Forester v. Chertoff (9th Cir. - Aug. 29, 2007)

Judge Bea writes a fairly blistering dissent in this case. Replete with sentences like: "No dice," and "[the Supreme Court] will not play that game. Neither should we." And references to the majority's "clever rhetorical devise." Tell us, Judge Bea: What do you really think?

It's interesting to ponder why Judge Bea writes the dissent in the way he does. His arguments on the merits are very easy to understand; indeed, they're pretty strong ones. The ADEA says that plaintiffs are required to give the EEOC 30 days notice before they file suit. Plaintiffs here -- for a variety of (mistaken) reasons -- only gave 9 days notice before filing suit. That didn't cause anyone any prejudice at all, but, still, the statute says you have to give 30 days. The district court dismissed -- and, at this point, refiling is likely impossible. So the defendants win on a meaningless technicality.

The majority says "No blood no foul," and grants the plaintiffs equitable tolling. Judge Bea says: "But the statute is clear. You gotta give 30 days notice. Plaintiffs gave 9. End of story." So, basically, the majority is nice, and prefers adjudication on the merits, whereas Judge Bea is meaner and follows the plain language of the statute. Pretty simple, eh?

Given the simplicity of the dispute, one wonders from whence Judge Bea's relative vitriol arises. True, it may be that the majority is bending the statute in an effort to avoid injustice. Perhaps that's wrong. But even if true, that's hardly cause for cranking up the volume of the dissent. Maybe the majority's misguided. But it's a pretty strong dissent for something that's far from malicous -- or even absurd.

If written by anyone else, one might think that the dissent was an opening -- or continuing -- gambit from someone who wanted to demonstrate his strident conservative colors in the hopes of being elevated. But Judge Bea's not like that; and in any event, he isn't the right age to be in that game. It's also hard to believe that there's any personal animosity present, or even strong political differences: the majority opinion that Judge Bea slams is written by Judge Callahan, for goodness sakes, and joined by Judge Dorothy Nelson. Two judges who are far from jerks, and both from and towards whom vitriol -- unlike some other members of the Ninth Circuit -- is rarely seen.

Admittedly, Judge Bea somewhat soften things up in the last paragraph, perhaps precisely because it's Judges Callahan and Nelson. But only a little. He says, in essence: "Why are you being so nice? Just let the case be dismissed. Plaintiffs can always sue their lawyer. What's the big deal?" But the majority thinks that equitable tolling means that the plaintiffs can properly sue the tortfeasor directly, rather than (potentially) settling for a societally second-best action against someone who hasn't (allegedly) illegally discriminated against them.

So an interesting dissent. And opinion. It's a study in contrasts. One side's being extremely nice. And the other is doing the opposite. Which, at a minimum, makes for good read.

San Leandro Teachers Ass'n v. Governing Board (Cal. Ct. App. - Aug. 28, 2007)

I kept reading this opinion expecting to find a dissent. In vain.

Too bad.

Justice Swager holds that Section 7054 of the Education Code, which generally bars school funds from being used to support particular candidates or ballot measures, operates to prohibit a school union from placing a brochure in the mailboxes of its member teachers at a school.

The teacher mailboxes are just sitting there. The brochures are paid for entirely by the union. The only thing that the mailboxes -- which are ordinarily used by the school -- do is to hold up the brochures and keep them from falling on the floor. That's it. It costs the school nothing for the brochures to be placed therein. But the Court of Appeal holds that this use nonetheless violates Section 7054.

Justice Swager says that Section 7054 permits the union to place the brochures on a desk. Or a table. Or on a chair. Moreover, that Section 7054 allows a union official to use a school's desk, or table, or chair, or even its electricity in order to give a partisan speech on school grounds. But using a mailbox, he says, is categorically different. That's prohibited by Section 7054.

I'd have loved to see a dissent.

Rodis v. City and County of San Francisco (9th Cir. - Aug. 28, 2007)

It's generally a case that interests me when a California attorney is a party to the lawsuit. This case is no exception.

It involves Rodel Rodis, who's an attorney in San Francisco as well as an elected public official (a member of the Community College Board of San Francisco City College). In 2003, Rodis goes into a drugstore near his office to buy some tiny items and plunks down a $100 bill to pay for them. (As an aside, I didn't know that being a public official pays so well that the smallest bills you typically carry are bennies. But that's another story.)

The clerk thinks the bill looks and feels funny, so goes to her manager. The manager thinks it might be counterfeit as well, even after it tests as genuine with a counterfeit pen. They then call the police, and Rodis hangs out during this entire period; indeed, he even pays for the stuff with another (indisputably genuine) $100 bill in the meantime. The police come, and they can't totally decide, so they elect to call the Secret Service to figure it all out. And decide that, in the meantime, they'll just arrest Rodis and take him down to the station.

Turns out that the bill was totally genuine. At which point Rodis -- understandably miffed at being arrested for doing absolutely nothing wrong -- sues.

The officers move for qualified immunity, claiming that they had probable cause to arrest him. The district court disagrees, defendants appeal, and the Ninth Circuit affirms in a divided vote.

Judge Dorothy Nelson authors the majority opinion and holds that, in toto, there was a wholesale absence of probable cause, especially in light of the fact that the bill had tested as genuine and there was no evidence at all that Rodis intended to defraud. Judge Callahan dissents, arguing that although it's unfortunate (obviously)that Rodis was unjustly arrested, the (allegedly) unusual look and feel of the bill, combined with his use of this bill to purchase small items, was enough to create qualified immunity; i.e., either creates probable cause or is close enough for government work.

It's an interesting dispute. There's also an interesting paragraph of Judge Nelson's opinion in which she says the following:

"What is more, several facts known to the officers at the time of the arrest significantly decreased the probability that Rodis violated § 472. Viz., Rodis had other $100 bills in his possession that were genuine, one of which he used to complete the transaction; the counterfeit detector pen indicated the bill was genuine; and the officers knew Rodis was both a San Francisco attorney and a locally-elected public official with strong ties to the community in which the store was located. Specifically, Barry had known Rodis for several years. He knew Rodis was a member of the Community College Board, and he had interacted with Rodis personally, encountering him at activities associated with the elementary school that both Barry’s and Rodis’s children attended. Also, Rodis informed Liddicoet prior to his arrest that he was a public figure, and that he lived and worked within two blocks of the store."

Now, I'm sympathetic to those sentiments, and the first two facts do indeed (in my mind, at least) diminish the probability that Rodis was guilty. The other facts in the paragraph, however, start to sound very much like an argument that Rodis probably wasn't guilty because he's an "upstanding citizen" with wealth, power, and prestige; indeed, he's a member of the elementary school PTA, for Christ's sake!

And we all know no one like that is likely to commit a crime, right? That probable cause to arrest someone who's an elected official, who's a member of the PTA, and who's an attorney should require more than that required to arrest someone who's less wealthy and powerful. Right?

Catholic Mutual Relief Society v. Superior Court (Cal. Supreme Ct. - Aug. 27, 2007)

Rarely do you see the California Supreme Court take up routine discovery matters; here, whether plaintiffs are entitled to discover the a nonparty insurance company's reinsurance agreements in order to faciliate a potential settlement. But not only does the California Supreme Court do so here, but it also granted review in the case (and adjudicates it) even though -- as explained in footnote 5 -- the plaintiffs here actually withdrew the discovery requests, and the requested discovery in this case was thus technically moot.

So the California Supreme Court obviously really wanted to decide this one. And holds, in a very close 4-3 decision, that plaintiffs can't usually obtain this information. With Justices Corrigan, Kennard, and Werdegar dissenting. (As usual in these 4-3 decisions, Chief Judge George is in the majority.)

It's an interesting case, especially since the dissent has a point that the statutory language seems facially to allow discovery of these agreements. But, for policy (and other) reasons, the majority concludes that these agreements aren't discoverable.

It's a high-profile case: this is one of the sex abuse cases against the Roman Catholic Archdiocese of San Diego. And the discovery matters, since everyone knows that the defendant is insured, but whether the insurance company can actually fulfill its contractual obligations is much more uncertain.

But that mystery -- like many others in the Catholic Church -- will apparently remain so. An interesting 4-3 decision.

Webb v. Smart Document Solutions (9th Cir. - Aug. 27, 2007)

Your client can get copies of his medical records at a reasonable cost according to HIPPA. But when you, on his behalf, obtain these same records, the hospital (and its agents) can -- and do -- rip you off.

So sayeth the Ninth Circuit.

U.S. v. Hurd (9th Cir. - Aug. 24, 2007)

I agree with Judge Milan Smith in this one. Sure, it would have been better -- a lot better -- if the judge who authorized the search warrant hadn't forgotten to initial the part of the warrant that authorized the search of the residence. But humans sometimes make mistakes, and since the judge, when she signed the warrant, seemed pretty clearly to intend to approve the whole thing, the search was permissible. Notwithstanding the fact that, technically, nothing on the actual warrant authorized the search of the residence.

Still, next time, let's be a little more careful, okay? This is pretty important stuff.

Benson v. Kwikset Corp. (Cal. Ct. App. - July 26, 2007)

I guess it's the doldrums of August. Vacations. The heat. Whatever. But there hasn't been an overwhelming plethora of opinions this month that have been especially interesting. At least comparatively.

Oh well. I'm sure it'll get better. Hopefully they'll be some vicious, no-holds-barred dissents upcoming soon. That'll get the blood flowing.

Meanwhile, take a look at this one. In which Justice Bedsworth amends his opinion to say: "On the court’s own motion, the majority opinion is modified as follows: . . . . On page 22, in the first full paragraph, starting with 'The trial court awarded plaintiff nearly $3 million . . .,' on lines 4 and 5, delete the sentence 'We agree with our dissenting colleague’s assertion that the award appears to be unnecessarily high.'"

So much for being concilliatory, I guess!

In Re Corrine W. (Cal. Ct. App. - Aug. 22, 2007)

How many times have you had to tell your teenage child that driving (or owning) a car is not a necessary component of life for a sixteen year old? Well, now you've got a case that backs you up.

Corrine, a sixteen year old in foster care, filed an action claiming that Contra Costa County was required to pay for automobile liability insurance so she could lawfully drive a car. The trial court, however, held that there was no such duty to pay, reasoning that "[d]riving an automobile at age sixteen is not a necessity" (emphasis in original). And Justice Sepulveda affirms.

So that should put a definitive end to any arguments with your child about the family vehicle, right? Just have 'em read the case. I'm sure they'll be persuaded.

Patel v. Liebermensch (Cal. Ct. App. - Aug. 21, 2007)

Normally I wouldn't comment on this case, as it's very fact-specific, and concerns whether a particular real estate option contract was detailed enough to justify the trial court's award of specific performance. But the fact that (1) there's a dissent, (2) both the majority opinion and the dissent are authored by people who teach as adjuncts at the University of San Diego School of Law, (3) the attorney for plaintiff and respondent (James Mitchell) is a USD Law graduate, and (4) the holding has broad implications for many different types of real estate option contracts persuaded me to give my two cent's worth.

I think that the trial court properly awarded specific performance, and that Justice McIntyre is right in his dissent. Mind you, I wouldn't be as emphatic as Justice McIntyre is, because I think that Justice Huffman (who wrote the majority opinion) makes a darn good case to the contrary. But I'd have voted with Justice McIntyre rather than Justice Huffman, and think that the layperson-drafted option contract here was specific enough to support the jury's verdict (and judge's finding) that there was a meeting of the minds. Sure, there were things left out -- period of escrow, amount of deposit, etc. -- but that doesn't negate the option, and the trial court can (and did) properly fill those in. So sayeth me, at least. Which, with $3.50, will get you a cup of coffee at Starbucks.

So I'd have voted in favor of the USD Law graduate's client alongside a USD adjuct professor, notwithstanding the contrary views of a longtime (and well-respected) USD adjunct professor. Party-drafted options contracts like this one should, in my view, be enforced rather than disregarded. Even though a lawyer -- at $350/hour -- could surely have done better.

Phillips v. Ornoski (9th Cir. - Aug. 21, 2007)

You don't typically see -- indeed, I don't think I've ever seen -- the Ninth Circuit publish an order granting an extension of time to file respondent's brief. Those things are pretty routine.

But it does so today.

Let me summarize -- in my own words -- Judge Reinhardt's three-page order. And perhaps you'll see why he published it:

"California has asked for a 45-day extension to file its answering brief in this death penalty case. This is after we already granted them an additional 60 days. No problem. No problem at all. Death penalty cases are very difficult. As well as important. Take all the time you want.

I know this won't shock you, but I'm in no rush to execute the guy anyway. So if you feel like delaying a little bit on your end, feel free. Mind you, it's a bit ironic that we're granting you extra time merely to write a brief, whereas you, pursuant to 28 USC 2266, can typically make the Court of Appeals decide the case within 120 days with an appropriate request. So we'd have to adjudicate the thing faster than we're giving you simply to prepare a single brief.

But who am I to complain? You want more time. You got it. In this, and any other, capital case."

Okay, so a lot of those words are mine. But I think they accurately reflect the sentiment in the order.

O'Connell v. Stockton (Cal. Supreme Ct. - July 26, 2007)

I always like it when I'm right.

Mind you, I'm happy to be wrong. And surely, at times, am. But I always enjoy it when events go my way.

So, back in 2005, I commented on the opinion by Justice Butz in a case involving a municipal ordinance that allowed the City of Stockton to forfeit vehicles used by individuals to buy drugs or solicit prostitutes and said that "you're almost certainly looking at the California Supreme Court taking up the case." Which it promptly did, thank you very much. I also said that, in my view, Justice Butz wrote a very persuasive opinion. And as it turns out, I wasn't the only one. As, in this opinion, the California Supreme Court affirms.

It's a close one: a 4-3. But I think that Justice Kennard, who wrote the majority opinion, with whom Chief Justice George and Justices Werdegar and Moreno joined, has the much better of the argument. It was also fairly lame, in my opinion, that Justice Corrigan (joined by Justices Baxter and Chin) begins the dissent with the following paragraph: "The ordinance at issue is a practical and responsible attempt by the City of Stockton (Stockton) to address problems it, and many other cities face on a daily basis. The ordinance speaks to a narrow, pressing and quite real local concern. Street commerce in drugs and sex forces innocent people to share their neighborhoods with pimps, prostitutes, and drug dealers who use their streets as a bazaar for illegal transactions." It's a preemption opinion, for goodness sakes. It's irrelevant that drugs and prostitution ain't exactly WalMart. I'd focus a little more on the relevant facts -- and, hopefully, the law -- and less on the atmospherics.

In Re Roderick (Cal. Ct. App. - Aug. 17, 2007)

I love the (lengthy) dialogue between Justice Rivera, who authors the majority opinion, and Justice Sepulveda, who dissents, here. Both make articulate and persuasive points. Both make, in my mind, reasonable arguments. And yet, obviously, only one can actually be correct.

It's a fact-specific case regarding whether Alfred Roderick, a 75-year old inmate convicted of second degree murder by stabbing someone who pulled a knife on him in a bar fight, is entitled to parole. Notwithstanding the fact-specific inquiry, however, the case is symptomatic of more pervasive issues regarding the treatment of parole decisions both by the parole board and by the judiciary. And, on this score, both Justice Rivera and Justice Sepulveda make excellent points.

Reasonable minds could come out both ways. It's an interesting case. Worth the 86-page read. And that's saying a lot.

Magtanong v. Gonzales (9th Cir. - July 23, 2007)

Putting things in the mail isn't the same as filing them. Yes, I know that seems obvious. But it's true. And don't think that overnight mail is necessarily overnight. It ain't.

So, for example, when a statute says that you have to file a document not later than 30 days after removal, and when you give the document to DHL on the 29th day, and mail it by overnight mail, you probably figure it's going to be filed on the 30th day. And maybe it will be. Or, unfortunately, maybe it won't. Like here.

The document is one day late, and hence filed on the 31st day. Sorry. Out of luck. The 30 day deadline here was mandatory and jurisdictional. I don't care that you relied on DHL. That's no excuse.

Which, I'm sure, upsets the lawyer. But that's the rule. And you can only imagine how the client feels. Who, here, gets deported to the Phillipines as a result.

File it on time. Walk it down to the courthouse yourself if you have to. It's that important. Really.

Lesson of the day.

U.S. v. Yida (9th Cir. - Aug. 16, 2007)

Listen to me and you'll be thanked by the Ninth Circuit and your name memorialized forever in the F.3ds.

That's what you should learn from today's opinion by Judge Gould. Back in March, the Ninth Circuit, in a rare (but very nice) move, invited submission of amicus briefs on an interesting evidence issue. And I responded by publicizing the invitation and suggesting that people should feel free to write something up.

And guess what a couple of people did? Precisely that. To which Judge Gould responded by including the following footnote on the first page of the opinion: "In a published order following oral argument, we invited amicus briefing on the important issues raised in this appeal. See United States v. Yida, 478 F.3d 1068 (9th Cir. 2007). We thank the National Association of Criminal Defense Lawyers, Professor Richard D. Friedman from the University of Michigan Law School, and Aaron Petty, a recent graduate of the University of Michigan Law School, for their responsive amicus briefs, which we received in addition to the parties’ supplemental briefing."

Pretty cool, huh? Great job, Professor Friedman, Mr. Petty, and the NACDL. Plus, that's not all; Judge Gould also includes lines like the following in the actual text of the opinion: "Professor Richard D. Friedman of the University of Michigan Law School, in his amicus brief, offers additional reasons for the courts’ preference for live testimony, which we find persuasive. . . ." Nice!

Those names could have included yours as well, my loyal readers. So next time the Ninth Circuit wants some free legal help, let's make 'em feel the love, shall we?

McGarry v. University of San Diego (Cal. Ct. App. - Aug. 15, 2007)

I've got tenure. Thankfully.

As a result, at least in theory, I could take serious issue with this opinion by Justice McDonald. So I could strenuously argue that the University of San Diego and my present boss, Mary Lyons (the president of USD), should properly be subjected to a lawsuit for defamation by Kevin McGarry, the former longtime football coach for USD before he was fired in 2003. And, at least in theory, I would suffer no adverse consequences whatsoever for my statement that my boss and employer should be seriously punished for their misconduct.

But I ain't gonna test the waters. Because, fortunately, I think that Justice McDonald is correct in this one. McGarry's lawsuit was properly dismissed on an anti-SLAPP motion because while we know (from the newspaper) that someone at USD uttered allegedly defamatory statements about McGarry, the Shield Law precluded McGarry from discovering their identity from the newspaper. And an anti-SLAPP motion was proper because McGarry was a limited purpose public figure and the alleged defamation arose from protected conduct.

So USD, and President Lyons, wins. And recover their costs and attorney's fees on appeal.

All of which, I might respectfully suggest, could easily be allocated towards merit raises on behalf of diligently blogging legal scholars at the University of San Diego School of Law.

Farmer v. Baldwin (9th Cir. - Aug. 15, 2007)

As I've noted previously, 2007 has been the Year of Certification in the Ninth Circuit, with an unprecedented number of questions certified to state supreme courts. This one continues the trend. Moreover, this is also an extremely rare example of a federal court certifying a state law question in a federal habeas case. You don't see that every day. Or even every decade.

Beyond the doctrinal implications, the case also brought an idiosyncratic smile to my face because the certification was issued by my former boss, Judge Reinhardt, and counsel for the petitioner was Lisa Hay. Upon the latter of whom I once had a total crush.

So the Oregon Supreme Court now has some more homework assigned to it by the Ninth Circuit. If it chooses to accept it.

U.S. v. Seljan (9th Cir. - Aug. 14, 2007)

I'm sitting here on the Big Island of Hawaii, waiting for Hurricane Flossie to whack the island later today. And was timely reminded, thanks to Judges Clifton and Gould, not to send international packages, mail, FedEx envelopes, or pretty much anything else that I don't want the government to view. Because, you see, the United States doesn't necessarily need probable cause, reasonable suspicion, or anything at all to justify opening up your international envelope. And the United States is pretty darn happy to exercise that right, thankyouverymuch.

Am I happy that 87-year old John Seljan doesn't get to "sexually educate" little kids in the Phillipines anymore? Definitely. He'll instead be "educated" in a federal prison for the next 20 years -- in other words, until he's 107. And it's 20 years only because Judge Stotler departed downward an utterly meaningless 22 months "on account of Seljan's advanced age."

Technically, the relevant federal statutes require reasonable suspicion before the U.S. opens international mail (at least without the consent of the sender). But there's a little known codicil of Title 31 that allows the United States to open up virtually anything, without any reason -- and certainly FedEx packages -- as long as they're ostensibly looking for currency violations. So the Ninth Circuit holds that the susicionless seizure here was permissible.

Remember that the next time you send sexually suggestive letters internationally. Or anything else, for that matter. Someone in a uniform may well be reading them first.

P.S. - Thanks, Judge Pregerson, for adding the complete text of Seljan's sexually suggestive letters to little girls to the F.3d. That's sometime I definitely want to read while on vacation. As well as memorialize forever.

People v. Semann (Cal. Supreme Ct. - Aug. 13, 2007)

I always like it when a judicial opinion constitutes a how-to guide to engage in various illegal acts.

For example, I previously had no idea what it meant to "bust out" a credit card. Much less did I know how one could use those "courtesy checks" constantly sent to anyone with a credit card to steal over $1.6 million.

But now I do.

My invaluable education continues apace. Thank you, Justice Werdegar.

Womack v. Del Papa (9th Cir. - Aug. 13, 2007)

Sometimes the Ninth Circuit publishes an opinion not because the issue is a close one, not because the outcome of the case is at all in doubt, and not because the opinion technically meets the standards for publication, but rather because the panel (and case) is a good one in which to move the law a tiny little bit towards the way you'd like it to be, without the risk that anyone else on the court will be able to successfully call for en banc review.

Like here.

U.S. v. Aukai (9th Cir. - Aug. 10, 2007)

We're better at catching people who use methamphetamine than we are are catching terrorists. Even in airports.

This en banc opinion is worth reading wholly apart from the merits. If only because Judge Bea writes an opinion that is deliberately -- and pervasively -- centered around 9/11; indeed, so much so that Judge Graber (joined by Judges Hawkins and Wardlaw) writes a concurrence that says that while they agree with the result, they "cannot join the majority’s irrelevant and distracting references to 9/11 and terrorists."

I especially liked footnote 7 of the majority opinion, in which Judge Bea includes a half-page definition of what the colloquial term "terrorist" means. Because a reader definitely could not understand the following sentence -- "Such a rule would afford terrorists multiple opportunities to attempt to penetrate airport security by 'electing not to fly' on the cusp of detection until
a vulnerable portal is found" -- without a lengthy footnote after the word "terrorists" that defined the term.

On the merits, every member of the 15-judge panel agrees that the search here was okay. But an interesting tangential disagreement regarding how much one targets an opinion specifically to the "post-9/11" world.

Plumlee v. Matso (9th Cir. - Aug. 10, 2007)

Back in 2005, Judge Betty Fletcher (who wrote the majority opinion) and Judge Bea (who wrote the dissent) got into an unusually nasty exchange, about which I commented here. In 2006, the opinion and dissent were amended, but hardly to remove the acrimony; indeed, Judge Bea's amendment instead included yet another hearty slam on the majority opinion.

Today, this exchange -- perhaps mercifully -- technically goes away, as the case was taken en banc. So the panel opinion and dissent is still published in the F.3d, but isn't technically citable as precedent anymore.

Let's see what fireworks the en banc opinions will generate!

Lockett v. Catalina Channel Express (9th Cir. - Aug. 9, 2007)

I agree with Judge Hall and disagree with Judge Callahan on this one. Even though the latter's view not only garners the vote of Judge Robart (sitting by designation from the Western District of Washington), but is both moderate and plausible.

Simply because a single passenger makes an vague request for a "dander-free" area doesn't mean that a business can implement a policy that kicks all service animals for the blind out of their entire first-class area on the (utterly unsupported) ground that a dog would be a "direct threat" to the immediate health or safety of others. Much less, in my view, can such an issue be resolved in favor of the business on summary judgment.

McElmurry v. U.S. Bank Nat'l Ass'n (9th Cir. - Aug. 8, 2007)

Collective actions. Opting-in. Pre-certification notice to a class. Collateral order doctrine.

Judge Bybee writes a civil procedure professor's dream.

Short take: When the district court doesn't feel like letting you write to the class members asking whether they want to opt in, there's pretty much nothing you can do about it.

In Re Marriage of Feldman (Cal. Ct. App. - Aug. 7, 2007)

What happens when you repeatedly deceive your spouse about marital assets in the midst of your divorce proceeding? You get sanctioned. A lot. Even if you're very, very rich.

This is a great story, and concerns the marriage of Aaron Feldman and Elena Feldman, which broke up after 34 years of marriage. Aaron Feldman is worth, according to the opinion, over $50 million. And the story of what he (allegedly) did during the divorce proceedings, and why he got sanctioned, gives some telling insight into how these things transpire, as well as what can go wrong.

What the opinion doesn't at all mention, however, is that Aaron Feldman is actually pretty famous. At least down here in San Diego. Amongst other things, he's the owner of Sunroad Enterprises, which is in a huge fight down here in San Diego over a building that they constructed near the flight path of an airport that was 20 feet too tall, resulting from (alleged) private meetings with the Mayor of San Diego, and that ultimately resulted in a very-high profile (and ongoing) fight with the City Attorney of San Diego. Moreover, some sources describe Aaron Feldman's worth at over $300 million, rather than the $50 million described in the opinion, and the divorce fight has apparently already generated over $7 million in legal fees.

So a nice little fight involving one of the highest-profile people about whom you've probably heard nothing. More about Aaron Feldman here if you'd like.

Anyway, even though a $175,000 sanction is peanuts to a guy worth $50 (or $300) million, the lesson of the day is that judges don't like it if you try to hide things from your spouse in a divorce proceeding. At all.

Fantasyland Video v. San Diego (9th Cir. - Aug. 7, 2007)

The certification frenzy continues.

The Ninth Circuit has been on a frenetic pace of certifying questions to state supreme courts lately, and back in May, certified its first decision in a while to the California Supreme Court (after already certifying in 2007 to the supreme courts of Oregon, Washington, and Nevada -- indeed, for the latter, twice). Now, the Ninth Circuit certifies again to the California Supreme Court. This time in a case from right down here in San Diego.

It involves a question critical to the health, welfare, and safety of San Diegans, on a topic that is foremost in the minds of every informed citizen of America's Finest City: Should adult video stores be compelled to close down between 2:00 a.m. and 6:00 a.m.?

San Diego thinks so, and has passed a law to that effect. And the Ninth Circuit wants to know if the free speech challenge to that ordinance under the California Constitution should be adjudicated through strict, intermediate, or some other level of scrutiny. So it asks the California Supreme Court.

What's the purpose of the San Diego ordinance shutting down adult video stores between 2 and 6 in the morning, you ask? "To prevent masturbation during those hours when law enforcement problems are greatest."

I can think of no more pressing danger to America.

Frontier Oil Corp. v. RLI Ins. Co. (Cal. Ct. App. - Aug. 6, 2007)

Conflicts. Conflicts of laws. The most exciting type of conflict. Made even more exciting when it's about the law to be applied in the interpretation of a contract.

Justice Crosky writes a nice little -- okay, at 44 pages, so, not-so-little -- opinion about what law one uses when you're interpreting a contract. You know the drill: is it where the contract's made, where it will be performed, or where the highest amount of government contacts/interests exist. Here, in the context of a particular insurance policy, Justice Crosky holds that it's where the contract -- in particular, the duty to defend -- will be performed.

And so, as a surprise to no one, guess which law the California Court of Appeal ends up applying? If it's not obvious, I'll give you another hint. The California Court of Appeal.

You guessed it.

People v. Alfaro (Cal. Supreme Ct. - August 6, 2007)

A mother of four children who stabs a nine-year old girl to death during a residential burglary. Not your usual fact pattern in a death penalty case.

The first penalty phase deadlocks. The second sentences defendant to death. The California Supreme Court unanimously affirms.

Depressing.

Lawrence v. Barona Valley Ranch Resort (Cal. Ct. App. - Aug. 3, 2007)

I always root for USD Law alums to prevail in the Court of Appeal. I'm a loyal guy in that regard.

Nonetheless, even though Bonnie Kane and Todd Tappe (both USD Law graduates) represented the appellants in this one, I'm constrained to agree with Justice McIntyre. You can't sue the Barona Tribe in state court even if you're injured at their casino and even if they've agreed -- as they did pursuant to the compact with the State of California that enabled the tribe to build and run the casino -- to waive their sovereign immunity to suit in certain circumstances. Barona only lets you sue them in tribal court, not state court. So, as unfair as it may seem, in this case, the only place you can sue is in front the Barona Tribal Council itself.

Yes, it may seem to be absurd to allow the same entity to be both the defendant and the judge. But no one said that immunity always seems fair. That's just the way it is. Affirmed.

Remember that, perhaps, the next time you feel like visiting the Barona Casino (or the Barona Golf Course). Sovereign immunity. It's not just a subject in law school.

P.S. - While I feel bad for Bonnie and Todd, I was heartened to discover that one of the two lawyers who represented the defendant -- Kathryn Clenney -- is also a USD Law graduate. So while USD lost, it also won.

In Re Tobacco Cases II (Cal. Supreme Ct. - Aug. 2, 2007)

"We, the California Supreme Court, decided back in 1994 that the Federal Cigarette Labeling and Advertising Act didn't preempt a California state law unfair competition claim based upon the advertising of cigarettes to minors. This was consistent with then-existing precedent from the United States Supreme Court. But, in 2001, the U.S. Supreme Court shifted ground, in a 5-4 decision in which the conservatives wrote the majority opinion and the liberals the dissent. It thus appears that our 1994 decision is no longer good law. We're not especially pleased by that fact, and probably think that state law should still be valid. But whatchagonnado. We're only the California Supreme Court. We gotta toe the line on this one."

They don't actually use those words, but that's in essence what the California Supreme Court unanimouosly ruled today.

U.S. v. Goetzke (9th Cir. - Aug. 1, 2007)

I agree that this guy (David Anthony Goetzke, of Montana) is guilty to attempting to persuade, induce, entice, or coerce a minor to engage in unlawful sexual activity in violation of 18 U.S.C. § 2422(b). By writing creepy letters to the minor that, in my view, are precisely what the statute is designed to target. So I'm glad that guy is off the street.

Here's a good law school hypothetical for you, though. D would love to have unlawful sexual activity with Minor, but knows that this would be illegal, and thus refrains from making any advances. He does, however, make sure that whenever he sees Minor, he's dressed really nicely -- nice pants, a tie, etc. -- and believes that doing so will make it more likely that Minor will view him favorably; indeed, perhaps, be sexually attracted towards him. And D likes that; indeed, one reason he dresses nicely in front of Minor is to entice the Minor into being sexually attracted. D does not intend to ever initiate sexual contact with Minor. At the same time, D recognizes that if Minor "started something" consensual, it is possible that D would not resist. And there is a definite part of D that would like something like that to transpire -- a part of him that is consistent with (and, as D recognizes, advanced by) his dressing nicely in front of Minor.

Under those facts, is D guilty of attempting to persuade, induce, or entice a minor to engage in unlawful sexual activity in violation of 18 U.S.C. § 2422(b)?

Non-pedophiles may recognize the hypothetical from potentially analogous personal experiences; e.g., liking your best friend's girlfriend/boyfriend/spouse, etc.

I'm not sure where I come out on the hypothetical. Even though the outcome of the present case seems right to me.

U.S. v. Larson (9th Cir. - Aug. 1, 2007)

Sometimes it pays to be in the minority.

This is about the closest vote you'll ever see in the Ninth Circuit. It's a 4-4-7. With the (first) 4 votes establishing the (now-) controlling law.

It's a Confrontation Clause case. The district court allowed the defendant to tell the jury that the witness (who had struck a deal) stood to gain some sentencing benefit by testifying for the government, but did not allow the defendant to let the jury know that by testifying, the witness was avoiding a mandatory life sentence. So the jury knew some degree of incentive, but not the particulars. Does that violate the Constitution?

Judge Paez writes the "majority" opinion. Which only has four votes: his, Chief Judge Schroeder's, and Judges Fisher and Gould. A group of judges that one might generally describe as the "moderates who often lean right in criminal cases" crowd. Judge Paez holds that, with respect to one of the defendants, this wasn't error, since the jury got to know most (but not all) of the details anyway, but with respect to the other, this was error, but it was harmless. In other words, took the middle road: affirmed the convictions while marginally allowing some benefit to a criminal defendant.

Judge Hawkins, joined by Judges Pregerson, Reinhardt, and Wardlaw, writes the "liberal" opinion, which would find error and reverse the convictions. Whereas Judge Graber, joined by Judges Rymer, Tallman, Clifton, Bea, M. Smith, and Ikuta, writes the "conservative" opinion, which would find no error.

So some basic math here. 4 + 4 > 7. So the moderate four plus the liberal four outvote the conservative seven. Hence the convictions are affirmed, but precedent is established that sometimes, precluding the defendant from testifying will constitute error.

Close. Very close. For those that think that who gets drawn for the en banc court doesn't matter, this case is a shining counterexample. Ditto for those who think -- as the Ninth Circuit has now concluded -- that there's no difference between a 15- and 11-judge en banc court. Sometimes, it matters. A lot.

California Capital Ins. Co. v. Nielsen (Cal. Ct. App. - July 31, 2007)

Justice Davis writes a 12-page (double-spaced) opinion that's fairly succinct. As well as correct.

But I can be even more succinct. And equally accurate. "You're not entitled to uninsured motorist benefits if the guy that hit you is covered by a $1,000,000 insurance policy and you get $1,000,000 from his insurance company."

'Nuff said.

Perryman v. County of Los Angeles (Cal. Ct. App. - July 31, 2007)

Okay, I agree that public entities can't be liable except as provided by statute. Sovereign immunity and stuff. And I also agree that there's no express statute that requires a coroner, who was given the body of a drive-by shooting victim to autopsy, to refrigerate or embalm a corpse. So, if s/he doesn't feel like doing it, and leaves the body to sit and rot for a week, resulting in massive decomposition and grief for the family when they are finally allowed to retrieve (and view!) the body, there's no lawsuit.

Okay, I get that. I can see a contrary argument that the body is actually "property" and hence that letting the property waste away conflicts with various property/bailee statutes and/or is a taking. But I understand that this would be a pretty novel theory, and one that the California Court of Appeal isn't likely to adopt. So I see how this case comes out the way it does.

Still. Doesn't exactly make you want to head on over to the L.A. County Coroner's Office, huh?

(Not that this was a desperate desire of mine in the first place, mind you.)

U.S. v. Sperow (9th Cir. - July 26, 2007)

When you're arguing in front of the Ninth Circuit, it helps to be accurate, restrained, and thoughtful. First, because they'll like you more. Second, because it'll help your client. Third, because if you're not, the Ninth Circuit may slam you in its opinion. Even if it's only a tiny little slam.

Like this. In which Judge Fisher, in a speedy trial case, says the following: "Contrary to government counsel’s exaggerated assertion at oral argument, Sperow did not 'vanish[ ] from the face of the earth.' Sperow used his real name in some business transactions and to pay taxes. Nonetheless, there is sufficient evidence supporting the district court’s finding that Sperow deliberately concealed his whereabouts."

That's a gentle spanking. Still, if you're Jonathan Haub -- the AUSA in Oregon who argued the case -- that's not exactly how you want to be remembered in the F.3d. For eternity.

Consider that the Lesson of the Day.

Morgan v. Gonzales (9th Cir. - July 26, 2007)

Compare how Pete Dunbar gets remembered in the F.3d.

It's in a case that only tangentially mentions him, in the following line: "In March 1983, then-U.S. Attorney for the District of Montana Pete Dunbar authorized a writtenrequest to the Helena, Montana, office of the INS to transfer Morgan’s case from the San Diego Office of the INS." But immediately following Dunbar's name, Judge Thomas drops a footnote, the text of which is as follows:

"We note with regret the death of former U.S. Attorney Byron H. “Pete” Dunbar on June 5, 2007. His lifetime of public service culminated in his appointment as U. S. Attorney for the District of Montana in 1981 by President Ronald Reagan. He served with great distinction in that position until 1990."

Pretty nice, huh? Especially since it's totally gratuitous. It's a very nice thing to do for someone. And, in truth, not that surprising, either. Since Montana is a very small legal community, and Judge Thomas, who wrote the opinion, is a huge part of that community, having been in private practice in Billings from 1978 (after graduating from Montana State and Montana Law) until he was appointed to the Ninth Circuit in 1995.

A good way to be remembered.

People v. Fritz (Cal. Ct. App. - July 26, 2007)

It's rare that you read an opinion that's intellectually rigorous, well written, sage, and full of common sense. Sometimes you get one of the four. But even that's fairly rare.

But when I read this opinion by Justice Bedsworth, I was -- quite literally -- flabbergasted by how good it was. By how wonderfully the opinion flowed. By how smart the guy seemed to be. And by how he brought to the resolution of the appeal a kind of obvious common sense that's far too uncommon in the judiciary.

There's no way I could have written an opinion that was half as good as this one. It's one of those very rare pieces that really had an effect on me; that instilled a deep, sincere reaction of: "Wow. That guy's really, really good."

You'll have to read the whole opinion to see what I mean. And I admit that, perhaps, my reaction might be a tiny bit idiosyncratic, and may stem from the fact that I lack the intuitive insight into the human condition that I think that Justice Bedsworth possesses in spades.

Still, I think it's a great opinion. And full of arguments like these, which you won't find many places:

"We think the latter statement reflects the better rule. Obviously any person arrested for a crime, whether guilty or innocent, would harbor a fervent desire to look good to the police and might lie about any number of wholly irrelevant things.[FN] And a rule which equates any lie told in the context of such an attempt with being guilty of the crime, necessarily assumes that only criminals would lie to the police – the very same 'seriously prejudicial' assumption decried by Justice Traynor. . . . [A] lie about one’s past record may be offered by either a guilty or an innocent suspect. It indicates not that the truth about the instant case is damaging – it says absolutely nothing about the instant case – but only that the suspect fears the police will rush to judgment. That is indicative not of guilt, but of timorousness and distrust – both of which are regrettable, but not criminally punishable."

That's great stuff. Plus, I love the footnote (which I marked with FN above), and to prove the point that even a guilty person might well lie to the police, here's the text of that footnote, in its entirety: "'I love you guys; I always buy tickets to the Policeman’s Ball.' 'My brother’s a cop.' 'I don’t mind being detained because I support everything our police do; they don’t pay you enough.'"

Hilarious. Because, I'm sure, it's utterly and totally true. And in the midst of a wonderful and outstanding opinion.

People v. Barnwell (Cal. Supreme Ct. - July 26, 2007)

Opinions by the California Supreme Court in death penalty cases are typically lengthy, plodding affairs. In part due to the nature of the offense as well as the consequences of the result.

But this one is different. It tops out at only 25 double-spaced pages, which is less than a third of many other death penalty opinions by the Court. And it's tight and punchy. Which is fairly rare.

But, then again, this is a pretty rare case. Not because of the result: as usual, the California Supreme Court unanimously affirms the death sentence. But rather due to the nature of the evidence against the defendant. Here's a taste:

"Defendant’s case is somewhat remarkable in that a policeman saw him shoot two of the murder victims. One night in 1992 Los Angeles Police Officers Brad Wise and Greg Smiley were on patrol. As they drove toward a tire shop, Officer Wise heard a shot. A woman screamed and another shot was fired. Wise ran up to a high fence surrounding the shop yard and looked through a hole in the gate. He saw defendant, some 20-25 feet away, standing above two men lying facedown on the ground. Defendant held a large-caliber, semiautomatic, blue steel pistol in his hand. The men were begging for their lives. Defendant bent down and put the pistol to the back of one man’s head. Officer Wise heard two shots. Defendant then fired two more shots into the back of the other man’s head.

Defendant ran but the officers intercepted him as he emerged from another gate, still holding the pistol. Officer Wise told defendant to drop the gun. Defendant protested, 'It wasn’t me.' He ran back toward the gate, but then stopped and turned toward the officers. Wise thought defendant was going to shoot them, so he fired four shots at defendant. Defendant ran back into the yard, where he was found by other officers. He had been shot three times. . . .

In addition to the two men Officer Wise had seen defendant shoot, the bodies of a woman and another man were also found. All four victims had been shot in the head."

Pretty unambiguous evidence of guilt, huh? And with the multiple murders -- and the victims begging for their lives right before their execution-style killings -- there's also not much doubt as to what the penalty is going to be.

Oh, one more thing. At the penalty phase, "the prosecution introduced evidence that in the four years preceding this trial defendant had committed two murders, an assault and robbery, and another assault."

Icing on the cake. Death penalty imposed. Death penalty affirmed.

In Re Hardy (Cal. Supreme Ct. - July 26, 2007)

You know the California Supreme Court isn't filled with twenty-somethings from San Diego when the following line -- in the middle of an 84-page opinion -- requires a footnote:

"The four then returned to the Vose Street apartments around 10:00 p.m. to 'party' and use cocaine. They also used a beer bong."

The footnote appears at the end, and explains that a beer bong is “a funnel-type device which enables the user to pour beer directly down his throat and into his stomach.”

I love that this fact ostensibly needs explanation.

U.S. v. Castillo (9th Cir. - July 25, 2007)

There are lots of people who put Judge Callahan on the short list for the Supreme Court if the Republicans win the 2008 election. Indeed, Tom Goldstein -- who's an extremely bright and informed guy -- predicts she'll be the first appointment.

I'm not Carnac, so can't weigh in on the probabilities. That said, on the merits, cases like this don't help Judge Callahan's cause. It's a criminal case, but one without the typical political stuff at stake. The issue is whether a guilty plea and waiver of appeal deprives the Court of Appeal of jurisdiction to hear the appeal or whether, instead, it's a claim-processing rule that may well be enforced, but isn't jurisdictional; e.g., can be waived by the government.

Issues relating to what's jurisdictional and what's not are fairly complicated. Partially because the law here isn't crystal clear and partially because judges often misuse the term or fail to understand what it really means. So it's not the most facile concept in the universe. Which is why the Ninth Circuit took this case en banc. Because there were some Ninth Circuit cases that said that waivers are jurisdictional and others that said they weren't, and this was precisely the type of intracircuit conflict that needed to be resolved.

Now, as I said, deciding what's truly "jurisdictional" isn't totally easy. That said, I think that Judge Bybee writes an entirely compelling and persuasive opinion that cogently explains that the waiver here is indeed an obstacle to theappeal, but that's it's not a jurisdictional one. Which was my initial (somewhat informed) take as well, and I think that Judge Bybee clearly explains why this view is correct.

I'm not the only one who thinks so. Judge Bybee's opinion garnered 14 of the 15 votes on the en banc court. Including the votes of conservative judges like Pamela Rymer and Milan Smith. Plus, remember, Judge Bybee himself is far from a lefty.

Who's the one dissenter? Judge Callahan. Who writes an opinion that's simply not persuasive.

Now, mind you, there are some who might well -- and perhaps accurately --think that being on the wrong side of a 14-1 decision as actually advancing Judge Callahan's elevation. Either because one is of the view that she's the only judge who's smart enough to get the right answer here -- though I think that's clearly wrong -- or, more likely, that someone who's "bold" enough to refuse to make a holding even marginally in favor of a criminal defendant, even when weak-kneed conservatives like Judges Rymer and Bybee (!!!) go that way, is precisely what we should be looking for in a Supreme Court nominee. I'm positive that there are people who would take that view.

But, on the merits, I don't think this bodes well for Judge Callahan. It's a complicated case, and one that requires more than a little thought. And that she's on the wrong end of a 14-1 doesn't, in my view, say overwhelmingly positive things in favor of moving her up to a tribunal that deals with even more complicated and important issues.

It's only one opinion, of course. But it may nonetheless be a telling one.

Societe Civile Succession v. Redstar Corp. (Cal. Ct. App. - July 24, 2007)

Sometimes it's not enough to know American civil procedure. Which is hard enough alone. Sometimes you've got to know all about civil procedure in France as well.

Which is even tougher. Especially if you don't even speak French.

So, yeah. It seems like Justice Mosk gets this one right, and that the "provisional" French judgment is subject to enforcement in the United States. I'm on board. But I could see how Judge Wu (the trial judge in L.A.) thought that only 30,000 francs of the 3 million+ franc judgment was subject to immediate enforcement. Being a superior court judge is hard enough. Having to figure all this French stuff out, especially alongside your hundreds of other active cases -- is even harder. Especially with both sides trying to "educate" you in a way that undoubtedly distorts and tilts the actual French law to their advantage.

So I feel for Judge Wu. Still, I'd reverse too. Seems right.

Golden Pisces, Inc. v. Fred Wahl Marine Const. (9th Cir. - July 24, 2007)

Fans of the Discovery Channel's "Deadliest Catch" -- a show which my children call "The Crab Show," and with which they are (inexplicably) enthralled -- may appreciate this case. It's about as close as the law gets to Dutch Harbor, Alaska. And involves some repairs to the F/V Golden Pisces that allegedly misaligned the propeller shaft and caused the ship to be repaired again in Dutch Harbor and, thereafter, to again break down and be towed back, ultimately causing the ship to miss the A cod fishing season.

At which point, not surprisingly, litigation commenced. The owners of the ship prevailed at trial, and moved for attorney's fees pursuant to the contract. Attorney's fees, however, proved to be even more difficult to obtain than a catch from the Bering Sea, the chief barrier being that the contract upon which the parties sued did indeed have an attorney's fee provision, but since it didn't have virtually anything else -- a description of the work to be performed, a signature of one of the parties, etc. -- it was invalid. Thus no fees, given that absent a valid written contract with an attorney fee provision, the American rule applies.

So there you have it. The remaining Wild West in the contemporary United States fails to be untouched by our modern legal system. We see all. And, unless you're pretty careful about it, we're going to make you pay your own legal fees.

Winzer v. Hall (9th Cir. - July 23, 2007)

The California bar examination starts tomorrow. Woo-hoo. Good luck to those taking it.


Perhaps in recognition of this event, the Ninth Circuit issued an opinion today that's a good crossover review of various evidence, contitutional law (the Confrontation Clause), and criminal law (habeas) issues. Let's get started studying, shall we? And, for the already-barred amongst us -- and, by "barred", I mean that you're an attorney, not that you're currently incarcerated -- it's a good review.


Around 11:00 a.m. on December 2, 2001, Marcus Winzer allegedly says to his on-again, off-again girlfriend Parrish Harvey -- during an argument -- that "I'll smoke you and your daughter," gesturing to his waistband to suggest that he had (or would obtain) a gun. The argument ends, and around five hours later, Ms. Harvey makes a very calm 911 call and tells the operator the above facts. The district court describes Ms. Harvey's 911 call "one of the calmest" it had ever heard. Then the police come to Ms. Harvey's home, interview her, and she repeats to the officers the above facts, and she is upset and shaking as she recounts these events.

At Winzer's trial, the prosecution wants to introduce (1) the 911 tape, and (2) the officer's testimony about what Harvey allegedly told him. Three questions: (A) Does the 911 tape get admitted? (Hint: It's hearsay, but the prosecution says it's a spontaneous utterance and hence admissible.) (B) Does the officer's testimony get admitted? (Same hint.) (C) If either (A) or (B) is erroneously admitted, does federal habeas relief lie, or is this merely an evidentiary error noncognizable on habeas?

Got your answers? Good. Because it's not just a hypothetical, and the Ninth Circuit helpfully provides us with the actual answers:

(A) Nope. Doesn't come in. Even the trial court got this one right, and Judges Kozinski, Trott, and Malloy (sitting by designation from Montana) are pretty clear that a calm declaration five hours after an event like this doesn't qualify as a spontaneous statement.

(B) Good question. The trial court admitted this testimony as a spontaneous utterance, since (unlike the 911 call) the declarant is now shaking and upset at the time of the statement. And Judge Fischer, from the Central District, agreed, and hence denied relief on habeas. But the Ninth Circuit disagrees. The fact that you're upset when you're making the statement doesn't make it a spontaneous utterance. You've still had hours to ponder the issue and, potentially, fabricate things. That isn't sufficiently reliable.

(C) Yes, hold the Ninth Circuit. Typically evidentiary errors don't get you habeas relief. But Ms. Harvey was in custody (and hence available to be called as a witness) at the time of trial, and by refusing to do so, and by using the officer's testimony instead, the state deprived defendant of his constitutional right to confront the witnesses against him. That's a federal claim. And cognizable on habeas. So not only did the trial court (as well as the district court) err, but that error was, according to the Ninth Circuit, sufficiently crystal clear to just habeas relief, because admitting hearsay evidence of this type conflicts with clearly established federal law and hence justifies relief even under AEDPA.

Get those right? Good. You're better than the trial judge. And even Judge Fischer. You should definitely pass the Bar. Or repass it were you -- absurdly -- to take it again.

Congratulations!

Chosak v. Alameda County Medical Center (Cal. Ct. App. - July 20, 2007)

The judicial tendency to interpret a statute according to its (alleged) "plain" meaning has increased over the past decade or so. Particularly -- but by no means exclusively -- in federal courts. For those who prefer an alternative vision, this case is a good exemplar.

The underlying issue is a simple one. MICRA was designed to govern (and limit) medical malpractice claims. The text of the statute makes clear that it applies to claims against "health care providers," which are defined as anyone (or any thing) that's "licensed or certified pursuant to" various statutes. Seems pretty clear, right? So doctors, who are licensed to practice medicine, are covered.

But here's the rub. What about medical students? They aren't licensed. But they nonetheless treat patients. So when medical student Lynn Valdez allegedly injures someone during the course of an eye examination, is she covered by MICRA?

The plain language of the statute seems clearly to indicate that she's not. No license, no coverage. Period. So if you're a plain language type, that's the end of it.

But Justice Margulies comes out the other way. And I could explain in detail why -- and you're free to read the full opinion, which is a good one -- but, in truth, one need not. You can get a sense of where she's going on this one, even before she tell you her actual analysis, by how she sets it up. With language that clearly says: "Sure, the plain language is clear, but I think that wouldn't really make sense, so I'm going the other way." And that provides a pretty good encapsulation of how one might begin an opinion -- or brief -- in which you want the judge to ignore the seemingly crystal clear language of the statute. She says:

"Our overriding objective when interpreting a statute “is to determine the drafter’s intent.” (Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 902.) In making that determination, we look first to the words of the statute because they “ ‘ “generally provide the most reliable indicator of legislative intent.” ’ ” (Bernard v. Foley (2006) 39 Cal.4th 794, 804.) “The rules for performing this task are well established. We begin by examining the statutory language, giving it a plain and commonsense meaning. [Citation.] We do not, however, consider the statutory language in isolation; rather, we look to the entire substance of the statutes in order to determine their scope and purposes. [Citation.] That is, we construe the words in question in context, keeping in mind the statutes’ nature and obvious purposes. [Citation.] We must harmonize the various parts of the enactments by considering them in the context of the statutory framework as a
whole.” (People v. Cole (2006) 38 Cal.4th 964, 975.)

If this analysis demonstrates that the statute’s language is clear and unambiguous, “it governs. [Citation.] Experience teaches, however, that unforeseen ambiguities can and do come to light despite the drafters’ considered efforts to avoid them.” (Alan v. American Honda Motor Co. Inc., supra, 40 Cal.4th at p. 902.) “If the statutory language permits more than one reasonable interpretation, courts may consider other aids, such as the statute’s purpose, legislative history, and public policy.” (Coalition of Concerned Communities, Inc. v. City of Los Angeles (2004) 34 Cal.4th 733, 737.) “[I]t is appropriate to consider ‘the consequences that will flow from a particular interpretation. [Citation.]’ [Citation.] Where more than one statutory construction is arguably possible, our ‘policy has long been to favor the construction that leads to the more reasonable result. [Citation.]’ [Citation.] . . . . Thus, our task is to select the construction that comports most closely with the Legislature’s apparent intent, with a view to promoting rather than defeating the statutes’ general purpose, and to avoid a construction that would lead to unreasonable, impractical, or arbitrary results.” (Copley Press, Inc. v. Superior Court (2006) 39 Cal.4th 1272, 1291.) Ultimately, “[t]he legislative purpose will not besacrificed to a literal construction of any part of the statute.” (Giles v. Horn (2002) 100 Cal.App.4th 206, 220.)"

Once you read that, it's pretty clear which way she's coming out, huh?

People v. Muhammad (Cal. Ct. App. - July 16, 2007)

This appears to be your run-of-the-mill criminal stalking case. And it is. Malik Muhammad dates Ivory Hart for six or seven months, the relationship terminates, Muhammad starts leaving hart threatening telephone messages, and Muhammad is convicted of stalking (and making terrorist threats) and sentenced to San Quentin.


When he's paroled, as a condition, Muhammad is ordered (over his objection) not to contact Hart or her employer (Citibank), but he apparently places massive numbers of hang-up calls to her and initiates a campaign of harassment against Hart by contacting her employer. Which, among other things, constitutes stalking (again), and he's convicted (again) and sentenced to 10 years in prison. He appeals, and gets a limited remand under Cunningham, but -- notwithstanding some pretty aggressive pro-prosecution comments by the trial court (Judge John S. Graham up in Marin County) -- ultimately he'll still have to spend the better part of a decade in prison.


All of which describes your typical stalker. The only things worth additional, tangential, mention are these: (1) Muhammad is a former Oakland police officer, (2) Muhammad is a graduate of the U.C. Hastings College of Law, (3) Muhammad is a former deputy district attorney, and -- thankfully -- (4) after a history of discipline, in 2001, Muhammad was disbarred.


Proving that attorneys, police officers, and deputy district attorneys -- and sometimes all three in one -- can sometimes go very much off the deep end.

In Re Sareen (Cal. Ct. App. - July 17, 2007)

It's only one side of the story, of course. Listen nonetheless to how Vikas Sareen ('husband") allegedly decides to leave his wife, Reema ("wife"):

"On February 17, 2002, husband and wife were married in New Delhi, India. In July 2002 they moved from India to New York State. Husband is a United States citizen and wife is a legal resident of the United States. Their daughter, S., was born in New York on February 20, 2004. She is a United States citizen.


According to wife, on August 20, 2004, husband told her the family was going to Switzerland for a vacation. However, when they got to Frankfurt, Germany, they changed planes not for Switzerland, but for India. They arrived in India on August 21, 2004. Less than a week later, on August 27, 2004, husband filed for divorce in an Indian court. Three days later, on August 30, 2004, husband filed a petition for custody of S. in the Indian
court and an application to restrain wife from leaving India with S. Husband then returned alone to New York.


According to wife, husband abandoned wife and six-month-old S. in New Delhi without financial support, taking with him wife’s United States residency documents, her Indian passport, and S.’s United States passport."


Classy.

People v. Cardenas (Cal. Ct. App. - July 17, 2007)

Here's a great way to illegally kick Hispanics off your jury, at least if you've got a Hispanic defendant and/or witnesses who will testify in Spanish:

Ask all the prospective jurors whether they speak Spanish fluently. Hispanics will likely disproportionately respond in the affirmative. Then ask those (largely Hispanic) jurors, as we often do: "Imagine that a witness testifies in Spanish, and you think the interpreter misinterprets that testimony. For example, imagine that a defendant testifies, in Spanish, 'I wasn't there,' but the interpreter interprets this testimony as 'I was there'. Could you ignore the testimony as you actually heard it, and instead decide guilt or innocence purely on the basis of the interpreter's erroneous interpretation?" Some jurors will presumably say: "That seems totally wrong. I couldn't really do that." You get those -- largely Hispanic -- jurors dismissed for cause. Others will say: "Well, I could, but it would be difficult." Those jurors you can now dismiss with a peremptory challenge. Even if they're all Hispanic. Because you now have an allegedly race-neutral reason for booting them.

It works.

U.S. v. Jenkins (9th Cir. - July 17, 2007)

It's pretty rare that you see an indictment dismissed on the grounds of prosecutorial vindictiveness. But, in an alien smuggling case arising down here in San Diego, District Judge Benitez did precisely that. And, in this 2-1 decision, written by Judge Canby (with Judge Conlon, a senior district court judge from Illinois, sitting by designation and dissenting), the Ninth Circuit affirms the dismissal.

It's a fairly unusual case, which perhaps explains the unusual result. Sharon Ann Jenkins is caught dead to rights -- twice, on two subsequent days (!) -- smuggling some undocumented aliens into the United States in the trunk of a car she was driving. Jenkins basically admits both times that she's guilty, but for some totally inexplicable reason (at least to me; I do, in fact, understand why it happens), the U.S. doesn't prosecute her for either offense, notwithstanding the fact that the cases are open-and-shut.

Then, two months later, Jenkins gets busted (again!) when the car she's in pulls into San Ysidro from Mexico full of hidden marijuana. This time, they charge her. And her defense at trial is -- surprise! -- "I didn't know there was pot in the car; I thought there were just illegal aliens, like all those other times."

So, at the end of all of the testimony, the jury goes out to deliberate. They don't arrive at a verdict on the first day; but, at 4:46 p.m. that same day, while the jury is deliberating, the U.S. files an indictment against Jenkins for -- surprise again! -- two counts of alien smuggling! The offenses for which they originally didn't charge her, but for which now they feel like busting her.

Judge Benitez says: "I think not. You're just retaliating against her for testifying and going to trial in the drug case. Indictment dismissed." The U.S. responds: "Not really. Our case was a lot stronger once she admitted in the drug trial that she had previously smuggled aliens." At which point Judge Canby says: "That might be a good argument if she hadn't already confessed. But she had. You already had her dead to rights. This looks to much like vindictive prosecution. Affirmed."

So Jenkins avoids the alien smuggling charges. Now, mind you, this only helps Jenkins a little bit. Since, as it turns out, although the first jury deadlocked on the drug charges, the second jury -- at the retrial -- didn't. So she's now serving a five year-plus prison sentence.

Still, she wins a vindictive prosecution claim. Which is pretty rare. So she's got that going for her. Which is nice.

City of Santa Barbara v. Superior Court (Cal. Supreme Ct. - July 16, 2007)

Wow. Wow. Wow.

I'm not easily impressed. But: Wow.

I don't think that I've ever -- and I really mean ever -- read a more scholarly and impressive opinion by Chief Justice George than this one. It's an absolute tour de force. I wouldn't have written an opinion that was half as good. Or, most likely, even a quarter.

The question is whether prospective releases of gross (as opposed to ordinary) negligence are void against public policy. The majority (of four) says "Yes". Justice Kennard and Moreno say "Sometimes," and Justice Baxter (in dissent) says "No." It's an important issue, and one that affects -- at least potentially -- almost every single resident of California. When, for example, you sign those ubiquitous forms (often, adhesion contracts) that say "I hereby waive any claims of ordinary or gross negligence in order to" (A) participate in sports, (B) attend a ballpark, (C) swim in a lake, or -- seemingly -- (D) breathe, are those waivers enforceable if the defendant subsequently injures you as a result of gross negligence? (We know, at least in California, that they are effective as against ordinary negligence, and not effective as against intentional torts, but what about the situations in the middle? Well, now we know.)

This opinion harkens back to the days of Chief Justice Traynor -- viewed by many as one of the greatest legal talents never to sit on the United States Supreme Court -- and is similarly scholarly, progressive, empirical, and informed. Chief Justice George clearly put a massive amount of work into this 38-page opinion. It is, in my view, an attempt to establish a torts legacy similar to -- albeit overshadowed by -- Traynor. Perhaps not entirely in result, as Traynor and George would assuredly disagree on a number of points -- but rather in rigor, intellect, method and style.

One more time: Wow. This is not what I expected to see when I read the first couple of paragraphs. I'm impressed. And humbled. And wowed.

R.B. v. Napa Valley Unified School Dist. (9th Cir. - July 16, 2007)

Some people have very little chance. Even at birth. Which is incredibly, incredibly sad.

Listen to the life of the little girl in this case:

"R.B. was born in 1991 to a mother who abused cocaine, alcohol, and heroin. In infancy, R.B. demonstrated symptoms of exposure to illegal drugs in utero (including irritability, delayed visual maturation, and delayed motor skills). Both of R.B.’s birth parents were incarcerated. F.B., a single parent and schoolteacher, adopted R.B. at eighteen months of age. . . . R.B. was molested by her natural father when she was two. Afterward, she required a year of play therapy because of her self-mutilation and inappropriate displays of affection."

As one might imagine, the litany of problems doesn't end there. She was expelled from three different preschool programs. She banged a second grade classmate’s head against a computer monitor for refusing to give up the computer at recess. She was suspended in third grade for throwing chairs and running off campus. She was suspended in fourth grade when she yelled at her teacher and was restrained by law enforcement. She was suspended in fifth grade -- twice in a month -- for twisting a child’s arm during recess, saying that she hoped her music teacher would die, and poking another student with a mechanical pencil.

The thing is: she gets really good grades in school, frequently makes the honor roll, and seems genuinely and inherently smart. But, at the same time, deeply, deeply disturbed.

Sad.

Mardirossian & Assocs. v. Ersoff (Cal. Ct. App. - July 13, 2007)

Sugar Ray Leonard. Tae Bo. California attorneys suing for fees. Dilatory misconduct and sanctions. Alleged conflicts of interest. This case has it all.

I'll leave most of the case for your own review. But let me just make one comment about the sworn expert testimony of (contingency fee attorney) Dana Hobart, who testifed -- in an attempt to justify the amount of hourly fees that the contingency fee plaintiffs should be entitled to recover -- that "because contingency fee lawyers’ fees depend on the outcome, they often spend many more hours than an hourly attorney would on a case, unconcerned about the mounting hours because the client will not be billed."

Now, I have no doubt whatsoever that this is sometimes the case. But, in my experience, the exact opposite is the usual rule. You can often tell how a lawyer's being paid by the type and amount of work he does. And the hard workers, churners, and others who devote massive time to a case are typically paid by the hour, not on a contingency. Similarly, the efficient attorneys, sluffers, and other who devote little effort are rarely paid by the hour, and typically instead work on a contingency.

This isn't to slam either group. There are, as one might expect, good and bad attorneys in both crowds. But the claim that contingency lawyers typically spend more hours on a case than those paid by the hour -- which is the upshot (if not the actual words) of the testimony -- seems just flatly wrong.

On the whole, an interesting case on which to round out the week. Enjoy the sunny weekend, all.

U.S. v. Abbouchi (9th Cir. - July 13, 2007)

Did you know that Louisville, Kentucky was right on an international border, thereby justifying an extensive border search (without any suspicion of criminal activity)?

It is.

Not that I disagree. This case is actually a good example of how application of the Constitution (here, the Fourth Amendment) can change in light of modern realities. In 1791, there's no way that a "border" search would have been allowed in Louisville, or anyplace else so far from the actual border. But airplanes, and international mail hubs, make the world a bit different from what it was in 1791. So the application of the Fourth Amendment changes with it.

Here, it results in a reduction of rights. By contrast, sometimes it goes the other way. That doesn't distress me. It instead seems about right.

Christoff v. Nestle U.S.A. (Cal. Ct. App. - June 29, 2007)

Today's been a fairly boring day in the California courts. I assume that's because of the heat.

But there are still lessons to be learned. For example: This, among other things, is why you need to make sure that your expert knows the underlying law. Because if s/he doesn't, then the expert's testimony might not address the relevant legal issues, and if (as here) it's off target, even a fraction, any resulting damage award may well be reversed.

Which, in this case, costs Russell Christoff over $15 million. Oops!

Dunn & Black P.S. v. United States (9th Cir. - July 11, 2007)

When you're litigating against the United States, there are lots and lots of ways to lose. And even when you win, you may still lose. Like here.

Dunn & Black, a law firm in Washington State, represented Environmental Reclamation, Inc. ("ERI"). The Federal Highway Administration had terminated a contract with ERI, and Dunn & Black filed an action on behalf of ERI in the Court of Federal Claims seeking to recover over $1.7 million for alleged wrongful termination of the contract. Dunn & Black was initially "paid" hourly -- notice the quotation marks -- but when ERI wasn't actually paying these fees, Dunn & Black agreed to accept the first $140,000 of any recovery, which was the amount of fees already accrued, and 50% of any recovery above this amount.

Ultimately, the dispute was settled, and the Federal Highway Administration agreed to entry of judgment of $450,000 in favor of ERI. Sounds good, right? So Dunn & Black gets a fairly good payday -- $295,000 ($140,000 plus half of $450,000 minus $140,000) -- and ERI gets over $150,000 for its troubles. A good result for both, right?

Nope. Because what the U.S. (presumably) knows, and what ERI may well know, is that ERI already owes the IRS almost $600,000. So right after ERI obtains the $450,000 stipulated judgment, the IRS files an action against ERI, and seeks to collect against the $450,000. And ERI doesn't even bother to defend this suit, and a default judgment is entered.

So who gets screwed? Dunn & Black. Sure, the law firm files an action in which it alleges that it's entitled -- in equity, good conscience, and everything else under the sun -- to enforce its lien on the $450,000 judgment. After all, most of that money actually belongs to Dunn & Black, and they were the ones instrumental in creating it. But sorry, buddy. There's this little thing you may well have studied in law school that's spelled S-O-V-E-R-E-I-G-N I-M-M-U-N-I-T-Y. And, my friend, it's a biatch.

Dunn & Black loses in the district court on this basis and loses in the Ninth Circuit as well. So it's now out the entire $300,000 plus all the effort and expense in the district court and on appeal.

Not a good day for Dunn & Black. And an important reminder that when you're litigating on behalf of a client against the government, make sure your client doesn't owe any back taxes. Otherwise it's you that may well be the one getting hosed.

U.S. v. Horvath (9th Cir. - July 10, 2007)

I like how Judge Rymer begins her dissent in this case, which begins: "This is a tough issue. Given that the majority sees the statute differently from the way I do, I take comfort in its effort to craft a narrow rule." That's an accurate, collegial, and fair opening gambit. Not every disagreement has to be personal.

U.S. v. Jernigan (9th Cir. - July 9, 2007)

Rarely do I read a case in which I think that the defendant may well be actually innocent. But this is one of them.

You've got to read the whole opinion to get a real sense of whether Rachel Jernigan was rightly convicted of the bank robberies for which she was sentenced to 168 months in prison. One can briefly say that there was pretty much no evidence whatsoever against her other than the fact that the bank robber was fairly unique -- a short (five foot tall) Hispanic or Asian woman, which is not your typical culprit in these types of crimes -- and that Jernigan fits this description.

Apart from the wholesale lack of any hard evidence against her, what really makes one think that Jernigan may well be innocent -- and I'm ignoring, as did the Ninth Circuit, the fact that she passed a lie detector test with flying colors -- is that, immediately after she was incarcerated, someone else (Juanita Rodriguez-Gallegos) who was a five-foot tall Hispanic woman robbed multiple banks in the same area allegedly robbed by Jernigan, including one of the very same banks.

This is a Brady case. The U.S. admits that this information was known to it but not disclosed to the defense -- or presented to the jury. So the only question is whether this information was material; i.e., whether it might have made a difference at the trial. Again, you've got to read the whole opinion to understand fully why it might well have, but a couple of sentences in footnote six of the majority opinion go a long way in this regard: "The question is whether a reasonable probability existed that the jury would have arrived at a different result if provided with the excluded evidence. More specifically, the question is whether the jury, when presented with nothing more than shaky, cross-racial eyewitness identifications, unsupported by any physical evidence, would have arrived at a different result when informed that a woman described in uncannily similar terms — terms describing a most unlikely bank robber — was robbing banks in the same area just days after Jernigan’s incarceration."

It's, again, pretty unusual that I leave a case thinking: "Wow, I think there may well be an innocent person in prison here." But that's where I stood at the end of this one. For what it's worth, I also imagine that I'm not alone. Which is the only reason, in my view, why this utterly fact-specific case -- with no novel legal issues whatsoever -- was taken en banc. As well as why the vote comes out the way it does, and Rachel Jernigan provided with a new trial.

One final thing. I occasionally (though only occasionally) appreciate dissents that, for lack of a better phrase, somewhat insult the majority. That don't just say that the majority is wrong, but that do so in a way that's a bit attacking; in some cases, that are even smarmy. So I'm definitely no shrinking violet when it comes to what's in a dissent.

That said, if you're going to be a little bit of a jerk about it, a decision that's -- as here -- 13-2, with you as half of the 2, is typically not your best vehicle. Which is something that Judge Bea, who writes the dissent here, doesn't seem to particularly appreciate. Yes, I know, as usual, he's not very happy that the majority orders a retrial for the criminal defendant. And, sure, he can (and does) articulate reasons for his position.

But if it's a criminal case, and the only person you can get to join your side is Judge O'Scannlain, and if there are not only 13 votes on the other side, but (critically) those judges voting to grant relief to the criminal defendant include (as here) Judges Kozinski, Rymer, Bybee, and Callahan, you may want to tone your dissent down a bit. When that's the lineup, and when some judges are voting quite the opposite of what you might expect, you may well want to think that maybe they've got a real point. And, sure, dissent if that's what you believe. But perhaps write the thing a little less smugly. Because it may not be the 13 that's totally missing the point here.

People v. Smith (Cal. Ct. App. - June 29, 2007)

I'm no fan of people who molest their 13-year old stepdaughter. At all. And I found it a little shocking, to be honest, when I read that the defendant was simply sentenced to probation for that offense, rather than some actual jail time. As I said, I'm no fan of child molesters.

But, notwithstanding my predispositions, Justice Vogel is totally and completely right in this opinion. The Los Angeles County Probation Department was acting totally unreasonably here. And Kenneth Smith was, in my mind, clearly entitled to the relief ordered by the Court of Appeal.

U.S. v. Forrester (9th Cir. - July 6, 2007)

Dangerous.

In a case of first impression, the Ninth Circuit holds here that the government is permitted to tap into your computer and record (1) the IP addresses of all the web sites you visit, and (2) all of the e-mail addresses to whom you send and receive e-mail. Without probable cause. Or, presumably, any reason whatsoever. As, according to the Ninth Circuit, obtaining that information isn't even a "search" under the Fourth Amendment.

I think that's scary. It's not the kind of intrusion I think most people would expect the government to be able to perform merely on a whim.

I admittedly understand the seemingly facile analogies that lead Judge Fisher to conclude that this is okay. He thinks that recording IP addresses is no different than recording phone numbers -- an act that the Supreme Court held (in a 6-3 opinion back in 1979) doesn't constitute a search. And he concludes that recording all your e-mail addresses isn't any different than recording the addresses that are printed on the outside of your snail mail, which isn't a search either.

But, in my view, these things are different. Even if a pen register isn't a search (and I think that the dissent in Smith back in 1979 made a pretty good argument to the contrary), obtaining a list of all the IP addresses that someone visites gives you a lot more information than merely recording telephone numbers. So the privacy invasion -- and potential for abuse -- is manifestly larger. And my view is that footnote 6 of the Ninth Circuit's opinion, in which Judge Fisher says that recording the actual URLs perhaps might be a search, is a distinction without a difference. Once the government records that I'm going to the IP addresses for NAMBLA and High Times and Bondage.com, the fact that they won't (initially) know which particular page of those sites I choose to view hardly matters. They've already invaded my privacy, and know a boatload about me that I'd rather not reveal to the government, TYVM. And, yes, in theory, e-mail addresses arguabley might be seen as the same as addresses on a snail mail envelope. But they're viewed as more private, and rightly so, and I think the Fourth Amendment shouldn't be (and isn't) blind to that reality.

I'm sure there are some people out there who'd be happy for every single IP address they ever visit to be instantly captured by the government and broadcast to the public. But I'm fairly confident that lots of other people wouldn't be similarly thrilled. And by holding that capturing IP and e-mail addresses aren't a search, I think the Ninth Circuit's decision here is extremely dangerous. And, in my view, wrong.

Corder v. Corder (Cal. Supreme Ct. - July 5, 2007)

I thought that both the majority and the dissenting opinions in the Court of Appeal were better -- and more persuasive -- than the unanimous decision of the Supreme Court here.

As I said before, it's a tough case. The central issue (Section C of the Supreme Court's opinion) concerns how one allocates a substantial settlement in a wrongful death action when the two recipients of the settlement are (1) the adult sister, who had little contact with the decedent, and (2) the decedent's wife, who (the evidence showed) was prostituting behind the decedent's back and whom the decedent was allegedly about to leave. Neither one seems like she should get a lot of money, but those are the only two choices. What to do?

Ultimately, Justice Baxter writes an unpersuasive (at least in my mind) opinion that concludes that a remand is necessary because the multiple witnesses who testified that the decedent intended to divorce his wife and that the decedent "felt that his marriage was a mistake because his wife had continued to work as a prostitute despite her promises to stop" were insufficient as a matter of law to prove that divorce was likely. Really?! Multiple witnesses who testify -- entirely credibly -- that a husband says that he's going to divorce his wife because she continues to be a whore notwithstanding her promises to stop seems more than enough to me. Especially when, as here, the trial court -- the only one to actually see and hear that testimony -- finds those witnesses credible and bases a factual finding thereupon.

This just seems a cop-out by the California Supreme Court. And a not very credible one. I'd have much preferred the Court to adopt either the majority opinion by Justice Ikola or the dissent by Justice Sills. Both of which were more persuasive, coherent, and (for what it's worth) well-written than the opinion by the California Supreme Court.

People v. Boyson (Cal. Ct. App. - July 3, 2007)

Elsie Boyson and her husband, Robert Boyson, were both murdered (shot in the head) in their Oceanside home in 1980. There were no signs of forced entry. Their son, David, was having serious financial problems at the time of the murder, stood to inherit a significant sum of money as a result of their death, and refused to cooperate with police. He became the focus of the murder investigation.

Notwithstanding some extremely incriminating evidence against David provided by his wife, Linda, in 1982, the district attorney declined to prosecute David -- or anyone else -- for the murders.

Over twenty years later, in 2003, the San Diego District Attorney's Office created a Cold Case Homicide Unit. On the theory, I imagine, that if it's good enough for television, it's good enough for San Diego. The Cold Case reinvestigated the Boyson homicides, found some additional evidence against David, and in 2004, the district attorney prosecuted David for the murders.

David's attorneys moved to dismiss the prosecution based upon the 24-year delay between the murders and the prosecution. The trial judge, Joan Weber, granted the motion and dismissed the information. And, in this opinion, the Court of Appeal unanimously affirms the dismissal.

Sometimes television does not reflect reality. Shocking, I know.

United States v. Gonzalez (9th Cir. - July 3, 2007)

I like the opening paragraph of this opinion by Judge McKeown, which begins:

"Southwest Airlines Flight 2466, bound for Ontario, California, from Las Vegas, Nevada, had an uneventful takeoff. Before long, the cabin was in total chaos. Passenger Salvador Gonzalez became hysterical, demanded that the plane land, made statements about a bomb and, according to a flight attendant, said, 'I’m blowing the plane up.' The crew and passengers tried to subdue him. He eventually was handcuffed and the plane was diverted back to Las Vegas."

Doesn't sound like a typical flight from Vegas, huh? Or a flight I'd especially like to be on. I much prefer the ones where the passengers silently rue their gambling losses. Or ponder what they'll significant other about why they weren't in a position to answer all those calls to their hotel room in the middle of the night. "What happens in Vegas stays in Vegas" doesn't really suffice as an explanation to one's spouse or girl/boyfriend, I imagine.

What's also nice about the way that Judge McKeown begins the opinion is that it encourages the reader to come out the same way she does -- which is to affirm a two-plus year prison sentence for Mr. Gonzalez for interference with a flight crew member, and, in particular, the essential doubling of his sentence under the guidelines because his conduct allegedly "recklessly endangered the safety of the aircraft." Judge Tashima dissents, so it helps to have Judge McKeown essentially paint Mr. Gonzalez as a quasi-terrorist in an attempt to get the reader on her side. It have been a much different beginning, for example, had Judge McKeown began the opinion as follows:

"Shortly after take off from Las Vegas, passenger Salvador Gonzalez began to have severe medical problems consistent with a massive heart attack. He asked the flight attendant for oxygen and, in light of his apparent heart attack, began saying 'We have to get on the ground. We have to land.' When there was no sign that the plane was in fact returning to Las Vegas to land, Mr. Gonzalez, convinced that he would die in the air, became increasingly distraught. Precisely what Mr. Gonzelez said is undisputed; it is clear that he said 'Do I have to say I have a bomb to get this plane on the ground?' But some witnesses said they heard only the words 'I have a bomb' from Mr. Gonzalez. Regardless of what was actually said, various passengers began punching Mr. Gonzalez, and they wrestled him to the ground, after they heard whatever words were spoken. The sentence of Mr. Gonzalez -- who had no bomb or other device -- was essentially doubled because his conduct allegedly ''recklessly endangered the safety of the aircraft,' and he appeals."

That'd give a different flavor to the opinion, right?