions on the point, articulating four different views.  They're all great reads.

(I can shorthand the answer for you:  Yes.  So holds a supermajority of the en banc panel.)

Without slighting the importance of the opinions as a whole, or the importance of the questions presented, I just wanted to isolate one portion of one opinion.  Something from Judge Kozinski's concurrence.  Something uniquely personal, and, in that way, perhaps particularly compelling.

Judge Kozinski writes:

"Untold masses were turned away at Ellis Island—or prevented from boarding ships for America—for medical reasons, my grandfather among them. This was a misfortune for those turned away, but excluding aliens for reasons Congress believes sufficient to serve the public welfare is a nigh-unquestioned power of a sovereign nation."

You can get from even this brief quote the tenor of Judge Kozinski's concurrence, in which he articulates his view that Congress (and the President) can do pretty much whatever they want to people who want to come to the United States.

Reading that quote made me wonder:

What would Judge Kozinski's grandfather think of his grandson's concurrence?

Would he agree?  Would he be proud?  Would he think it lacks compassion?

To be clear:  I'm positive that Judge Kozinski's grandfather would be immensely proud (in general) of his grandson and his accomplishments.  I'm only wondering about his (hypothetical) reaction to this particular opinion.

And the larger contextual background of the historical American treatment of Jewish immigrants and refugees only makes the question more salient.

None of which is to imply that the perspective of Judge Kozinski's grandfather is any more (or less) valid than Judge Kozinski's.

But I nonetheless wonder what the guy would think.

(And, were I to reference my own grandfather, when I did so, I'd probably have a fleeting internal thought about what the guy would think about my perspective as I did so.)

Friday, May 26, 2017

Miller v. Ford Motor Co. (9th Cir. - May 26, 2017)

This is one of those cases in which I'm not entirely sure why the panel decides to certify the state law question to the state supreme court.

More accurately, I know why the panel wants to certify the question.  It wants to make sure that it gets the answer right.

But, at least to me, I have a pretty darn good sense of what the right answer is anyway.

The relevant Oregon statute of limitations says that a products liability suit “must be commenced before the later of . . . ten years . . . or . . . the expiration of any statute of repose for an equivalent civil action in the state in which the product was manufactured."

So what if the state in which the product was manufactured has no statute of repose?  Does that mean that there's no limitations period; i.e., you can sue whenever you want?  Even hundreds of years later?

In my mind, it's fairly clear that the answer is "No."  If there's no statute of repose, then there's no "expiration of any statute of repose".  Which in turn means that the limitations period is ten years.

Straightforward statutory interpretation.  Plus it avoids the manifest absurdity of letting someone sue centuries later.

So I'm not sure the need to get the answer right necessitates the delay necessarily engendered by certifying the question to the Oregon Supreme Court.  Seems to me we can do that on our own fairly well.  (For good measure, if the Oregon courts disagree with our conclusion -- or if the Oregon legislature does, for good measure -- they can always interpret or change the relevant statute themselves.)

My attitude might be a bit different if, as is typically the case in these "certified question" opinions, the panel had highlighted various competing approaches by the lower state courts.  But I don't see anything like that at all here.  It doesn't look like there are competing state court opinions interpreting this statute.  It's instead just a straightforward "What does this statute mean?" issue.

So, unless there's something more here, I might well just have decided this case on my own, without the need to burden another court and engendering a delay in the underlying case.

Wednesday, May 24, 2017

EEOC v. McLane Company (9th Cir. - May 24, 2017)

The EEOC wants contact information from the defendant about those female employees the company required to take a strength test (their names, social security numbers, last known address, etc.).  The district court didn't allow the EEOC to discover this information.

The Ninth Circuit reviewed the matter de novo and reversed.  But then the Supreme Court took up the case and said, no, the standard of review is abuse of discretion.

So today, the Ninth Circuit revisits the case under the new standard.

And, in perhaps no great surprise, comes to the exact same conclusion.

Some of the panel's reasoning may also be useful for anyone who wants to obtain similar contact information in analogous types of cases.  Check this out:

"[T]he pedigree information is relevant to the EEOC’s investigation. Ochoa’s charge alleges that McLane’s use of the strength test discriminates on the basis of sex. To decide whether there is any truth to that allegation, the EEOC can of course speak to Ochoa about her experience with taking the test. But the EEOC also wants to contact other McLane employees and applicants for employment who have taken the test to learn more about their experiences. Speaking with those individuals “might cast light” on the allegations against McLane -- whether positively or negatively. To take but one example, the EEOC might learn through such conversations that other female employees have been subjected to adverse employment actions after failing the test when similarly situated male employees have not. Or it might learn the opposite. Either way, the EEOC will be better able to assess whether use of the test has resulted in a pattern or practice of disparate treatment. To pursue that path, however, the EEOC must first learn the test takers’ identities and contact information, which is enough to render the pedigree information relevant to the EEOC’s investigation."

And that's not all:

"McLane contends that, given all of the other information it has produced, the EEOC cannot show that production of the pedigree information is “necessary” to complete its investigation. But the governing standard is not “necessity”; it is relevance. If the EEOC establishes that the evidence it seeks is relevant to the charge under investigation, we have no warrant to decide whether the EEOC could conduct the investigation just as well without it. The EEOC does not have to show a “particularized necessity of access, beyond a showing of mere relevance,” to obtain evidence. University of Pennsylvania v. EEOC, 493 U.S. 182, 188 (1990). Congress has not left it to employers accused of discrimination to decide what evidence may be necessary for the EEOC to complete its investigation. Id. at 193."

What's true for the EEOC is presumably true for other plaintiffs (and their counsel) as well.

A potentially useful holding.

Tuesday, May 23, 2017

In Re Marriage of Janes (Cal. Ct. App. - May 23, 2017)

I think this is a darn good -- and equitable -- opinion by Justice Miller.  The separation agreement was signed in 2010 that says that Wife was entitled to $112,000 of Husband's 401(k) account.  That in turn means that Wife's entitled to that amount in 2014, plus whatever gains (or losses) transpired on those funds.  (As it turns out, gains.)  Because, as of 2010, it was her money.

I also thought the Court of Appeal was right that the relevant date was (probably) the date the agreement was signed, not the date of separation.  That too follows from the analysis.

So good job of the trial court changing its mind on the merits from its initial view.  And good job of the Court of Appeal affirming the correct part of what transpired below (the gains) but reversing the wrong part (the date).

I'd only make one change in the opinion, and it's an admittedly minor one.  Page 10, first paragraph:  "The instant case is distinguishable from Thorne. Wife is seeking the same amount of principle that was awarded to her on April 19—$113,392 of the 401(k) account. In Thorne, the wife was seeking to change the amount of principle she received."

I think those two words should be "principal", not -le.

But otherwise great.

Monday, May 22, 2017

U.S. v. Loucious (9th Cir. - Feb. 7, 2017)

Here's another example of that "liberal" Ninth Circuit.

The district court suppresses a defendant's statements because it holds that the police didn't properly advise the defendant of his Miranda rights.

The Ninth Circuit reverses.  The warnings were close enough.

And this ain't some hard-core conservative-stacked panel, either.  The panel consists of Judges Gould, Clifton and Watford.

Friday, May 19, 2017

Olivas v. State of Nevada (9th Cir. - May 19, 2017)

There shouldn't be any surprise that today's opinion by the Ninth Circuit is so short.  Or that it did not require oral argument.  Or that it was published a mere nine days after the matter was submitted.  Or that the panel unanimously reversed.

The only surprise is how the district court could have possibly gotten the matter so wrong.

Of course the Prison Litigation Reform Act, which imposes heightened pleading requirements on prisoners, only applies to actual prisoners -- i.e., people incarcerated at the time.  Sure, there's no definition of the term "prisoner".  But when the statute says the court “shall review . . . a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity," that means you review it if the prisoner's actually been a prisoner.  If the person has been released from prison -- ten years ago or ten days ago -- they're not subject to this rule.

So if they file a lawsuit after they're released from prison, they're like the rest of us.  With an unencumbered right to access to the judiciary.

The appeal is easy not only because the panel's so obviously right on the merits, but also because the district court was clearly being super harsh here.  Plaintiff got shot by a guard with a shotgun to the face, and among other things, lost an eye.  Shockingly, he thought that might constitute excessive force.  But the district court dismissed the complaint at the pleading stage.

Now, maybe, as a factual matter, Mr. Olivas was shot for a good reason.  Maybe he was participating in the fight.  Maybe the guard's an incredibly bad shot.  Those are things we'll eventually have to find out.

But that's neither plaintiff's version of the story, nor what's in his pro se pleading.  So the case pretty clearly gets to go forward.  Or, as the panel says in the footnote at the end of the opinion, albeit in totally extraneous dicta:  "We note that it appears the rigorous screening here did not take all factual allegations as true and weighed imagined countervailing evidence. And, even if it had been proper to conclude that the Complaint failed to state a claim, leave to amend should be freely given. See Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051–52 (9th Cir. 2003)."

Which gives a hint at the attitude of both the panel towards the district court's ruling as well as the district court's attitude towards the plaintiff.


Kinney v. Clark (Cal. Ct. App. - May 17, 2017)

Back in 2011, I wrote this, in which I simultaneously expressed my appreciation for the merits of the Court of Appeal's opinion as well as my utter shock that the Bar had done utterly nothing about the underlying attorney, Charles Kinney.  I said:

"But as for the Bar:  What the hell?!  The Court of Appeal discusses at great length the long and troubling history of Charles Kinney, who started his vexatious serious of litigations in 2006.  He was declared a vexatious litigant in 2008.  He's subject to a prefiling order, has been sanctioned for tens of thousands of dollars, etc. etc.

So he's certainly been disbarred at this point, right?

Nope.  Not at all.  Hasn't even been subjected to an iota of discipline by the California Bar.  Still free to practice law on behalf of clients and abuse the legal system accordingly."


It's now 2017.  This opinion recounts yet another appeal by Mr. McKinney.  One aptly described by the Court of Appeal as follows:  "This appeal, like the numerous appeals before, lacks merit. We grant Clark’s motion to dismiss the appeal because it is frivolous."

But at least the Bar has now caught up with the times.  Albeit half a decade after even a casual observer like me was stunned that Mr. McKinney hadn't yet been disbarred.  As the Court of Appeal gleefully (at least for me) explains in a footnote:

"Kinney is no longer licensed by the State Bar of California. In June 2016, he was disbarred for his conduct in the Fernwood property litigation as well as his conduct in representing clients in another residential property dispute involving an easement. On the court’s own motion, we take judicial notice of the opinion and order of the State Bar of California Review Department, filed on December 12, 2014 in case numbers 09-O-18100 and 09-O-18750, setting forth the reasons for the recommendation of disbarment (Kinney’s conduct in the property dispute litigation)."

Finally.


Thursday, May 18, 2017

People v. Cervantes (Cal. Ct. App. - May 18, 2017)

"Defendant] was caught transporting (among other drugs) more than 3,600 doses of methamphetamine with a street value between $111,000 and $222,000. . . . [D]espite his October 18 arrest and release on bail, he was arrested a mere two days later transporting 342 dosage units of methamphetamine with an estimated street value between approximately $10,000 and $20,000."

Yeah.  Probably not the smartest decision in the world to mule another batch of drugs two days after you were caught and arrested for transporting the first batch of drugs.  Especially when you're doing so in a car with expired registration tags, illegally tinted windows, etc.  That sort of makes you an easy target for a police traffic stop and subsequent search of your vehicle.

Gillotti v. Stewart (Cal. Ct. App. - May 18, 2017)

The Court of Appeal publishes this opinion today, which begins by saying:

"In this construction defect lawsuit by a homeowner, the jury found the general contractor -- defendant Estate of William G. Davidson, formerly Davidson Construction (Davidson) -- negligent and liable for some, but not all, alleged violations of building standards under the Right to Repair Act, Civil Code section 895, et seq. (the Act). The estate is a proper party where the decedent was protected by insurance. (Prob. Code, § 550.) (Unless otherwise noted, statutory references that follow are to the Civil Code.) The estate is a proper party where the decedent was protected by insurance. (Prob. Code, § 550.)."

Wait.  I'm unclear.  Who's the proper party where the decedent was protected by the insurance?  The estate?  Please tell me again.

The same repetition was in the unpublished opinion as well.

But let me just say something you shouldn't forget.

The estate is a proper party where the decedent was protected by insurance.




Wednesday, May 17, 2017

Davies v. Benov (9th Cir. - May 17, 2017)

The Ninth Circuit says today:

"We've got some good news, and we've got some bad news.  Bad news first.  You filed a habeas petition over your 5-year prison sentence for drug violations, claiming that an appropriations rider passed by Congress prevents the U.S. from spending money to incarcerate you for growing medical marijuana in compliance with California law.  The district court denied your petition, and we're not letting you out either.  You waived your right to any challenge as part of your plea deal.  Shucks for you.

Here's the good news, though.  You're almost done with your sentence anyway.  You're currently scheduled to be released on August 9, 2017.  That's less than three months away.  So your loss today isn't really a huge one.  And, just to help you, we tried to decide this thing as quickly as we could, including issuing our published opinion only 62 days after oral argument.  Trust us:  It usually takes much more time than that.  So we at least tried to do you a solid there.  And maybe, for some future person who didn't waive his right to challenge his sentence, we'll actually decide whether you're right on the merits.

So sorry about the bad news, but take solace in the fact that you're a free man in 90 days regardless."

The actual opinion isn't as forthright, but I think that's a positive spin on the thing that's not too far off from reality.

Tuesday, May 16, 2017

People v. Hudson (Cal. Ct. App. - May 16, 2017)

When I think of a carjacking, I think of someone putting a gun to someone's head, or throwing them out of the car, or doing stuff like that and then taking their vehicle.  A pretty serious crime.

When I think of vehicle theft, I think of someone taking a car.  Maybe as the guy watches, maybe as he doesn't.  A serious crime as well, but less serious.

The key difference between these two things is "force or fear".  That's what distinguishes the two crimes.  If you're taking the car by force or fear from the other person, it's carjacking.  Otherwise it's merely theft/robbery/whatever.

Imagine that you get in a car (that's not yours) and start driving it away.  Then, as you're slowly driving the thing away, someone sees you, and starts banging on the hood, or the window, or whatever, telling you to stop.  But you don't.

You'd think that the relevant force that was applied there was the other guy's -- the guy trying to stop you.  So that'd still be theft, but not carjacking, since it was someone else's doing.

But, if so, you'd be wrong, according to the Court of Appeal.  You took the car, and did exactly what you needed to (i.e., rolled the thing along) to take it, and no more.  But once someone else grabs the car, now it's carjacking if you don't immediately stop.

Not what I would have thought carjacking entails.

But definitely the law in California now.




People v. Edwards (Cal. Ct. App. - May 16, 2017)

Oh my.

"At midday on May 7, 2012, defendant attacked Shannon Collins, a woman whom he did not know, as she was walking on Broadway in Santa Cruz. He stabbed her neck and torso 12 times. While Collins bled to death, defendant dropped his jacket and his knife near her body. He nonchalantly walked away and threw his blood-stained shirt into a garbage can. Shortly thereafter, defendant was arrested a few blocks away from the crime scene. Defendant had blood spatter on his hands, head, and shoes.

Defendant was calm and cooperative during the in-field showups, which occurred about an hour after the offense. Defendant was then transported to a hospital for evidence collection procedures during which he was also cooperative. About one and a half hours later, he was transported to the police station where he coherently provided biographical data to the police officers."

Why?  Why would someone possibly do this?

"Defendant presented evidence of his extensive history of mental illness. His symptoms included hallucinations, paranoid thoughts, extreme mood fluctuations, and chronically aggressive behavior. Defendant had been given various diagnoses, including schizoaffective disorder bipolar type, schizophrenia, a psychotic disorder not otherwise specified, antisocial personality disorder, and polysubstance abuse. Defendant had engaged in 15 or 16 incidents of violent behavior between 1991 and 2002, many of which were related to his mental illness. Defendant was involuntarily medicated eight times between 1994 and 2011. He met the criteria for the mentally disordered offender program in 1999, 2000, 2002, and 2011. Defendant had no insight into his mental illness and he frequently did not take his medications."

Oh.  I guess now I understand.  Though how incredibly depressing all around.

P.S. - "Defendant believed that if he killed someone, he would be safe and would join the Illuminati cults. Defendant also claimed that the skeletons told him that if he killed someone, he would be free."  Or maybe "Defendant told the police that he had planned to kill a woman because he was frustrated that women did not give him enough attention. He explained that “corrupt” men, men who weighed 300 pounds, and drug dealers received attention from women, but he did not. Defendant stated that he could not take it anymore, and he decided to kill a woman."  Depending on who what version you believe.

Monday, May 15, 2017

U.S. v. Olson (9th Cir. - May 15, 2017)

Judge Fisher, joined by Judge Paez, wants to -- and does -- decide both the particular case at hand as well as the underlying legal issue.

Judge Hurwitz isn't totally irate, but thinks that may go too far.  Saying:

"This case does not turn on whether the government must prove in a misprision prosecution under 18 U.S.C. § 4 that the defendant knew the underlying offense was a felony. As the majority correctly concludes, the evidence at trial sufficed for a misprision conviction even if the government bears that burden of proof.

The majority’s interpretation of the statute may be correct. But, I would leave such analysis for another day, in a case in which it matters to the outcome. See Whitehouse v. Ill. Cent. R. Co., 349 U.S. 366, 372–73 (1955) (“These are perplexing questions. Their difficulty admonishes us to observe the wise limitations on our function and to confine ourselves to deciding only what is necessary to the disposition of the immediate case.”); PDK Labs. Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in part and concurring in the judgment) (noting “the cardinal principle of judicial restraint” that “if it is not necessary to decide more, it is necessary not to decide more”)."

Judge Hurwitz has a point.  Though so does Judge Fisher.  Sometimes it's nice to actually decide issues rather than let them linger.

Both positions are reasonable, in my view.

Friday, May 12, 2017

In Re A.V. (Cal. Ct. App. - May 12, 2017)

Opinions from the Court of Appeal sometimes give you a glimpse into the lives of the relevant individuals at issue.  Including types of lives that you might not otherwise be extraordinarily familiar with in your immediate surroundings.  And you have to try to piece together what's going on.

Sometimes that's fairly easy.  Sometimes it's not.

For example, today, I'm not totally sure what I think is going on with the juvenile here.  Sometimes I think he's shaping up.  Sometimes I think he's not.

I probably end with the conclusion that, maybe, he's on the edge.  And that my intuitions here are not especially well-founded.

Though, if he's on the edge, truly, I hope for the best for him.

Here's his initial scoop:

"In September 2014, the Sonoma County District Attorney filed a section 602 wardship petition charging minor A.V., age 15, with felony possession of marijuana for sale and misdemeanor possession of concentrated cannabis. (Health & Saf. Code, §§ 11359, 11357, subd. (a).) Three juveniles were caught with hash oil and an electronic vapor cigarette on their high school campus. One of the juveniles told the police he bought them from A.V. When questioned by police, A.V. admitted he sold the items to his classmate. He later admitted to probation he used marijuana regularly."

You read stuff like that all the time.  Not a good sign.  But not unusual.  A 15-year old doing drugs and getting probation.

"A.V. admitted the truth of the allegations with the understanding the court would consider placing him on deferred entry of judgment (DEJ) probation. At disposition, the court placed A.V. on DEJ probation on the conditions, among others, that he complete 150 hours of community service work, write a 1,000-word essay about the effects of marijuana on the adolescent brain, refrain from using or possessing alcohol or drugs, particularly marijuana, and participate in and complete outpatient substance abuse counseling.

On March 2, 2015, probation filed a report indicating that A.V. was regularly attending school, passing all of his classes, had zero disciplinary referrals, was actively working towards completion of his community service hours and was attending an alcohol and drug offender class. He had tested negative for intoxicating substances since his review hearing in December 2014."

Hey now!  All right.  Well done.  Maybe the intervention here made a difference.  Seems like he's cleanup up his act.

"Then, on March 4 and 17, probation filed notices of noncompliance, alleging A.V. violated his DEJ probation by using marijuana and cocaine. On March 2, he tested positive for THC and cocaine. He also tested positive for THC on March 18. On April 1, 2015, probation reported that A.V. admitted he had smoked some marijuana he had acquired before he was placed on probation, because he was depressed about a medical diagnosis he had received. He was unsure why he tested positive for cocaine, because he did not use cocaine."

Aw, man!  Now he's backsliding.  And may well be adding cocaine to the mix.  That's not good at all.  Not at all what we want to see.  All that progress for naught.

"On April 9, 2015, the court vacated deferred entry of judgment, imposed judgment, declared A.V. a ward of the court, and placed him on juvenile probation on the same and additional conditions of probation, including fines and DNA testing. . . . On April 20, 2015, the probation department filed a notice of probation violation (§ 777) alleging that A.V. used marijuana and violated his 7:00 p.m. curfew and the terms of his community detention, by testing positive for marijuana on April 9, 2015, and leaving his house in the middle of the night while on community detention."

Jeeze.  Now I'm feeling super bad about where this is going.  Seen it before.  Too many times.  Sad to see the promise I had hoped from the outset be wasted.

"On October 19, 2015, the probation department filed a notice of probation violation (§ 777) alleging that A.V. used marijuana on October 12 and was cited by police for possessing marijuana on school grounds on October 16. On October 20, 2015, A.V. admitted he violated his probation."

Yep.  So much down the wrong path that, even with all of this, he's even taking his weed to school.

Ugh.

"On November 18, 2015, probation reported that since October 20, 2015, A.V. had followed his court-ordered conditions of probation and abided by his parents’ directives. He was helpful around the house and respectful to his parents. He was a junior in high school, was passing all of his classes, and did not have any tardies, unexcused absences, or behavioral referrals. He had completed Interactive Journaling, and spent most of his summer break successfully completing 150 hours of community service. He had competed three weekends of weekend work crew and was attending drug and alcohol counseling once a week. He had submitted two chemical tests since October 19; both showed diminishing levels of THC."

Seriously?!  Dude!  That's what we want to see!  And I'm not the only one, either.  Sayeth the judge:  "All right. [A.], this is the kind of report we want to see. This is great. I’m glad to see you’re doing so well at school, getting tested, testing clean. You’ve done your community service and everything else we’ve thrown at you. Now we want a period of no violations.” “If you continue the good behavior you had from the last VOP to this date going forward, I think you will end up with a dismissal in February. But you have to show us you can do it for more than a couple months.”

Spot on.  Fingers crossed!

"In February 2016, probation reported on A.V.’s progress. A.V. had completed all of his conditions of probation, including 150 hours of community service, Interactive Journaling, and substance abuse counseling. A.V. spent his free time with his girlfriend and applying for jobs. His mother described his behavior at home as “exceptional.” Since A.V.’s last hearing in November 2015, he had submitted five chemical tests, all of them negative for intoxicating substances. He had no disciplinary issues or unexcused absences at school."

Yes!  Finally.  It's catching.  Maybe all this is actually working.  Belatedly.  But maybe there's hope we're actually -- actually -- making a difference.

"However, his grades had suffered. He had one A, three Ds and was failing English and algebra. On February 19, 2016, the court expressed overall satisfaction with the report but continued the matter to April for evidence of improved grades.  On April 25, 2016, probation reported that A.V. had brought his F in English up to a D. He now had one C, four Ds and an F in algebra. A.V. reported he was working toward improving his grades so he could return to his high school of choice in the fall. He had no disciplinary issues or unexcused absences. Mother continued to find A.V. well behaved and helpful at home. He walked the family dog almost daily, cleaned the pool, and worked from 5:00 p.m. to 10:00 p.m. as a dishwasher at a local restaurant several nights a week. Since the last hearing in February, A.V. had submitted six more chemical tests, all negative for intoxicating substances. The probation department recommended “that all proceedings be dismissed” because A.V. had “completed all of his Court ordered obligations, has continued to submit chemical tests negative for intoxicating substances, and is now actively employed.”"

And that's how it ends.

The performance is spotty, but you have hope.  The grades make you worried, but again, you have hope.

Yet I don't feel like the fight is over here.  I honestly don't know how this eventually turns out.

In particular, whether we ultimately see A.V., as an adult, in some future addition of the California Appellate Report.

Let's hope not.  Let's hope for the best.

Thursday, May 11, 2017

U.S. v. Brugnara (9th Cir. - May 11, 2017)

Mail fraud and wire fraud are bad enough.  But then, while you're defending yourself, to add escape and multiple contempt citations to your charge count?  Seems like adding fuel to the fire.

At least it makes things interesting.

Not that the trial wasn't interesting enough already.  This is not another bank robbery or Ponzi scheme or what have you.  It's rather it's own kind of fraud.  As Judge Wallace explains:

"The events of this case trace back to March 2014, when Luke Brugnara, a former San Francisco real estate tycoon with a fondness for high-end art, agreed to purchase several million dollars’ worth of paintings and other works from art dealer Rose Long for display in his museum. There were two problems: Brugnara had neither the means to pay for the works nor a museum in which to place them."

Uh, yeah.  Those are problems, all right.

Lots of other neat details in the opinion about the underlying fraud.  The trial was also a hoot.  Mr. Brugnara was out of control as he defended himself at trial.  But, ironically, he had a fellow traveler in one of the jurors, who seemed -- before he was dismissed -- to believe the exact sorts of things that Mr. Burgnara believed.  Complete with dueling references to Nazis, etc.

Check it out.

Wednesday, May 10, 2017

O'Neil-Rosales v. Citibank (Cal. Ct. App. - May 10, 2017)

No Ninth Circuit opinions today, and only one Court of Appeal opinion.

Fortunately, you can get the gist of today's opinion merely by quoting one of its footnotes:

"Plaintiff argued below, and continues to argue on appeal, that Rouse v. Law Offices of Rory Clark (S.D.Cal. 2006) 465 F.Supp.2d 1031 (Rouse) compels a different result—i.e., that “the recording of a lien against property based on a default judgment tendered to the County Recorder’s Office is a ministerial function falling outside the ‘any other official proceeding authorized by law’ contemplated in Section 425.16(e).” (Id. at p. 1038.) But, while the act by a county recorder of recording a properly tendered abstract of judgment would appear to be a ministerial function, it is less clear that the act by a judgment creditor of tendering the abstract to the county recorder’s office could be considered ministerial. In any case, we are not bound to follow Rouse (see Howard Contracting v. G.A. MacDonald Const. Co. (1998) 71 Cal.App.4th 38, 52 [federal decisions neither binding nor controlling on matters of state law]), but are bound to follow Rusheen v. Cohen, supra, 37 Cal.4th 1048 (see Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455-456 [decisions of the California Supreme Court are binding upon and must be followed by all the state courts of California].)."

Yeah.  That about summarizes it.  It's a lien -- or what appears to be a lien, anyway -- that arguably is abusive.  But it's connected in some way with the result of a prior litigation, so an anti-SLAPP motion can be filed and, as here, result in a dismissal and attorney fee award.

There you have it.

(It's actually a neat little trick.  Get a judgment against Person X.  File a lien against Person X with respect to a Piece of Property that Person X used to own -- but hasn't owned for years -- and that is instead owned by Person Y.  When Person Y seeks to refinance her loan on the Property, the lender may well require Person Y to pay off the lien -- even though it's not against her -- or file a lawsuit to declare the lien invalid.  Filing a lawsuit may well be even more expensive than paying the lien (say, one for $2,000 or so, like here).  So Person Y ends up paying the judgment even though it's not one against her.  Abusive.  But successful, apparently.  Especially if Person Y can't sue the person who filed the lien without both losing on the merits as well as having to pay the other side's fees.  Neat.)

Tuesday, May 09, 2017

In Re Ford Motor Warranty Cases (Cal. Ct. App. - May 8, 2017)

I get it.  If you coordinate a certain series of cases, then add-on cases based on the same basic facts generally need to be coordinated as well.

And that's true even if the judge who's doing the coordination thinks that coordination doesn't make any sense.

Different roles  Different times.  Different decisions.

Writ of mandate granted.

Monday, May 08, 2017

Cameranesi v. Department of Defense (9th Cir. - May 8, 2017)

From today's order:

"Judge Watford voted to grant the petition for rehearing en banc. The petition for rehearing en banc was circulated to the judges of the court, and no judge requested a vote for en banc consideration."

Which I always find funny.  Essentially, Judge Watford voted to take the case en banc, yet the total number of judges voting to take the case en banc was exactly zero.

I know, I know.  There's a difference between "voting to grant a petition for rehearing en banc," on the one hand, and "voting to take the case en banc."  Technically, there was no actual vote, since no one requested a vote.

It's a sign that you know you're in the minority.  You vote for X to happen, but no one else even wants a vote to see if X should happen.  At that point, you give up.  

You're clearly in the minority if you say "Yes" and everyone else says "Meh".

Thursday, May 04, 2017

Clary v. City of Crescent City (Cal. Ct. App. - May 1, 2017)

John Diehl lives in Washington State but owns eight vacant lots in Crescent City.  He doesn't much take care of them, and in a lengthy process, the City eventually made a finding that the overgrown weeds and rubbish on his lots constituted a public nuisance that required abatement and, when Diehl refused to abate the nuisance, placed a lien on his lots for the City‘s abatement costs.

Diehl fought this process tooth and nail, all the way to the Court of Appeal.  With long, discursive briefs defending his alleged right "to allow natural vegetation to flourish on my properties until they are sold for development" and to provide "shelter and foraging habitat for birds and other wildlife" and "replacing carbon dioxide with oxygen."

But no one else saw it that way.  Including the Court of Appeal.  All of these institutions concluded that the blackberry bushes, broom plants, other weedy vegetation, abundant trash and illegally dumped material on these lots were better characterized as "a blight, a habitat for rats and vermin, and an attractive [pun intended, I presume] nuisance."

So Diehl fights what he thinks is a good fight.  But loses.

Though he at least gets a published opinion out of it.  Albeit posthumously.  "Mr. Diehl passed away after the briefing was completed in this appeal," after representing himself both in the Court of Appeal as well as below.

At least he went out fighting, eh?


Dunson v. Cordis Corp. (9th Cir. - April 14, 2017)

I loved reading this opinion.  Crisp, clean, and entirely right.

And about a civil procedure issue too; namely, the relationship between consolidation in state court and removal of "mass actions" under CAFA.

Judge Watford brings a smile to my face.

Wednesday, May 03, 2017

Friedman v. AARP (9th Cir. - May 3, 2017)

If it plausibly looks like a solicitation (or commission), quacks like a solicitation (or commission), and walks like a solicitation (or commission), then, by God, it's a solicitation (or commission).

Or at least that's true at the 12(b)(6) stage of the game.

So holds the Ninth Circuit.  In a huge putative class action in which plaintiffs allege that AARP, the nation's largest (by far) Medigap insurance "provider," actually "solicits" or receives a "commission" (of 4.95%) on the policies it markets.  Notwithstanding not being licensed to do so.

There are still several hoops the lawsuit has to jump through.  The filed rate doctrine, summary judgment, etc.

But the suit was dead as of yesterday.  As of today, it lives.

Tuesday, May 02, 2017

People v. International Fidelity Ins. Co. (Cal. Ct. App. - May 2, 2017)

I'm not a monster fan of the California Style Manual.  Though I readily concede that I don't have a good reason for that distaste.  I'm just used to the Bluebook, which is what's generally used both in federal court as well as in academia (as well as in numerous other state courts).  So having to navigate something different imposes a (very slight) degree of pain.

So when I read this opinion this afternoon, I wasn't sure if my critique was with the California Style Manual or elsewhere.  The relevant portion of which reads:

"Rather, Fidelity relied on inapposite out-of-state authority, namely: State v. Sedam (2005) 34 Kan.App.2d 624 [122 P.3d 829] (Kansas); United States v. King (7th Cir. 2003) 349 F.3d 964 (King) and United States v. Gambino (1992) 809 F.Supp. 1048 (Gambino)."

Okay, I understood that the first case was from Kansas, and the second case was from the Seventh Circuit.  Both, obviously, are outside California.

But what about Gambino?  I get that it's a federal case, so not necessarily binding on the Court of Appeal. Nonetheless, I wanted to know where it was from.  Is this a federal case in California, or elsewhere?  The citation didn't tell me.  Neither in this place nor in the other portions of the opinion in which that case was mentioned.

If that was because the California Style Manual doesn't require a reference to the particular district court, well, so much the worse for the Manual.  Another reason to dislike it.

But then I looked it up.  And, as I suspected, the Style Manual does indeed say to include which district court in the citation.  So I resorted to Mr. Google.  Turns out it's the S.D.N.Y.

So the omission was Justice Nares', not the Manual.

Which is not to say how one cites a case is the most pressing issue in the universe.  Far from it.

But still.  Include the "S.D.N.Y."

Julian v. Mission Community Hospital (Cal. Ct. App. - May 2, 2017)

This is a lengthy opinion, especially for state court.  Even if you discount the fact that the margins are wide.  Fifty-eight single-ish spaced pages.

It's about a middle school teacher in the Los Angeles area who has problems and who ultimately gets placed on a 72-hour psych hold as a result of a pretty serious disturbance in the workplace.

Interesting facts.  Long, long legal analysis.

Monday, May 01, 2017

U.S. v. Velazquez (9th Cir. - May 1, 2017)

Guadalupe Velazquez is looking at a ton of time in prison.  A ton.  She's caught up in a huge drug conspiracy with weapons, etc.

That's no fun for anyone.  Least of all for her.

She has an attorney, but she ends up very -- very -- frustrated with him.  The government gives her a plea deal, but she doesn't want to accept it.  Because it's serious time.  And she doesn't feel like she has a good (or good enough) attorney.

The district court and the magistrate judge do what you often see in these types of cases.  They push Velazquez to accept her lawyer and take the deal.  Not hard.  Not relentlessly.  Softly.  But for those of us who've seen this happen -- in person and in court -- time and time again, it's not difficult to see the reality of what's going down.

Which is not to say it's necessarily reversible error.  And, IMHO, it's definitely not mean-spirited.  All involved -- from the lawyer on up -- sees someone who's her own worst enemy.  Who's going to lose a favorable plea deal as a result of her own personality and/or inability to deal with things as they are.

You see that time and time again.  Both on the criminal side as well as on the civil side.  People are people.  Litigation is stressful.  Especially when you're talking about having to admit a crime and then go to prison for a long time.  Even the most sophisticated of us might not make wise choices in such a context.  And criminal defendants are often far from exceptionally sophisticated.

So everyone tries to help her out.  And, ultimately, they get her to take the deal.  She's then sentenced to ten years in prison.

And promptly appeals.

The Ninth Circuit ultimately reverses and allows her to withdraw her plea.  When you read the opinion, you can see why.  She definitely had a bad relationship with her attorney.  For whatever reason (and, to be clear, I'm not at all necessarily blaming the lawyer).  There was time to remedy this situation, and the district court erred by not doing so.

Judge Kozinski writes a brief concurrence.  The first two sentences of which are definitely right.  "I join Judge Friedland’s thorough opinion without reservation. I write only to note that the judges below acted with what they believed to be Velazquez’s best interest at heart."  I'm totally sure that's correct.  I have zero doubt that everyone was trying to stop Ms. Velazquez from metaphorically shooting herself in the head.

Ditto for the next sentence:  "Even now, withdrawing from the plea may not be wise, but it’s Velazquez’s choice to make."  Absolutely right.

But the last sentence of Judge Kozinski's concurrence strikes me as somewhat strange:  "I hope and trust that the government will accept her choice with generosity and compassion."

Hmmmm.

Now, that's definitely a nice thing to say.  And it's sweet to see a judge try to put a thumb on the scale, ever so slightly, to try to convince the government to do what's right.  A little moral suasion is often a good thing.  No threat here.  Just an entreaty to do what's right.

Yet I wonder what motivated that line?

I mean, sure, at one level, I absolutely hope that the government treats Ms. Velazquez with generosity and compassion.  I hope that every criminal defendant receives such treatment.  From Ms. Velazquez on down.

But I wonder why Judge Kozinski singles out Ms. Velazquez.  The government has already treated her reasonably well, I imagine (at least from its perspective).  She's basically caught dead to rights and is looking at 40 years.  There's little chance she's actually going to get off at trial.  But they nonetheless offer her a deal where she might end up serving five and ends up serving ten.

Now, ten years is a lot of time.  But, at least under the guidelines, she's looking at way more.  But the government offers her a break in return for making things easier on it.  A big break.

To which Ms. Velazquez responds by making things complicated.  Very complicated.  And if she elects to withdraw her plea at this point, super complicated.

Okay.  Yep.  That's definitely her choice to make.  Her life, her call.

But at the point at which the government has to go to trial (or even defend an appeal), that's a hassle.  We understandably tend not to give people as good of deals at that point.

So if Ms. Velazquez elects, on remand, to obtain the "benefits" of her victory, and withdraws her plea and forces a trial, I'm just not entirely sure what screams out about this case that would make me want to remind the government that it's a great thing to go easy.  To be generous and compassionate.

Again:  Yes, they should do that.  Absolutely.  Don't insist upon 40 years just because you can.  That's not justice.

Similarly, don't retaliate.  Don't get angry and push for the maximum just because she made you go to trial (and beat you in the Ninth Circuit).  That wouldn't be right.

And, yes, this may well be one of those cases in which the underlying laws are incredibly, incredibly harsh.  Take that into account.

But understand that you get a plea deal in part because you're making things easier for everyone.  If you don't do that, don't expect the level of "generosity and compassion" you received before.

We should still treat you as a person.  We should still love you.  We should still seek justice, and only such punishment as would be just.

But you're going to serve more time.  I'm sorry.  That's just the way things work.

Even if that's something that's incredibly hard for you to internalize when you're stuck in an incredibly stressful situation with an attorney you don't respect and are looking at spending a decade in prison.

Friday, April 28, 2017

In Re R.S. and I.V. (Cal. Ct. App. - April 28, 2017)

Two opinions this morning.  Both involving juveniles.  Both from San Diego.  Both involving kids for whom, sadly, I feel this opinion may not be their only lifetime involvement with the criminal justice system.

Here's R.S.:

"On April 7, 2016, police officers detained R.S. at Crawford High School in response to a report that a nonstudent juvenile male was trespassing on campus. The officers took R.S. to the school's main office and questioned him. R.S. denied being on school grounds. He also repeatedly refused to identify himself and was "very loud and rude."

Because R.S. did not cooperate with the officers, the officers attempted to place him under arrest. As they did, R.S. "tensed up and clenched his fists and attempted to pull away." He yelled, "Don't fucking touch me Blood, get your hands off me!" R.S. struggled with the officers as they tried to subdue him. Eventually, the officers handcuffed R.S. One of the officers suffered a hairline fracture to his thumb during the struggle. School administrators reported that, before the officers arrived, R.S. had identified himself by a fake name and falsely claimed that he was a student at the school.

About two months later, R.S. and a juvenile associate were inside a Starbucks at 67th Street and El Cajon Boulevard, watching a 70-year-old man as he left the coffee shop. The man was carrying an iPhone 6. R.S. and his associate nodded their heads in the man's direction and then followed him outside "as if they were stalking him." R.S. and his associate then struck the man from behind in the back of his head. R.S. hit the man, using a "modified 'superman' punch" whereby R.S. jumped up and brought his fist down onto the man's head. The punch knocked the man to the ground, rendering him unconscious. . . . Police caught R.S. later that day. At the police station, R.S. at first denied punching the victim in the head, but later admitted to striking him. He conceded that he attacked the victim to steal his iPhone."

Less violent, but also troubling, is I.V.:

"In May 2016, 15-year-old I.V. became angry with his mother when she would not give him shopping money. He went into his bedroom in his grandfather's home, punched and kicked the walls, and threatened his grandfather when his grandfather tried to intervene. I.V.'s mother called the police, who arrived to find a broken lock on I.V.'s bedroom door, a damaged bed frame, holes in the wall, and damaged furniture. . . .

In late June, the probation department submitted a social study evaluating I.V. for the disposition hearing. The social study noted I.V.'s history of damaging property when upset and his mother's tendency to downplay his volatile behavior. . . . I.V. received failing grades in all of his classes in his first semester of high school, and he had a history of truancy. He was suspended for possessing marijuana and was subsequently expelled from his high school."

How depressing to have a fairly clear vision of where these children will likely end up.  Despite a wide variety of social efforts to make things turn out a different way.