Momeni v. Chertoff (9th Cir. - March 31, 2008)

"It's one thing to legally come to the United States as an au pair, fall in love while you're here, marry a citizen, have your spouse die, and then ask to please be allowed to stay. It's another thing to legally come to the U.S., illegally overstay your visa, then marry a citizen -- who's still alive -- and ask to stay. The former's much more sympathetic. The latter looks like fraud; or, at a minimum, risks it.

So maybe we'll let the former stay, if only because we would otherwise look incredibly mean. But being nice to a widow who didn't do anything wrong ain't going to help someone like you, Kambiz. Don't confuse limited acts of kindness as a policy. You're being deported. Affirmed."

That's what Judge Kleinfeld, in a nutshell, says today. And you can see where he's coming from.

In short, there's precedent, and then there's "precedent." Some opinions are, as they sometimes say, pretty much "good for this case only." And recognized as such.

Cook v. Superior Court (Cal. Ct. App. - March 26, 2008)

Justice delayed, as we all know, is justice denied. By contrast, sometimes, speedy justice is pretty darn impressive. As it is here.

I gotta tell you, I'm pretty floored by how rapidly -- and properly -- this case gets resolved. As in less than 10 days from the filing of the lawsuit to resolution of the appeal. Wow.

The complaint gets filed on March 17th, in which the treasurer of the California Republican Party (Keith Carlson) state seeks to prevent Debbie Cook -- who's a candidate in the June Democratic (!) primary in the 46th District -- from using the title of "Mayor" in her ballot designation. (Cook is indeed the Mayor of Huntington Beach, but she was elected by the city council, not directly by the electorate.). Later that same week, on Friday, March 21st, the trial court denies a motion to dismiss for lack of jurisdiction and orders Cook to sit for a deposition. On Monday, March 24th, Cook files a writ, alongside a stay request, in the Court of Appeal. Which the Court grants later that same day. On Tuesday the Court of Appeal stays the trial, and on Wednesday, Justice Sills publishes a very complete -- and 10-page -- resolution that grants the writ.

That's pretty darn impressive. Great job.

P.S. - Lest one think that all opinions are like Bush v. Gore, it bears at least brief mention that Justice Sills rules against the treasuer of the California Republican Party here -- and goes out of his way to highlight the facial silliness of a Republican challenging the designation of a participant in the Democratic primary -- notwithstanding the fact Justice Sills was formerly a member of the Calilfornia Republican State Central Committee. Sometimes the law is simply the law, and is applied accordingly. And rightly so. (On the other hand, perhaps a cynic would mention that Justice Sills was also a former Mayor -- of Irvine -- in the same City Council context as Debbie Cook in Huntington Beach. But I prefer to, and do, believe in the former.)

Duffens v. Valenti (Cal. Ct. App. - March 27, 2008)

You're killing me, Court of Appeal.

Earlier this week, I complain -- okay, I whine -- about the flood of opinions coming out of the Ninth Circuit and Court of Appeal this week. Including 30 in 32 hours. Crushing. At least for devoted court-watchers (and -readers) such as myself.

So what does yesterday bring? Twenty-plus opinions.

Good to know that people are listening. Not, I admit, that I expected anything else.

Fortunately, I have had time to read this opinion by Justice Huffman. An opinion that I'd mention, wholly apart from anything else, if only because it concerns Irene Valenti, who runs the "Valenti International" dating service. Which you've undoubtedly read about if you've ever been stuck on a transcontinental flight with a dead laptop battery and thus forced to read the free airline magazines (and advertisements therein) stuck helpfully in the seatback in front of you.

This is yet another in a series of cases against various "high profile" -- read: high cost -- dating services that promise contact with "high profile" -- read: rich -- men. Allegedly with no intent (or ability) to perform. The services also ain't cheap; the average plaintiff in this action paid almost $50,000. And didn't get married to, or presumably even nail, a multimillionaire. The latter of which would hardly be worth 50 Gs anyway. Trust me.

Anyway, the question here is whether the plaintiffs have to arbitrate -- in San Diego, no less (Valenti works out of Rancho Santa Fe, the tony neighborhood down here -- pursuant to the contract. Sure, the plaintiff is making the usual "recission" and "invalidity" claims about the contract in general, but, typically, you've got to arbitrate notwithstanding such arguments.

But the Court of Appeal holds otherwise here. There's no fraud going particularly to the arbitration clauses, Justice Huffman admits. But the underlying statutory regime governing dating services requires particular disclosures in the contract, and those weren't made here. Moreover, the statute prohibits misrepresentations in the contract as well. And since the statute says that a contract that violates the statute is void, the whole contract -- including the arbitration provision -- is void, Justice Huffman holds. At least on the particular record here.

There's a lot to be said for this opinion, which both manifestly understands and clearly articulates the underlying principles. But I wish there was more analysis in the last two or three pages of this 27-page opinion, which is basically the meat of the analysis. Justice Huffman admits that alleging that a contract is "void" (or voidable) doesn't automatically negate an arbitration requirement; after all, even in the common law, contracts can be voidable, but arbitration is still required. Justice Huffman understands that, but says that in the particular statutory context here, it seems like the Legislature meant to void the entire contract. But, again, that doesn't necessarily preclude mandatory arbitration; after all, an arbitrator could do that. Plus, lots of statutes say that a contract is void if certain requirements aren't met; does this mean that a statute that requires you to put the date on any signature line, for example, under penalty of having the contract be void also prevent mandatory arbitration? This seems both overly hypertechnical and not at all consistent with the overall doctrinal preference for arbitration. Justice Huffman concedes, in this regard, that only violations of "material" requirements would both void the contract as well as the arbitration clause, but doesn't really spell out either (1) what it means for materiality to extend to the arbitration clause rather than merely voiding the contract as a whole, or (2) why the particular provisions here were allegedly "material". For example, one of the statutory violations that made the contract void here was the failure to disclose that if the plaintiff moved more than 50 miles, they could get out of the contract. Well, sure, the (inexplicable!) failure to include such a provision might indeed make the contract void, but especially if none of the plaintiffs here in fact moved, why would it negate the arbitration provision? Presumably an arbitrator could -- and would -- find what the law requires and refund the money. Which is what the doctrinal preference for arbitration assumes.

It's not that I'm a monster fan of mandatory arbitration, especially in the context of statutes that reflect public policy and/or that protect consumers, or fully buy into existing doctrine. But I think it has a point, and given those contours, I think that Justice Huffman could have done a little more to articulate his doctrinal vision here -- particularly its limitations. I'm not saying that the result he reaches is wrong. Far from it. But I think there needs to be a bit more here. And I think that including it would substantially enhance, as well as clarify, the law here. Which is hardly limited to dating contracts, but instead will apply to a whole slew of contractual arbitration claims in the face of statutory allegations.

So that's my academic take. On the practical side, I only have one point: How could a high-classed pimp -- er, I mean, "matchmaker" -- not hire an attorney to make sure that her contracts comply with the one statute that exhaustively regulates her business and voids any contract that doesn't? It seems to me that doing so would be more than worth even a single $50,000 fee. (And I know I'm going to get grief for that pimp comment, but oh well. I wrote it, I was obviously being sarcastic, and this post is long enough, so I'll leave it in. Yes, I know, matchmaking is a profound and historical institution, many lives have been improved, blah blah blah. All of which is true, I'm sure. But I still get to insult people if I want. Because I love America, baby.)

Harvest v. Castro (9th Cir. - March 27, 2008)

I agree with Judge Tashima -- and think it's a significant point -- that we should treat a State's request for modification of a habeas grant as a Rule 60 motion, rather than as a free-floating equitable principle. I'm a little bit concerned that such requests don't neatly fit into the typical Rule 60 mode (witness, for example, the misfit between the "mistake" here and the typical Rule 60(b)(1) "mistake" that gives rise to the judgment itself), and think that there are some Rule 60 constraints that aren't mentioned by Judge Tashima that might give rise to problems in the habeas context (e.g., the one-year limitation on several Rule 60(b) categories), but think that he nonetheless generally articulates a proper approach. I may or may not tie the State as tightly to the literal terms of Rule 60 as Judge Tashima does -- and, to reiterate, I might -- but I think that Rule 60 is indeed the right construct for such relief. And totally agree both that the State's mistake here was inexcuable (which it forthrightly admits) and that it's not that great of a burden to say to a State, in esssence: "When the judiciary orders you to retry or release a prisoner within 60 days, and you don't, you can't just ignore the Order and continue to hold him; you've got to release him. Sure, you can generally rearrest him, and if you want to do that the second he steps foot out of prison, go ahead. But that doesn't mean you can just violate the Order." That seems entirely right to me. (P.S. - I obviously made up that quote, which isn't from Judge Tashima, but think his point is basically the same.)

So I think this is a very good development in habeas jurisprudence. As well as equitable in this individual case. It may not be perfect, and I'm a tiny bit queasy about parts. But, overall, I like it.

In Re Singler (Cal. Ct. App. - March 26, 2008)

One of the fairly memorable constants of reading all of the published California appellate decisions during the past decade or so revolves around the treatment of parole applications by convicted murderers. The current scoop -- for those who don't recall it -- is that Governors Davis and Schwarzenegger (among others) (1) made sure to appoint very hard core (anti-parole) people to the Board of Parole Hearings, and (2) adopted and applied (and, in the latter case, continue to apply) an unannounced policy -- one that would be clearly illegal if formally announced -- of uniformly reversing the Board of Parole Hearings in those rare circumstances in which the Board eventually grants parole to an individual convicted of murder. Basically, the elected official doesn't want to take a potential political hit by granting parole to a murderer since, by definition, there is a non-zero chance that anyone who's released from prison would reoffend, and the political consequences of granting parole to a murderer who does so might be immense. So why take the chance? Especially since the only people who care strongly about the murderer are his family and (typically, few) friends, and the number of those votes ain't all that large.

But, over the years, I've gotten the sense that an uneasy -- and unusual -- arrangement has essentially developed between the California judiciary and the California executive branch with regard to this issue. Basically, the judiciary realizes that the executive is violating the spirit (and perhaps the letter) of the parole statutes, but in the face of an executive denial of illegality, is unwilling to call the executive a liar (especially since motive and intent is such a hard thing to prove). Hence there's no categorical judicial solution to the problem. At the same time, the judiciary realizes, over the years, what's going on, and eventually develops its own solution, and starting with a trickle -- and then, later, with a pour -- starts to routinely overturn the executive in individual cases, holding that in the particular case the executive's reversal of a parole grant was unfounded. Which, in turn, the executive -- while ostensibly (and, likely, in reality) opposing what the judicial branch is doing, is in truth not all that bummed at the resulting arrangement. Sure, some murderers get let out, and maybe that's not the greatest thing. But, on the upside, only in the most exceptional of worthy cases will a hard-core Board of Parole Hearings grant parole in the first case, and even amongst that group of cases, only in ones with exceptional merit will the judiciary step in and reverse the Governor's reversal of parole. So, in the end, the Governor realizes that only a select few will be released, that these are probably the ones that are really entitled to parole, and in the unlikely event they reoffend, it's the judiciary that will take the hit. So it's a win-win for both the executive and the judiciary. The judiciary gets to "do justice" and the executive gets to take a political stand whose adverse human consequences are mitigated by the judiciary. And everybody is happy with the arrangement -- at least as compared to the plausible available alternatives.

That's my thought, anyway, about where we stand, and although the way I've articulated this vision may suggest conscious decisionmaking by the parties, I don't think that's the case. I just think that, in the end, the participants have reached somewhat of a steady state, and that -- especially in the last couple of years -- one has tended to see this state of affairs more firmly reflected in the conduct of both the executive and judiciary. The executive's denials of parole become even less plausible than normal (since they know that the primary thing they have to do is simply to deny parole for political reasons) and the judicial reversal of such denials has become both less cautious and more routine.

Obviously, I'm talking about a meta-vision here, so there's no single case or (or even isolated group of cases) that affirmatively establishes the validity of my sense in this regard. But I do think that this case from today, as well as this case from a couple days ago, reach results that are consistent with my view of what's tended to happen over the past couple of years. Note particularly, in the case from today, that the Court of Appeal initially summarily denied the murder's petition, but ended up reversing the denial of parole after the California Supreme Court vacated this decision and ordered an OSC. I think that the California Supreme Court -- albeit alongside several important justices on the Court of Appeal -- has solidified the prevailing norm in this area both by various opinions in individual cases as well as by constant reaffirmation of the underlying principle.

Which is not to say that there aren't exceptions, as there surely are. But I do think that this is a rare situation in which two branches have found -- albeit somewhat clumsily, and without deliberate design -- a relationship that "works" for both of them. One that's extralegal, but nonetheless based on law. So it's an interesting dynamic. And something that's definitely worth thinking about.

In Re H.B. (Cal. Ct. App. - March 25, 2008)

Look, I like reading judicial opinions as much as anyone. Even more so, I think.

But the last 32 hours have seen no less than twenty published opinions by the California Court of Appeal and another double-digits by the Ninth Circuit. Can't we spread this stuff out a bit, people? I've got other stuff I've got to do, you know. :-)

That said, I wanted to briefly mention this case. Anyone who works either in the dependency system or on the Court of Appeal knows how profoundly and deeply depressing many of the cases in this area are. So when the dependency court -- a court that's typically understandably jaded by weeks and years of incredibly sad stories -- begins its opinion in the following way, you can only imagine what an incredible downer the underlying situation must be:

"This is truly a sad case. The history of Gail B[.]’s life is well known to the Juvenile Dependency Court -- first as a 9-year dependent herself and now, for the last seven years, as the mother of children [D.B, D.B., B.B. and T.B.] who are currently dependents of the Court."

The opinion by the Court of Appeal doesn't give all of the relevant and historical facts. For which part of me is thankful. There are perhaps some depressing, life-crushing stories that even I don't want to know. And I get a sense that this may be one of them.

Manzarek v. St. Paul Fire & Marine Ins. Co. (9th Cir. - March 25, 2008)

Zzzzzz. Another boring insurance coverage case. Sure, it's a well-written opinion by Judge Randy Smith. But it's insurance, right? So nobody's going to read it.

Wait! You say it's an insurance coverage case that involves Ray Manzarek and John Densmore -- former members of The Doors -- as well as the parents of Jim Morrison and Morrison's late wife?! Well, okay then. That's a whole different kettle of fish. In that case, we'll check it out.

P.S. - Andrew McCloskey, a USD Law graduate, loses this one. But don't feel bad, Andy. You won below. Albeit in front of Judge Real. And, for what it's worth, I think you lost because Judge Smith is right. Even if you're a stud, sometimes you've simply got a case that's wrong on the merits. In which case there's very little you can do. At least in front of a smart and interested panel.

Department of Toxic Substances v. Burlington Northern (9th Cir. - March 25, 2008)

Sometimes you can tell the complexity of a case merely by looking at the caption. Here's an example.

Check out this part of the (lengthy) caption:

Argued and Submitted
September 12, 2005—San Francisco, California
Submission Withdrawn September 14, 2005
Resubmitted March 16, 2007
Filed March 16, 2007
Amended September 4, 2007
Second Amendment March 25, 2008

Finishing up two and a half years after oral argument. Sort of gives you a sense of how not-so-easy the case is.

And, if you don't believe me, you can read the remaining eighty two pages of single-spaced text to confirm this impression. Go ahead. I dare you.

Foulon v. Klayman & Toskes (9th Cir. - March 24, 2008)

This doesn't happen every day. Indeed, it's sufficiently rare that it took me quite a while to figure out even what happened.

It's a forum selection clause issue. The parties briefed the case in 2005, and argued it in Seattle before a three-judge panel on November 17, 2006. Then, almost a year later, in September 2007, before issuing a ruling, the panel asked the parties to brief whether the case should be decided en banc. At which point both of the parties said: "No." To which the Ninth Circuit appropriately responded, two months later, by taking the case en banc. Sweet.

As they say, however, you can lead a horse to water, but you can't make it drink. The Ninth Circuit sets the oral argument for March 26th (the day after tomorrow) in San Francisco. But guess what? The parties don't feel like showing up. As a result, presumably as a result of a settlement, today, two days before oral argument, the Ninth Circuit dismissed the appeal.

Hope those tickets to San Francisco were refundable, judges! (Just kidding. I know you guys are going there anyways. And now 11 of you have got an extra couple of hours to hang out!)

In Re Lawley (Cal. Supreme Court - March 24, 2008)

Let me be the first to alert you to the most significant development in California jurisprudence imaginable. An event of the most profound significance -- one that has been developing for at least the past three decades, and yet has exploded with a fury over only the past several days.

I speak, of course, of the unspeakable. Yes: That Word.

"Motherfucker".

It was first used in a published opinion in California back in 1972. Ah, the golden era of speech. It was Justice Kaus who, in that year, had the honor of introducing us to that phrase -- using that colorful term in recounting the defendant's witty retort of "Right here, motherfucker" to a comment made by a witness. Showing the type of linguistic innovation, I might add, that undoubtedly directly led to Justice Kaus's subsequent elevation to the California Supreme Court.

It took six full years until anyone else on the Court of Appeal followed Justice Kaus's bold lead, but then, in 1978, Justice Paras entered the fray. Thereafter, in the 1980s and 1990s, all bets were off. As of today, my search reveals no less than 70 published opinions -- and an additional 263 unpublished opinions -- from the Court of Appeal that deploy this now-time-honored word.

It's now 2008. Thirty-six years since Justice Kaus first blessed us. And, notwithstanding the harsh language of those foul-mouthed justices on the Court of Appeal, the California Supreme Court had never used the term in print.

Until Thursday, that is.

Justice Baxter pulled the trigger in the California Supreme Court in People v. Gay. For proof, check out page seven, in which Justice Baxter recounts the defendant's alleged comment -- "Take this, you motherfucker" -- while shooting a police officer in the back.

I briefly talked about this case the day it came out, but the fact that Justice Baxter had broken a heretofore pristine barrier in the California Supreme Court didn't occur to me. Until today. At which point I read Justice Werdegar's opinion in another death penalty case -- In Re Lawley -- and noticed that it thrice recounts this word (on pages three and four) as "[m_________r]". (Presumably with the appropriate number of spaces for each letter, though I can't tell.)

This jogged my memory about Justice Baxter's opinion, which, crazily enough, was the last opinion issued by the Court before Justice Werdegar's. And then I did a little digging. On the history of the word.

So there you have it. On Thursday, Justice Baxter lays it all out for you. "Motherfucker". But a mere two business days later, Justice Werdegar lets you know what she's talking about, but protects your sensibilities. "M__________r".

A real innovation -- and contrasting styles -- on the California Supreme Court.

POSTSCRIPT - A little birdy up in San Francisco (anonymity assured, of course!) tells me -- correctly -- that the California Supreme Court actually broke this barrier back in 1983, when the Court used the phrase "Open the door, motherfucker" and -- in a cool sentence that I hope to use myself one day -- "Get out of my life or get it in it, motherfucker." And guess who was the author of this opinion? None other than Justice Kraus. A mere two years after coming on the Court, no less. Cool!

There are some other occasions in which the Court has used the term as well, all of which (for some reason) were omitted from my search results. I nonetheless remain excited about the contrasting styles. And await the day that the Court uses this term outside the context of a quotation. :-)

In Re R.K. (Cal. Ct. App. - March 21, 2008)

It may be a holiday (Good Friday) here at my Catholic employer, the University of San Diego. As well as at a variety of other private and public institutions. But no such luck for our relentless judicial officers. Who even today continue to crank out published opinions.

Fortunately, Justice Robie understands that today is a lazy day for many us. And hence begins this opinion in a style that I very much like: by making things clear, simple, and easy to understand at the outset. Here's the very first paragraph of the opinion:

"A deputy sheriff finds an intoxicated minor in a woodshed located 10 to 15 feet from the side of a house. The minor complies with the deputy’s requests to come out of the shed and to the street. A juvenile court finds true an allegation that the minor violated Penal Code section 647, subdivision (f) (section 647(f)) for being “found in any public place under the influence of intoxicating liquor.” Can the true finding stand, either because the woodshed was a “public place” or because the minor ended up in a “public place” when he complied with the deputy’s requests to come out of the shed and to the street? The answer to these questions is “no.” We therefore reverse the judgment against the minor R. K."

How crystal clear is that, my friends? I love it. You can read on if you like -- as I happily did. Or simply stop there. Either way, you know the scoop -- either the basics or the basics plus additional details.

I'm not saying that every opinion needs to be written like that, or contain a summary at the outset. But it's nice -- very nice -- at least once in a while.

Thanks, Justice Robie. And have a wonderful, lazy weekend.

People v. Gay (Cal. Supreme Ct. - March 20, 2008)

When the California Supreme Court unanimously reverses a death sentence -- and, these days, that's an exceptional rarity -- you can be pretty sure that it's reached the correct result. As, indeed, is the case here.

I might add, however, that it may be a bit easier than for the Court to reverse the death sentence here -- as contrasted to a typical case -- because the defendant has been sentenced to death twice, before two different juries. Yes, that sentence has now twice been reversed. But the fact that multiple juries have come out the same way, as well as the fact that the offense here involves the cold-blooded killing of a police officer, tends to suggest that the third time won't be a charm for the defendant either: that, in the end, he'll likely be sentenced to death yet again.

Sure, they'll be delay. And, yes, I think the Court's right that the error here isn't harmless, and that there's a chance that Gay will only be sentenced to life at Penalty Phase No. 3.

Nonetheless, the fact that the ultimate outcome may well be the same -- especially when combined with what I perceive to be the belief by at last some members of the Court that Gay might not have been the actual shooter -- may have helped the reversal here to become unanimous. In some ways, or at least for some people, it may be easier to reverse a death sentence when you have a fair sense that the next jury is likely to reimpose this sentence anyway. And that feeling may be a little bit in play here.

New Hampshire Ins. Co. v. C'est Moi (9th Cir. - March 20, 2008)

Chief Judge Kozinski begins this opinion with the following line: "We consider the doctrine that’s on everyone’s lips: uberrimae fidei."

Which is indeed a funny opening. Especially since, as loyal readers already know, that doctrine is indeed on everyone's lips, at least after Judge McKeown's scholarly exposition on the subject last month.

Two published Ninth Circuit opinions on uberrimae fidei in the scope of six weeks. Not bad. Our lead in the field of maritime insurance doctrine has never been more secure.

P.S. - For what it's worth, I tend to agree with Alex in this one. Even though, as he forthrightly concedes, his decision creates a fairly clear split with the Eleventh Circuit. Notwithstanding the split, however, I doubt that the Supreme Court will instantly take this one up, as they'll probably require a bit more "percolation" in the lower courts before stepping in. Which should easily happen in, say, three or four decades.

By the way, I doubt even more that the Eleventh Circuit will follow Chief Judge Kozinski's virtually-tongue-in-cheek suggestion that his colleages on the Eleventh Circuit "reconsider this question the next time they have occasion to rule on it." Ho ho ho. You're a riot, my man.

On Vacation - March 17, 2008

I am on vacation in Hawaii until Thursday, March 20, 2008,
and I will write again upon my return.

Lanier v. City of Woodburn (9th Cir. - March 13, 2008)

Wait a minute here. You want to drug test part-time library pages based upon some alleged "special need" to avoid, say, a hopped up page potentially giving a library patron the wrong book?

Even Judge Rymer says: I think not.

Rightly so.

People v. Clemons (Cal. Ct. App. - March 12, 2008)

I'm not one of those people who bend over backwards doctrinally to let people represent themselves or do whatever idiotic thing comes into their head at trial. Yes, I know, you have a right to represent yourself. But it's a terrible idea, generally. And I'm not entirely convinced that, systemically, the upsides of permitting wholesale self-representation are worth the pervasive downsides. (And I'm not alone; a huge hat tip in this regard goes to my former boss, who's expressed similar concerns and whose thoughts both initially motivated by examination of the issue and continue to influence it.)

That said, I very much agree with Justice Flier in this one. Who (alongside the rest of the panel and their staff) also deserves a hat tip for catching the issue when the Second District's appointed appellate lawyer apparently missed it in the briefing. Put simply, any prisoner who (1) has been in and out of mental institutions, (2) is at various points found incompetent to stand trial, (3) slices the crap out of his own arm (deeply!) with a razor blade in prison, (4) profusely grins at the sheriffs as he reveals his mutiliation, and (5) repeatedly expresses his desire to plead not guilty by reason of insanity to possession of the contraband razor blade he used to slice his arm should, indeed, be allowed to plead not guilty by reason of insanity. Especially when there is, as here, virtually no other possible available defense!

Wholly apart from a criminal defendant's right to control his own plea (and Justice Flier is pretty persuasive on this point), this seemed like an entirely reasonable decision, and is entitled to deference. I think the Court of Appeal gets this one exactly right. And I'm as chagrined that the appointed appellate lawyer didn't catch it as I am pleased that chambers did.

In Re Carl N. (Cal. Ct. App. - March 12, 2008)

"Dude, I hear you about footnote 3. But mellow out. We already changed that one, man."

That's myspeak. Justice Huffman puts it more elegantly: "The Attorney General's March 6, 2008 request for modification of the opinion filed herein on February 25, 2008, as to footnotes 1 and 3, is denied as moot with respect to footnote 3 because this court has already revised that footnote on its own motion."

Notice, by the way, how Justice Huffman puts in that the AG's request for modification was filed on March 6th. Since that was the same day as the Court of Appeal's sua sponte revision.

That's a different kind of "race to the courthouse."

P.S. - Can I tell you how annoying it is that even the docket sheet in juvenile cases is confidential? I mean, I understand that the name of the juvenile and the like are properly kept secret. But what day the briefs were filed? And the names of the attorneys -- which are listed in any published opinion anyway? Come on. I think we should be able to take a look at at least a limited docket sheet. But what do I know?

Desimone v. County of Los Angeles (Cal. Ct. App. - March 10, 2008)

I usually don't comment about -- or, truthfully, even read all of the -- unpublished opinions by the Court of Appeal. There are simply too many of them.

But this one is so cool to require at least brief mention.

First, who knew that those little tracking devices the police put on your car can catch fire and burn your house (or garage) down?! Wow. You learn something new every day.

Second, who knew that the Public Corruption Unit up in L.A. actually takes seriously where elected officials in fact live? It's an open secret that more than a few politicians don't actually reside where they claim to live -- a place in which they "reside" solely for the purpose of running in that district. But usually there's just a nod and a wink about actually enforcing those rules, at least as far as the police are concerned.

I'm psyched to see actual police work -- i.e., installation of surveillance devices pursuant to a warrant --performed to root out this problem. Deliberate and well-known violations of the law by public officials isn't something on which I'm especially keen.

Trans-Tech Asia v. M/V Harmony Container (9th Cir. - March 11, 2008)

Choice of law?! Maritime liens?! Application of the Bunker Confirmation pursuant to Malaysian contract principles?! How exciting!!

What's that? You say that Judge McKeown has written an opinion that spans over 25 single-spaced pages on these fascinating principles? Let me at it!

Oh, how I wish I had time to reread that opinion. Because not only do I not want those 15 minutes of my life back, but I'd be absolutely thrilled to devote another hour or so to the task.

That said, my hat's off to Judge McKeown, her law clerk, and the district court (Judge Steven Wilson and his clerks) for putting up with this one. I only had to spend 15 minutes on the matter. By contrast, I'm sure they had to devote weeks to it. A soporific, thrilling set of weeks.

P.S. - What undergraduate and legal training apparently prepares you for a life of litigating Malaysian maritime law, you might ask? Just ask California attorney Bradley Rose, one of the lawyers for the appellee. Who got both his undergraduate and legal degrees from the most obvious place if that's your future life. That's right. The University of Oklahoma. As they say daily in Kuala Lumpur: Go Sooners!

POSTSCRIPT - Proving once and for all that true loyalty lasts more than 12 full months, a former clerk for Judge Wilson e-mailed me to note (correctly) that his first name is actually spelled "Stephen". And cogently added that my praise for all of the hard work on the opinion that this chambers did below will undoubtedly be highly appreciated in the context of a decision reversed with a comment about the statute's "plain meaning". Touche!

Manta v. Chertoff (9th Cir. - March 11, 2008)

Does it really take almost a full decade to extradite someone to Greece for a run-of-the-mill crime? It does here.

Greece asked for Crystalla Kyriakidou to be extradited from the U.S. to Greece in 1999. You'd have thought that she'd have been sent packing way before 2008. But, apparently, things don't always go fairly smoothly. Though I can't see why. This seems a pretty routine and easy case.

I can't blame the district judge (Judge Whelen), or the Ninth Circuit for much of the delay. Judge Whalen ordered her extradited, and Judge Milan Smith not only (rightly) affirms, but also cranks out the published opinion fairly quickly -- a couple months after oral argument.

Anyway, I thought that seemingly routine extraditions didn't take this long. Apparently, sometimes, they do. (And I'm not persuaded, by the way, that the delay here was because there's a huge dispute about whether "Christina Manta" -- the person the U.S. is trying to extradite -- is really Crystalla Kyriakidou. I think that Judge Smith is totally right that there's quite a bit of evidence that she is.)

U.S. v. Rodriguez (9th Cir. - March 10, 2008)

It's sometimes hard to explain to students -- or even, on occasion, lawyers -- what precedential difference (if any) it makes that a Supreme Court opinion is a 5-4 rather than a 9-0. After all, the legal rule adopted by the majority constitutes binding precedent, right? The rule is the rule, and as long as it gets any number of votes greater than 4.5, it controls.

Yes. Entirely right. Only, maybe, not entirely.

The great thing about this case from the Ninth Circuit today is that I think it provides a very good example of what I mean -- or at least feel -- when I tell students that starkly split decisions are, as a factual matter, less precedentially powerful than others. Sure, everyone understands that a 5-4 might more easily be overruled by a future Court than a 9-0. That's intuitive. But how does that matter to a lower court, that's bound to follow Supreme Court precedent until it is in fact overturned?

Well, let's examine what happens here. Jose Rodriguez gets stopped by some federal rangers in Lake Mead because it seems like he's drunk. He's got some pistols and some other stuff, including a homemade silencer, that leads the rangers to read him his Miranda rights. After which they ask him whether he wanted to talk, an inquiry to which Rodriguez responds "I'm good for tonight."

Well, what exactly does that mean? Personally, I tend to think that means "I've got a nice buzz on, and don't feel like being busted, so leave me alone. I'm good." But I can easily see that it also might mean "I've got a nice buzz on, and am a happy-go-lucky sort of drunk, so go ahead and chat with me, I'm good." In legalese, we say that the whole "I'm good" thing constitutes an "equivocal" invocation of your right to remain silent. Sure, he might be saying "Leave me alone." But he might also be saying "Keep talking to me." So when the police, in the face of this equivocal request, simply keep talking to the defendant, and elicit incriminating information as a result, is that okay? Or are they required to ask "What do you mean by that? Do you want to talk or remain silent?"

Well, there's a Supreme Court case called Davis in which the Court held that the police facing an equivocal invocation are not required to seek clarification before continuing to question the suspect. And the Court's holding was pretty darn clear on that point. In Davis, the defendant said "Maybe I want a lawyer," the police kept questioning him notwithstanding this equivocal invocation, and the Court thought that was just fine, thank you very much. The Court said that “if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning.” And further expressly "decline[d] to adopt a rule requiring officers to ask clarifying questions. If the suspect’s statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him.”

Pretty clear, right? So Rodriguez's post-invocation statements can be used against him, no?

Not so fast. Judge Milan Smith -- a Bush II appointee, and hardly a raving liberal -- writes an opinion joined by Judge Thompson (a Reagan appointee) and Judge Canby that holds that the statements made by Rodriguez post-equivocal invocation must be suppressed because the police didn't clarify what he meant by "I'm good."

"Wait a minute," you might say, "that's exactly what the Court in Davis went out of its way to hold was not required." And you'd be entirely right. But Judge Smith says that holding was by a slim "five-member Court
majority" -- definitely bothering to point that fact out -- and involved a defendant who had previously waived his right to remain silent unequivocally (e.g., signed a previous written waiver). The police don't have to ask clarifying questions from defendants who waive and then equivocally evoke, Judge Smith says. But they do have to ask clarifying questions from defendants who merely equivocally evoke. The rule in Davis, he argues, is thus factually distinguishable from the case at hand.

Which may or may not be right. Reasonable minds might disagree. Though I'm hardly going to doubt Judge Smith's neutrality on this one, since I think he's definitely reaching out to do what he thinks the law requires. Which I think speaks volumes about the merits.

But my principal point is this: This case ain't coming out the same way, IMHO, if Davis is a 9-0. The fact that it's a sharply split opinion creates play in the joints. Wholly apart from the facts, the fact that it's a 5-4 matters. To academic observers. To those who are results-oriented. And even to neutral and principled lower tribunals. Yes, the "law" is technically the same regardless of whether it's 5 votes or 9. But it matters. Definitely, in some cases. It matters.

So this is a good one. It exemplifies in a concrete fashion, anyway, something that I believe. Or at least I think it does. And hence thought I'd share.

People v. McGowan (Cal. Ct. App. - March 10, 2008)

Let me give you a running commentary of my thought process as I read this one:

"On the morning of March 19, 2006, defendant was partying in his house with C.G., B.M., and two other gentlemen. . . ."

Okay, not so bad. A little relaxation. Good friends. Seems fine.

"The group was drinking Southern Comfort, mixed cocktails of brandy and coke, and beer. . . ."

Whoa. Slow down a little, my friends. That Southern Comfort stuff can get wicked.

"The group were also smoking marijuana. . . ."

Not great to add to the mix. It's sounding more like a Court of Appeal case now.

"As they drank, the group danced to music. . . ."

Geeky, perhaps, but no crime there.

"C.G. did something similar to a lap dance, but with her clothes on, in front of the men. . . ."

Oh no. Please don't have this go where I think it's going.

"At this point, C.G. began to feel numb and lay down on her stomach on the floor in the living room of defendant’s home. As she lay on the floor . . . ."

Darn it. That's what I feared. Conclusion:

"On September 14, 2006, the jury found defendant guilty of sexual penetration by foreign object by use of force (§ 289, subd. (a)(1)) and guilty of the lesser included offense of misdemeanor sexual battery (§ 243.4, subd. (a).) On October 27, 2006, the trial court sentenced defendant to three years in state prison."

And rightly so.

In Re Rachel L. (Cal. Ct. App. - Feb. 28, 2008)

Things aren't going very well for Justice Croskey lately.

He published an opinion late last week about homeschooling that was interesting, but which I didn't think was especially worthy of comment because I understood (I think) what he meant and where he was coming from, at least in the context of the children at issue in the case, who had been allegedly highly abused and neglected. As I read the opinion, he meant to say -- albeit in a somewhat overbroad fashion -- that parents don't possess a categorical constitutional or statutory right to educate their children in whatever fashion they wish, and that a reasonable response to the neglect at issue here would be to require the children to be educated in a public or real private school, not in a "homeschool" with virtually no supervision run by neglectful parents.

But then the firestorm began.

The press got a hold of the opinion, the homeschoolers went up in arms, and all of the sudden Justice Croskey was barraged, I'm sure, with a plethora of phone calls, e-mails, and critiques. All for a loosely-worded opinion that, I believe, anyway, wasn't intended to stand for the extreme proposition claimed for it by its opponents.

My strong, strong sense is that Justice Croskey's chambers (and the rest of the panel) is as we speak working on a sua sponte amendment to the opinion to make its more limited message clearer. Mind you, I might be wrong about this, and assure you I have no inside information in this regard. But I bet that what Justice Croskey meant to say isn't what some/many readers have garnered from the opinion, and imagine that he's feverishly working to bring that point home.

But, in the meantime, Justice Croskey even has the Governator totally insulting him. Yikes. And on the other side, Justice Croskey has my kind words from last year. And even this from a guy who occasionally misspells Justice Croskey's last name. So small solace there.

Sorry for the hassle during the last several days, Justice Croskey. It happens.

Kendall v. Visa (9th Cir. - March 7, 2008)

Want to know how credit cards work; in particular, who gets what money (and what percent) when you buy something with a credit card? Judge Bea tells you in pretty exhausting detail. And also gives you a keen sense that there's a ton of money made by a ton of different groups here, who may also be colluding to make sure it stays that way.

So fun stuff. By contrast, thus far, the California Court of Appeal has published four things today (here, here, here, and here), every single one of which is merely a modification of a prior opinion. Zzzzzzzzzz.

California Back Specialists v. Gary Rand (Cal. Ct. App. - March 6, 2008)

You don't see a plethora of cases in which attorney's fees are awarded to the non-moving party on an anti-SLAPP motion; i.e., because the anti-SLAPP motion was frivolous. Much less do you see that happen a lot when the party spanked is an attorney.

But Van Nuys attorney Gary Rand learned today that it happens. And learned it the hard way.

Not everything you do as a lawyer -- e.g., not pay medical liens -- is protected conduct. As a result, you can't file an anti-SLAPP motion to every single lawsuit against you.

Now you know.

In Re Anthony M. (Cal. Ct. App. - Nov. 8, 2007)

Not too much from the Ninth Circuit or California Court of Appeal today. We'll see what the late afternoon brings from the latter.

In the meantime, here's a story you don't want to hear:

"On the afternoon of July 8, 2005, the minor, 14-year-old Anthony M., was alone at the home of his father’s girlfriend. He invited two friends, Christian D. and the victim, Daniel V., to come over to the house. When the two boys arrived, the minor retrieved a .38 caliber handgun from the master bedroom, placed one bullet in the bottom chamber of the gun’s cylinder, pointed the gun at Daniel while dancing around the room, and . . . ."


Needless to say, this fact pattern doesn't end well.

People v. Duncan (Cal. Ct. App. - March 5, 2008)

Let me speak to you know as your lawyer. Or friend. Or merely someone who has half a brain.

If you have methamphetamine, marijuana, small baggies, and an electronic scale in your vehicle, as well as a suspended license, do not drive around San Diego -- or anyplace else in California, for that matter -- with your license plate upside down. Perhaps it looks "cool". I don't know; I'm so unhip, I've lost track of what's hip. But regardless of whether it's "in style" or not, it definitely does constitute something else. Something that we call "probable cause". And once we stop you and impound your vehicle, we're going to bust you. And you'll spend a fair piece of time in the pokey. A result that Justice McIntyre won't have a problem in the slightest affirming. And, to prove it, he'll only take eight double-spaced pages to do it.

So that's my counsel. Mind you, on the academic side, I think there's actually a pretty good argument the other way. The only statute that an upside-down license plate allegedly violates is Section 5201 of the Vehicle Code, which provides that a license plate "shall be mounted in a position so as to be clearly visible, and shall be maintained in a condition so as to be clearly legible." Justice McIntyre holds that under the plain meaning of "clearly legible," an upside-down plate doesn't qualify, since it's hard to read. But I'm not totally sure. Maybe I'm idiosyncratic, but upside-down plates don't seem all that hard to decipher. And from the context of the statute it seems like they're more talking about dirt and grime and the like. So I can definitely see a reason why you might think it was okay to put the thing upside down. Or at least make a "rule of lenity" or similar claim in an attempt to avoid a conviction.

But, academic commentary aside, the powers that be say that an upside-down license violates the statute. So wear those license plates "straight up, yo." You'll have a better life. Or at least more freedom.

Hicks v. KNTV Television (Cal. Ct. App. - March 5, 2008)

KNTV (NBC 11) says to Brad Hicks: "You were fine as an anchor when we were just in Salinas/Monterey. But now that we're in San Jose/Oakland/San Francisco, you're fired."

Brad responds: "You just want to replace me as anchor because I'm white. And hired an African-American to replace me. I'm suing. And moving to Milwaukee."

Justice Premo says: "There's no evidence of discrimination. And you really are somewhat aloof as an anchor, Brad. Summary judgment for KNTV affirmed."

P.S. - There's lot about what Justice Premo says that makes sense. But I disagree with the first paragraph on page 15, which reads: "Plaintiff contends that the station’s Web site, which referred to Janice Edwards as an anchor, shows how desperate defendants were to give the impression that the station was more diverse than it was. The argument is not rational. Edwards was employed by KNTV, there was no misrepresentation in that. We cannot fathom how misidentifying her as an anchor on the Web site would have advanced the station’s alleged desire to have an African-American anchor on the air. The inference plaintiff would have us draw from this evidence is simply not reasonable." I think that's some evidence, and not an "irrational" argument. It may or may not, when combined with the other stuff, be sufficient to get to a jury. But I understand the contention, and in an appropriate setting might indeed raise an inference of deliberate discrimination.

Tall v. Mukasy (9th Cir. - Feb. 27, 2008)

You mean to tell me that I can be deported if I make a crappy knockoff of a Pink Floyd (or whatever) t-shirt?

Yep.

U.S. v. Alghazouli (9th Cir. - March 4, 2008)

Why is the Southern District of California -- i.e., San Diego -- so overwhelmed with federal criminal cases, you might ask? Well, one reason is because it's so darn easy to make money down here, albeit illegally. You drive down to Mexico, pick up some stuff, sneak it across the border, and sell it to Americans with a voracious appetite for your product. It's relatively easy money. As long as you don't get caught.

The stuff you can easily pick up in Mexico can be sold in a heartbeat for double or triple the price up here. I think you know what I'm talking about.

Yep. Freon.

U.S. v. Cannel (9th Cir. - March 3, 2008)

Okay, I get it now. Obviously the problem is that I'm not being specific enough.

Sure, I told everyone back in December that anyone named "Horneygirl14" -- or any such name -- isn't really a 14-year old girl, but is instead an FBI agent. Then I again articulated a similar message in January, this time as the opinion related to an FBI agent whose nom-de-chat-room was "SusieBabyGirl" and who also pretended to be a 14-year old girl.

What I was trying to make clear -- and I thought this was pretty obvious -- was that you shouldn't go around lurking in chat rooms trying to pick up children for sex. Because, wholly apart from moral reasons (duh!!), it ain't gonna happen. Yes, it might well end up in sex. But in prison. And not with your intended participant.

So I think I was pretty clear on the whole 14-year old girl thing. But perhaps the particulars resulted in the larger message being unclear. Since, today, this opinion by the Ninth Circuit tells the story of James Cannel, who lurked around chat rooms with the (entirely appropriate) screen name "surching" until he stumbled upon an alleged 12-year old boy with the screen name "tim_12_seattle". To whom Cannel promptly sent pictures of his genatalia -- which I might add, is always the sexiest act in the world -- was well as an invitation to meet for an evening of child molestation. (Please tell me that you know that I'm kidding about how hot it is to send a complete stranger your c**k shot.)

Anyway, in the most surprising fact in the universe, the reality of which could hardly be imagined by even the most compelling intellect on the entire planet, it turns out that "tim_12_seattle" was actually a Seattle police officer. Who busts Cannel, finds (again, shockingly) lots of child pornography on his computer, and invites the feds to incarcerate Cannel for six years. An invitation which they accept, and which the Ninth Circuit affirms. End of story.

So let me make it crystal clear. 14-year old girl. 13-year old girl. 12-year old boy. It doesn't matter the precise age. Or gender. Or screen name: Horneygirl14, SusieBabyGirl, tim_12_seattle, pretending_I'm_underage_to_trap_pedophiles, whatever. They're not real. And you shouldn't be looking for that type of sex anyway. So get out of the chat rooms. Stop collecting child pornography. And try to obtain a more healthy sexual obsession.

Learn it. Live it. 'Nuff said.

U.S. v. Mendoza (9th Cir. - March 3, 2008)

I don't know.

Yes, there was an eight year delay between when Paul Mendoza was indicted and when he was arrested. That's a long time. So I can see why the panel here -- Judges Nelson, Paez, and Bybee -- dismisses the conviction as a violation of his Sixth Amendment speedy trial rights.

But I gotta tell you that there's a big part of me that leans the other way. Mendoza embezzled a quarter million dollars from his employer and then got caught. Because he didn't pay taxes on his ill-gotten booty, eventually the IRS gets onto him, and in June 1995 an IRS Special Agent serves a subpoena on Mendoza's attorney for some handwriting exemplars and the like. At which point Mendoza undoubtedly realizes: "Shucks. The feds are after me. Time to make haste." Which he promptly does. He skips the subpoenaed meeting with the IRS and flees, moving from Los Angeles to Seattle. Shortly thereafter, the IRS tries to catch up with him in Seattle, but they're then told by his wife that Mendoza moved to the Phillipines back in June 1995. In other words, immediately after Mendoza skipped out on the subpoena, he not only fled the state, but fled the country.

Mendoza's wife gives the IRS a number for Mendoza's relatives in the Phillipines, the Agent leaves a message for him there, and Mendoza promptly does indeed call back. From a pay phone, of course. And refuses -- not surprisingly -- to give the IRS agent any contact information. Mendoza fabricates a cock and bull story about what he's doing in the Phillipines, and says he's coming back to Seattle soon, but the IRS agent hardly finds this information credible. And rightly so. So a couple of months later -- in April 1996 -- they indict Mendoza in federal court. And make sure to put out the warrant so that whenever Mendoza does eventually return to the United States, he'll be picked up in customs.

Eventually, in 2004, Mendoza does indeed return from his eight-year sojourn abroad, and gets arrested. At which point he boldly moves for dismissal of the indictment due to this eight-year delay. Judge Lew (in Los Angeles) says "no dice," but the Ninth Circuit reverses, concluding that the eight-year delay constitutionally compels dismissal of the resulting conviction.

As you can probably tell, I'm less than entirely persuaded. Yes, it was an eight-year delay between indictment and arrest. But that's because Mendoza had fled the jurisdiction. I'm quite confident -- certain, in fact -- that if he'd have stayed around, he'd have promptly been arrested. Indeed, that that's precisely why Mendoza left.

And, yes, I know that the IRS agent never told Mendoza that he'd have been indicted, even during the calls he had with him in the Phillipines. But I wouldn't have told him either. The guy's fled the country. The only way he's ever going to come back, I imagine, is if he thinks the heat's off him. That ain't going to happen if he knows there's an indictment out there and he'll be detained the second he steps off an airplane in the United States.

It seems reasonable to me to not tell a fleeing felon that he shouldn't step foot back on U.S. soil if he doesn't want to be arrested. Yes, I know, that may result in some delay. And, yes, maybe, if there's reason to believe that the defendant would have indeed come back if you'd have told him about the indictment, then that delay is on the government, and should result in dismissal.

But none of that seems true here. Mendoza's an embezzler who skipped out on a subpoena and promptly fled the country. The eight-year delay seems pretty much entirety on him, in my mind.

Yes, I know that even Judge Bybee signs on to reversing the conviction (albeit reluctantly), and who am I to be even more pro-prosecution? But my gut still tells me that Mendoza's conviction should be upheld. I just don't like how this one sits with me.

Bradley v. Henry (9th Cir. - Feb. 29, 2008)

Once every four years or so -- say, every February 29th -- you see something unusual.

Here's what Judge Clifton adds today to his separate opinion back in December: "You may have five votes, Judge Noonan. Which is more than my four. But five isn't half of eleven. So my four votes is the law, and your five isn't. Gotcha!"

Oh, wait. Those were my words. Here are Judge Clifton's: "The plurality opinion has been joined by only five of the eleven judges on this limited en banc panel. Because that constitutes less than a majority of the panel, that opinion does not announce the law of this circuit. The precedential effect of this decision does not extend beyond the conclusions expressed in this separate opinion, which concurs in the judgment on more narrow grounds. See Marks v. United States, 430 U.S. 188, 193 (1977)."

He says it so much nicer than I did. Still, it's the same message. And he's right.

Adaimy v. Ruhl (Cal. Ct. App. - Feb. 28, 2008)

Want to bet that Ernest Franceschi -- who may be a slightly better blackjack player than he is a lawyer -- and Robert Helfing and Kirk Jenkins (both of whom are with Sedgwick Detert) get sued by Edmond Adaimy for blowing the deadline to file a notice of appeal?

Count on it. Seriously, take that bet to the bank.

California Faculty Ass'n v. PERB (Cal. Ct. App. - Feb.28, 2008)

Anyone who's ever been a member of a university faculty knows how pesky its members can be about parking. Where you park, how far from your office the parking spaces are, how much the parking permits cost, etc. You'd think that professors would have more important things on their mind. Especially since most of them -- including myself -- could use a little more walking (and other exercise) anyway. But you'd be wrong. Trust me when I say that parking is at the upper eschelon of what many faculty members care about.

That said, I've never seen a lawsuit about faculty parking at the University. Until today, that is.

Let's hear it for the victorious faculty at Cal State Northridge and Cal State Sacramento. Who sued when they weren't allowed to park in student spaces. Keep fighting the good fight.

Williams v. Boeing (9th Cir. - Feb. 27, 2008)

Sometimes you can make a boatload of money as a class action attorney. Other times you can spent over a decade in hotly contested litigation and make squat.

This is an example of the latter.

Life ain't all a bed of roses, my friends.

Taheri Law Group v. Evans (Cal. Ct. App. - Feb. 26, 2008)

A Los Angeles Attorney (Payman Taheri) sues another Los Angeles attorney (Neil Evans) for allegedly wrongfully soliciting one of the former's clients. At which point the latter attorney (Evans) files an anti-SLAPP motion against the former attorney (Taheri), prevails, and gets an attorney fee award. But, on appeal, another Los Angeles attorney -- Yevgeniya Lisitsa -- who represents the plaintiff Los Angeles attorney doesn't successfully reverse the dismissal of the lawsuit, but does convince the Court of Appeal to reverse the award of attorney fees to the defendant Los Angeles attorney because he represented himself.

Full employment for Los Angeles attorneys. The only thing that was missing was another one to represent Evans both below and on appeal -- and hence obtain attorney's fees. That'd have made the thing perfect.

In Re Carl N. (Cal. Ct. App. - Feb. 25, 2008)

I was principally interested in this case because it concerned a 19-year old in San Diego. Someone who, from the outset of the opinion, I gathered I wouldn't particularly like to meet alone on a dark evening. The first sentence of the opinion reads: "Carl N., a ward of the juvenile court, who was born in 1988 and has a long history of juvenile delinquency (including vandalism, gang activity, drug abuse, a felony assault, and multiple violations of probation) and repeated failure to benefit from less restrictive commitments, appeals an order committing him to the California Youth Authority (CYA) after he admitted he had again violated probation."

But then I read the rest of the opinion. I'm not quibbling with the outcome of the case, as I am confident that Justice Nares is right that Carl was properly committed to the CYA. But I was surprised that my reaction to Carl was not your typical: "Oh my, a sociopath. Glad he's off the streets." Rather, Carl's offenses -- which are indeed numerous -- largely consist of tagging and vandalism and hanging out with the wrong crowd. It's a story of someone not who I sense is an utterly unredeemable person, but rather someone who, for whatever reason, just can't get it together. Who has been incapable, over many many years and notwithstanding the efforts of many many people, of doing anything more with his life other than being a total loser. Or even understanding that there's something called a meaningful life, and that this is within the realm of possibility for him.

My reaction to the usual 19-year old portrayed in the pages of the California Appellate Reports is not a positive one given the types of individually typically discussed therein. But, here, I had a slightly different reaction. A reaction that, crazily enough, is in some ways more depressing than one in which you're reading about a murderer or child molester or whatever. Because for those people you can more easily write them off as monsters or people who, however they became that way, unambiguously need to be locked up. Not so here. Yes, everything that we've tried with Carl N. has failed. Yes, we've got to admit that we're not likely to succeed at this point, so he's got to be locked up at the CYA. But (1) that's hardly going to succeed in the long term; we know that's likely only going to make things worse in the end, and (2) I have a stronger feeling than usual that I wish we could find a better way.

That's my idiosyncratic reaction, anyway, to this otherwise routine case.

Steinhart v. County of Los Angeles (Cal. Ct. App. - Sept. 28, 2007)

Sometimes I write full blog entries but don't post them immediately, often because I feel like adding more later if I have the time. Which, sadly, I rather do. So they just sit there in "draft" form until I either eventually get to them or simply delete them.

So I was going through my drafts today -- there aren't that many, actually -- and came across this one. Which I thought I'd just post as is. Here's what I wrote (the day the opinion came out back in September):

Here's a darn good -- and easy -- way to avoid a reassessment of your property (and hence a massive increase in property taxes) upon your death. Which is very useful if you're not otherwise eligible for the parent/child or other exceptions to the reassessment rule.

Just create a trust and give a life estate to someone -- most likely, a family member (e.g., your sister) -- upon your death. Ta-da. Property taxes for the property remain at the same artificially low level. Even after you die.

At least for now. This opinion by Justice Klein, in a case from Los Angeles, creates a split in the Court of Appeal. So, wholly apart from the merits, I'd be very surprised to see the California Supreme Court not take this one up.

Assuming, of course, that the California Legislature doesn't act first and legislatively overrule this opinion by enacting Property Tax Rule 462.060(a) -- which the Court of Appeal invalidates -- as a statute. Which also is a distinct possibility. Especially since you're talking about a lot of scratch in property tax revenue here.

Stay tuned. This one definitely ain't over.

POSTSCRIPT [2/22/08] - Of course, I immediately looked the status of the case up, and, yes, on December 12th, the California Supreme Court granted the petition for review. What a shock.

People v. Stone (Cal. Ct. App. - Feb. 21, 2008)

What's the proper sentence for slipping some donuts in your pocket in an attempt to shoplift them?

Four years, eight months in prison.

From reading the facts, I'm not even 100% certain that they apprehended the right person. Regardless, Steven Stone will indeed spend a fair piece of time in the slammer.

Remember that the next time you want some morning refreshment in Lake County. Don't steal donuts. Or look like a guy who does.

Fair warning.

Del Campo v. American Corrective Counseling (9th Cir. - Feb. 6, 2008)

Exactly right, Judge Berzon.

Goldman v. Simpson (Cal. Ct. App. - Feb. 20, 2008)

Yes, that Goldman. And that Simpson.

But don't think that this is some sexy, media-friendly opinion. It's not. It's about personal jurisdiction over the renewal of money judgments. Which is admittedly exciting for civil procedure types like myself. But for most (regular) people, not so much.

Justice Willhite writes a nice, short, well-written, and entirely correct opinion. I couldn't have authored a better -- or even equal -- one myself. It's exceptionally good. I also liked that he made no reference at all to the high-profile nature of either the case or the participants. As far as you could tell from the opinion, this is a run-of-the-mill case that just so happens to involve one of the many anonymous people in this world called Orenthal James Simpson.

Anyway, on the merits, Justice Willhite is clearly and unambiguously right that California has personal jurisdiction to renew a money judgment as an extension of the original jurisdiction over the tort. And all the other things that Justice Willhite says are entirely correct as well. So Simpson loses. And accordingly doesn't get to hawk autographs and the like -- or at least benefit financially therefrom -- for another 10 years.

Which is totally fine in my book.

Cook v. Schriro (9th Cir. - Feb. 20, 2008)

Sometimes you can tell just by reading the facts that the defendant has been sentenced to death. And you can totally see why.

Such is the case here.

Given both the facts and the panel -- which included Judges Callahan and O'Scannlain -- no one's going to be surprised at the result in the Ninth Circuit. And it doesn't even take long. Ten weeks after the oral argument, there's a 43-page opinion that affirms the denial of the habeas petition. Which is pretty darn speedy, especially for the Ninth.

One more thing. Don't represent yourself at trial in a death penalty case when you totally did it. You'll be terrible. And will die. Which Daniel Wayne Cook will likely shortly discover.

Pilkington v. Cardinal Health, Inc. (9th Cir. - Feb. 19, 2008)

Sometimes timing is everything.

Defendants in the class action here file a motion for summary judgment in November. The parties have an unsuccessful mediation on December 12th, but continue to talk. The motion for summary judgment is heard and taken under submission on December 16th.

On January 10th, the settlement talks reach fruition, and the parties (1) sign a binding term sheet, and (2) deliver a letter to the district court advising it of the settlement. Meanwhile, Judge Klausner and his clerks have been working on the summary judgment motion, so that very same day, Judge Klausner signs an order granting the summary judgment motion, which is entered the following day.

The Class wants the settlement agreement approved, and files the appropriate motions, but the district court says: "Nope. I granted summary judgment. You're done." The Class appeals. And the Ninth Circuit reverses.

Even if you've done all the work on the underlying motion, when the parties settle, it's your job to approve (or disapprove) the settlement. You can't just go ahead and decide the motion, the Ninth Circuit holds. P.S. - For good measure, the Ninth Circuit holds that there was a genuine issue of material fact anyway.

Days -- sometimes even hours -- matter. Remember that. And get that settlement done.

U.S. v. Hir (9th Cir. - Feb. 15, 2008)

It's allegedly a holiday today. I say "allegedly" because even the University of San Diego (and the law school) are open, which means that it must not be a very well-observed holiday. Because, trust me, if there's one thing that law schools -- and law students -- understand and appreciate it's three-day weekends.

The government, of course, is even more keen on three-day weekends. Which means no opinions will be published today. But, in honor of President's Day, I thought I'd make a brief comment about one opinion that came out on Friday. That concerns an issue that a variety of commanders-in-chief throughout history have had to face: the balance between security and freedom. An issue that was as relevant to President Lincoln, for example, when he suspended habeas during the Civil War as it is to President Bush today.

There are genuine risks that the fear of external attack will result in an unacceptable dimunition of critical constitutional rights. Nonetheless, there are also some restrictions on constitutional liberties that are entirely appropriate in light of the contemporary dangers that confront the nation.

This, in my mind, is an example of the latter.

Anderson v. Terhune (9th Cir. - Feb. 15, 2008)

Judge McKeown writes an excellent opinion -- especially Part I -- in this one. It's very well-written. It's extremely reasonable. It sounds good.

Not that the contrary opinions are totally absurd. It's a 10-2-1-2 en banc split, which is not something you see every day. The other three opinions are worth reading as well; indeed, they make some darn good points.

But, wholly apart from the merits, I though that Judge McKeown's opinion was the best. And I say that even though, as I began reading it, I initially thought the first paragraph seemed a bit forced. Reading further changed my mind.

Good job.

Perez v. Mukasey (9th Cir. - Feb. 14, 2008)

One Ninth Circuit judge says it's okay to be two hours late to your deportation hearing -- that as long as the immigration judge is still on the bench once you show up, you can't be removed in absentia. Another Ninth Circuit judge, writing in dissent, says that's not okay at all, and that you can be deported as a result.

One of these judges is Judge Reinhardt. The other is Judge Rymer. You probably don't need to read the opinion to figure out which is which. But if you do, here it is.

The majority rules. You can be two hours late.

Park v. Mukasey (9th Cir. - Feb. 13, 2008)

Two days. Two opinions in which the Ninth Circuit affirms by adopting the decision of the district court.

What? No one does their own work anymore? :-)

People v. Bonnetta (Cal. Ct. App. - Nov. 15, 2007)

A lazy day for the Ninth Circuit and the California Court of Appeal today. Nothing at all from the latter -- it's Lincoln's Birthday, after all. And, from the Ninth Circuit, only this single sentence, in which the panel affirms for the reasons already expressed in the district court's published opinion.

So I figured I'd go back and briefly mention a very good opinion which I didn't have the opportunity to discuss late last year. Which is a classic example of a judge being bound by precedent and not being very happy about it.

When that happens, you can't do any better than Justice Richmann does here. It's a wonderful, wonderful opinion. Exactly what you want to say in this setting. "Yes, I'm doing what I need to do. But, really. This is a silly rule. And the California Supreme Court and/or Legislature should definitely change it."

Definitely take a look at this one the next time you're obliged, as a court, to do something that doesn't make any sense. This is the perfect way to do it and yet redeem yourself. As well as to serve the public interest.

It's extremely well done.

In Re Charles R. Martin (Oct. 24, 1941 - Feb. 11, 2008)

Pardon the personal aside. Just wanted to give a brief mention to my father, who died this morning and who's in my thoughts.

Dad was a full-time pharmacist (a '63 Drake graduate) who decided that he wanted more of a challenge in his work, and so he enrolled in the evening division of Georgetown Law a month after the birth of his first child -- me -- in 1966. He somehow managed to work full-time as a pharmacist, to commute to and from our tiny little apartment in Alexandria Virginia to D.C. for law school, to study whenever he could, and in the midst of all of this to raise a family, starting with me and then my brother Brian, who was born right after the end of his IL year. My brother Chris arrived shortly before Dad graduated from Georgetown in 1970, and my sister Kelly arrived a year later. In the meantime Dad had left the pharmacy and hung out his own shingle, and my youngest brother Jonathan then arrived in 1984.

Dad practiced in his own law firm for the next 37 years, and I truly and sincerely believe that he could not have been happier in any other profession. He was a small-town lawyer with an office in the faraway suburbs of Virginia, and he loved working for and helping his clients. For 37 years his practice consistently entailed an eclectic mix of estate planning, tax, business, contract, real estate, and whatever other work happened to walk in the door. He never made much money in his practice, but he provided for his family -- and deeply, profoundly, and sincerely enjoyed his work. He was a lawyer's lawyer; someone who found immense pleasure in solving the multidue of challenges brought on behalf of those who had retained him to assist them.

Dad had a massive heart attack at a Washington Redskins game in 1987, and after a full year of (incredibly stressful) waiting, had a successful heart transplant the next year. Although Dad's health declined somewhat in his later years, his (new) heart remained strong, and he gained a profound appreciation for life and for the extra decades that had been bestowed upon him as a result of his near-death experiences after the heart attack. He viewed his additional years after the transplant as "bonus time" -- and never forgot to make the most of the time that he had left.

My parents came to visit me, as well as my youngest son, Charles -- named after my father-- in October 2007. Dad's health declined during this trip, and he had to stay in San Diego, mostly in the hospital, for a month. Upon returning to Virginia, after several weeks, he had a series of strokes and other maladies that gradually began to incapacitate him. After another month in the hospital in Virginia, and after a slow and irreversible decline in his mental faculties, he decided several weeks ago to forego dialysis, which he has needed since his last kidney ceased to function last year. He went home, and into hospice care, two weeks ago, and the family, including me, gathered by his side.

Dad died peacefully this morning at 8:00. He will be missed.

Planned Parenthood v. American Coalition (9th Cir. - Feb. 11, 2008)

Here's an entirely just and equitable opinion by Judge Fisher. As well as one that should command the attention of any civil appellate litigator in the Ninth Circuit.

The issue surrounds post-judgment interest after appellate damage remands. Something that, as here, can add up to a fairly substantial chunk of change.

It doesn't do justice to the entire opinion, which is definitely worth reading in its entirety, but I'll summarize the opinion merely by reproducing its money quote:

"Henceforth, we expect that litigants in this circuit will clearly understand that if we modify or reverse a judgment with a direction that a money judgment be entered in the district court, our mandate must contain instructions about the allowance of post-judgment interest. Fed. R. App. 37(b). If our mandate omits such instructions, a party that believes it is entitled to interest from a date other than the date of entry of judgment on remand must expeditiously seek reform of the mandate."

Message received.

Certain Underwriters at Lloyds v. Inlet Fisheries, Inc. (9th Cir. - Feb. 11, 2008)

"Please, oh please," I hear you say. "I desperately need to read a scholarly, erudite opinion about the obscure legal doctrine of uberrimae fidei as applied to meritime insurance policies."

In the extremely unlikely event I heard you right, you're in luck. Judge McKeown obliges.

People v. Curry (Cal. Ct. App. - Jan. 7, 2008)

Let me see if I got this one right. Your girlfriend's pregnant. You want her to have an abortion, but she does not want one. She advises you to just pay child support if you don't want the child. You, by the way, are far from a rich person -- and basically seem like a street thug -- so presumably don't have that much money to pay in child support anyway. Can't get blood from a stone, after all.

That part I understand. I assume that happens. Maybe not (or maybe) every day. But it happens.

Here's the part I don't understand. So, in order to avoid paying minimal child support, you trick your (now former) girlfriend into going out with you, take her to a park, and have your goon friends beat her senseless with punches, kicks, baseball bats, and the like with the sole goal of killing the seven-month old fetus?! All just so you can get out of paying child support?! Then, just for fun, steal $20 out of her bra, as well as, once you're in the midst of this whole process, kidnap her in order to get an extra $700 that you realize she has at her grandmother's house?!

Amazing. And, honestly, chilling. Much more so, for some reason, than a lot of other -- more bloody -- despicable crimes. At least to me.


Read the whole thing. If you dare. It's a story of total depravity. And involves a group of individuals for whom, to be honest, I shall shed no tears as they spend the rest of their lives in prison.

People v. Superior Court (Cal. Ct. App. - Feb. 4, 2008)

I disagree with this one.

It's a total shortie -- seven double-spaced pages. And very easy to understand.

Defendant causes a fire and the State sues (as it can) to recover the costs of fighting the fire. Defendant admits that it caused the fire but says -- quite plausibly, I might add -- that the fire would have been out in the first two days but for the State's incompetence in fighting the fire; in particular, that the State had basically put the thing out after it had burned out 1200 acres, but due to the State's failure to douse the flames completely, the fire restarted and burned for 10 more days and destroyed 64,000 acres. I'm liable for the first two days, defendant says, but not the subsequent 10. Those are on you.

The State respondes, however, with the time-honored phrase: "Sovereign immunity." "You can't sue me for failure to fight a fire properly," the State (rightly) says. "I'm not," responds the defendant. "I'm just saying that the last 10 days are your fault. It's merely a defense. Failure to mitigate or comparative negligence or whatever." "Tough," says the State. "You can't sue us, either directly or through a backdoor. Even if we were negligent, you've got to pay for all 12 days."

There's a lot at stake here; we're talking about the Piru Fire (back in 2003), so there's almost $4 million in firefighting costs at issue. The trial court, Judge Riley (up in Ventura), agreed with the defendant, and thus denied the State's motion for judgment on the pleadings on defendant's affirmative defenses. But the Court of Appeal, in an opinion by Justice Yegan, grants a writ and reverses.

I understand and appreciate both sides of the dispute. But I think that the trial court got this one right. Sovereign immunity shouldn't, I think, apply to defenses like this.

You're not suing or impleading the State. Rather, you're just paying for only what you caused. There's a reason for not draining the public fisc. But when that fisc has been depleted not from what you did, but rather from the State itself did, that's on them, not you. You can't get money from the State. But neither should you have to pay. If you're responsible for 40% and the State is responsible for 60%, the State shouldn't recover 100%. It's a matter of equity. It's a matter of justice.

Krinsky v. Doe 6 (Cal. Ct. App. - Feb. 6, 2008)

I'm sure this opinion will get a fair amount of discussion in the blogosphere -- as well as a little in the mainstream legal press -- since it concerns the ability to subpoena the identity of anonymous posters. Which is something about which commentators in the present medium tend to care.

So let me make only two brief points. (1) The result. The Court of Appeal reverses the trial court and holds that plaintiff wasn't able to obtain the identity of the anonymous poster. (2) The opinion. It's incredibly well-written. I really like it.

Justice Elia does an oustanding job. There was obviously a lot of work put into this one. And it shows.

Gonzalez v. Knowles (9th Cir. - Feb. 6, 2008)

A tale of two lawyers.

With ineffective assistance claims, you sometimes see lawyers slammed -- occasionally by name. But rarely do you see one attorney slammed and another attorney praised.

But that's the case here.

The lawyer slammed -- at least by Judge Hawkins -- is Armando Garcia. Who's a public defender in the Bay Area and a graduate of Columbia Law School, no less. The lawyer who receives the contrary treatment is Richard Such. Who's a panel attorney for the First District and a graduate of Stanford Law.

I usually don't quote at such expansive length, but I thought that the first four paragraphs of the dissent by Judge Hawkins were sufficiently interesting -- as well as well-writtten -- to justify an exception from my usual regime. Here's what he says:

"I respectfully dissent. At bottom, this habeas matter is about the process by which indigent defendants are provided counsel. To begin with, it is not easy work. Clients, given a lawyer selected by the same government accusing them, are often suspicious that their case will be given short shrift. Added to the mix here were charges of the most serious sort (molestation of his own brother’s children in their home where he was a guest) levied against an individual with a prior criminal history. Convicted at trial and having his sentence doubled based on a prior conviction, Gonzalez had the good fortune of receiving the court-appointed assistance of Richard Such (“Such”).

Such was able to convince the state appellate court that Gonzalez’s sentence had been improperly doubled and the matter was remanded to district court for re-sentencing. At this point, Gonzalez asked the state trial court to appoint Such to represent him at re-sentencing. Through written documents and verified statements, Gonzalez established that Such had earned his confidence, knew the case well, and was willing to work at the hourly rate the county typically paid appointed counsel. Additionally, Such had already done some work on sentencing matters. The state court refused, essentially reasoning that appointment of Such was “not the way we do things around here,”[Footnote] and instead appointed Armando Garcia (“Garcia”), a local attorney utterly unfamiliar with Gonzalez’s case.

Rather than simply walking away from Gonzalez’s case, Such proceeded to write Garcia a lengthy letter, conveying information highly relevant to re-sentencing, including, importantly, that Gonzalez’s family members were sympathetic to Gonzalez and trusted him around their children, and that the victim’s mother might be willing to testify that a prison sentence was unnecessary. Such also explained that a mental health evaluation might demonstrate that Gonzalez would be unlikely to re-offend.

What did Garcia do with this information? Absolutely nothing. Garcia made no attempt to contact the family, to inquire into Gonzalez’s mental history, or to have his client evaluated by mental health experts. At the re-sentencing, Garcia called no witnesses, only arguing that Gonzalez had a history of alcohol abuse and may have been intoxicated at the time of the acts. Even though the court had previously given Gonzalez 18 years and 5 months based on a sentencing enhancement no longer available, Gonzalez was given 16 years.

[Footnote:] The majority claims that local routine was not the only reason for refusing to appoint Such. In fact, the only other reason given was that this was a “straightforward” case. If by “straightforward” the trial court meant a sentencing proceeding in which an appointed defense attorney simply goes through the motions, it hardly justifies refusing to appoint an experienced, previously successful lawyer who not only had Gonzalez’s confidence, but had also begun a serious effort to provide fully effective sentencing representation."

A good day for Richard Such. Less so for Armanda Garcia.

In Re Angel L. (Cal. Ct. App. - Feb. 5, 2008)

Here's an uplifting half-dozen pages for your Tuesday. Regarding the welfare of children who definitely were given the best possible chance to succeed.

Not.

John v. El Monte (9th Cir. - Feb. 5, 2008)

It's pretty hard to confuse the Ninth Circuit and the Fourth Circuit. The former's on the West Coast; the latter's on the East Coast. The former's fairly leftie; the latter's very rightie. They're about as different in size, geography, and composition as one can get.

But Judge Friedman -- sitting by designation from the Federal Circuit -- writes an opinion for the Ninth Circuit that begins "Likewise, in Torchinsky v. Siwinski, 942 F.2d 257 (9th Cir. 1991), we found that . . ." Which is fine. Except that case is from the Fourth Circuit, not the Ninth. By Judge Wilkinson, no less. So that "we" ain't exactly the right "we".

Whoopsies. Take that part out.

P.S. - Don't get me wrong. Apart from that error, it's a very good opinion.

People v. Howard (Cal. Supreme Ct. - Feb. 4, 2008)

I think that you can figure out how this case comes out based solely upon two facts:

(1) the fact that it's in front of the California Supreme Court; and

(2) the fact that the first sentence of the opinion begins: "Defendant Alphonso Howard was sentenced to death after a jury convicted him of first degree murder, rape, and a forcible lewd act upon a child under the age of 14."

Yes. Affirmed.

P.S. - There's an interesting debate between the majority and Justice Kennard (joined by Justice Moreno) about how you address Batson/Wheeler claims (impermissible peremptory challenges)when the defendant hasn't made a prima facie showing but the prosecution nonetheless offers a purported justification for the challenges. Justice Kennard's opinion on this point is pretty short (five double-spaced pages) and worth a quick read.

U.S. v. Jennings (9th Cir. - Feb. 4, 2008)

Assume you're a convicted felon, and hence precluded from owning a firearm. Which of the following would be a bad idea:

(1) Taking a picture of yourself with a firearm.
(2) Leave the picture in an impounded vehicle for the police to find.
(3) When the police pick you up, initiate a conversation, sua sponte, in which you say "If this is about the missing serial number, I didn't know it was missing."

Right. All of 'em. Just ask Devin Jennings.

Sumpter v. Matteson (Cal. Ct. App. - Jan. 10, 2008)

On the merits, I think that this opinion is exactly right. But it's about a simple car accident, and there's not much about the application of the law that merits extensive discussion.

I nonetheless mention it because I couldn't help but smile at one of the lines in the opinion. Justice Klein is talking about what the defendant did right before he got high on meth and into his car (which, as you might imagine, subsequently crashed into someone). The factual recitation starts out pretty routinely, and says: "On February 25, 2002, the day of the accident, Matteson spent the afternoon at home, where he was using methamphetamines. Matteson ingested drugs right before he left his house. By his own admission, Matteson knew he was under the influence when he got into his car."

Just your regular basic facts. But then there's this great sentence, which made me laugh out loud: "He was planning on taking a mini-vacation and packed a suitcase of drugs, including marijuana, a vial of ketamine, eight bottles of GHB as well as cocaine."

I don't know why, but I found the use of the term "mini-vacation" hilarous. Especially when followed by the detailed list of all the drugs that were to entail this vacation.

Anyway, I chuckled. And imagined the wry smile on Justice Klein's face as she penned this line.

People v. Campos (Cal. Ct. App. - Dec. 7, 2007)

"Did I just accidentally call the Supreme Court the Court of Appeal?! Oops! Gonna correct that one pretty darn fast!"

Or, as the Court of Appeal says here, "On page 20, line 1, the first full sentence, the words 'the Court of Appeal' are changed to 'the Supreme Court.'"