Washington v. County of San Diego (Cal. Ct. App. - Aug. 21, 2025)

When the previous head of the Public Defender's Office down here in San Diego left the job, there was an opening, and in an unusual move, a sitting judge -- Judge Washington -- applied for the position. 

But there is a statute (Government Code Section 27701) -- originally enacted in 1921, and unchanged since 1947 -- that provides: “A person is not eligible to the office of public defender unless he has been a practicing attorney in all of the courts of the State for at least the year preceding the date of his election or appointment.”

Judge Washington was a long-time public defender before he was appointed to the bench, but since he's now a judge, he wasn't a practicing public defender during "the year preceding the date of his election or appointment.” So he couldn't be appointed.

So he sued, claiming that's not what the statute means.

The trial court ruled against him, and today, the Court of Appeal affirms. The statute's unambiguous. It means what it says.

I've now read the statute, as have you. Yep. That's what it says.

It may be a silly law. But there are lots of silly laws, and ones passed in 1921 are definitely no exception.

Sorry about that. But, yeah, the statute applies.

On the upside, at least Judge Washington can now go back to hearing criminal rather than civil cases. (He was reassigned to civil ones since he had a conflict hearing cases brought by the public defender's office while he was seeking to be its head.)

Gonzalez v. Herrera (9th Cir. - Aug. 19, 2025)

The Ninth Circuit decides today that prisoners who earn time credits under the First Step Act can have those credits applies to reduce the time they spend on supervised release rather than being useless.

The opinion creates a circuit split. It also is a big deal, since FSA credits and supervised release are ubiquitous in the federal system. As the opinion itself recognizes, "splits in authority are seldom so stark and consequential." So I wouldn't be at all surprised if and when the Supreme Court takes up a case to resolve this issue once and for all. (Assuming that Congress doesn't respond by amending the statute to make it clear.)

That said, for now, isn't Judge Mendoza's opinion pretty darn persuasive?

People v. Alvarez (Cal. Supreme Ct. - Aug. 18, 2025)

It's an death penalty case, and involves the horrible child abuse murders of an infant and a four-year old. Important on any metric. Accordingly, the various opinions are a combined 159 pages. Hefty reading.

Given the stakes at hand, it's somewhat ironic that the only (partial) dissent is from Chief Justice Guerrero, who writes to express her disagreement with the majority's decision on the $200 parole revocation fine.

An issue in a number of other cases, I'm sure, so definitely worthy of informed resolution.

But the fate of the $200 fine is definitely not the big-ticket item in this case.

In re Subpoena Internet Subscribers (9th Cir. - Aug. 15, 2025)

Here's a good example of a quasi-Streisand effect as applied to precedent.

The studio that owns the rights to the movie The Fall are, like many studios, tired of people pirating the thing. So they decide to catch some people and sue them. They hop on BitTorrent and quickly find some people sharing the thing, and log their IP addresses.

Normally, in situations like this, you just file a John Doe complaint, subpoena the internet provider, get the actual names, and then replace the John Does with the actual defendant and go to town. But the DCMA also contains a more streamlined subpoena process that allows copyright holders to skip the whole "file a lawsuit" part and obtain a quick subpoena by filling out a form, and the statute says the court clerk "shall" issue the subpoena if it's done properly. No need to even involve (or have to convince) a judge or anything like.

The studio discovers that 29 of the (alleged) pirates have IP addresses with Cox, so fills out the forms and asks the federal court for a streamlined DCMA subpoena to Cox that discovers the identities of the alleged pirates. Cox forwards that subpoena (as the DCMA requires) to those 29 people, and -- predictably -- none of them do anything about it.

Except for one.

One guy -- John Doe -- writes a letter back to the Court saying, essentially, "Oops, I'm not a pirate, it's just I didn't put a password on my WiFi. Problem solved now. Never downloaded that movie. Must have been someone else using my WiFi. Please don't tell them my name." The district court interprets that letter as a request to quash the subpoena to John Doe, and asks the studio to respond.

Now, at this point, if I'm the lawyer for the studio, here's what I'd do: Nothing. You've already got the names of 28 alleged pirates -- Cox gave you those already when those 28 never responded. Go to town and sue all 28 of them (or whatever subset you feel like) to make your point. Leave Mr. Active -- John Doe -- out of it.

Sure, we all know he's probably a pirate too, but who cares? Having 28 defendants is as good for your purposes as 29. Probably even better, since the 29th ill probably be a little more pain in the ass than Mr. 29, who got off his duff and bothered to write a letter in response to the subpoena.

But, no, the studio here spends the money to write a whole big motion saying that the subpoena to Cox is valid, the DCMA allows it, blah blah blah. Spending far more money, I'm certain, than a rental of The Fall would possibly cost, as well as more than you're ever going to get from Mr. 29 anyway, since most of the guys I know who pirate movies don't exactly have $150,000 in statutory copyright damages lying around in their couch cushions.

Plus, even that assumes you first win the subpoena motion, and then prevail in your copyright suit against his "no password" defense. And, here, the studio doesn't even get to that latter point, and loses on the first. The district court holds that an internet provider -- Cox -- isn't subject to the expedited DCMA subpeona process because they're just providing the tubes, not actually holding copies of the movie itself.

Now, at this point, if I'm the studio, here's what I am going to yet again do: Nothing. Leave it be. 

It's a Hawaii district court opinion. An unpublished one, at that. Who cares? Let it go. Dominate the defenseless other 28 defendants, make your point, and move on.

But nope. The studio appeals. Spending more time and money trying to get approval for the subpoena for Mr. 29.

Leading to today, at which the Ninth Circuit holds -- in a published opinion -- that, yep, you can't use the streamlined DCMA subpoena process to get subpoena ISPs like Cox.

So, before, you could issue a subpoena, get one entered, get virtually every name you wanted, but you might not get the name of that incredibly rare person who actually bothered to file an objection.

But now, after your appeal, in binding precedent, you -- and the other studio like you -- are categorically precluded as a matter of law from doing so to the 67 million residents of the Ninth Circuit. As well as all of the ISPs in that area, and I assure you, there are quite a few.

Not a sound strategic decision.

But yay for Mr. Doe. Well done. Pirates everywhere owe you a debt of gratitude.

And to personally commemorate this august opinion, and in honor of the Streisand effect, this weekend, I'm definitely not going to watch Fall -- which actually seems like it could potentially be a cool movie -- on a pirate website.

And neither should you.

Gamo v. Merrell (Cal. Ct. App. - Aug. 14, 2025)

This seems right to me. Just because a statute (here, the Consumer Legal Remedies Act) allows for one-way fee shifting if the plaintiff prevails (but not if the defendant prevails), that doesn't categorically bar a defendant from obtaining cost of proof sanctions for an improperly denied request for admission. One's a discovery provision and the other's about the merits. Two different things. For example, you an get cost of proof sanctions even if you lose.

The case here involved the purchase of a Masserati and the disputed value of the plaintiff's trade-in; the dealership gave him $2,000 for it, but the plaintiff said it promised him $6,500. Plaintiff denied RFAs that asked him to admit, for example, that he initialed each page of the written contract. (It seems to me like there's no reason not to admit that one if it's indeed true, but whatever.) Defendant subsequently prevailed at trial. The trial court thought it had no authority to award cost of proof sanctions given the one-way fee provisions of the CLRA, but the Court of Appeal reverses and remands.

I'm on board for pretty much everything that Justice Moore says in the opinion, with one caveat. There are some RFA's that are pretty much case-dispositive; e.g., "Admit that Defendant did not violate the CLRA." None of those were propounded here, but if they were, that might be an entirely different story: I could see an argument that, as to those, a fee award on behalf of a prevailing defendant might be precluded by the underlying statute.

So I would drop a footnote to leave that particular issue open were it me. Again: Doesn't apply here, but I could see it potentially applying in other cases. So no categorical rule.

Nwauzor v. The GEO Group (9th Cir. - Aug. 13, 2025)

Earlier today, Judge Bumatay, joined by Judges Callahan and VanDyke, authored a strongly worded, 27-page single-spaced dissent from the denial of rehearing en banc in this case, which involves the minimum wage applicable to civil immigration detainees. Simultaneously, Chief Judge Murguia, joined by Judge Fletcher, spent a grand total of two and a half pages responding to Judge Bumatay. And Judge Collins, joined by Judges Nelson and Bress, says in single paragraph that he'd have taken the case en banc for the reasons stated by Judge Bennett in his panel dissent.

Those disparate approaches probably speak volumes about various personalities on, and interactions between, some of the current judges on the Ninth Circuit.

Bieganski v. Shinn (9th Cir. - Aug. 12, 2025)

There were over a half dozen published Ninth Circuit opinions today, which comprised nearly 200 pages of single-spaced text. So a lot to read.

I nonetheless thought I'd only talk about this one, since it seemed to me the most doctrinally interesting.

It's a thorny area of the law involving affirmative defenses to criminal statutes. The normal rule, as you know, is that the state has the burden of proving the elements of a crime beyond a reasonable doubt. At the same time, however, the state can make affirmative defenses, and as to those, (1) the defendant has the burden of proof (which is turn often practically compels him to take the stand), and (2) is required to demonstrate those by the preponderance of the evidence (rather than the "beyond a reasonable doubt" standard). So it's a very big deal whether something's an element or an affirmative defense.

And what matters, the Supreme Court has held, is substance, not form. A state could not, for example, constitutionally say "It is a crime to be a nurse in a hospital when a patient dies, but it's an affirmative defense if the nurse shows they didn't cause the death." No good. You can see why.

Which brings us to today's case.

Arizona says that it counts as molestation if you deliberately touch a child's genitals. But it's an affirmative defense if you didn't touch them for sexual purposes. You see where the resulting burdens are. Arizona's statute in this regard is different than every other state, which has sexual motivation as an element of the offense. Is Arizona's statute constitutional, and is the defendant here (who was convicted based upon the Arizona statutory regime) entitled to federal habeas relief?

There's a ton to Judge Bybee's opinion. It's really quite good, and explains a very complicated doctrinal area in a clear and understandable fashion. He ultimately holds (alongside the rest of the panel) that the Arizona regime is unconstitutional, since it in substance turns an essential element of the offense (sexual motivation) into an affirmative defense.

What does a ton of work for Judge Bybee -- and understandably so -- is his claim that, as written, the Arizona statute would criminalize a massive volume of entirely innocent conduct if you took away the affirmative defense. When a parent bathes their child, after all, there's sometimes the occasional touching of the child's genitals and/or anus. Is that really molestation? Arizona says yes, albeit with an affirmative defense if the parent can prove that the touching wasn't sexually motivated.

That makes sense to me. A powerful argument. And the fact that prosecutors wouldn't charge parents for bathing their kids doesn't save the statute -- that relies on noblesse oblige to salvage an unconstitutional statute, and we're not down for that

Solidly argued. So you can see full well why the panel comes out the way it does.

So the opinion is worth mentioning (as well as reading) for that reason alone.

But I wanted to add one other thought as well.

Even more than the "bathing" argument, Judge Bybee's opinion relies a ton on the argument that the Arizona statute would criminalize anyone who changed the diaper of a baby. Judge Bybee articulates this argument over a dozen times, saying that (1) if you change a baby's diaper, you're automatically guilty of child molestation in Arizona (absent proof of an affirmative defense) [e.g., "Arizona’s child molestation scheme . . . . criminalizes every knowing or intentional touching of a child’s private parts, no matter the reason. Everyone who knowingly changes a diaper could be convicted of child molestation."); and (2) if you instead don't change the baby's diaper, that's a crime too. ["Any parent or caretaker who fails to change a child’s diapers may be charged with criminal neglect.]

So you're damned if you do, and damned if you don't. Or, in Judge Bybee's words, "Arizona can thus punish both the changing and the nonchanging of a diaper. No matter what choices parents or caretakers make, they have violated Arizona law." P.S. - Oh, and if you see someone else change a diaper, you're guilty if you don't report that too. ("Given the mandatory reporting requirement, a parent who observes a spouse changing a diaper has an obligation to report the violation, under penalty of law.")

Okay. Again, a powerful argument.

My only comment, though, is about the underlying assumption. Does changing a diaper really involve the elements of child molestation under Arizona law?

I get it. If, during the diaper change, you touch the child's genitals, that satisfies the elements. Since the statute says that you're (facially) guilty if there's "any direct or indirect touching . . . of any part of the genitals, anus or female breast by any part of the body or by any object."

But, as a factual matter, how often does that really happen when you change a diaper?

I've got four kids. I've changed my share of diapers. For me the number of times that I touched their genitals while doing so (while holding a wet wipe or otherwise) was very small. If the kid was actively peeing on me during the diaper change, well, yeah, sure, sometimes I had to move to block the stream, and that could involve touching the genitals. But otherwise, I suspect that the number of times one actually manipulates the child's genitals during a diaper change seems relatively small.

Now, if we're talking about a diaper that's full of feces, that often involves a different story. That's a situation in which you may well have to touch (albeit with your covered hand, obviously) the child's anus or genitals. Gotta get that area clean, for sure. Yep, in that situation, you might well be facially guilty of child molestation under Arizona's statute.

But it nonetheless seems overly broad to repeatedly say, as the opinion currently does, that anyone who changes a diaper is facially guilty. (E.g., "Everyone who knowingly changes a diaper could be convicted of child molestation."). If we're talking about poo diapers, okay, yep, I think that's generally correct. At least as I recall the whole diaper-changing experience.

But for those half (or more?) of diaper changes that merely involve pee, I don't think that's usually a facial crime even under the Arizona statute. You've got a valid defense even beyond the affirmative one, since you probably didn't, in fact, usually touch the genitals or anus (or "female breast").

So I think today's opinion correct, but only with the caveat that whenever we're talking about changing a diaper, we're talking about diapers full of poo. Particularly that yucky, expansive, totally-all-over-the-place (my-God-what-have-you-done-here) baby poo.

With that graphic but important caveat, sure, I fully concur.

The Satantic Temple v. Labrador (9th Cir. - Aug. 11, 2025)

I get it. You want to challenge Idaho's radical anti-abortion law on constitutional grounds. Truly: I get the motivation.

But, if only as a practical matter, doing so by filing a lawsuit on behalf of "The Satantic Temple" -- i.e., a church that venerates Satan -- is not the way to go.

Very much so.

The Ninth Circuit dismisses the lawsuit for lack of standing, albeit with a remand to allow the plaintiff to amend the complaint to be more specific about a particular member of the church if it wishes.

But please listen. If you want to really bring the lawsuit, just bring it on behalf of the (anonymous) member herself.

Not The Satanic Temple.

I mean, I'm not a professional public relations flack, but come on. This one's fairly obvious.

Hohenshelt v. Superior Court (Cal. Supreme Ct. - Aug. 11, 2025)

I'm surprised that the Court wasn't able to get Justices Corrigan and Jenkins on board for this one.

The majority opinion goes out of its way to strike a middle ground. The issue is whether the Federal Arbitration Act preempts Section 1281.98 of the CCP, which provides that defendants in employment and consumer cases waive their right to arbitrate if they don't timely pay the arbitration fees that are due. The majority holds that it's not preempted, but simultaneously limits the statute to cases in which the failure to pay arbitration fees was wilful, grossly negligent, or fraudulent. This overrules a slew of Court of Appeal cases holding that the statute means what is says and that even accidental failures to timely pay arbitration fees results in a waiver of the right to arbitrate.

Given the language -- and, I believe, the intent -- of Section 1281.98, there's a strong argument that those Court of Appeal holdings were correct. Though Justice Liu's majority opinion does a decent job of making the contrary argument. (Which, of course, is now the law.)

Regardless, I would have thought that substantially narrowing the scope of Section 1281.98 would have been enough to get everyone on board for the anti-preemption holding. Apparently not. Justices Corrigan and Jenkins still believe that Section 1281.98 is preempted. So be it.

Analyzing the practical realities more deeply, maybe narrowing the reach of Section 1281.98 was (also?) an attempt to insulate the opinion from reversal by the United States Supreme Court. We'll see how that plays out in the end as well.

In any event, for now, the rule is a lot more favorable to nonpaying arbitration defendants than it was 24 hours ago. Section 1281.98 is going to apply in a ton fewer cases going forward.

Munoz v. Regents (Cal. Ct. App. - Aug. 5, 2025)

Okay, I guess. But particularly now having seen what the Trump administration has (successfully) done to Harvard, Columbia, and a wide variety of other universities -- over far less "egregious" conduct -- I would not want to be in the position (as here) of hiring undocumented immigrants at the University of California, likely in violation of federal law, and then just waiting to see what buttons the federal government decides to push to punish me for that decision.

But the Court of Appeal says that fearing backlash -- including lawsuits -- by the United States isn't a good enough reason to refrain from hiring undocumented immigrants, so unless either federal courts or the California Supreme Court step in, I guess we'll just have to see how this one ultimately plays out.

People v. Harlow (Cal. Ct. App. - Aug. 5, 2025)

I have always thought that California's mental health pretrial diversion statute gave potential criminals a fair degree of incentive to get someone to diagnose them with a mental disorder prior to committing a wide variety of common crimes. Today, the Court of Appeal holds that no advance planning is required: that as long as the diagnosis is within five years of the motion for pretrial diversion, the statute's satisfied, even if the diagnosis comes long after the actual crime.

Which is nice.

Now, it's still in the court's discretion, and there are some caveats. But this seems like a fairly substantial benefit to criminal defendants.

Many of whom, I suspect, could easily -- easily -- be diagnosed with a mental disorder. Even from a neutral physician, and even more so from a physician who's, shall we say, a bit more of a paid advocate.

In re Ja. O. (Cal. Supreme Ct. - Aug. 4, 2025)

This is low-key sweet.

Justices on the United States Supreme Court are -- as you know -- increasingly fractious. Dissents are  often vitriolic, majority opinions often respond in dismissive (or derisive) terms, etc. It's a very polarized institution, and the opinions amply reflect that fact.

By contrast, California Supreme Court opinions are often unanimous. And even when they aren't, they're often like this one today.

The question presented was when exactly the Indian Child Welfare Act of 1978 required county welfare department to ask extended family members about whether the child might be a potential Indian child. Some California appellate courts had held that inquiry duty existed whenever the child was placed in temporary custody, whereas others had held that this duty arose only when the child was removed from custody without a warrant. So the California Supreme Court granted review to resolve the conflict.

After the Court granted review, however, the California Legislature passed a statue that provided that this duty existed whenever the child was placed in custody, regardless of whether there was a warrant. So that resolved the issue, at least going forward.

So the question then became limited to cases arising before the passage of the statute. Which side of the appellate split was right for those, since they were governed by the then-existing statute.

The majority concluded that the same rule governed both cases: that the old statute imposed the same duty (albeit in somewhat less clear terms) than the new statute. And in so holding, Justice Jenkins' majority opinion cited a prior California Supreme Court case that noted that sometimes, a subsequent statutory amendment might give insight into the Legislature's intent regarding the prior statute. Justice Jenkins explained that the majority didn't have to rely on that principle here, since they thought the prior statute was clear enough on its own terms, but note that, hey, for whatever it works, that concept points the same way here.

Justice Liu, joined by Justice Kruger, concurred, and agreed with everything the majority said, including its result, but didn't think that it made sense to rely on the Legislature's subsequent statutory enactment to figure out the meaning of the prior statute. Justice Liu noted -- correctly -- that the majority opinion didn't actually rely on that principle here, so the two sides basically completely agreed on everything, but the concurring justices just wanted to make clear that, as a general principle, they didn't agree with the basic preexisting principle that future statutes may give insight into the meaning of older ones.

That's a difference, of course. But such a minor one in the scheme of things, and articulated on both sides with restraint and respect.

Something you rarely see these days in the federal Supreme Court.