Hopefully this advice won't have practical significance for the vast majority of readers here. Still, there's a lesson here from today's opinion, and it's a meaningful one for those to whom it applies. So here it is:
Don't tell your therapist that you've ever viewed child pornography. If you do, they'll be required to report you to the authorities, under penalty of losing their license and/or going to prison if they don't.
Admittedly, in a 4-3 opinion, the California Supreme Court holds that it's possible that this statute might violate the state constitutional right to privacy, at least as applied to those patients who are getting treatment and aren't likely to do it again. But the dissent thinks otherwise. And the Court -- weary of being perceived as coddling child molesters -- makes clear that it's just saying that the trial court shouldn't have granted a demurrer, and instead should take evidence about whether the statute indeed constitutionally advances a legitimate state interest as applied to that group of patients.
Nonetheless, as a practical matter, at least while the lawsuit's pending -- which practically means, for years -- unless you want to be turned in to the police, you'll have to be content with simply telling your doctor that you've done "bad things." That's not going to be very helpful in getting you treated, of course. But at least you won't go to prison for the rest of your life.
Thursday, December 26, 2019
Carter v. Davis (9th Cir. - Dec. 26, 2019)
Reading this will definitely not keep you in holiday spirits.
It's got something for everyone to dislike. A defendant who rapes and kills multiple people over a three-week crime spree, and for whom it's totally clear why multiple juries sentenced him to death. Crimes that happen in 1984 yet the resulting legal proceedings take 35 years to reach the Ninth Circuit on habeas, notwithstanding the fact that there are no intermediate appellate reversals or grants of relief: just your "standard" delay. And a massive investment of resources that results in (1) two lengthy opinions by the California Supreme Court (in 2005 and 2006); (2) a 146-page opinion by the Central District on habeas, and (3) a 318-page opinion by the Southern District on habeas (in 2013).
And now, in 2019, another lengthy opinion. Again denying relief. All this to affirm a penalty that will never be imposed.
It's obvious that everyone's taking the issue seriously. So that's good. But still. Those who support the death penalty will be irate that it's taken 35 years and counting and won't actually be imposed. Those who oppose the death penalty will be irate that we sentence people to be killed and keep them on death row (with its corresponding limitations) forever. Those who don't feel strongly either way will be irate that we're pouring so much money down the drain for no reason.
So something for everyone to dislike.
It's got something for everyone to dislike. A defendant who rapes and kills multiple people over a three-week crime spree, and for whom it's totally clear why multiple juries sentenced him to death. Crimes that happen in 1984 yet the resulting legal proceedings take 35 years to reach the Ninth Circuit on habeas, notwithstanding the fact that there are no intermediate appellate reversals or grants of relief: just your "standard" delay. And a massive investment of resources that results in (1) two lengthy opinions by the California Supreme Court (in 2005 and 2006); (2) a 146-page opinion by the Central District on habeas, and (3) a 318-page opinion by the Southern District on habeas (in 2013).
And now, in 2019, another lengthy opinion. Again denying relief. All this to affirm a penalty that will never be imposed.
It's obvious that everyone's taking the issue seriously. So that's good. But still. Those who support the death penalty will be irate that it's taken 35 years and counting and won't actually be imposed. Those who oppose the death penalty will be irate that we sentence people to be killed and keep them on death row (with its corresponding limitations) forever. Those who don't feel strongly either way will be irate that we're pouring so much money down the drain for no reason.
So something for everyone to dislike.
Friday, December 20, 2019
City of Desert Hot Springs v. Valenti (Cal. Ct. App. - Dec. 19, 2019)
I'm a little befuddled by the last line of this opinion.
There's a motel in the City of Desert Hot Springs that's an alleged nuisance, so the City files a suit against its owner to abate the thing. There are a couple of different defendants (one with a lien, etc.), but all of them get dismissed fairly quickly, which left only the owner of the motel as a defendant. And as far as I can tell from the docket and the Court of Appeal's opinion, the owner (Irene Valenti) never gets a lawyer, never appears in the lawsuit; basically, does nothing at all. Which is consistent, I suspect, with letting the dilapidated motel fall into total disrepair. Just ignore the thing. Not worth it.
But the City wants to appoint a receiver to repair the motel and then sell it, which requires court approval. So it files a motion. Which, again, as far as I can tell, no one at all opposes.
But the trial court says (essentially): "Hold on. This falling-down five-room motel in the middle of the desert is a total craphole. It doesn't make any sense to me to appoint a receiver, pay money to repair and refurbish the thing, and then try to sell it. This One Star At Best Motel In The Desert would cost more to repair than it'd ever be worth. Total waste of money. Give me a supplemental brief, City, on why your proposal makes any sense at all."
So the City submits its supplemental brief trying to argue that its proposal makes economic sense. And, again, no one files an opposition. But the trial court's not persuaded. It refuses to appoint a receiver and dismisses the lawsuit.
The City appeals. The Court of Appeal concludes that, at this preliminary (appointment of the receiver) stage, the trial judge shouldn't have addressed the merits. So reverses and remands.
Okay. I'm fine with that.
But the last line of the opinion says: "The City shall recover its costs on appeal."
I get that the City's the prevailing party. And that, normally, the prevailing party is entitled to costs.
But the defendant never showed up. She didn't argue against the appointment of the receiver below. She didn't argue against the appointment of the receiver on appeal. She was, apparently, totally fine with all of the above. It was the trial court, acting on its own, that refused to appoint the receiver. I know we're not going to impose costs against the trial judge. But I really wonder whether it's fair to impose costs against someone for an appeal they had no role in creating. When you don't oppose a lawsuit, or a motion therein, or the resulting appeal of the trial court's sua sponte denial of such an (unopposed) motion, I would think that the general equitable rule should be that the parties should typically bear their own costs on appeal.
Even if, under the rules, the Court of Appeal is permitted, in its discretion, to do otherwise.
I don't blame the City from wanting to tear the thing down (or make it habitable). I don't blame the City for filing the motion for a receiver, or for appealing the trial court's refusal to do so.
But I also don't blame Ms. Valenti for the resulting appeal. At least if I'm reading the docket right, and she didn't oppose the motion either below or on appeal.
All this may be practically irrelevant. I suspect that Ms. Valenti is not Donald Trump, and that the motel at issue is not Mar-A-Lago, and hence there's not going to be enough money to go around to pay a cost award anyway.
But still. No reason not to do the right thing initially.
I'd have the parties bear their own costs on the appeal.
There's a motel in the City of Desert Hot Springs that's an alleged nuisance, so the City files a suit against its owner to abate the thing. There are a couple of different defendants (one with a lien, etc.), but all of them get dismissed fairly quickly, which left only the owner of the motel as a defendant. And as far as I can tell from the docket and the Court of Appeal's opinion, the owner (Irene Valenti) never gets a lawyer, never appears in the lawsuit; basically, does nothing at all. Which is consistent, I suspect, with letting the dilapidated motel fall into total disrepair. Just ignore the thing. Not worth it.
But the City wants to appoint a receiver to repair the motel and then sell it, which requires court approval. So it files a motion. Which, again, as far as I can tell, no one at all opposes.
But the trial court says (essentially): "Hold on. This falling-down five-room motel in the middle of the desert is a total craphole. It doesn't make any sense to me to appoint a receiver, pay money to repair and refurbish the thing, and then try to sell it. This One Star At Best Motel In The Desert would cost more to repair than it'd ever be worth. Total waste of money. Give me a supplemental brief, City, on why your proposal makes any sense at all."
So the City submits its supplemental brief trying to argue that its proposal makes economic sense. And, again, no one files an opposition. But the trial court's not persuaded. It refuses to appoint a receiver and dismisses the lawsuit.
The City appeals. The Court of Appeal concludes that, at this preliminary (appointment of the receiver) stage, the trial judge shouldn't have addressed the merits. So reverses and remands.
Okay. I'm fine with that.
But the last line of the opinion says: "The City shall recover its costs on appeal."
I get that the City's the prevailing party. And that, normally, the prevailing party is entitled to costs.
But the defendant never showed up. She didn't argue against the appointment of the receiver below. She didn't argue against the appointment of the receiver on appeal. She was, apparently, totally fine with all of the above. It was the trial court, acting on its own, that refused to appoint the receiver. I know we're not going to impose costs against the trial judge. But I really wonder whether it's fair to impose costs against someone for an appeal they had no role in creating. When you don't oppose a lawsuit, or a motion therein, or the resulting appeal of the trial court's sua sponte denial of such an (unopposed) motion, I would think that the general equitable rule should be that the parties should typically bear their own costs on appeal.
Even if, under the rules, the Court of Appeal is permitted, in its discretion, to do otherwise.
I don't blame the City from wanting to tear the thing down (or make it habitable). I don't blame the City for filing the motion for a receiver, or for appealing the trial court's refusal to do so.
But I also don't blame Ms. Valenti for the resulting appeal. At least if I'm reading the docket right, and she didn't oppose the motion either below or on appeal.
All this may be practically irrelevant. I suspect that Ms. Valenti is not Donald Trump, and that the motel at issue is not Mar-A-Lago, and hence there's not going to be enough money to go around to pay a cost award anyway.
But still. No reason not to do the right thing initially.
I'd have the parties bear their own costs on the appeal.
Thursday, December 19, 2019
Stimpson v. Midland Credit Management (9th Cir. - Dec. 18, 2019)
Maybe the debt collector's letter here was a little bit tricky. But it wasn't illegally -- or even all that much -- tricky.
Defendant buys up stale debts (for an incredibly tiny fraction of their face value). Since the debts are so old, it can't sue on 'em. But it can send letters and make calls and try to persuade the debtor to pay.
So it sends the plaintiff here one of those letters. Telling him that the benefits of paying are (1) Save $458.24 if you pay by 04-27-2017; (2) Put this debt behind you; (3) No more communication on this account; and (4) Peace of mind.
Now, since the defendant knows full well he can't sue, you might think that sending such a letter is at least a little bit deceptive. But then there's this (extremely important) disclosure in the letter:
"The law limits how long you can be sued on a debt and how long a debt can appear on your credit report. Due to the age of this debt, we will not sue you for it or report payment or non-payment of it to a credit bureau."
That pretty much tells the debtor, in my view, most (if not all) that he needs to know. He's not going to be sued or reported if he doesn't pay the debt. So the only reason for him to pay is basically if he's had a serious religious conversion or the like and now feels like paying his time-barred debts.
But the plaintiff sues, claiming that by saying that the defendant "will not" sue, it's implicitly saying that the defendant could sue if it wanted. But the Ninth Circuit rightly finds that argument too cute by half. Even unsophisticated debtors can understand basic sentences. The sentence at issue doesn't stand for the proposition that plaintiff claims. It just says they won't sue, which is right.
(And the fact that states like California require precisely this type of statement on time-barred debts is only further evidence of this fact, in my view. The case should come out the same way even without the existence of those statutes. But they nonetheless help prove the point.)
Even though it's not deceptive, the letter is a little bit tricky. First off, I suspect that the only people who pay in response to these letters are in fact people that (1) are confused by (or don't read) the "we won't sue or report you" disclosure, or (2) just want to stop the harassment (via letter or otherwise) of the debt collector, and don't realize that they're entitled to simply say "Stop talking to me" and have it end. So it's tricky -- and effective -- in that way.
And it's potentially tricky in another way. Since although the debt is time-barred, defendant can't sue on it. But in at least some states, if the letter effectively persuades the debtor make even a tiny little payment on the debt, the statute of limitations may restart, and allow 'em to sue on the whole thing. Big money.
It's unclear if that's really what the defendant was trying to do here, or even if it'd work in practice (in this particular state for this particular debt). But still. If that's indeed the law, I'd bet good money that there are debt collectors out there adopting that strategy. And there's little the law can do about that, because as the Ninth Circuit holds here (correctly, I think), that's not "deceptive" because defendant didn't actually say anything that was untrue or misleading. They're just taking advantage of the law and the lack of knowledge by unsophisticated debtors.
And that, my friends, the law allows.
Defendant buys up stale debts (for an incredibly tiny fraction of their face value). Since the debts are so old, it can't sue on 'em. But it can send letters and make calls and try to persuade the debtor to pay.
So it sends the plaintiff here one of those letters. Telling him that the benefits of paying are (1) Save $458.24 if you pay by 04-27-2017; (2) Put this debt behind you; (3) No more communication on this account; and (4) Peace of mind.
Now, since the defendant knows full well he can't sue, you might think that sending such a letter is at least a little bit deceptive. But then there's this (extremely important) disclosure in the letter:
"The law limits how long you can be sued on a debt and how long a debt can appear on your credit report. Due to the age of this debt, we will not sue you for it or report payment or non-payment of it to a credit bureau."
That pretty much tells the debtor, in my view, most (if not all) that he needs to know. He's not going to be sued or reported if he doesn't pay the debt. So the only reason for him to pay is basically if he's had a serious religious conversion or the like and now feels like paying his time-barred debts.
But the plaintiff sues, claiming that by saying that the defendant "will not" sue, it's implicitly saying that the defendant could sue if it wanted. But the Ninth Circuit rightly finds that argument too cute by half. Even unsophisticated debtors can understand basic sentences. The sentence at issue doesn't stand for the proposition that plaintiff claims. It just says they won't sue, which is right.
(And the fact that states like California require precisely this type of statement on time-barred debts is only further evidence of this fact, in my view. The case should come out the same way even without the existence of those statutes. But they nonetheless help prove the point.)
Even though it's not deceptive, the letter is a little bit tricky. First off, I suspect that the only people who pay in response to these letters are in fact people that (1) are confused by (or don't read) the "we won't sue or report you" disclosure, or (2) just want to stop the harassment (via letter or otherwise) of the debt collector, and don't realize that they're entitled to simply say "Stop talking to me" and have it end. So it's tricky -- and effective -- in that way.
And it's potentially tricky in another way. Since although the debt is time-barred, defendant can't sue on it. But in at least some states, if the letter effectively persuades the debtor make even a tiny little payment on the debt, the statute of limitations may restart, and allow 'em to sue on the whole thing. Big money.
It's unclear if that's really what the defendant was trying to do here, or even if it'd work in practice (in this particular state for this particular debt). But still. If that's indeed the law, I'd bet good money that there are debt collectors out there adopting that strategy. And there's little the law can do about that, because as the Ninth Circuit holds here (correctly, I think), that's not "deceptive" because defendant didn't actually say anything that was untrue or misleading. They're just taking advantage of the law and the lack of knowledge by unsophisticated debtors.
And that, my friends, the law allows.
Monday, December 16, 2019
Loeb v. County of San Diego (Cal. Ct. App. - Dec. 16, 2019)
One of the things I try to do when I read cases is to make sense of them. By that, I mean I try to understand the internally consistent legal doctrine that underlies the problem and how that doctrine affects the outcome of the case.
You'll notice that I used the words "internally consistent" in that last sentence. That's important. To me, anyway. A big part of what makes "law" reasonable, predictable, and different from a mere expression of internal judicial preference is the ability of a legal principle to make sense: to be an internally consistent and hence rational explanation of how we elect to predictably order our world.
Which in part explains why law is worth following. As well as understanding. If cases were merely decided according to our (often internally inconsistent) instincts about what's right or wrong, we both wouldn't have an externally predictable rule of law -- because particular moral instincts and values are not universally shared -- and we also wouldn't have a need for legal "doctrine" other than "We'll know the right result when we see it." It's for these reasons that I spend a lot of time and intellectual energy trying to figure out the internally consistent principles that rationally explain how we order our legal world. Further, if a particular legal doctrine is not internally consistent, or is incompletely so, that's a huge flaw. It suggests that the way we're deciding cases needs to change.
All of these thoughts were highlighted when I read this opinion from earlier today.
The case does not reach a particularly surprising result. It's an opinion about what's called "trail immunity" in California, which (for policy reasons) makes the owners of recreational "trails" immune from liability even for their allegedly dangerous conditions, on the theory that to do otherwise would discourage people from making property available for recreation. The case holds that a particular (allegedly uneven) concrete pathway located in the GuajomeRegional Park is indeed a "trail" and hence the County of San Diego (which owns the Park) is immune from liability. Fair enough.
But underlying that opinion is the core legal question: What counts as a "trail" for purposes of the statute (and hence immunity)?
Again, we could say that we know it when we see it. But that's not good enough. Instead, we want to know what the characteristics are of a trail that create the resulting immunity. We know that trails under the statute are those that are typically used for recreational pursuits; hiking, riding bikes, etc. The concrete pathway at issue here connects a roadway and parking lot in the park (which includes handicapped parking spaces) to a restroom in the park. We know that pathway is used by some people going from the parking lot to the bathroom. We also know (from pictures) that the pathway is used by some people on bikes, some people on skateboards, some people walking dogs, etc. Indeed, the facts about how this pathway is used are largely undisputed.
So, under the law, is it a "trail" or not?
There's a substantial fight between the parties to the litigation about whether the trail needs to be "used" for recreational purposes or, instead, "designed" for such purposes. In the end, the Court of Appeal comes out extraordinarily heavily on the former of these principles. It holds that as long as a pathway is indeed used for recreational purposes, it doesn't matter at all whether (1) it was designed for such a purpose, or (2) it is even only secondarily used for such purposes. (See pages 16 and 17 of the opinion, including the conclusion: "While Loeb asserts the pathway was designed for the sole purpose of providing bathroom access, she stipulated that it was also used for recreational purposes. Thus, under Burgueno (and the cases cited therein), the County is entitled to immunity.") (emphases in original).
Okay. I get it. If a pathway is even secondarily used for recreational purposes, there's immunity. Even if the plaintiff wasn't using it for that purpose, and even if most people use the path for non-recreational purposes. That's a rule.
And that rule is also an internally consistent one. Indeed, it's one that's also consistent with the underlying purposes of the statute. If you really want people to make their property available for recreation, then go ahead and give them immunity whenever a nontrivial number of people use the thing for recreation. That'll advance your purposes. Even if it has the ancillary effect of precluding compensation for people injured on that property and also fails to discourage people from repairing dangerous conditions therein. Perhaps that's a policy choice that you want to make.
Mind you, that leaves open the question: How much recreational use is sufficient?
To take a concrete example close to home (literally): I've got a driveway on the front of my property. Most of the time, it's used by people (including me) to park their cars, or to access my front door, all of which are non-recreational endeavors. But on exceptionally rare occasions, I've seen people walk their dogs through my driveway and have seen a skateboarder or two ride through the thing (it's a semicircle that abuts the sidewalk and roadway). Does that mean that if I have a huge pothole in the thing, which I refuse to fix, and a person trips and injures themselves coming to my doorway, I'm entitled to "trail immunity" because it was used for recreation, albeit not here and not primarily? Under the Court of Appeal's categorical holding, I'd say the answer is "Yes." Yet I strongly doubt the Court of Appeal (or any other court) would actually come out that way.
Now, maybe you can say that, albeit unexpressed in today's opinion, there's an exception for trivial recreational uses. Okay. Seems to me you need to express that point, since it's unclear in the present case whether the recreational uses were indeed trivial or not, and the actual words in today's opinion repeatedly say that all you need to do is to show "use" rather than a particular quantity of use. So I would still find the holding of the opinion overbroad and potentially troubling.
But let's put that particular problem entirely aside. And give another concrete example that comes to mind from today's opinion; this time, right outside of (rather than in) my own home. When you leave my property, you hit (in order) (1) the sidewalk, (2) a two-lane roadway, (3) on the other side of the road, a dirt pathway, and then (4) the ocean. That's true, by the way, all along my street, which runs for about a mile. Every day, there are tons of people who use those locations for recreation. You've got bicyclists, joggers, dog walkers, sunset-viewers, photographers, surfers, etc. In short, you've got a ton of recreational use.
And that's true on both the sidewalk in front of my house (on my side of the roadway) as well as on the dirt path that's on the other side of the roadway and that parallels the ocean. Most people on the sidewalk are walking or jogging for recreation, and enjoying the natural beauty of the location. Ditto for the people on the parallel dirt trail. If it matters, both the dirt pathway and the concrete sidewalk are also about the same size; a couple of feet wide. And on both the dirt pathway and on the concrete sidewalk, people occasionally get hurt. Sometimes seriously. People have tripped on the sidewalk, have crashed into obstacles, and have fallen off the dirt pathway (which is on the top of a cliff) to the beach below, sometimes to their death. These injured people could definitely allege that there were purportedly dangerous conditions on the sidewalk and/or dirt pathway that resulted in their injuries.
Is there trail immunity for dangerous conditions located on either of these locations? Both? Neither?
If the only question is whether these properties are "used" for recreation, the answer is crystal clear: Both locations engender trail immunity. And the fact that one of these "trails" is paved (and the other is not) is definitely irrelevant; today's opinion expressly so holds, and also involved a concrete path to which trail immunity was applied.
Fine. So both locations are immune. Good to know that I don't have to worry about any dangerous conditions on the sidewalk subjecting me to liability (even though homeowners are, for good reasons or not, generally liable for defects on the sidewalks fronting their property). That's at least a doctrine that's consistent, even if potentially unwise.
But wait. The Court of Appeal also says (on page 18) that you're not entitled to trail immunity if it's a paved path that parallels a street, citing precedent that "paved paths in public parks have . . . been distinguished from sidewalks if they were not located on or adjacent to a street or highway." Which turns an otherwise internally consistent (if wise or unwise) approach into one that's both uncertain as well as seemingly unprincipled. That caveat suggests that the sidewalk in front of my house is not, in fact, subject to trail immunity, since it's a "paved path . . . adjacent to a street or highway." But why not?! I thought the critical issue was only, as the Court of Appeal expressly held, whether the path was in fact "used" for recreation, as it indisputably is?! Where does this new made-up exception for concrete sidewalks adjacent to streets come from? And why doesn't that same exception for concrete pathways adjacent to streets apply equally to (as here) concrete pathways leading to bathrooms? The Court of Appeal nowhere explains.
Nor does the Court of Appeal explain whether this exception applies only to "concrete" pathways adjacent to streets or, instead, to any pathway adjacent to a street. Which definitely matters to those people injured or killed on the dirt pathway across my street, as well as many other. That pathway is unpaved and in a park (Sunset Cliffs Natural Park). But it's directly adjacent and parallel to a street, just like the concrete sidewalk across the street. Trail immunity or no?
As I said when I started this post, the point of legal doctrine is to not only accurately reflect norms, but also to predictably advise people of their liability and to consistently (and for articulable reasons) treat similar situations identically. I can understand a holding that says, for example, that sidewalks that parallel streets aren't subject to trail immunity since they're not typically designed or used for recreation. But if that's the rule, then that same principle would suggest that the nonsuit in today's case was improperly granted, since the same might be true (under the facts) for the concrete path here, and the relevant inquiry thus not limited to solely whether the path is ever used for recreational purposes. I could also find a holding to be internally consistent (albeit likely unwise) were it to say that anything adjacent and parallel to a street was categorically unable to avail itself of trail immunity, yet I suspect that most people would think that the dirt trail across the street from my house should be entitled to trail immunity, lest it not be made available to the public for recreational purposes.
In short, I'm not persuaded that the Court of Appeal's focus in today's opinion purely on the "use" of a trail entails an internally consistent (or wise) interpretation. I'm not sure you can square that holding with precedent that says that sidewalks adjacent to streets aren't immune. Nor can it likely be squared with what I suspect would be otherwise easy holdings about why I'm not entitled to trail immunity for dangerous conditions in my concrete driveway, or similar "trails" that are only exceptionally rarely used for recreational purposes.
So, again, I get why the Court of Appeal comes out the way it does in this particular case. But I'm not sure that the doctrine it applies is a consistent or predictable one. And that matters. At least to people, like me, who care about such things.
You'll notice that I used the words "internally consistent" in that last sentence. That's important. To me, anyway. A big part of what makes "law" reasonable, predictable, and different from a mere expression of internal judicial preference is the ability of a legal principle to make sense: to be an internally consistent and hence rational explanation of how we elect to predictably order our world.
Which in part explains why law is worth following. As well as understanding. If cases were merely decided according to our (often internally inconsistent) instincts about what's right or wrong, we both wouldn't have an externally predictable rule of law -- because particular moral instincts and values are not universally shared -- and we also wouldn't have a need for legal "doctrine" other than "We'll know the right result when we see it." It's for these reasons that I spend a lot of time and intellectual energy trying to figure out the internally consistent principles that rationally explain how we order our legal world. Further, if a particular legal doctrine is not internally consistent, or is incompletely so, that's a huge flaw. It suggests that the way we're deciding cases needs to change.
All of these thoughts were highlighted when I read this opinion from earlier today.
The case does not reach a particularly surprising result. It's an opinion about what's called "trail immunity" in California, which (for policy reasons) makes the owners of recreational "trails" immune from liability even for their allegedly dangerous conditions, on the theory that to do otherwise would discourage people from making property available for recreation. The case holds that a particular (allegedly uneven) concrete pathway located in the GuajomeRegional Park is indeed a "trail" and hence the County of San Diego (which owns the Park) is immune from liability. Fair enough.
But underlying that opinion is the core legal question: What counts as a "trail" for purposes of the statute (and hence immunity)?
Again, we could say that we know it when we see it. But that's not good enough. Instead, we want to know what the characteristics are of a trail that create the resulting immunity. We know that trails under the statute are those that are typically used for recreational pursuits; hiking, riding bikes, etc. The concrete pathway at issue here connects a roadway and parking lot in the park (which includes handicapped parking spaces) to a restroom in the park. We know that pathway is used by some people going from the parking lot to the bathroom. We also know (from pictures) that the pathway is used by some people on bikes, some people on skateboards, some people walking dogs, etc. Indeed, the facts about how this pathway is used are largely undisputed.
So, under the law, is it a "trail" or not?
There's a substantial fight between the parties to the litigation about whether the trail needs to be "used" for recreational purposes or, instead, "designed" for such purposes. In the end, the Court of Appeal comes out extraordinarily heavily on the former of these principles. It holds that as long as a pathway is indeed used for recreational purposes, it doesn't matter at all whether (1) it was designed for such a purpose, or (2) it is even only secondarily used for such purposes. (See pages 16 and 17 of the opinion, including the conclusion: "While Loeb asserts the pathway was designed for the sole purpose of providing bathroom access, she stipulated that it was also used for recreational purposes. Thus, under Burgueno (and the cases cited therein), the County is entitled to immunity.") (emphases in original).
Okay. I get it. If a pathway is even secondarily used for recreational purposes, there's immunity. Even if the plaintiff wasn't using it for that purpose, and even if most people use the path for non-recreational purposes. That's a rule.
And that rule is also an internally consistent one. Indeed, it's one that's also consistent with the underlying purposes of the statute. If you really want people to make their property available for recreation, then go ahead and give them immunity whenever a nontrivial number of people use the thing for recreation. That'll advance your purposes. Even if it has the ancillary effect of precluding compensation for people injured on that property and also fails to discourage people from repairing dangerous conditions therein. Perhaps that's a policy choice that you want to make.
Mind you, that leaves open the question: How much recreational use is sufficient?
To take a concrete example close to home (literally): I've got a driveway on the front of my property. Most of the time, it's used by people (including me) to park their cars, or to access my front door, all of which are non-recreational endeavors. But on exceptionally rare occasions, I've seen people walk their dogs through my driveway and have seen a skateboarder or two ride through the thing (it's a semicircle that abuts the sidewalk and roadway). Does that mean that if I have a huge pothole in the thing, which I refuse to fix, and a person trips and injures themselves coming to my doorway, I'm entitled to "trail immunity" because it was used for recreation, albeit not here and not primarily? Under the Court of Appeal's categorical holding, I'd say the answer is "Yes." Yet I strongly doubt the Court of Appeal (or any other court) would actually come out that way.
Now, maybe you can say that, albeit unexpressed in today's opinion, there's an exception for trivial recreational uses. Okay. Seems to me you need to express that point, since it's unclear in the present case whether the recreational uses were indeed trivial or not, and the actual words in today's opinion repeatedly say that all you need to do is to show "use" rather than a particular quantity of use. So I would still find the holding of the opinion overbroad and potentially troubling.
But let's put that particular problem entirely aside. And give another concrete example that comes to mind from today's opinion; this time, right outside of (rather than in) my own home. When you leave my property, you hit (in order) (1) the sidewalk, (2) a two-lane roadway, (3) on the other side of the road, a dirt pathway, and then (4) the ocean. That's true, by the way, all along my street, which runs for about a mile. Every day, there are tons of people who use those locations for recreation. You've got bicyclists, joggers, dog walkers, sunset-viewers, photographers, surfers, etc. In short, you've got a ton of recreational use.
And that's true on both the sidewalk in front of my house (on my side of the roadway) as well as on the dirt path that's on the other side of the roadway and that parallels the ocean. Most people on the sidewalk are walking or jogging for recreation, and enjoying the natural beauty of the location. Ditto for the people on the parallel dirt trail. If it matters, both the dirt pathway and the concrete sidewalk are also about the same size; a couple of feet wide. And on both the dirt pathway and on the concrete sidewalk, people occasionally get hurt. Sometimes seriously. People have tripped on the sidewalk, have crashed into obstacles, and have fallen off the dirt pathway (which is on the top of a cliff) to the beach below, sometimes to their death. These injured people could definitely allege that there were purportedly dangerous conditions on the sidewalk and/or dirt pathway that resulted in their injuries.
Is there trail immunity for dangerous conditions located on either of these locations? Both? Neither?
If the only question is whether these properties are "used" for recreation, the answer is crystal clear: Both locations engender trail immunity. And the fact that one of these "trails" is paved (and the other is not) is definitely irrelevant; today's opinion expressly so holds, and also involved a concrete path to which trail immunity was applied.
Fine. So both locations are immune. Good to know that I don't have to worry about any dangerous conditions on the sidewalk subjecting me to liability (even though homeowners are, for good reasons or not, generally liable for defects on the sidewalks fronting their property). That's at least a doctrine that's consistent, even if potentially unwise.
But wait. The Court of Appeal also says (on page 18) that you're not entitled to trail immunity if it's a paved path that parallels a street, citing precedent that "paved paths in public parks have . . . been distinguished from sidewalks if they were not located on or adjacent to a street or highway." Which turns an otherwise internally consistent (if wise or unwise) approach into one that's both uncertain as well as seemingly unprincipled. That caveat suggests that the sidewalk in front of my house is not, in fact, subject to trail immunity, since it's a "paved path . . . adjacent to a street or highway." But why not?! I thought the critical issue was only, as the Court of Appeal expressly held, whether the path was in fact "used" for recreation, as it indisputably is?! Where does this new made-up exception for concrete sidewalks adjacent to streets come from? And why doesn't that same exception for concrete pathways adjacent to streets apply equally to (as here) concrete pathways leading to bathrooms? The Court of Appeal nowhere explains.
Nor does the Court of Appeal explain whether this exception applies only to "concrete" pathways adjacent to streets or, instead, to any pathway adjacent to a street. Which definitely matters to those people injured or killed on the dirt pathway across my street, as well as many other. That pathway is unpaved and in a park (Sunset Cliffs Natural Park). But it's directly adjacent and parallel to a street, just like the concrete sidewalk across the street. Trail immunity or no?
As I said when I started this post, the point of legal doctrine is to not only accurately reflect norms, but also to predictably advise people of their liability and to consistently (and for articulable reasons) treat similar situations identically. I can understand a holding that says, for example, that sidewalks that parallel streets aren't subject to trail immunity since they're not typically designed or used for recreation. But if that's the rule, then that same principle would suggest that the nonsuit in today's case was improperly granted, since the same might be true (under the facts) for the concrete path here, and the relevant inquiry thus not limited to solely whether the path is ever used for recreational purposes. I could also find a holding to be internally consistent (albeit likely unwise) were it to say that anything adjacent and parallel to a street was categorically unable to avail itself of trail immunity, yet I suspect that most people would think that the dirt trail across the street from my house should be entitled to trail immunity, lest it not be made available to the public for recreational purposes.
In short, I'm not persuaded that the Court of Appeal's focus in today's opinion purely on the "use" of a trail entails an internally consistent (or wise) interpretation. I'm not sure you can square that holding with precedent that says that sidewalks adjacent to streets aren't immune. Nor can it likely be squared with what I suspect would be otherwise easy holdings about why I'm not entitled to trail immunity for dangerous conditions in my concrete driveway, or similar "trails" that are only exceptionally rarely used for recreational purposes.
So, again, I get why the Court of Appeal comes out the way it does in this particular case. But I'm not sure that the doctrine it applies is a consistent or predictable one. And that matters. At least to people, like me, who care about such things.
Thursday, December 12, 2019
People v. Vivar (Cal. Ct. App. - Dec. 12, 2019)
It's a criminal case involving someone who wishes to withdraw his plea to possession of materials with the intent to manufacture methamphetamine. The defendant's attorney is . . . Munger Tolles, with Gibson Dunn as amici.
Not counsel you're used to seeing in criminal cases of this type.
Three cheers for pro bono work by big firms.
Even when, as here, it's unsuccessful.
Not counsel you're used to seeing in criminal cases of this type.
Three cheers for pro bono work by big firms.
Even when, as here, it's unsuccessful.
Physicians Committee for Responsible Medicine v. LAUSD (Cal. Ct. App. - Dec. 12, 2019)
I guess you could bring this case purely as a means of publicizing your cause.
But does anyone really and truly think that contemporary courts will find that existing law creates a "clear, mandatory, statutory duty" to get rid of processed meats in school lunches?
No way. Not now, and not in the near future, I suspect.
Does heavily processed meat contribute to heart disease and the like? I suspect it does. Might the world be a better place if our kids didn't chow down on bologna? Probably.
But these are policy choices. No way a court's going to do it on its own. Because current law, for better or worse, does not require such a course of conduct. As the Court of Appeal rightly holds.
P.S. - It actually might be a neat (albeit illegal and unethical) way to drum up legal work to have some friends create a "public interest" group and have 'em sue your governmental clients with drummed-up public interest litigation like this one. You get some legal fees, they get to "fight the good fight," and maybe you illegally split some fees with 'em. So many ways to get rich, as long as you're willing to bend the law a little (or a lot).
Wednesday, December 11, 2019
Cuviello v. City of Vallejo (9th Cir. - Dec. 10, 2019)
Many lawsuits are unavoidable. A driver rear-ends another driver, or hits a pedestrian. A contract gets breached. A house accidentally burns down. There's more than likely going to be a lawsuit in such circumstances, and apart from trying to resolve the thing beforehand (or settle it expeditiously), there's not much one can do.
And then there are cases like this one.
I totally understand why the City of Vallejo didn't want people to use bullhorns all the time. It's no fun to have 'em blasting outside your residence, or (as the panel notes) cranking out some jams at a hospital at 2:00 a.m. People often want quiet, and bullhorns are the opposite of that.
Plus, it's the City of Vallejo. That's where Six Flags is located. An amusement park that contains some animal attractions, and hence occasionally attracts protesters. Including but not limited to protesters who's like to use bullhorns. I suspect that Six Flags has more than a little bit of influence with the City Council in the small municipality in which it is located and in which it's one of (if not) the largest employers.
So, again, I get why the city wants to regulate bullhorns.
But precisely because these things are used in protests -- and are used as part of (and hence protected by) free speech -- you've got to be careful in such regulation. Lest you violate the First Amendment and get yourself dragged into a federal lawsuit in which you might well be liable to the other side for its attorney's fees.
And, if you're being careful, the mechanism that you most definitely do not deliberately employ is a permitting scheme. We generally don't like requiring advance "permits" for speech. Because there's a long history of prior restraint jurisprudence that's very much protective of speech. Do we allow 'em sometimes? Sure. But rarely. And we're pretty darn skeptical of them.
It's not like the City of Vallejo didn't understand all of this. It got sued by Mr. Cuviello, who alleged that restricting his use of a bullhorn was unconstitutional in a variety of ways. Which prompted the city to -- smartly -- amend its municipal code in response, thereby mooting a number of the claims that the plaintiff had made in his lawsuit. Smart. There's generally no "catalyst" theory of attorney's fees in federal court. So if you're a city, and you get sued, and there's a problem, go ahead and solve it. Or at least make it extremely more difficult for the plaintiff to win by putting your best statute forward, unlike the one you initially passed.
When the City of Vallejo amended the statute, it had a ton of options. But the one it elected retained the basic "permitting" scheme of its initial approach.
And that's the problem.
The city could have done a ton of things that I'm quite confident would have passed constitutional muster. Most directly, it could have just regulated the core "noise" problem directly; for example, by saying that anyone could use a bullhorn, but wasn't allowed to amplify voices, say, more than 20 decibels (or whatever) over the existing ambient noise level. That would have more than solved the problem, and would even have accomplished Six Flags' objective in not letting protesters at its park to excessively disturb its patrons. All without creating the constitutional problems engendered by a statute that contained a permitting scheme and a prior restraint.
But, nope. That's not what the city did. Ergo the result of this lawsuit. Which reverses the trial court's refusal to enter a preliminary injunction against the ordinance.
Sometimes municipalities are smart. But this time, the City of Vallejo was smart to amend the statute under attack, but not nearly smart enough to do it correctly.
And then there are cases like this one.
I totally understand why the City of Vallejo didn't want people to use bullhorns all the time. It's no fun to have 'em blasting outside your residence, or (as the panel notes) cranking out some jams at a hospital at 2:00 a.m. People often want quiet, and bullhorns are the opposite of that.
Plus, it's the City of Vallejo. That's where Six Flags is located. An amusement park that contains some animal attractions, and hence occasionally attracts protesters. Including but not limited to protesters who's like to use bullhorns. I suspect that Six Flags has more than a little bit of influence with the City Council in the small municipality in which it is located and in which it's one of (if not) the largest employers.
So, again, I get why the city wants to regulate bullhorns.
But precisely because these things are used in protests -- and are used as part of (and hence protected by) free speech -- you've got to be careful in such regulation. Lest you violate the First Amendment and get yourself dragged into a federal lawsuit in which you might well be liable to the other side for its attorney's fees.
And, if you're being careful, the mechanism that you most definitely do not deliberately employ is a permitting scheme. We generally don't like requiring advance "permits" for speech. Because there's a long history of prior restraint jurisprudence that's very much protective of speech. Do we allow 'em sometimes? Sure. But rarely. And we're pretty darn skeptical of them.
It's not like the City of Vallejo didn't understand all of this. It got sued by Mr. Cuviello, who alleged that restricting his use of a bullhorn was unconstitutional in a variety of ways. Which prompted the city to -- smartly -- amend its municipal code in response, thereby mooting a number of the claims that the plaintiff had made in his lawsuit. Smart. There's generally no "catalyst" theory of attorney's fees in federal court. So if you're a city, and you get sued, and there's a problem, go ahead and solve it. Or at least make it extremely more difficult for the plaintiff to win by putting your best statute forward, unlike the one you initially passed.
When the City of Vallejo amended the statute, it had a ton of options. But the one it elected retained the basic "permitting" scheme of its initial approach.
And that's the problem.
The city could have done a ton of things that I'm quite confident would have passed constitutional muster. Most directly, it could have just regulated the core "noise" problem directly; for example, by saying that anyone could use a bullhorn, but wasn't allowed to amplify voices, say, more than 20 decibels (or whatever) over the existing ambient noise level. That would have more than solved the problem, and would even have accomplished Six Flags' objective in not letting protesters at its park to excessively disturb its patrons. All without creating the constitutional problems engendered by a statute that contained a permitting scheme and a prior restraint.
But, nope. That's not what the city did. Ergo the result of this lawsuit. Which reverses the trial court's refusal to enter a preliminary injunction against the ordinance.
Sometimes municipalities are smart. But this time, the City of Vallejo was smart to amend the statute under attack, but not nearly smart enough to do it correctly.
Monday, December 09, 2019
U.S. v. Exxon Mobil Corp. (9th Cir. - Dec. 9, 2019)
Do you know how hard it is to get a federal district court to focus in detail on the legitimacy of your discovery requests? Incredibly hard.
Do you know how hard it is to get the Ninth Circuit to focus in detail, and resolve, the permissible scope of particular interrogatories and document requests? Impossible.
Yet here's proof positive that the impossible is sometimes possible. An appeal that's entirely about whether five particular discovery requests were permissible.
The district court thought they weren't. The Ninth Circuit disagreed.
One of the rare discovery fights you'll see in the Court of Appeals.
Do you know how hard it is to get the Ninth Circuit to focus in detail, and resolve, the permissible scope of particular interrogatories and document requests? Impossible.
Yet here's proof positive that the impossible is sometimes possible. An appeal that's entirely about whether five particular discovery requests were permissible.
The district court thought they weren't. The Ninth Circuit disagreed.
One of the rare discovery fights you'll see in the Court of Appeals.
Friday, December 06, 2019
City & County of San Francisco v. USCIS (9th Cir. - Dec. 5, 2019)
It's a hot-button topic. The Trump administration issued an executive order that bars people who have previously received non-cash public benefits (e.g., SNAP and Section 8) from immigrating. That doesn't really affect people who seek to come to the U.S. from other countries; those people haven't typically gotten non-cash benefits, since they haven't even been here. It instead primarily stops people who are in the U.S. (e.g., undocumented aliens) from legalizing their status, even if they're otherwise eligible.
The district court entered a preliminary injunction against the order. The Ninth Circuit stays that injunction -- thereby letting the executive order go into effect -- in a split opinion.
Not surprisingly, the majority opinion is a long one. Seventy-three pages long. When you know something's high-profile, you're typically going to spell out your reasoning at length.
The other thing that's not surprising is how the case comes out. In the majority are Judges Bybee and Ikuta. Dissenting on the merits is Judge Owens. This is exactly as one would have expected once the panel was drawn.
What's a little bit surprising is nonetheless the brevity of Judge Owens' dissent. As I said, Judge Bybee's majority opinion is super long. Yet I can quote Judge Owens' dissent in full; it's that short. He says: "While I concur with the majority’s jurisdiction analysis, I otherwise respectfully dissent. In light of the: (1) government’s heavy burden due to the standard of review, (2) opaqueness of the legal questions before us, (3) lack of irreparable harm to the government at this early stage, (4) likelihood of substantial injury to the plaintiffs, and (5) equities involved, I would deny the government’s motions to stay and let these cases proceed in the ordinary course. See Nken v. Holder, 556 U.S. 418, 427, 433-34 (2009) (holding that a “stay is an ‘intrusion into the ordinary processes of administration and judicial review,’” and “[t]he party requesting a stay bears the burden of showing that the circumstances justify an exercise of [judicial] discretion” (citation omitted))." Okay then. I assume we'll see more once the merits are addressed (rather than merely the stay), but for now, that's all that Judge Owens feels the need to say.
What's only a little bit surprising is that Judge Bybee not only authors the majority opinion, but also a brief concurrence of his own. As I've often said, Judge Bybee is often smart and insightful, and while I'm not a huge fan of concurring in one's own opinions, I think it sometimes makes sense, particularly in high-profile cases in which you want to make a specific or non-legal point. So I was interested in Judge Bybee's particular take. Was I particularly excited that he labeled his concurrence "BYBEE, Circuit Judge, concurring, perplexed and perturbed"? No. I was not. Those types of labels aren't especially compelling to me. Particularly when you're responding to your own opinion. You won. Being "perplexed and perturbed" seems especially unusual in such a setting. There's no real need, in my mind, to add these adjectives. They detract rather than add.
But whatever. Go ahead. It's just sort of a lame start to the thing.
I was more interested in two particular components of Judge Bybee's very short (five-page) self-concurrence.
Judge Bybee's central point therein is his reminder that things that you think might be political aren't always political. That sometimes, including here, things are actually based on law, and aren't purely naked ideological preferences.
I thought that entirely appropriate, as well as beneficial. Of course everyone's going to think that this decision is purely political. You've got two extremely conservative Ninth Circuit judges, appointed by a Republican president, in the majority in an opinion that reaches a conservative political result on a hot-button topic (immigration), and a lefty judge appointed by a Democratic president dissenting. It's not a surprise that people might -- indeed, assuredly will -- view this as a politically-based result. So it makes perfect sense to me for the author of that opinion to confront the elephant in the room head on. And to do so in a concurring opinion. Good job. That's at least an effort at transparency, and one that adds rather than detracts.
And Judge Bybee makes that argument concisely, which is another bonus. Whether you find that claim persuasive, of course, is another matter. But I'll leave that for others to decide. All that I want to mention in that regard is the exceptionally narrow claim that Judge Bybee elects to make. He goes out of this way to point out that a judge's political and ideological preferences don't uniformly map on to the legal outputs of that same judge. He says: "Oh, I am not so naive as to think that a simple declaration of judicial neutrality will quell inquiry into judges’ backgrounds, prior writings, and opinions. The battles over judicial nominations provide ample proof that our generation of lawyers bear a diverse set of assumptions about the nature of law, proper modes of constitutional interpretation, and the role of the judiciary. These are fair debates and they are likely to continue for some time. We can only hope that over time our differences can be resolved by reason and persuasion rather than by politics by other means. But I don’t know of any judge—at least not this judge—who can say that every opinion and judgment she issued was in accord with her preferred policy outcomes."
The limited nature of that last line seems telling (and somewhat surprising) to me. Judge Bybee merely says therein that the judges he knows can point to at least one opinion in their career that does not align with their political preference. ("I don’t know of any judge—at least not this judge—who can say that every opinion and judgment she issued was in accord with her preferred policy outcomes.") (emphasis added) Well, yeah. I'm sure that's true. But what an incredibly limited claim to make: that in the hundreds or thousands of opinions one has written or joined, we can point to one that would not reflect a judge's naked political preference. If that's the best defense one can make to the claim that judges decide cases politically, rather than legally, then that's fairly telling. Particularly when articulated in a high-profile case that came out exactly on preexisting political lines.
Personally, I'd go further. I honestly believe that judges routinely issue lots of opinions that are not in accord with their preferred policy objectives. Not just one or two. And would be happy to say so.
Do judges issue lots of opinions that are in accord with their preferences? Of course. Are those desires or pressures greater, perhaps, in high-profile cases on hot-button topics? I suspect they are. So I wouldn't make an overly strong (or absurd) claim that political preferences are meaningless, at least as a descriptive (as opposed to normative) matter. There are tons of cases in which I think the correct legal result is X even though my ideological desire is Y. That's what it means to engage in legal analysis rather than merely articulating (or justifying) one's political preference.
So I thought that Judge Bybee's defense in this regard was a little damning with faint praise.
The other thing that I thought was unusually soft was how Judge Bybee ended his concurrence.
After making several salient points about the non-ideological nature of judging etc., Judge Bybee concludes his concurrence with the following paragraph:
"By constitutional design, the branch that is qualified to establish immigration policy and check any excesses in the implementation of that policy is Congress. See U.S. CONST. Art. I, § 8, cl. 4. And, so far as we can tell from our modest perch in the Ninth Circuit, Congress is no place to be found in these debates. We have seen case after case come through our courts, serious and earnest efforts, even as they are controversial, to address the nation’s immigration challenges. Yet we have seen little engagement and no actual legislation from Congress. It matters not to me as a judge whether Congress embraces or disapproves of the administration’s actions, but it is time for a feckless Congress to come to the table and grapple with these issues. Don’t leave the table and expect us to clean up."
I get that point on multiple different levels. For one thing, when you've written an opinion that will hack off a ton of people and will have them calling it unjustly political, it makes sense to blame someone else. And who better to blame than a "feckless" Congress, one of the least trusted American institutions? So as a matter of pure deflection, ending the concurrence that way makes sense. Plus, Congress really does pass a lot of totally ambiguous (or confusing, or contradictory) statutes and leave it to the judiciary to "clean up the mess." So, as a general matter, I get that point as well.
But, dude. In this case, we're dealing with the validity of an executive order. Something that the President did. On his own. That expressly went around Congress. And that was promulgated only in August 2019, a mere four months ago.
What the heck does a swipe at Congress have to do with the validity of the executive order at issue here?! If there's a problem with that order, it's a problem that was generated by the President, not Congress. Full stop. It's not that Congress left the judiciary with a mess to clean up. It's that the presidential decision to bypass Congress made a potential mess. The alleged ire seems to me to be directed at exactly the wrong party.
So when the concurrence says that Congress "left the table" here, it's me that's left "perplexed and perturbed." What exactly did Judge Bybee want Congress to do here? Instantly pass legislation that overruled the executive order? Yeah, that's going to happen. We have a split Congress, half of which (the Senate) is controlled by the President's party and who's likely in favor of the executive order at issue and the other half (the House) that goes the other way. What the heck do you want a political institution of that nature to do here? And let's say they did make it easy for the judiciary; say, both the House and Senate passed a bill that said that non-cash benefits couldn't be counted. Do you have any doubt whatsoever about whether the President would veto such a bill? A veto that no way gets overruled by two-thirds.
Whenever people complain about "Congress" not doing something, they constantly ignore the fact that Congress alone can do extraordinarily little, and that a failure to act is often the direct result of presidential obstruction and/or lack of initiative. It generally takes the approval of Congress and the President to pass a statute. Blaming the former while ignoring the latter is classically just a way of ignoring the role of the person you like while putting the onus on a diffuse body virtually no one respects.
And, again, we're dealing with an executive order here. Whatever your views on executive power -- too strong, not strong enough, just about right -- whatever problems exist in the present case arose because the President exercised that power. He was the one who not only "left the table" and told the judiciary to "clean up," but who excluded Congress from the table in the first place. For the same reason Judge Bybee shouldn't blame me for any mess arising from a dinner at his house to which I was not invited, so too, in my mind, should Judge Bybee not blame Congress for any mess arising from an executive order that in no way, shape or form was the doing of Congress.
So I get the expression of frustration at Congress. Both politically and on the merits. But not here. And, to me, it makes Judge Bybee's concurrence end with a whimper rather than a bang. He saves the worst argument for the very end, and one that (in my mind) again detracts rather than adds. At least as applied here.
The district court entered a preliminary injunction against the order. The Ninth Circuit stays that injunction -- thereby letting the executive order go into effect -- in a split opinion.
Not surprisingly, the majority opinion is a long one. Seventy-three pages long. When you know something's high-profile, you're typically going to spell out your reasoning at length.
The other thing that's not surprising is how the case comes out. In the majority are Judges Bybee and Ikuta. Dissenting on the merits is Judge Owens. This is exactly as one would have expected once the panel was drawn.
What's a little bit surprising is nonetheless the brevity of Judge Owens' dissent. As I said, Judge Bybee's majority opinion is super long. Yet I can quote Judge Owens' dissent in full; it's that short. He says: "While I concur with the majority’s jurisdiction analysis, I otherwise respectfully dissent. In light of the: (1) government’s heavy burden due to the standard of review, (2) opaqueness of the legal questions before us, (3) lack of irreparable harm to the government at this early stage, (4) likelihood of substantial injury to the plaintiffs, and (5) equities involved, I would deny the government’s motions to stay and let these cases proceed in the ordinary course. See Nken v. Holder, 556 U.S. 418, 427, 433-34 (2009) (holding that a “stay is an ‘intrusion into the ordinary processes of administration and judicial review,’” and “[t]he party requesting a stay bears the burden of showing that the circumstances justify an exercise of [judicial] discretion” (citation omitted))." Okay then. I assume we'll see more once the merits are addressed (rather than merely the stay), but for now, that's all that Judge Owens feels the need to say.
What's only a little bit surprising is that Judge Bybee not only authors the majority opinion, but also a brief concurrence of his own. As I've often said, Judge Bybee is often smart and insightful, and while I'm not a huge fan of concurring in one's own opinions, I think it sometimes makes sense, particularly in high-profile cases in which you want to make a specific or non-legal point. So I was interested in Judge Bybee's particular take. Was I particularly excited that he labeled his concurrence "BYBEE, Circuit Judge, concurring, perplexed and perturbed"? No. I was not. Those types of labels aren't especially compelling to me. Particularly when you're responding to your own opinion. You won. Being "perplexed and perturbed" seems especially unusual in such a setting. There's no real need, in my mind, to add these adjectives. They detract rather than add.
But whatever. Go ahead. It's just sort of a lame start to the thing.
I was more interested in two particular components of Judge Bybee's very short (five-page) self-concurrence.
Judge Bybee's central point therein is his reminder that things that you think might be political aren't always political. That sometimes, including here, things are actually based on law, and aren't purely naked ideological preferences.
I thought that entirely appropriate, as well as beneficial. Of course everyone's going to think that this decision is purely political. You've got two extremely conservative Ninth Circuit judges, appointed by a Republican president, in the majority in an opinion that reaches a conservative political result on a hot-button topic (immigration), and a lefty judge appointed by a Democratic president dissenting. It's not a surprise that people might -- indeed, assuredly will -- view this as a politically-based result. So it makes perfect sense to me for the author of that opinion to confront the elephant in the room head on. And to do so in a concurring opinion. Good job. That's at least an effort at transparency, and one that adds rather than detracts.
And Judge Bybee makes that argument concisely, which is another bonus. Whether you find that claim persuasive, of course, is another matter. But I'll leave that for others to decide. All that I want to mention in that regard is the exceptionally narrow claim that Judge Bybee elects to make. He goes out of this way to point out that a judge's political and ideological preferences don't uniformly map on to the legal outputs of that same judge. He says: "Oh, I am not so naive as to think that a simple declaration of judicial neutrality will quell inquiry into judges’ backgrounds, prior writings, and opinions. The battles over judicial nominations provide ample proof that our generation of lawyers bear a diverse set of assumptions about the nature of law, proper modes of constitutional interpretation, and the role of the judiciary. These are fair debates and they are likely to continue for some time. We can only hope that over time our differences can be resolved by reason and persuasion rather than by politics by other means. But I don’t know of any judge—at least not this judge—who can say that every opinion and judgment she issued was in accord with her preferred policy outcomes."
The limited nature of that last line seems telling (and somewhat surprising) to me. Judge Bybee merely says therein that the judges he knows can point to at least one opinion in their career that does not align with their political preference. ("I don’t know of any judge—at least not this judge—who can say that every opinion and judgment she issued was in accord with her preferred policy outcomes.") (emphasis added) Well, yeah. I'm sure that's true. But what an incredibly limited claim to make: that in the hundreds or thousands of opinions one has written or joined, we can point to one that would not reflect a judge's naked political preference. If that's the best defense one can make to the claim that judges decide cases politically, rather than legally, then that's fairly telling. Particularly when articulated in a high-profile case that came out exactly on preexisting political lines.
Personally, I'd go further. I honestly believe that judges routinely issue lots of opinions that are not in accord with their preferred policy objectives. Not just one or two. And would be happy to say so.
Do judges issue lots of opinions that are in accord with their preferences? Of course. Are those desires or pressures greater, perhaps, in high-profile cases on hot-button topics? I suspect they are. So I wouldn't make an overly strong (or absurd) claim that political preferences are meaningless, at least as a descriptive (as opposed to normative) matter. There are tons of cases in which I think the correct legal result is X even though my ideological desire is Y. That's what it means to engage in legal analysis rather than merely articulating (or justifying) one's political preference.
So I thought that Judge Bybee's defense in this regard was a little damning with faint praise.
The other thing that I thought was unusually soft was how Judge Bybee ended his concurrence.
After making several salient points about the non-ideological nature of judging etc., Judge Bybee concludes his concurrence with the following paragraph:
"By constitutional design, the branch that is qualified to establish immigration policy and check any excesses in the implementation of that policy is Congress. See U.S. CONST. Art. I, § 8, cl. 4. And, so far as we can tell from our modest perch in the Ninth Circuit, Congress is no place to be found in these debates. We have seen case after case come through our courts, serious and earnest efforts, even as they are controversial, to address the nation’s immigration challenges. Yet we have seen little engagement and no actual legislation from Congress. It matters not to me as a judge whether Congress embraces or disapproves of the administration’s actions, but it is time for a feckless Congress to come to the table and grapple with these issues. Don’t leave the table and expect us to clean up."
I get that point on multiple different levels. For one thing, when you've written an opinion that will hack off a ton of people and will have them calling it unjustly political, it makes sense to blame someone else. And who better to blame than a "feckless" Congress, one of the least trusted American institutions? So as a matter of pure deflection, ending the concurrence that way makes sense. Plus, Congress really does pass a lot of totally ambiguous (or confusing, or contradictory) statutes and leave it to the judiciary to "clean up the mess." So, as a general matter, I get that point as well.
But, dude. In this case, we're dealing with the validity of an executive order. Something that the President did. On his own. That expressly went around Congress. And that was promulgated only in August 2019, a mere four months ago.
What the heck does a swipe at Congress have to do with the validity of the executive order at issue here?! If there's a problem with that order, it's a problem that was generated by the President, not Congress. Full stop. It's not that Congress left the judiciary with a mess to clean up. It's that the presidential decision to bypass Congress made a potential mess. The alleged ire seems to me to be directed at exactly the wrong party.
So when the concurrence says that Congress "left the table" here, it's me that's left "perplexed and perturbed." What exactly did Judge Bybee want Congress to do here? Instantly pass legislation that overruled the executive order? Yeah, that's going to happen. We have a split Congress, half of which (the Senate) is controlled by the President's party and who's likely in favor of the executive order at issue and the other half (the House) that goes the other way. What the heck do you want a political institution of that nature to do here? And let's say they did make it easy for the judiciary; say, both the House and Senate passed a bill that said that non-cash benefits couldn't be counted. Do you have any doubt whatsoever about whether the President would veto such a bill? A veto that no way gets overruled by two-thirds.
Whenever people complain about "Congress" not doing something, they constantly ignore the fact that Congress alone can do extraordinarily little, and that a failure to act is often the direct result of presidential obstruction and/or lack of initiative. It generally takes the approval of Congress and the President to pass a statute. Blaming the former while ignoring the latter is classically just a way of ignoring the role of the person you like while putting the onus on a diffuse body virtually no one respects.
And, again, we're dealing with an executive order here. Whatever your views on executive power -- too strong, not strong enough, just about right -- whatever problems exist in the present case arose because the President exercised that power. He was the one who not only "left the table" and told the judiciary to "clean up," but who excluded Congress from the table in the first place. For the same reason Judge Bybee shouldn't blame me for any mess arising from a dinner at his house to which I was not invited, so too, in my mind, should Judge Bybee not blame Congress for any mess arising from an executive order that in no way, shape or form was the doing of Congress.
So I get the expression of frustration at Congress. Both politically and on the merits. But not here. And, to me, it makes Judge Bybee's concurrence end with a whimper rather than a bang. He saves the worst argument for the very end, and one that (in my mind) again detracts rather than adds. At least as applied here.
Thursday, December 05, 2019
People v. Ollo (Cal. Ct. App. - Dec. 5, 2019)
I'll slightly rephrase the question raised by the Court of Appeal in today's opinion.
You've got an 18-year old boyfriend and a 16-year old girlfriend. The boyfriend says he's scored some coke and wants to know if the girlfriend wants some; she says yes. She comes over, they have sex, and the girlfriend takes a toot. Totally unknown to the boyfriend, the "cocaine" he's been sold is actually fentanyl, and she dies.
We know he's guilty of giving a controlled substance to a minor. Two questions: (1) Is he also guilty of personally inflicting great bodily injury on the victim? He (of course) intended the act that led to a death -- even though he clearly didn't intend the death -- but is the victim's voluntary ingestion of the drug a superseding cause? (2) If the answer to (1) is "yes," what's the appropriate sentence?
The Court of Appeal is split on the answer to (1). Today's opinion falls on the side of saying that you are indeed criminally responsible for inflicting great bodily injury in this setting, and that it's not a defense that the victim took the drug voluntarily. And, as for (2), Mr. Ollo -- Treyvon, if that means anything to you -- gets sentenced to twelve years in prison. For a death that he clearly didn't intend.
Of course, if it's one's own daughter who dies, the desire for vengeance would undoubtedly be strong. Maybe you'd want the 18-year old to spend a dozen years in prison. On the legal question, I'm not at all certain the Legislature wanted people convicted of inflicting great bodily injury -- a serious offense -- when the victim engaged in voluntary conduct that led to the death. Maybe not. Maybe so.
On a policy level: You help a friend trespass and they accidentally fall to their death; guilty of this serious offense? You give a friend with a severe headache one of your prescription Tylenol with codeine pills and she dies; guilty of deliberately inflicting great bodily injury upon her? You intended the act, after all, and that act is not legal. Twelve years in prison? For you or, if it was your child who tried to help with the headache instead of you, your 18-year old daughter?
Maybe. Maybe everyone's okay with calling these things the infliction of great bodily injury. But there are very, very serious offenses involving the deliberate infliction of great bodily injury in which the defendant doesn't get 12 years in prison. I'm just not sure that we're trying to fit a round peg into a square hole when you've got one crime (furnishing drugs to a minor) that squarely fits the offense but we charge a much greater offense that's generally used for deliberate attacks and the like.
You've got an 18-year old boyfriend and a 16-year old girlfriend. The boyfriend says he's scored some coke and wants to know if the girlfriend wants some; she says yes. She comes over, they have sex, and the girlfriend takes a toot. Totally unknown to the boyfriend, the "cocaine" he's been sold is actually fentanyl, and she dies.
We know he's guilty of giving a controlled substance to a minor. Two questions: (1) Is he also guilty of personally inflicting great bodily injury on the victim? He (of course) intended the act that led to a death -- even though he clearly didn't intend the death -- but is the victim's voluntary ingestion of the drug a superseding cause? (2) If the answer to (1) is "yes," what's the appropriate sentence?
The Court of Appeal is split on the answer to (1). Today's opinion falls on the side of saying that you are indeed criminally responsible for inflicting great bodily injury in this setting, and that it's not a defense that the victim took the drug voluntarily. And, as for (2), Mr. Ollo -- Treyvon, if that means anything to you -- gets sentenced to twelve years in prison. For a death that he clearly didn't intend.
Of course, if it's one's own daughter who dies, the desire for vengeance would undoubtedly be strong. Maybe you'd want the 18-year old to spend a dozen years in prison. On the legal question, I'm not at all certain the Legislature wanted people convicted of inflicting great bodily injury -- a serious offense -- when the victim engaged in voluntary conduct that led to the death. Maybe not. Maybe so.
On a policy level: You help a friend trespass and they accidentally fall to their death; guilty of this serious offense? You give a friend with a severe headache one of your prescription Tylenol with codeine pills and she dies; guilty of deliberately inflicting great bodily injury upon her? You intended the act, after all, and that act is not legal. Twelve years in prison? For you or, if it was your child who tried to help with the headache instead of you, your 18-year old daughter?
Maybe. Maybe everyone's okay with calling these things the infliction of great bodily injury. But there are very, very serious offenses involving the deliberate infliction of great bodily injury in which the defendant doesn't get 12 years in prison. I'm just not sure that we're trying to fit a round peg into a square hole when you've got one crime (furnishing drugs to a minor) that squarely fits the offense but we charge a much greater offense that's generally used for deliberate attacks and the like.
Wednesday, December 04, 2019
Garcia v. Rosenberg (Cal. Ct. App. - Dec. 4, 2019)
Good decision by Justice Hill to publish this opinion today. And good ending thereto.
I too found disturbing the trial court's unquestioned reliance upon the self-serving declaration of the defendant in this malicious prosecution action hat the lawsuit was dismissed only because a client representative couldn't attend the MSC. ("The reason or intent of Allstate and Rosenberg behind the dismissal of the subrogation action is a matter uniquely within their knowledge, and apparently the only evidence the trial court considered on that issue was Rosenberg’s declaration stating his intent. The Garcias were not likely to have direct evidence of Rosenberg’s intent, but there were inferences to be drawn from the circumstantial evidence. Rosenberg did not deny that, within a few months after the subrogation action was filed, the Garcias provided him with a document from the Department of Motor Vehicles showing they had sold the Aerostar and filed a release of liability six months before the accident with Allstate’s insured. It was undisputed Rosenberg and Allstate pursued the subrogation action vigorously for seven years, including garnishing the Garcias’ wages, placing a judgment lien on their home, having their drivers’ licenses suspended, and declining to consider the possibility of the Garcias’ innocence in light of the evidence they presented, then suddenly dismissed it shortly before trial. The evidence would support an inference in the Garcias’ favor that Rosenberg’s stated reason was a convenient excuse for a last minute dismissal to avoid a trial he deemed likely to result in a judgment against his client.") So good to see the Court of Appeal refuse to affirm on that basis.
And even though the case gets affirmed in the end, it's nice that Justice Hill ends the opinion by saying: "In closing, we note that the Garcias’ plea for justice, made at oral argument, did not fall on deaf ears. We understand and appreciate the obstacles they faced in attempting to defend themselves in the subrogation action and prosecute their malicious prosecution actions." It's always good to remember that we're dealing with people. Real people, real problems. Not merely abstract issues of law.
Even when those legal principles constrain our actions and make the case come out in a way that might not be intrinsically morally pleasing.
I too found disturbing the trial court's unquestioned reliance upon the self-serving declaration of the defendant in this malicious prosecution action hat the lawsuit was dismissed only because a client representative couldn't attend the MSC. ("The reason or intent of Allstate and Rosenberg behind the dismissal of the subrogation action is a matter uniquely within their knowledge, and apparently the only evidence the trial court considered on that issue was Rosenberg’s declaration stating his intent. The Garcias were not likely to have direct evidence of Rosenberg’s intent, but there were inferences to be drawn from the circumstantial evidence. Rosenberg did not deny that, within a few months after the subrogation action was filed, the Garcias provided him with a document from the Department of Motor Vehicles showing they had sold the Aerostar and filed a release of liability six months before the accident with Allstate’s insured. It was undisputed Rosenberg and Allstate pursued the subrogation action vigorously for seven years, including garnishing the Garcias’ wages, placing a judgment lien on their home, having their drivers’ licenses suspended, and declining to consider the possibility of the Garcias’ innocence in light of the evidence they presented, then suddenly dismissed it shortly before trial. The evidence would support an inference in the Garcias’ favor that Rosenberg’s stated reason was a convenient excuse for a last minute dismissal to avoid a trial he deemed likely to result in a judgment against his client.") So good to see the Court of Appeal refuse to affirm on that basis.
And even though the case gets affirmed in the end, it's nice that Justice Hill ends the opinion by saying: "In closing, we note that the Garcias’ plea for justice, made at oral argument, did not fall on deaf ears. We understand and appreciate the obstacles they faced in attempting to defend themselves in the subrogation action and prosecute their malicious prosecution actions." It's always good to remember that we're dealing with people. Real people, real problems. Not merely abstract issues of law.
Even when those legal principles constrain our actions and make the case come out in a way that might not be intrinsically morally pleasing.
Tuesday, December 03, 2019
People v. Leelu (Cal. Ct. App. - Dec. 3, 2019)
It's a telling sign when the Court of Appeal says that, under the relevant statute, a defendant's mental competence should definitely have been evaluated by two different experts (rather than only one), but that the defendant was so clearly out of it that the error was harmless. Which is what happens here.
You can see why, though. Ms. Leelu was charged with trespassing, and then later charged with stalking. She wanted to represent herself. (Always a bad sign.) She tells the trial court:
“I know my rights. I can have jury trial representing myself. [¶] . . . [¶] All psychiatry. And they arrest me so many times in the past couple years, but now I want to be candidate of U.S. senator. We need to change to make a difference, as Donald Trump said.”
Well, now. All right, then. Not the most relevant commentary in the world, but at least I know what you're saying.
But it gets worse.
When the trial court expresses doubts about Ms. Leelu's competence, she responds: "I will let all 32 million people know this judge use police to harass me and my husband and always do things, keeping asking money from me, no jury trial at all. And the police chief right to hire and --.”
Okay. That's not exactly helping you there, Ms. Leelu. Pretty much exactly the opposite.
The doctor who subsequently evaluates her gets to spend more time with her. And gets more of the same. Plus.
"Dr. Cohen opined Leelu “is not rational or coherent in conversation, she cannot express herself such that others can understand her meaning, and she misperceives, or cannot comprehend what others are saying to her. She is confused and misinformed about her legal case, and gets facts intertwined with her delusions.” For example, Leelu “insists that her attorney is ‘The Senior Minister of the Interior,’ from Canada, and he would be defending her except he lost his Canadian driver’s license, and must return home to get a replacement.” Dr. Cohen observed Leelu “spoke in a rapid, pressured manner. . . . Much of her speech was repetitious, involving favored paranoid themes of individuals, government and religious organizations planning to harm her, the police harassing her, and her ability to discern ‘hidden’ meanings and messages that escaped the notice of everyone else. She was almost never able to speak in a manner that was rational, coherent, or logical. For example, when asked how she remembers things that may be important to her in the future, she replied, ‘I have a diamond ring with an iPad inside it.’”
And now you see why the Court of Appeal holds that the failure to appoint a second expert was harmless. 'Cause we sort of know how that second one would have come out.
Though I'd have loved to check out that alleged "diamond ring with an iPad inside it." Sounds cool.
You can see why, though. Ms. Leelu was charged with trespassing, and then later charged with stalking. She wanted to represent herself. (Always a bad sign.) She tells the trial court:
“I know my rights. I can have jury trial representing myself. [¶] . . . [¶] All psychiatry. And they arrest me so many times in the past couple years, but now I want to be candidate of U.S. senator. We need to change to make a difference, as Donald Trump said.”
Well, now. All right, then. Not the most relevant commentary in the world, but at least I know what you're saying.
But it gets worse.
When the trial court expresses doubts about Ms. Leelu's competence, she responds: "I will let all 32 million people know this judge use police to harass me and my husband and always do things, keeping asking money from me, no jury trial at all. And the police chief right to hire and --.”
Okay. That's not exactly helping you there, Ms. Leelu. Pretty much exactly the opposite.
The doctor who subsequently evaluates her gets to spend more time with her. And gets more of the same. Plus.
"Dr. Cohen opined Leelu “is not rational or coherent in conversation, she cannot express herself such that others can understand her meaning, and she misperceives, or cannot comprehend what others are saying to her. She is confused and misinformed about her legal case, and gets facts intertwined with her delusions.” For example, Leelu “insists that her attorney is ‘The Senior Minister of the Interior,’ from Canada, and he would be defending her except he lost his Canadian driver’s license, and must return home to get a replacement.” Dr. Cohen observed Leelu “spoke in a rapid, pressured manner. . . . Much of her speech was repetitious, involving favored paranoid themes of individuals, government and religious organizations planning to harm her, the police harassing her, and her ability to discern ‘hidden’ meanings and messages that escaped the notice of everyone else. She was almost never able to speak in a manner that was rational, coherent, or logical. For example, when asked how she remembers things that may be important to her in the future, she replied, ‘I have a diamond ring with an iPad inside it.’”
And now you see why the Court of Appeal holds that the failure to appoint a second expert was harmless. 'Cause we sort of know how that second one would have come out.
Though I'd have loved to check out that alleged "diamond ring with an iPad inside it." Sounds cool.
Monday, December 02, 2019
People v. Beck & Cruz (Cal. Supreme Ct. - Dec. 2, 2019)
Imagine that someone asked you to write a book. An entire book. How easy would that be?
Now imagine that the person told you that nothing you said in the book would matter. Plus, as a bonus, you'd be discussing events that occurred 30 years ago, and that currently concern very few people. How excited would you be to take on such a task?
I ask this after spending quite a bit of time -- trust me, quite a bit -- reading this opinion from earlier today. Which spans 185 pages. Which affirms the convictions and sentences for a 1990 murder in which several people were sentenced to death but in which the probability of these defendants actually being executed is essentially nil.
Do you want to do a good job on the opinion? I'm sure you do. There are lives at least allegedly at stake, and these are serious crimes. Nonetheless, I suspect that as you're writing the opinion and hit pages 100 or 120, you start to just want it done and over with. If only because, as a practical matter, none of this will make much of a difference in the end. The defendants will die in prison, a natural death, either way.
But read the entire thing if you'd like. It's a unanimous opinion, and a horrible crime to be sure.
From 1990. In which the defendant's fate is already set.
Now imagine that the person told you that nothing you said in the book would matter. Plus, as a bonus, you'd be discussing events that occurred 30 years ago, and that currently concern very few people. How excited would you be to take on such a task?
I ask this after spending quite a bit of time -- trust me, quite a bit -- reading this opinion from earlier today. Which spans 185 pages. Which affirms the convictions and sentences for a 1990 murder in which several people were sentenced to death but in which the probability of these defendants actually being executed is essentially nil.
Do you want to do a good job on the opinion? I'm sure you do. There are lives at least allegedly at stake, and these are serious crimes. Nonetheless, I suspect that as you're writing the opinion and hit pages 100 or 120, you start to just want it done and over with. If only because, as a practical matter, none of this will make much of a difference in the end. The defendants will die in prison, a natural death, either way.
But read the entire thing if you'd like. It's a unanimous opinion, and a horrible crime to be sure.
From 1990. In which the defendant's fate is already set.
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