Monroy v. City of Los Angeles (Cal. Ct. App. - June 25, 2008)

It's rare to read an opinion regarding a trial in a routine civil case -- here, an automobile accident involving the LAPD -- in which (1) the Court of Appeal reverses the jury's finding of no liability on multiple grounds, all of which are fairly pedestrian (application of requests for admission, limitation of cross-examination, whether a percipient witness deposition was admissible because the witness was unavailable, etc.), and (2) I find myself repeatedly saying to myself "Yes. Right. Yes. Correct. I completely agree." Usually, I think that the trial court not only gets these issues right, but the deference that's given to the judgment makes reversal unlikely.

But here, yet again, is the exception that proves the rule. The opinion by Justice Aldrich seems entirely persuasive to me. I agree with him on every point; so much so, that it's hard to see why the trial court made the findings it did (especially on the deposition issue).

It's a good case to read for civil trial lawyers. Especially since it manifests how pretrial discovery may be exceptionally relevant to how a case ultimately gets resolved at trial.

Plus, on a more pedestrian level, it's also interesting to read how the LAPD works with regard to responses to "Code 1" through "Code 6" backup requests; e.g., how the police decide whether to respond to a request by obeying traffic laws or, alternately, turning on their lights and siren and speeding through town.

Interesting stuff.

Morgan v. Mukasey (9th Cir. - June 25, 2008)

You can get Judge Noonan angry. And, like Bruce Banner, you won't like him when he's angry.

Here's proof.

Espinosa v. United Student Aid Funds, Inc. (9th Cir. - June 24, 2008)

Looking for a good law review article? Either because you're a student or want to crank out some publications to hopefully get a cushy academic job? Interested in the crushingly boring (but important) area of bankruptcy law as applied to civil procedure? Or merely looking to have impact on a legal issue on which the Ninth Circuit is the lone holdout and will soon -- perhaps very soon -- revisit the issue, perhaps with a subsequant foray into the Supreme Court?

Then here's a good topic. Which the per curiam opinion totally tees up.

Duncan v. Ornoski (9th Cir. - June 24, 2008)

It's a death penalty habeas case. Judge Reinhardt writes the opinion.

Need I say more? Okay, if you can't figure out what happens, go ahead and read the opinion.

But as they say, in death penalty cases, neither snow, nor rain, nor sleet, nor the decisions of the California Supreme Court or district court below . . . .

California Nat'l Bank v. Woodbridge Plaza LLC (Cal. Ct. App. - June 20, 2008)

Judge Rylaarsdam writes a completely persuasive resolution. I agree with pretty much everything substantive he says.

Mind you, the fact-specific analysis therein -- which concerns the meaning of various terms of a particular bank's rental agreement with its landlord -- wouldn't qualify the opinion for publication (in my view, at least). But I agree with the merits. Which is surely the more important part.

In Re Rothwell (Cal. Ct. App. - June 23, 2008)

It's possible to send heroin to a prisoner on a postcard?! Yes, it is.

Oh, and if the heroin gets intercepted by an astute guard before it reaches you, you're also not guilty of possession. Maybe something else. But not possession.

Imagine the progress that society could achieve if we could somehow harness the creative energy of addicts in search of a fix.

People v. Roberts (Cal. Ct. App. - June 16, 2008)

It's rare to see a 1-1-1 decision in the Court of Appeal. And even rarer for such a split to be unpublished. So even though I don't usually comment on unpublished decisions, this one surely deserves mention.

The question revolves pretty much exclusively around what sort of sentence Marcus Lee Roberts should receive. He was a 22-year old African-American male whose sexual knowledge was fairly immature, and during the summer of 2004, he briefly dry-humped two teenage mentees who were sleeping at his home. That's a crime, for sure. The question is only how -- and how much -- he should be punished for it.

He's got no criminal record. The court-appointed psychologist concludes that Roberts is not a pedophile or sexual predator, that appropriate local treatment is available, that Roberts would succeed if treated, and is a good candidate for probation. Roberts was also a "model inmate with no disciplinary record" who "t[ook] advantage of the services offered to him" while he was in prison for the crime. Finally, Roberts "admitted culpability early on" and "expressed genuine remose and regret."

So what sentence? Probation's a possibility. Or, if you're going to put him in prison, you've got three choices: the low, mid, or upper term (4, 6, or 8 years, plus 2 more years for the second victim). What's your choice?

The trial court says: Upper term. Worse than your typical case. 10 years in prison.

Justice Raye writes the "majority" (of 1) opinion. Saying, in part, that "This is indeed a sad and troubling case. A young man with an unblemished record admitted to sex crimes involving young boys he mentored. As . . . we see reguarly in the cases before us, his conduct, while represensible, was less egregious than many section 288 [the crime that Roberts committed] offenses." But concludes that, sorry, for the next decade, Roberts gets to be "rehabilitated" (with no treatment) in prison. After a decade in prison, Roberts will surely come out of there much, much better than when he went in, I'm sure. And society then gets to deal with the results of that lengthy incarceration for the remaining 50 years of Roberts' life. Nonelessless, Justice Raye says: Affirmed. Not our job -- or role -- to do otherwise.

Justice Robie writes a separate opinion. That states, in its entirety: "In my opinion the sentence imposed in this case is too harsh and I would not have imposed it were I the trial judge. Nevertheless, the sentence does not constitute an abuse of discretion and I concur."

Justice Sims dissents in part, and agrees that there was no abuse of discretion in denying probation but dissents from imposition of the upper term, stating that the latter "shocks my conscience." Money quote from Justice Sims: "In my 25 years on the Court of Appeal, these events were among the least serious violations of Penal Code section 288, subidivision (d), that I have encountered. . . . Considering all these circumstances [no prior record, conclusions of the court-appointed psychologist, quick acceptance of responsibility and remorse, model prisoner, etc.] and comparing this case with other molest cases that have come through this court, I find imposition of the upper term shocking."

As an aside, Justice Sims also uses -- accurately, I might add -- the phrase "dry humping" to describe the crime that Roberts committed. A phrase that, a little research reveals, has not yet graced the pages of the California Reporter. Which -- wholly aside from the keenly interesting dispute between the justices -- would have been a good reason to publish the case. Even though, last time I checked, I'm pretty sure that's not one of the actual criteria in Rule 8.1105(c). Sadly.

It's a great dispute. One that concerns role, responsibility, and justice. So even though it's unpublished, it deserves a read. As well as serious reflection.

U.S. v. Gonzalez (9th Cir. - June 19, 2008)

Sure, defendants routinely claim that police officers steal money or drugs from them after they bust them. But it never really happens, right? I mean, come on. It's just absurd to think that a police officer would do so.

Unless, of course, it's caught on videotape.

Roberts v. Assurance Co. (Cal. Ct. App. - June 20, 2008)

"When you put my name in print, I don't care what you say. Just spell it correctly."

A matter of interest to Esther Holm -- not Hom -- at Lewis Brisbois. And Justice Rylaarsdam (belatedly) obliges.

Leppind v. Mukasey (9th Cir. - June 20, 2008)

Sometimes you author a dissent for the ages. Sometimes you author a dissent to persuade other circuits, or even the Supreme Court. And sometimes you write a dissent to "persuade" lower courts.

But usually you write a dissent in response to something contrary that was written by the majority. They say that X is true, so you write that X is false. Makes sense.

But to every rule there's an exception. As Judge Ikuta demonstrates here.

The majority enters a bold and unprecedented order referring the action to voluntary mediation. At the suggestion of the parties. Shocking, I know. They then write an order saying that they do so because there's an intervening case that might -- just might -- affect the resolution of the case, and rather than remand the matter for the BIA's initial take, the government suggested that mediation might do wonders instead, at which point the Ninth Circuit says: "Sure."

Judge Ikuta, however, dissents. And writes a lengthy opinion in which she argues that the intervening case is distinguishable from the present dispute. Recall that the majority never said that it wasn't. Just that it may or may not be. Hence the order. And the (hardly fanciful) hope that a successful mediation might moot the need to resolve the matter.

So you've got a case that may well be successfully and efficiently mooted out, a majority that doesn't decide a thorny judicial question, and an order that merely send the case the mediation to see if it can be resolved. In light of all that, why dissent? And why write a dissent now, as opposed to when (and if) the case comes back in the event the mediation is unsuccessful?

The answer, of course, depends upon who your audience is, and what you're trying to accomplish. If you are trying to resolve a particular dispute, both efficiently and without the need to address potentially unnecessary disputes, then you don't author a dissent, in my view. At least at this point. The majority has merely said that an intervening case may be relevant -- not that it's dispositive -- and that mediation might help. You can sign onto both those statements as well as the resulting reference to mediation even if you believe the intervening case to be distinguishable.

By contrast, if you're worried that the present dispute might, in fact, settle at mediation -- or want to influence the BIA in another (or intervening) case raising the same issue, or the influence the outcome of the mediation -- or are worried that this case might be your only opportunity to personally opine about the merits of the legal dispute at issue, you write a dissent now. One that makes sure to get across your personal opinion about the issue that the majority on the panel expressly does not reach. For anyone who might want to listen.

An interesting decision.

I'm not saying that I'd never do that. In an appropriate case, I might well. But I wouldn't do it here. Especially given the particular context -- mediation -- as well as the underlying legal issue, I'd have definitely been with Judge Wardlaw and Judge Fogel (sitting by designation) on this one.

Barona Band v. Yee (9th Cir. - June 18, 2008)

Kudos to Judge Wardlaw. For writing an opinion that not only makes sense on the merits (though I admit that I totally see the other side as well), but also contains a funny line with the perfect level of subtlety. Not too much, but definitely not too little.

The case involves whether the Barona Band of Mission Indians, who have a big casino down here in San Diego (and nice golf course too, I might add), can immunize non-Indian contractors from paying California sales tax on purchases of construction materials from non-Indian vendors through a particular complex (but elegant) arrangement designed to do just that. The Barona Band convinces the district judge (Judge Sabraw) that this scheme succeeds, but Judge Wardlaw holds that it doesn't. Sorry.

The relevant funny line -- which really did make me both smile and let out a little chuckle -- comes fairly early on in the opinion. Here's the setup, which is the second paragraph of the opinion:

"After nearly two centuries of displacement of the Barona Band of Mission Indians by European and then American encroachment, the United States enacted legislation to provide a tract of land in rural San Diego County to serve as a reservation for the Tribe. Until the early 1990s, however, the Tribe suffered from deep structural economic difficulties. Following the nationwide trend of Native Americans seeking to infuse economic life into depressed reservations, the Tribe opened up a casino in 1996: the Barona Valley Ranch Resort & Casino — 'Where The Real Players Play, and Win.'"

Then comes the punch line, which is first sentence of the third paragraph:

"By 2001, enough of these real players had played and lost for the Tribe to plan a $75 million expansion to the casino floor and hotel, replete with a new wedding chapel, parking structure and other resort amenities."

I admit that I don't fully know why I loved that line so much. But I did.

People v. Wilkinson (Cal. Ct. App. - June 18, 2008)

Obviously, you shouldn't use your roommate's webcam to secretly record her (and your third roommate) having sex. Not right. Morally or otherwise. Like you can't get better porn on the regular internet anyway? (And, no, I will not provide a hyperlink, thank you very much.)

If you nonetheless disagree, let me warn you: It's 180 days in a world with a lot less interesting sexual action if you're caught.

So that's the purient take on this case. Here's the legal angle:

I know that the relevant precedent on this point is pretty bad. But my personal opinion is that when (1) a police officer volunteers to a roommate that the officer can't search the defendant's room because there's no probable cause -- nudge nudge, wink wink -- and; (2) the roommate responds by getting the "crazy idea" (from I wonder where) that maybe the roomate should search the defendant's room himself and give the evidence to the police; and (3) asks the police officer if he can do so, to which the officer admits he responds "Well, you can do whatever you want. It’s your apartment. . . . But keep in mind, you cannot act as an agent of my authority. I
cannot ask you to go into the room, nor can you go into the room believing that you’re doing so for myself." (the most obvious nudge nudge in the universe, IMHO); and (4) the roommate does so and provides the evidence to the police, well, that's an illegal search. Sure, it's a fact-intensive inquiry. But I find it entirely uncredible -- to the point of absurd -- that the police officer in such a scenario isn't actively encouraging the search.

When someone asks a police officer if they can illegally enter another person's private room and shuffle through (and take) their possessions, the routine (and legitimate) response would be "No, you can't. That'd be trespassing, theft, and a variety of other crimes." When, instead, the officer admits that he says "Well, you can do whatever you want," and goes on to say that they can't tell you to perform the search that because that'd be an illegal search, we all know full well what the officer's really saying. And a finding to the contrary is blind to reality. As well as a similar type of distortion -- though admittedly not nearly as egregious -- regarding what's really going on as the underlying nudge itself.

On the other side of the equation, however, I couldn't agree more with the following language from the outset of Justice Robie's opinion:

"Defendant first contends he had a reasonable expectation of privacy in the contents of the compact discs located in his room. The People disagree, contending he 'did not have a
legitimate expectation of privacy in the stolen images of his roommates’ private sex life.' According to the People, 'While [defendant] may subjectively have expressed an interest in keeping the disks private by keeping them in his room and asking people to stay out, the voyeuristic images are not the kind of material that society is willing to recognize as a legitimate
privacy interest.'

We find the People’s argument rather startling, inasmuch as acceptance of it would largely obliterate the Fourth Amendment, because whenever a criminal prosecution is premised on
contraband discovered during a warrantless search, the search that led to discovery of the contraband could always be justified on the ground the defendant did not have a legitimate
expectation of privacy in the contraband. We know of no authority that supports such a broad proposition. Certainly that proposition is not supported by the only two cases the People cite. [Powerful and entirely accurate discussion of those cases then ensues.]"

I think it's entirely right to quote -- and then pound -- silly and/or dangerous legal arguments advanced by a party. Keeps 'em honest. Or, hopefully, will at least make 'em think twice about articulating such positions.

Long v. Century Ins. Co. (Cal. Ct. App. - June 17, 2008)

It's rarely a good sign when the Court of Appeal quotes your brief in its opinion. Because usually that means that they're just teeing your argument up to take a huge whack at it.

As here.

Which is not fantastic news for Incline Village attorney (my wife says: "Nice life!") Jay B. Long. Who's not only the attorney representing the appellant on appeal, but who's also the appellant. Oh, yeah. Also the loser.

So off to arbitration for you, Jay. Think of it as a sort of "legal roulette" thing akin to some of the stuff you see on the Nevada side of Lake Tahoe. Though a lot less fun.

Gribben v. UPS (9th Cir. - June 16, 2008)

Maybe it's just because I've been on the East Coast -- sweltering in heat and humidity -- for the past week. It makes certainly makes me sympathetic. But regardless of the reason, even on the merits, I was interested to learn from this opinion by Judge Thompson that the ADA can require an employer to provide air conditioning in the vehicle that its employee drives.

On so many levels, it makes me long for the cool, ocean breezes of San Diego ASAP. Where, as we speak, wedding bells toll across the State.

Cadle Company II v. Fiscus (Cal. Ct. App. - June 12, 2008)

It's a hot, steamy night in North Carolina. (Yeah, I know, sounds like the opening sentence of a pulp romance novel.) And I had to walk a huge distance until I could find a house that allowed me to pimp their wireless access. But neither rain nor sleet, as they say.

Not that I was too thrilled when I saw the rewards for my dedication. Not the most thrilling of days in California appellate land.

This opinion, for example, was probably the most interesting. Even then, it probably kept my attention only because it's a personal jurisdiction case and I'm a procedural guy by interest and occupation. In a parallel universe, I might perhaps have slept through it.

It's not a hard case. The question is whether you need renewed personal jurisdiction (i.e., minimum contacts with California subsequent to the original judgment) in order to file an independent action to renew a prior state court judgment. The clear answer, BTW, is "No." Which both several non-California cases have already reached and which Justice O'Leary correctly concludes as well. You had jurisdiction originally. That jurisdiction extends to a renewal of the judgment, even in an independent action.

Still, better to get an easy case right than to get it wrong. And right to publish it so it's clearly the law in California. Just so no one else makes a silly (albeit nonfrivolous) argument to the contrary in the future.

People v. Ramos (Cal. Ct. App. - June 9, 2008)

I'm in North Carolina today. But the California Court of Appeal has a simple message that's universal:

Do blow, kill your mother.

Presumably not invariably.

Derek Andrew, Inc. v. Poof Apparel Corp. (9th Cir. - June 11, 2008)

Plaintiff is an apparel company named Derek Andrew, Inc. that sells a high-end (read: expensive) clothing line called "Twisted Heart" at Nordstrom, Saks Fifth Avenue, and Neiman Marcus. Defendant, by contrast, is a competing apparel company named (of all things) "Poof Apparel" that sells low-end (read: cheap) clothing with a label nearly identical to the "Twisted Heart" label at places like T.J. Maxx and Marshall's.

That's about all you need to know to explain why plaintiff sues defendant and successfully obtains a Lanham Act award of almost $700,000 -- plus an additional $300,000 or so in attorney's fees.

In short, Poof Apparel goes poof.

In Re Attorney Discipline (9th Cir. - June 10, 2008)

Alex: What, I'm a huge slouch?!

Just kidding. Rory's an outstanding choice.

POSTSCRIPT: Sorry to read about the huge blowup today on that other thing, A. Not great timing.

People v. Manchel (Cal. Ct. App. - June 10, 2008)

I thought that Justice Zelon penned an extremely well-written opinion in this case. It flows, it's breezy, and it's persuasive. I wish that law review articles -- or at least the ones I write -- could be similarly smooth.

On the merits, she does a great job distinguishing the principal authority on which the defendant relies. Yes, it's true, she says, that the California Supreme Court held in Hofsheier that it violates equal protection when a defendant is subject to mandatory lifetime registration as a sex offender for engaging in oral copulation with a minor but less than that for full-on intercourse. And that might facially seem the case here as well.

But, she explains, you were 10+ years older than your 15-year old partner. Which, under the statute, means that you engaged in a "lewd and lacivious act" -- a felony with mandatory registration -- regardless of which of the two sex acts (oral copulation or intercourse) you performed. Hence there's no equal protection violation since the "lesser" (oral sex) isn't treated differently than the "greater" (sex).

Well done. Especially since this seems to be an argument -- one that seems right to me, I might add -- that a prior panel and/or attorney missed in the Second District earlier this year, which went the other way.

Sometimes you read an opinion and say: "Look, I don't know much about the specific statutes the Court of Appeal is talking about, but from what the author says, she seems entirely right." This is one of those cases.

Liberty Mutual Fire Ins. Co. v. LoL Administrators, Inc. (Cal. Ct. App. - June 10, 2008)

Form interrogatories. Sure, it's fun to respond with meaningless answers. But do it too much and you may face terminating sanctions. And the Court of Appeal will affirm.

Gueyffier v. Ann Summers, Ltd. (Cal. Supreme Ct. - June 9, 2008)

A British retailer of lingerie and sex toys. A French citizen who opens a franchise in the Beverly Center shopping mall. Thrown tomatoes. Arbitration. The California Supreme Court. "What Lies Beneath".

It's a titillating drama that, sadly, isn't at all exciting as a judicial opinion. But at least it's a short one.

ISKC v. City of Los Angeles (9th Cir. - June 9, 2008)

The Ninth Circuit wants to know if LAX is a public forum under the California Constitution. So asks the California Supreme Court to let it know. Which makes sense.

I mention the case primarily becuase it involves the Krishnas soliciting funds at LAX. Which reminded me of that scene in Airplane! in which Ted Striker struggles his way through a variety of people (including Krishnas) as he attempts to catch Elaine's flight. Classic. And up for grabs, apparently, in the present case.

Parenthetically, I loved Kareem Abdul-Jabbar's involvement in that film. Including his wonderful lines when the little kid visits the cockpit and keeps insisting that he's Kareem instead of "Roger Murdock". Lines that are especially timely since the Lakers are, yet again, in the playoffs.

Life imitates art which imitates life.

Franco v. Dow Chemical Co. (9th Cir. - June 9, 2008)

They take attorney discipline very seriously on the Ninth Circuit. Especially if you're dealing with Chief Judge Kozinski and Judges Reinhardt, Berzon and Tashima.

Don't believe me? Take a look at this. As well as (if you have time) this.

The attorneys named in the caption, by the way, are no slouches. Including but by no means limited to Tom Girardi.

Interesting stuff, to be sure.

TJX Companies v. Superior Court (Cal. Ct. App. - June 6, 2008)

Oops. There are a couple of very minor problems. The most central of which is that he's actually a she.

And, at least to my knowledge, always has been.

Amended accordingly.

People v. Carrasco (Cal. Ct. App. - June 6, 2008)

Two things.

First, doesn't it seem strange for someone to walk into a sheriff's station and ask if anyone has change for a dollar? Aren't stores and such a more likely candidate for this type of function? And isn't it even stranger to then follow up the resulting silence by singling out a particular deputy sheriff and asking "Do you have change, bitch?" Not really a smart thing to say. Nor is it wise to follow up with various additional curse words and thereafter resist arrest. Especially when you've got a nearly full gasoline container in the duffel bag that you brought with you to the station and a couple of gasoline-soaked rags. That's a good way to get convicted of arson (in addition to resisting arrest). And spending a healthy portion of the rest of your life in prison.

Second, for yet another thing you don't see very much, check out the following dialogue once the jury was polled (after finding the defendant guilty):

"The court then asked each juror whether the verdicts reflected his or her individual verdict. Juror No. 2 initially gave no response. The court asked again, Juror No. 2 paused and then answered, “Yes.” The remaining jurors left the courtroom, and the court engaged in the following colloquy with Juror No. 2:

“THE COURT: . . . [¶] Juror No. 2, you hesitated answering, and you teared up; and it appears that when you did give an answer, ‘yes,’ it was in a soft voice and you appear to be obviously emotionally distraught. [¶] Is the verdict that you rendered by saying yes to guilt as to counts 2, 3 and 4, is that your verdict? Is that your decision?

"JUROR NO. 2: No.

“THE COURT: All right. And it took Juror No. 2 some time to answer the question. [¶] Did you decide to vote the way you did because of the fact that you felt compelled because the other jurors were voting that way?

“JUROR NO. 2: Yes.

“THE COURT: Okay. So that is not your true intent to vote guilty for -- I’m not going to designate which count, but your guilty verdict was because you felt compelled or pressured because the other jurors were voting that way; is that correct?

“JUROR NO. 2: (No response.)

“THE COURT: Go ahead and explain to me that -- nobody will know about, the other jurors won’t know about our discussion here -- but I want to know what went on in the jury room that made you come up with a guilty verdict when you’re now indicating that that was not really your desire or intent.

“JUROR NO. 2: I had reasonable doubt.

Whoa. A conversation sufficiently rare that even the defense cousel, during this dialogue, said: "Your Honor, I have to confess I’ve never had this situation before," to which the trial court responded: "I don’t think any of us have."

Read the rest of the opinion for what subsequently transpires. With the following spoiler: the conviction is upheld (over the dissent of Justice Flier).

People v. Mauch (Cal. Ct. App. - June 3, 2008)

I can reduce the holding of this opinion to a single sentence. Albeit one that only criminal lawyers in California -- or those cognizant of this field -- would find interesting, or (potentially) even understand:

If it ain't a wobbler, or at least a stealth wobbler, you can't knock it down to a misdemeanor.

Read Justice Aronson's opinion for the nine-page version.

People v. Laborde (Cal. Ct. App. - June 4, 2008)

Don't take drugs on a cruise.  Especially if you've got a criminal record.  Because, if the feel like it, it's a routine border search when you return.  And the police just so happen to target people with criminal -- especially drug -- records for "random" suspicionless searches of their cabin.

As Mark Laborde learned far too late.

U.S. v. Giberson (9th Cir. - May 30, 2008)

I agree with Judge Wallace.

They validly stopped you because your plates expired. At which point they saw your false identification, which properly subjected you to arrest. At which point they validly searched you incident to the arrest and discovered evidence that you were evading your child support allegations. Which is not only wrong, but is particularly interesting since you used to be the person in charge of section of the Minnesota Department of Human Services that ensured that other people paid their child support.


At which point they validly got a warrant to search your home for evidence relating to your evasion of child support. During the execution of which they saw in plain sight stuff that you clearly used to make fake identification documents from your computer. At which point they validly got a search warrant for your computer to look for further evidence relating to that stuff. During the execution of which they properly stumbled across some child pornography while looking for the false identification stuff. Which validly led them to get a second warrant to look for child pornography on the computer, of which there was a vast quantity. Which put you in the pokey for five years.

So expired plates = false identification = evasion of child support = child pornography. It's an unlucky chain of events as far as you're concerned, but it's entirely proper. Every step of the way.

Yet another reason not to drive around with expired plates, or make and carry false identification, or evade child support if you're a huge afficianado of child pornography. Or anything else illegal, for that matter.

Ferguson v. Coregis Ins. Co. (9th Cir. - June 3, 2008)

It's fun to read an opinion in which a particular sentence or analogy appears in its midst totally from left field. Like here.

The case involves insurance coverage, and the question revolves around the appropriate coverage amount. The policyholder says it's $2,000,000, the amount listed on the declarations page. The insurance company says it's $500,000 pursuant to a particular clause that says that, for certain claims, the amount listed on the declarations page is replaced by the "limit of liability per the amount indicated by the Idaho Code § 6-924," which in turn provides that the minimum (but not maximum) amount of coverage is $500,000.

The Ninth Circuit holds that the insurance company's position is erroneous because Section 6-924 doesn't establish a "limit of liability" at all, since it contains no limits, only minimum coverage. Hence the attempt to establish an alternative limit doesn't work.

Here's the random line. And I think it's a great one:

"Section 6-924 simply does not contain any limit of liability any more than would a contract to price season tickets 'per the amount indicated' for Los Angeles’s professional football team."

Psyche! Because, of course, L.A. doesn't have a football team anymore. Which is an awesome -- and totally parenthetical -- slam on the City of Angels.

It's also, I might add, a huge insult -- albeit assuredly unintended -- on the Los Angeles Avengers (and their players!), who are in the Arena Football League and assuredly consider themselves a "professional football team" in Los Angeles.

I'm sure the panel meant by "professional" to mean "NFL". Which was a drafting (or knowledge) error that was particularly funny since the panel held against the insurance company here based upon unclear language (even though, from reading the exclusion, I knew exactly what the insurance company was trying to do) and yet then used unclear and/or erroneous language itself.

Regardless, I loved the "where'd that come from" analogy to the absence of the Rams, Raiders, or any other NFL team in the Second Largest City in America. I wish I knew which judge wrote the per curiam opinion in this one. Because I love the gratutious football reference. Love it.

Chen v. Mukaskey (9th Cir. - June 3, 2008)

Sure, the panel remands this case back to the BIA to make some findings. But the lesson is clear:

Don't lie on your asylum application. And, if you do, definitely don't admit to lying. Continuing to lie is a much, much better strategy.

People v. Masotti (Cal. Ct. App. - May 28, 2008)

Not much from the Ninth Circuit and California Court of Appeal today. Or at least not much that I'm desperately itching to talk about. A couple of opinions by both; we'll see what the late afternoon brings (if anything) from the latter.

By contrast, here's an opinion from a couple of days ago about which I definitely had a reaction. And as to which I'm more than willing to shed some paragraphs of virtual ink. Notwithstanding the fact that others may well have -- perhaps entirely validly -- a distinctly contrary view.

To start with: Yes, it's a crime. And we gotta enforce the laws. I agree with all that. Which says a lot.

Still. Can we think of nothing better to do with our lives than to prosecute a Vietnam War veteran who suffers pain in his knees and hip, gets a valid medical marijuana card under California law, grows his own stuff in very limited quantities permitted by the statute, but who makes a mistake and gives a tiny amount of pot to a friend (slash informant) who stops by his house one day and asks for a tiny amount of weed on the grounds that it's his birthday?

I admit that I may be overly sympathetic with the defendant in this one on the legally irrelevant ground that even after the friend/informant offered to pay for the stuff, the defendant refused to accept his money. And the fact that the friend/informant subsequently left a grand total of ten whole dollars on the table (and, later, another five American greenbacks for another "buy") hardly convinces me that this is a guy that we must take down hard lest our nation be inexorably led into the pits of hell. Nor does the fact that the defendant has a grand total of $189 in cash in his entire house lead me to believe that he's the Arellano Felix of marijuana up there in Modoc County.

Fifteen dollars worth of pot from a disabled Vietnam veteran. Ranks right up there with murder and poverty in the scale of obvious social priorities.

People v. Jackson (Cal. Ct. App. - May 28, 2008)

You might well be troubled by cold-hit DNA cases, as well as peremptory challenges suspiciously directed towards a particular gender or racial group. I know I am.

Nonetheless, I think that Justice Cantil-Sakauye not only is entirely correct in this one, and that defendant's conviction was rightly upheld, but that the underlying case in the trial court is a good example of what should happen in these types of cases. It's a very reasonable, forthright opinion in the Court of Appeal that resolves a case in which the concerns below were carefully considered and addressed by the trial court.

So I liked it. It made me feel good about the system. Notwithstanding the absurd sentence of "160 years to life" awarded to the defendant. Whichever comes first, I guess.

U.S. v. Hinkson (9th Cir. - May 30, 2008)

Whoa, Nelly.

(1) It's the exceptional Ninth Circuit case that runs, like this one, over 90 single-spaced pages. It's even rarer for the author of the majority opinion to apologize (!) for such prolixity. See Page 6142 ("We apologize to the reader in advance for the length of the discussion.").

(2) There's a reason for the length. Not because the topic is globally important, since it's definitely not -- it's a fact-specific opinion about a particular conviction of a crazy tax protester who both deserves to be and will be in prison on various counts. Rather, the opinion and dissent are lengthy in part not only precisely because it's a fact-intensive opinion about whether a new trial should have been granted here based upon the perjury of the main prosecution witness, but also because the issue is (in my mind, anyway) an exceedingly close one. I could easily see myself going either way. Both the majority and the dissent make very compelling cases. But, of course, only one of them can be "right".

(3) Perhaps most unusual, at least to me, is the underlying tenor. The majority opinion is written by Judge Willie Fletcher. The dissent is written by Judge McKeown. Judges Fletcher and McKeown agree much more than they disagree. So you'd perhaps expect a very, very deferential and circumspect response to the other's points.

But that's not what you see. At all. If you read the opinions without knowing their authors, based upon the language and arguments employed when responding to the other side, I strongly believe you'd conclude the dispute was between traditional foes. Indeed, take this test: Black out the names in the first page, give the majority opinion and dissent to an informed reader, and given the language employed by the authors, have them guess who wrote each opinion. I'd be stunned if anyone -- anyone -- would guess that the dispute here was between Judges Fletcher and McKeown.

I'm not saying that this reads like, say, a Reinhardt/O'Scannlain fight. Still. It's not what you'd expect.

Let me make clear that I don't believe that Judges Fletcher and McKeown are being affirmatively disrespectful to one another. Far from it. Nor do I believe that colleagues -- or even friends -- can't (or shouldn't) be strong and tough in the language they use in response to a competing view. I was merely surprised to see what I read here. And when even I -- no shrinking violet, let me assure you -- might well have been a fair piece nicer to the other side, that's a telling sign.

(4) Finally, unmentioned in either opinion is the fact that the lower court's decision here was issued by none other than Judge Tallman, who was sitting by designation in Idaho. An interesting fact. And that just adds to the interest level here.

I love opinions that make me think. This one definitely does. In spades.

Arteaga v. Brink's Inc. (Cal. Ct. App. - May 28, 2008)

Your effort to manufacture a FEHA claim by disclosing alleged ongoing physical injuries after you knew that your employer had begun an internal investigation into massive money shortages on your watch and days before you were fired will not -- and did not -- succeed, Carlos Arteaga.

And I couldn't be less sorry for you.

Justice may well be blind. But she's not an idiot.

In Re Gong & Kwong (Cal. Ct. App. - May 29, 2008)

"Didn't like our prior published opinion, which dismissed your appeal as frivolous, relentlessly slammed you and your appellate counsel, and imposed a healthy dose of sanctions payable both to respondent and to the Clerk? I'm not surprised. Want a rehearing? Sure. We're happy to give one to you. In which we'll reiterate our slams (and sanctions) in yet another published opinion. Feel better now?"

California School Employees Ass'n v. Bonita Unified School Dist. (Cal. Ct. App. - May 28, 2008)

The Bonita School district wanted to fire Donald Roberts for nine "causes" and twenty-four "reasons" under the Education Code. As Justice Mallano explains in affirming Roberts' termination:

The “causes” included incompetence, dishonesty, insubordination, immoral conduct, evident unfitness for service, absent without authority, and violation of school laws. Among the “reasons” were: (1) communicating regularly with staff members in rude, abusive, sexually explicit, and threatening language; (2) creating a sexually hostile work environment for two female employees; (3) refusing to do assigned duties; (4) failing to comply with supervisors’ directions; (5) permitting a subordinate to damage District equipment and to harass other maintenance department employees; (6) taking District property home for personal use; (7) destroying District property; (8) intimidating employees of the maintenance department on a regular basis; and (9) exposing the District to liability under state and federal antidiscrimination laws.

What?! None of that's allowed?!

Outrageous.

People v. New (Cal. Ct. App. - May 28, 2008)

Just because you got away with shooting your first wife in the head while she slept doesn't mean that you're going to get away with shooting your third wife in the head while she sleeps. Yeah, the San Bernadino police might have been convinced that the first killing was an accident. But when your wives keep getting shot in the head -- well, eventually we're going to get a wee bit suspicious about the resulting coincidence. Even here in San Diego. At which point we'll convict you for both the first murder (in 1973) as well as the second murder (in 2004). And the Court of Appeal will affirm.

Lessons of the day: (1) Don't shoot your spouse in the head; (2) Don't do it again.

San Joaquin County Dep't Child Support Svcs v. Winn (Cal. Ct. App. - May 27, 2008)

A Hegelian dialectic rarely expressly appears in the pages of the California Appellate Report. And I can't in all honesty say that I've reached an appropriate synthesis on the following topic that's worthy of sharing with the world.

But let me nonetheless express my own personal yin and yang about the following opinion by Justice Robie.

On the one hand, I'm totally on board. Sure, Steven Winn doesn't want genetic testing performed pursuant to a discovery order in a paternity case. I understand that. But that's not an appealable order. Nonetheless, Winn goes ahead and files an appeal.

Justice Robie rightly concludes that there's no jurisdiction over the purported appeal since there's not a final judgment. And when Winn asks -- as one would totally predict -- that the Court of Appeal treat the appeal as a writ petition in an attempt to cure the resulting deficiency, Justice Robie declines to do so. "To treat the instant appeal as a writ application would obliterate that bright line and encourage parties to knowingly appeal from nonappealable orders, safe in the knowledge that their appeal will be ‘saved by the appellate courts.’ We cannot condone or encourage such practice." Good quote. Good reasoning.

So all this strikes me as particularly appropriate. Especially in a case, as here, in which it's pretty clear that what we're dealing with is a nonfinal order. So I appreciated Justice Robie's response. Not every appeal should be saved from dismissal by treating the thing as a writ petition. The rule exists for a reason. That's why we should encourage people to file appeals for final judgments and writs for nonfinal orders, rather than appeals (with an alternative claim that writ relief is appropriate) for everything.

So that's the yin.

But at the same time, there's a yang. Albeit one that I only felt a couple of minutes after I finished the opinion. Which is this:

I understand for policy reasons why Justice Robie doesn't want to treat the thing as a writ petition. But as a writ petition, isn't it a pretty darn good one? Justice Robie says that there's no need for writ relief because "if the genetic testing excludes Winn as the children’s father, the case will be over and there will be no need for any review. If, on the other hand, paternity is established following the genetic testing, then Winn will have an adequate remedy on appeal from the judgment determining him to be the children’s father and ordering him to pay child support for them." And that's true. As far as it goes.

But there's another reason for writ relief that seems to me both equally important and -- critically -- that's not at all adequately addressed by post-judgment appellate review: namely, Winn's interest in not having the testing go forward and getting a result. Winn's substantive claim is that the child at issue was born to a mother (Jeanelle) who was married to another man (Gregory) during the marriage, and hence that the child that Winn is accused of fathering is, as a matter of law, Gregory's. Thus, Winn argues, he shouldn't be tested, since he is under no obligation to pay child support for a child that the law considers to be Gregory's.

Now, there are a lot of problems with that position on the merits, including but not limited to the distinction between the conclusive and rebuttable presumptions in family law, a prior judgment involving Gregory and Jeanelle, and the reality that, as a factual matter, prior genetic testing has conclusively determined that the father of the child is not Gregory. But ignore all that for now, and assume for purposes of argument that Winn is correct on the merits. Doesn't that make for a pretty good writ petition? Sure, we could always review an eventual judgment. But, by then, Winn may well have already been found to be that actual father of the child. And even if we can thereafter, on appeal, reverse a child support judgment against him, that doesn't solve the dignitary and other interests that result from the factual declaration that Winn is the father. All of which the conclusive presumption was designed to avoid and all of which remain notwithstanding the reversal of the eventual child support judgment below.

So while I'm strongly persuaded by Justice Robie's adjudication of the appeal, at the same time, I'm not so convinced that the issue isn't a proper matter for writ relief. And yet, simultaneously, I totally buy Justice Robie's argument that we can't just make every "appeal" into a writ petition without encouraging a socially deleterious practice of just appealing everything and requesting writ relief in the alternative.

So those are the two competing sides of the equation. I can imagine, I guess, two possible syntheses. One is to say that, sure, it'd perhaps be a valid writ petition, but we've decided to punish you for filing an appeal and on that basis not grant you relief to which you'd otherwise be entitled if you followed the rules. That would make logical sense, but potentially be overly harsh. Especially given the stakes involved. The other would be to say that we won't treat your appeal as a writ, but you're always free on remand to file a writ, which we may well go ahead and grant given the merits. But while that may be doctrinally consistent, it still seems to encourage the filing of an appeal (and resulting benefits like automatic stays) without any corresponding downside.

So I'm torn. I like what Justice Robie's done. I really do. But I can't help the nagging feeling that there's more here worth exploring. And that, in fact, there are some pretty tough calls to be made, none of which is entirely perfect and each of which results in both benefits and detriments.

So that's my take. In short, there's a lot here. And, sometimes, even seemingly easy resolutions that totally persuade me aren't, in fact, so totally easy.

Azure Ltd. v. I-Flow Corp. (Cal. Ct. App. - May 27, 2008)

When you know that an opinion is likely to be reviewed by your boss -- e.g., to have review granted by the California Supreme Court -- there's a strong tendency to write an expansive missive on the subject. After all, you want to put your best foot forward.

But Justice Ikola avoids that temptation here.

It's a case that I think will -- and am certain should -- be granted review by the California Supremes, if only due to both the importance of the subject matter and the split in the Court of Appeal. A couple of years ago, the Second District, in an opinion by Justice Vogel, decided that a defendant who transfers eschated property to the state is absoutely immune from liability even if it didn't follow the provisions of the Unclaimed Property Law; e.g., if it failed to properly notify the owner as required by the statute. Today, the Fourth District, in an opinion by Justice Ikola, disagrees, and concludes that the dissent of Justice Mallano in that case was more persuasive.

Property gets transferred to the state all the time. I'm certain that the process is far from perfect, and in any event, it's easy to make allegations that mistakes were made, particularly given the fact-intensive nature of the statutory process and the fluctuating value of some of the underlying assets. As a result, this is an important issue. The resolution of which is far too important to be decided purely according to the particular appellate district in which the lawsuit is filed or the particular panel that's drawn. As such, the California Supreme Court should take it up. And settle the matter once and for all.

When it does so, it won't have to wade through dozens of pages of Justice Ikola's personal views on the subject. He keeps this one to a single-digit number of double-spaced pages. And does so well.

Which is no small feat.

Look for this one to go up.

U.S. v. Fernandez (9th Cir. - May 27, 2008)

Sometimes they make it easy for you. So easy that you only have to read the first sentence of the opinion to know not only the question presented, but also its unstated -- but crystal clear -- resolution by the court.

So, for example, when the first paragraph of the opinion contains a single sentence, and that sentence reads: "We must decide whether evidence obtained from an authorized wiretap investigation must be suppressed where the government continued to intercept a named target’s conversations despite his adoption of a new alias," it's far from tough to figure out what the answer is.

Even if you forgot that the opinion was written by Judge O'Scannlain -- another huge clue -- you'd have to be totally out of it not to know how this one ends.

In Re Carlsson (Cal. Ct. App. - May 23, 2008)

"This may come as a shock to you, Judge Peter McBrien (up in Sacramento County). But you can't walk out in the middle of a trial -- literally -- and decide the case on whatever evidence happened to have been already presented. I don't care how busy you are. Justice doesn't work that way.

So we're reversing you. And assigning the case on remand to a different judge. And while we first resolved the case in an unpublished disposition, we've now decided to publish it. So the slams on you now get to be read by everyone.

Think about that next time. As well as any other would-be Judge McBriens out there."

Justice Butz utters similar words.

People v. Martinez (Cal. Ct. App. - April 1, 2008)

Just be glad I wasn't your judge, Paul Martinez. Because based upon what I've read here, I wouldn't have limited your sentence to probation. You'd have done time.

Consider yourself fortunate.

U.S. v. Crandall (9th Cir. - May 13, 2008)

I'm at the federal penitentiary in lovely Fort Dix, New Jersey today -- for hours rather than a judicially-established number of months, fortunately -- but should be able to bop my head in from time to time to catch up with whatever happens today. In the meantime, let's do what we can to keep our loyal readers out of similarly-situated institutions.

Too difficult and expensive to file the necessary paperwork with the City to convert your apartment complex into condos? Why not just forge the relevant documents?

Here's to spending six and a half years in prison thinking of reasons why forgery might not be the greatest idea.

Witt v. Department of the Air Force (9th Cir. - May 21, 2008)

It's been a good couple of weeks for gays and lesbians in California and the Ninth Circuit. First gay marriage in California. And today the Ninth Circuit holds that heightened scrutiny -- not traditional rational basis -- is the appropriate level of scrutiny for a challenge to the military's continuing efforts to discharge practicing homosexuals. And on that basis not only remands, but does so with language that substantially assists the plaintiff here.

I won't talk about this one too much since it, too, will get a fair piece of press (though not nearly as much as the gay marriage decision). But I did want to make two brief points.

First, it was a good test case. The plaintiff, Major Margaret Witt, was a nurse suspended from the Air Force for having a long term, committed relationship with another woman. She was an Air Force "poster child," and pictures of her were featured in Air Force promotional materials for over a decade. She was then booted out one year short of her twenty years purely because she was in a lesbian relationship.

Them's some good facts. It's a great, great case for a challenge to the current policy.

Second, on a related note, don't forget that this isn't the last word. Sure, Judge Canby concurs and wants even tougher (strict) scrutiny applied than the standard applied by the majority. But it's not likely, in truth, that the Supremes would do so; indeed, that tribunal might well show more deference than even the majority. Whether the Supremes would take this case, however, is far from clear, and a rational conservative bench might well choose to take a different vehicle than the present action.

Though, then again, who can resist hot lesbian nurses?

Myerchin v. Family Benefits, Inc. (Cal. Ct. App. - May 20, 2008)

You can't have your cake and eat it too.

Nor, as Justice Bedsworth holds here, may you keep (and spend) the money you received in settlement and yet refuse to dismiss your lawsuit as agreed.

Exactly right.

P.S. - Good decision to publish this one in the end. It's a good addition to the literature.

People v. Wardell (Cal. Ct. App. - May 20, 2008)

I always like reading opinions that help me be a more successful criminal. Like this one.

Granted, I'm not likely to go out and rob a bank anytime soon. But I do appreciate learning just how exactly those tracking devices they put into some of the money they give you work.

I did not know, for example, that these devices are apparently very tiny, neatly sandwiched between two $20 bills. Very cool. I also did not know that only some, and far from all, police cars have the ability to track these devices. Good to know. Or that these devices aren't always very precise; for example, here, the police get a strong tracking signal emanating from a Saturn, which they stop and search, but this car didn't have any connection with the robbery, and was a couple of blocks away from the guy with the cash. Oops.

Finally, and perhaps most importantly, it's good to learn that the way around these devices is apparently to chuck them (and the cash) in the toilet. Not surprisingly, dousing electronics with water is a pretty effective way to disable them. Which tells me that next time I rob a bank, the first thing I'm going to do is to hose down the money. Wet money is still legal tender; plus, it will dry out pretty well. So that's my plan in a parallel universe.

None of which, I might add, worked especially well for Chris Wardell, who deposits the money in a toilet far too late, only after they (eventually) get a decent pin on his location. Oh well. At least you can sleep well, Chris, knowing that you've made the job easier for future would-be bank robbers who read the California Appellate Report.

Anyway, thanks for the tips, Justice Mihara.

P.S. - How about a little slam on Judge Bocanegra for upping the restitution order from $200 to $10,000 as a result of Wardell's previous successful appeal?! Even the AG's Office admits that's impermissibly vindictive. Not to mention uncool.

RFK Medical Center v. Leavitt (9th Cir. - May 19, 2008)

My initial reaction to this case was: "Disputed corporate Medicare reimbursement as applied to depreciation losses resulting from the disposal of assets through a statutory merger: Thrilling!" Of course, I was being facetious.

But, to my horror, I did actually find the case to be marginally interesting. It seemed to me a close question as to whether the merger of the two non-profit hospitals at issue here -- RFK Medical Center (formerly in Hawthorne, now closed) and Catholic Heathcare West -- was really a "bona fide sale" and hence entitled to reimbursement. On the one hand, the two entities were unrelated, so it seems like a decently arms length transaction. On the other hand, the economics of the deal do indeed seem fishy: Catholic Heathcare West paid $30.5 million for $50.5 million of RFK assets, which facially doesn't make sense, and gives rise to an inference that the deal was done for non-arms length reasons.

Ultimately, I think that the panel gets it right when it holds that the deference to agency interpretations that's required by both the APA and Chevron -- which is especially applicable in the complex Medicare arena -- requires the court to uphold the Secretary's determination that the transaction wasn't arms length. It's a case where the relevant deference is, I think, in fact dispositive.

In Re Judicial Misconduct (9th Cir. - May 14, 2008)

I agree with virtually every word you say, Alex. Virtually.

Chief Judge Kozinski publishes his disposition of an unnamed attorney's disciplinary charges against an unnamed district court judge. Good to publish it. Especially here. So I agree with that. I also am in full accord with the sytle in which Chief Judge Kozinski elects to treat the numerous allegations raised by this unnamed attorney nutjob. Short and dismissive. That's all this loon deserves. It's clear that we're dealing here with an attorney driven insane by the "conspiracy" of everyone in the world against him, including but not limited to the particular judge who was forced to deal with this guy. And in the face of such insanity, and absurd allegations, Chief Judge Kozinski is right not to spend lots of time on this guy's charges. They're crap. They deserve no better. So I'm totally on board for all of that. I'm also completely in favor of doing what Chief Judge Kozinski does at the end of the opinion, which is to order the guy to show cause why s/he shouldn't be sanctioned for making such absurd and frivolous allegations. Right on. Loved to read it. So I think this is exactly the right disposition.

Except for one thing. Chief Judge Kozinski is correct that almost every one of the nutjob's allegations are utterly frivolous. Almost. But on page 5, Chief Judge Kozinski recounts one of loonie's allegations: that the district judge tore up and mailed back a copy of various state court documents that Mr. Crazy had sent to various judges (including the judge here). With respect to that allegation, Chief Judge Kozinski says a couple of things that are correct: that, even if true, this doesn't really count as "intimidation" as alleged by the complainant, and that there's no proof that the district judge stopped these documents from reaching the other judges. That's right.

But Chief Judge Kozinski also concludes (on page 6) that "there is nothing to indicate that the judge himself ordered the document returned or had anything to do with tearing it." On that point I have to completely disagree. As Chief Judge Kozinski notes, Mr. Should-Be-Committed "include[d] a picture of the torn document and an envelope addressed to him from the district court" alongside the petition. Now, these documents may be total fabrications, but I doubt it. Nor do I read Chief Judge Kozinski to so conclude. Rather, I hear him saying that merely because someone from the district court tore up the document and mailed it back to Mr. Loon, that doesn't prove that the it was the particular district judge here.

But come on. Who else is likely to have done it? Some random judge ain't going to go through all of the trouble of ripping it up and mailing it back. Nor will a clerk. All of those people are much, much more likely to just pitch it into the circular file. Who's the most likely person to actually go through the trouble to rip it up and send it back? A frustrated judge who (rightly) is frustrated at an insane litigant and who wants to send a message.

We know that someone at the district court did this. And, truthfully, my money's totally on the judge. Imagine, for example, that we knew for a fact that someone on the district court had gone out and killed the petitioner. It could have been anyone; a law clerk, a bailiff, a clerk, etc. But would we really say that there was no reason whatsoever to believe that it was the judge? Such no evidence that we wouldn't even ask the judge (as we don't here) whether he did it? Come on.

So I think that this part is wrong. Not only do I think there's enough evidence here, but I even think it's more likely than not that the judge did it. Which is far in excess of what you need in order to support a claim.

I'm not saying that tearing up a document and mailing it back is misconduct. I do think that it's not a very good practice, mind you. And I'd definitely tell judges not to do that. It does reek of frustration, and even though we know that likely exists, I don't think it's a good practice at all to manifest that feeling. Either on the bench or -- perhaps even worse -- through an anonymous act designed clearly to reflect that a judicial officer isn't even reading your stuff. That's not what I'd call good judging.

So I'd be fine with Chief Judge Kozinski saying essentially what I've said above: that there's no conclusive proof that the district judge did it, but even if it transpired, and even though that is a bad thing, under the circumstances here, we're not going to do anything more about it other than what we've done. That'd be fine with me. But I don't think that we should get rid of this claim by pretending that there's no evidence that the judge did something that we all know s/he may well have done. That sits far less right with me. And only, ironically, plays into the "conspiracy" theories that nutjobs like this have about the judiciary.

So I'd reach the same result, but edit that part out. Let's be honest and forthright with what we do. Always a good policy. Even with whackos.

U.S. v. W.R. Grace (9th Cir. - May 15, 2008)

Nice dissent!

Judge Hawkins writes an extremely well-written dissent to the majority's en banc decision. So good, in fact, that you should read it at length. It really is exceptionally well done.

I say that, mind you, even though I may well have been in majority on this one. Or at least have somewhat leaned that way as a practical matter.

The issue is about interlocutory appellate jurisdiction over suppression order in criminal cases. Section 3731 permits the United States to appeal an order of the district court that, inter alia, suppresses evidence in a criminal case upon the filing of a certification by the U.S. that the suppressed evidence is important and the appeal not taken for the purpose of delay. So the question then becomes whether that bare certification alone creates jurisdiction or whether those alleged facts actually have to be true.

For 30 years or so, the Ninth Circuit has held the latter. But the en banc court overrules this prior circuit precedent and says that the plain text of the statute suggests that the certification itself is sufficient. The dissent says that this is both a misreading of the statute as well as very dangerous, since it effectively makes the U.S. its own judge of the merits, without oversight by a neutral judiciary. But the majority says that we can trust U.S. Attorneys to be honest, and that if they're not, there are things we can do to expedite the appeal or get them in trouble.

It's a good debate, especially since the policy analysis focuses a lot on whether it makes sense to give carte blanche to bare, unsupported certifications of a party. Personally-- and I admit my own prejudice here -- I think that Judge Fisher makes a darn good point in the majority opinion that since the relevant U.S. Attorney has to get permission from the Solicitor General to appeal, we can be pretty confident that there's some real oversight going on. Personally, I tend to trust the SG's office, which goes to great lengths to preserve its credibility. Perhaps I'm a fool in that regard. But I like 'em. And trust that office a lot, lot more than any individual U.S. Attorney's Office. So I think that, as a practical matter, what Judge Fisher says makes sense to me.

But it does give Judge Hawkins an opportunity to make a variety of really excellent points, and in an extremely wonderful way. For example, in footnote 9, Judge Hawkins says the following, which I totally loved: "While I have great respect for the author of the Opinion distinguished
prior service as a senior Department of Justice official [Judge Fisher was an Associate Attorney General] , I wonder if recent experience might suggest that the comfort he finds in the supervision of Main Justice officials over the activities of United States Attorneys might not always be well placed. See John McKay, Train Wreck At the Justice Department: An Eyewitness Account, 31 Seattle U. L. Rev. 265 (2008)." Wonderful! In the same vein, here's the penultimate paragraph of the dissent: "Like the majority, my hope and expectation is that the government will act wisely and carefully when deciding whether to pursue an interlocutory appeal, and that its unchecked ability to do so will not diminish the independent judgment of district judges in the making of important evidentiary rulings. Unlike the majority, though, I would measure that confidence with caution. To paraphrase a former President, I would “trust, but verify.” [quoting President Reagan]."

How awesome is that?

People v. Bordelon (Cal. Ct. App. - May 15, 2008)

I spent my morning reading the California Supreme Court's opinion in the marriage cases. All 160-plus pages of it (including the various concurrences and dissents). That's obviously the judicial highlight of the morning -- indeed, probably of the year or decade -- but since it's a high-profile case about which much ink will already be spilled, I doubt I'd have anything unique to add to the debate. But that's how I spent my morning, and I felt it to be productive (and interesting) use of my time. Which you can do, I might add, when you're an academic and don't have to bill it. Which is nice. Very, very nice.

Meanwhile, on a more pedestrian level, remember the elderly inmate in The Shawshank Redemption -- his name was Brooks Hatlen -- who almost kills a friend and fellow prisoner (Heywood) in order to stay in prison and, after being released, ends up hanging himself because he can't deal with the outside world? Here's the real life analogue. Someone who was similarly (in the words of Morgan Freeman) "institutionalized" by his stay in prision -- or simply sufficiently mentally ill -- that he was desperate to go back. So much so that within a week of being released, he ineptly robbed the same bank -- and same teller -- that he initially robbed in a seemingly deliberate attempt to be caught and returned to prison. And, if that was indeed his goal, succeeded with flying colors.

It happens. And it's not a defense to robbery that you wanted to get caught.

At least you can feel self-actualized, I guess. And better to be you than Brooks Hatlen, I imagine.

Now I'll spend the rest of my day being a pro tem. Hearing much, much less significant cases than whether there's a right to gay marriage or whether a defendant should be returned to jail.

But, still, every dispute is important to the participants. And they have the right to be carefully heard. So that's what I'll do.

A big law day -- on both a macro and micro level -- for our hero.

Buono v. Kempthorne (9th Cir. - May 14, 2008)

Politics matters. But, sometimes, it doesn't. That's one lesson you might get from the lineup in this opinion and resulting en banc call.

At issue is a big, prominent Latin cross that sits atop Sunrise Rock on federal land in the Mojave National Preserve. The Ninth Circuit held back in 2004 that the maintenance of that cross violated the Establishment Clause, and one month after the oral argument in that case, sensing the writing on the wall, Congress passed a statute that would transfer ownership of the cross -- and a tiny parcel of land upon which it sits -- to a private party (the VFW) in order to keep the cross but "cure" the violation. After the transfer began to progress, on remand, the district court held that this manipulation didn't solve the problem, and that there was still an Establishment Clause violation. Which in turn spawned the (predictable) second appeal.

Judge McKeown wrote for a unanimous panel that, yep, the district court was correct, and that creating "a little donut hole of land with a cross in the midst of a vast federal preserve" didn't negate the Establishment Clause violation, especially given the (decidedly non-neutral) conditions of the transfer. At which point, in light of the politically sensitive (and high-profile) nature of the dispute, there was the predictable call for a rehearing en banc.

Full disclosure: I think the panel was clearly right on this one. And, indeed, the en banc call fails. But who dissents from the denial? Mostly who you'd predict, of course. Judge O'Scannlain authors the dissent, and it is a very good one -- indeed, both in style and substance it reads like a petition for certiorari, focusing on circuit splits and national importance, as well as the merits. Which, obviously, is deliberate. Who joins the dissent? The usual reliable conservatives, including Judges Bybee, Callahan, and Bea. As well as Judge Tallman, who's a Clinton appointee but who's joinder on this one is hardly surprising.

But what's equally interesting is who's missing. None of the strong libertarian-leaning (and somewhat more, artfully put, "academic") conservatives sign on. Chief Judge Kozinski doesn't join, which is not too surprising, as he wrote the original opinion back in 2004 (though that one was deliberately and tellingly phrased in terms of precedent rather than his own views). Nor does Judge Kleinfeld or Judge Clifton. Even Judge Rymer doesn't join the dissent, nor do the three most recent appointees (Judges Smith, Ikuta, and Smith). The latter may well be explained by their roles (e.g., newness on the court), which may make them reluctant to stand up so quickly and publicly dissent from the denial in a case like this. Still, both who joins the dissent, as well as who doesn't, in this one is interesting. And, I think, says a lot about at least some of the personalities and predelictions on the court.

Center for Biological Diversity v. Rey (9th Cir. - May 14, 2008)

This is not Judge Noonan's finest work.

I understand that it's a review of a denial of a preliminary injunction, and sometimes we want to get these things out quickly. Especially when, as here, we reverse the denial. I also appreciate an effort to write a little more informally. That doesn't bother me at all.

But when I read the opinion, it looked somewhat slapped together. Indeed, as I was reading it, I honestly thought that it had been written in two or three days, rather than over two months after oral argument.

And while I appreciate short, punchy sentences, and even a rhetorical device or two, the style that Judge Noonan employs here just doesn't work for me. Passages like: "Sell trees to loggers. Use the money to clear areas of what is potential fuel for fire. The solution has a secondary benefit: what the loggers cut can, at least in part, be timber that was potential for fire. In one sale, a fire hazard can be removed and the USFS paid so that it can remove the fuel of future fires. Two for one always has an attractive ring. But are there no alternative ways of getting money to do the clearing that is imperative? Obviously, there may be. First of all, there is the USFS’s own budget. Does that budget contain any funds that could be devoted to fuel removal? Is every one of its activities so necessary and so tightly allocated that no money could be shifted? We do not know the answer because this alternative has not been explored. Suppose that the USFS and its parent, the Department of Agriculture, cannot spare a dime. What then? Appropriate appropriations come from Congress. The work of fire prevention is work of the first importance. If the USFS does not have enough, why should not Congress be asked to give it more?"

To me, these aren't very strong arguments, but are rather merely a series of unanswered questions. And are written in a way that sounds a bit more rambling than a structured discussion of the merits.

Maybe my objections are merely stylistic, and if so, perhaps it's just a difference of opinion. But for whatever reason, the opinion just didn't gell with me. And perhaps others as well.

Price v. Connolly-Pacific Co. (Cal. Ct. App. - May 13, 2008)

What?! An admiralty claim filed in state court?! What in the Wild Wild World of Sports is going on here?!

But Justice Woods is correct that you are indeed allowed to have admiralty claims in state court in limited circumstances under the savings to suitors clause. So, though unusual, the case is rightly here.

There's other none-too-common aspects of the opinion as well. For example, the fact that the case involves a seaman whose lawsuit is entirely about getting bitten by a mosquito and hence contracting West Nile virus. As well as the fact that the plaintiff here lived in San Diego (La Mesa, actually) but worked in Long Beach and spent the week camping in the company's parking lot so he didn't have to commute back and forth. The opinion also contains a little description of the difference between "blue water" seamen and "brown water" seamen that I found interesting. And, no, "blue" and "brown" water seamen have nothing whatsoever to do with whatever disgusting thought just entered your head.

A neat little case.

Garcia v. Brockway (9th Cir. - May 13, 2008)

"I wrote the majority opinion for the panel. Sure, Judge Fisher dissented, and he and his leftie allies may have successfully gotten the case taken en banc. Even though there was totally no circuit conflict.

But guess what? Just because you've got the votes to take the case en banc doesn't mean you're going to win once it gets there. And I got drawn for the en banc panel and Judge Fisher didn't. Plus, for me, it was a very good draw. I end up getting nearly every single vote.

So here's what I'm going to do. I'm going to assign the majority en banc opinion to myself. And I can do that 'cause I'm the Chief Judge. And guess what that majority opinion is going to say? That's right. It'll adopt in full my majority opinion for the panel. Ha! (After correcting some minor errors in the opinion and adding a more careful caveat or two than I wrote in the original opinion.)

What does that leave you with? Only the dissent of the two Carter (!) appointees -- Judges Reinhardt and Pregerson -- from my edict. Who merely adopt Judge Fisher's dissent from the original panel opinion as their own. And even though they add a couple of bonus pages of their own commentary as well, we're still left with what I originally wrote on the panel. Only this time it's a 9-2 decision instead of a 2-1.

In other words: Victory is mine!"

So sayeth Chief Judge Kozinski.

P.S. - Take off that "Dissent by Judge Fisher" from the second page of the caption. He's not on the panel.

NLRB v. Lim (9th Cir. - May 12, 2008)

Want to read an opinion that's (1) about labor law, (2) not too long, (3) about a disputed $5 or so (though the principle at stake is obviously the central issue), and (4) is unquestionably a correct resolution of the merits, at least in my humble opinion?

Then check out this opinion by Judge Pregerson.

In Re Holtemann (Cal. Ct. App. - May 12, 2008)

You can comingle your marital assets, and there are a variety of good reasons to do so. But if you do, they're community property. And that matters -- a lot -- in a divorce.

That's the principal message of this short-and-sweet opinion by Justice Perren. I especially liked that Justice Perren explained the rationale of the decision with a very good quote from the trial court, Commissioner Patrick Perry (in San Luis Obispo). Commissioner Perry said:

"As the trial judge stated: "Husband argues that the transmutation was limited to estate purposes only. In other words, Frank wishes to have his cake and eat it too. He argues that, in the event of either his or Barbara's death, the survivor would be able to use the Transmutation Agreement to claim the property as community property, thus obtaining a full step up in basis to the fair market value of the property at date of death, while at the same time denying the validity of the Transmutation Agreement as an instrument which created community property. Thus, when it would benefit either Frank or his estate, Frank wishes to characterize the property as community. However, when it would be detrimental to Frank, he wishes to ignore the transmutation and call the property separate."

When the lower court explains its rationale in a way that's persuasive, I like it when the Court of Appeal gives credit where credit is due.

Charles Pratt Const. Co. v. California Coastal Comm'n (Cal. Ct. App. - May 8, 2008)

Even if you read the caption, I bet you can't figure out what this case is about merely from the first paragraph. Which consists, in its entirety, of the following:

"If "it's a long, long time from May to December,"1 it's an eternity from 1973 to 2008. But time, as Einstein taught us, is relative."

So what's it about?

If you guessed "The vesting of development rights upon approval of tentative maps pursuant to Government Code sect. 66498.1," you're a winner!

People v. Watson (Cal. Supreme Ct. - May 8, 2008)

A drive-by gang shooting in Compton. A death sentence for murder. A unanimous decision to affirm by the California Supreme Court.

Just another day in America.

People v. Tolliver (Cal. Ct. App. - April 10, 2008)

Red Jaguar. Maroon Lincoln. Same difference.

Or not.

P.S. - I'll take the former every day, thank you very much.

Serrano v. Stefan Merli Plastering Co. (Cal. Ct. App. - May 7, 2008)

When I first read the caption, I thought to myself: "Why are all these amici and objectors participating? It seems from the identity of the parties to be a totally mundane case." Then I saw what the case was really about: How much court reporters get to charge for deposition transcripts. Now I understand the reason for the heavyweight participation!

It's a definite must-read for litigators. Or at least those who care at all about how much their clients have to pay in costs. The issue is whether court reporters can charge whatever they want -- however unreasonable -- for copies of deposition transcripts. We know that they can charge the noticing party whatever they want. What about the non-noticing party who wants a transcript? Here, for example, can you charge the party who wants a copy hundreds or thousands of dollars for "expediting" a transcript that the ordering party has already fully paid to have expedited? Is there any reasonability review at all, or can the reporter charge whatever the market -- as defined by the noticing (not receiving) party -- will bear?

Justice Croskey writes an outstanding answer to this question. The Court of Appeal holds that costs do indeed have to be reasonable, and that courts are able to rein in unreasonable fees pursuant to a party's request. It's an opinion that's both well-written and seems entirely right to me. There are, admittedly, some administrative problems with the resulting regime, and I doubt that challenges to transcript costs will ever become routine as a result of the relevant economics. But the alternative -- that reporters are free to charge flatly unreasonable rates, with no recourse whatsoever for the party forced to pay -- is, in my mind, simply untenable. So, if only for that reason alone, I think that Justice Croskey hits the nail right on the head.

People v. Litmon (Cal. Ct. App. - April 23, 2008)

Not much today; by lunchtime, only a single opinion from the Ninth Circuit and nothing new from the California Court of Appeal. So a sleepy Hump Day.

Which gives me the opportunity to go back and write, if only briefly, about a very good opinion I read a couple of weeks ago.

I really, really like this opinion by Justice Elia. It's not only persuasive, but it is manifestly written with a sense of justice and the importance of the subject matter. Shorthand for what it says: Liberty matters. You deserve some sort of a timely hearing to challenge your involuntary commitment to a mental hospital.


I don't uniformly get a palpable sense that an opinion deeply and profoundly "gets" what Due Process means. But I do here.

Bravo.

Ellis v. Arriaga (Cal. Ct. App. - May 6, 2008)

You can be a putative spouse. So you can be a putative domestic partner too. And get un-domestic partnered even if you never actually got partnered.

Seems right to me.

People v. Gemmill (Cal. Ct. App. - May 6, 2008)

Want to know what the police can do -- in particular, where and how they can search a home -- when they find an unattended child wandering in the street? Then read this opinion. Which goes through all of the various cases in California that present this issue. Of which, sadly, there are quite a few.

Justice Robie authors a very good opinion here. It's comprehensive. It's moderate. It's well-reasoned. And it articulates a reasonable position that fairly attempts to balance both of the important competing interests at stake -- the privacy of the home versus the potential welfare of any occupants.

Ultimately, Justice Robie concludes that, under the particular facts here, it was reasonable for a police officer to look in a side window of the home. That counts as a search -- assuredly so -- but such a limited non-physical entry into the home was justified by the emergency aid exception. Reasonable minds might disagree about such a conclusion, but it seems a rational one, and Justice Robie's presentation of the issue is very persuasive. At least to me. (Thereafter, based upon what the police officer saw through the window -- a child playing with a plastic bag near an unresponsive adult -- the officer reasonably entered the home under the emergency aid doctrine, a result that seems entirely right.)

For you parents out there: Yet another reason not to let your young child wander alone in a street. Especially if you have a boatload of pot and meth in your house. Because the police can reasonably take a gander.

People v. Williams (Cal. Supreme Court - May 5, 2008)

You can read the first ten pages of this 80+ page opinion if you'd like. But it can also be summarized by simply saying that Dexter Williams engaged in a series of events during February 1991 that constitute nothing less than a barbaric display of inhumanity.

Weirdly, though, then read the subsequent pages. In which you discover facts that are difficult to square with calling Williams a total sociopath. Facts that seem to show humanity, at least of a sort. Not remorse or deep feelings, perhaps. But something unexpected nonetheless.

Anyway, he's sentenced to death. And the California Supreme Court unanimously affirms. For reasons that are not at all surprising given both the nature of this institution as well as the facts underlying the sentence.

This is not to assert, by the way, that the California Supreme Court in the post-Bird era is totally incapable of exercising detached legal judgment in death penalty cases. It has that capacity. Indeed, on the same day the opinion in Williams came out (today), the California Supreme Court also published this opinion, in which it unanimously reverses a death sentence based upon the failure to produce exculpatory evidence.

That said, examples like the latter are relatively few and far between. And are largely limited to situations involving innocence -- either factually or as relevant to the penalty phase. Even there, the spectre of recall and electoral pressures are never entirely absent.

So an interesting duo of death penalty cases today.

Brown v. Farwell (9th Cir. - May 5, 2008)

This is definitely a powerful way to begin an opinion:

"At Petitioner Troy Brown’s trial for sexual assault, the Warden and State’s (“Respondents”) deoxyribonucleic acid (“DNA”) expert provided critical testimony that was later proved to be inaccurate and misleading. Respondents have conceded at least twice that, absent this faulty DNA testimony, there was not sufficient evidence to sustain Troy’s conviction. In light of these extraordinary circumstances, we agree with District Judge Philip M. Pro’s conclusions that Troy was denied due process, and we affirm the district court’s grant of Troy’s petition for writ of habeas corpus."

It's a little less strong, however, when you read on, because at that point you realize that that "inaccurate and misleading" nature of the testimony at issue doesn't actually go to the merits of the DNA analysis, but instead relates to how those findings were presented. True, these facts were presented in an erroneous fashion -- in a manner called the "prosecutor's fallacy" -- that wrongly conflates guilt and match probabilities. And that's error, to be sure. But that a much weaker claim than I was expecting based upon the opening paragraph.

Here, for example, is the money paragraph of the opinion: "Romero initially testified that Troy’s DNA matched the DNA found in Jane’s underwear, and that 1 in 3,000,000 people randomly selected from the population would also match the DNA found in Jane’s underwear (random
match probability). After the prosecutor pressed her to put this another way, Romero testified that there was a 99.99967 percent chance that the DNA found in Jane’s underwear was from Troy’s blood (source probability). This testimony was misleading, as it improperly conflated random match probability with source probability. In fact, the former testimony (1 in 3,000,000) is the probability of a match between an innocent person selected randomly from the population; this is not the same as the probability that Troy’s DNA was the same as the DNA found in Jane’s underwear, which would prove his guilt. Statistically, the probability of guilt given a DNA match is based on a complicated formula known as Bayes’s Theorem, see id. at 170-71 n.2, and the 1 in 3,000,000 probability described by Romero is but one of the factors in this formula. Significantly, another factor is the strength of the non-DNA evidence. Here, Romero improperly conflated random match and source probability, an error that is especially profound given the weakness of the remaining evidence against Troy."

That's a fair piece weaker than the opening paragraph, eh? At least for me, I read the outset of the opinion as saying that there might well be an innocent person in prison. But when I read the rest of the opinion, I thought: "Well, yeah, I guess in theory there might be an innocent person in prison, and apart from the DNA evidence, there are indeed some holes in the case, but even after I've heard a perfectly accurate articulation of the DNA evidence, I think that Troy looks pretty darn guilty of the offense." That's a fair piece different than my reaction after the first paragraph.

Mind you, I disagree with Judge O'Scannlain, who dissents from Judge Wardlaw's opinion and concludes that even with an accurate recitation of the facts "no rational trier of fact would have changed its mind." Maybe I might not have changed my mind (maybe), but I'm not convinced that's true for everyone. It's tough, I concede, to be convinced yourself that X is true beyond a reasonable doubt and yet admit that you might be wrong: that other rational parties might find the other way. And that's a global problem whenever you're doing harmless error review, and is especially difficult in habeas cases, in which you have to add to this difficult mental gymnastics the required deference to state court findings. But, here, I think that even though I -- an alleged rational actor -- might have still voted to convict, a parallel rational actor might well have gone the other way. Which means a retrial is required.

Only when we're darn confident that a retrial would come out the same way as the originally flawed proceeding should we allow the latter to stand. I don't think that's the case here. Sure, Troy may well be convicted again at a trial in which the facts are accurately explained. But that is a result that's far, far from meaningless.

Pinhoster v. Ayers (9th Cir. - May 2, 2008)

The lower court docket number is"CV-95-06240-GLT"; in other words, this case has been pending in federal court for 13 years. The appeal to the Ninth Circuit was filed in 2003, it took four years before the thing was scheduled for oral argument, and over a year after argument for the panel to issue its opinion. And the opinion, in turn, consists of three separate opinions -- one from each of the judges on the panel -- and totals 74 single-spaced pages. Oh, and the crime that gave rise to the opinion took place in January of 1982; i.e., over a quarter-century ago.

Which can mean only one thing: It's a death penalty case. And, here, the Ninth Circuit reverses the grant of penalty phase habeas relief provided by Judge Taylor.

You see a lot more reversals of habeas relief coming out of the Northern District than you do from the Central District. Chalk this up towards evening the score, I guess.

Judge Tallman writes the majority opinion, Chief Judge Kozinski concurs, and Judge Fisher dissents.

Enpalm v. Titler Family Trust (Cal. Ct. App. - April 30, 2008)

I've always found perjury an interesting subject. It seems to me that it's fairly common. Even in the civil side, in which only money (rather than liberty) is typically at stake. My belief is that the typical civil case involves an extraordinary amount of "shading" by the majority of witnesses, a healthy dose of manifest exaggeration, a plethora of convenient forgetfulness, and the not-at-all-rare occasions of outright lying. And, parenthetically, that deception of this type is often rational, and increases the expected net result of a lawsuit.

So that's a problem. Which is, in part, why I found this opinion so interesting.

It contains a great debate between Justice Rubin, who authors the majority opinion, and Justice Cooper, who dissents, regarding whether Judge Biderman (up in Los Angeles) erred when he cut 90% off of the prevailing party's contractual attorney fee award because its principal party witness was a manifest liar at trial. Justice Rubin says that's okay; that the trial court may legitimately conclude that certain fee expenditures are not "reasonable" when they are based upon a client's deliberate perjury, especially if that perjury itself gave rise to the lawsuit and/or substantially complicated it. Conversely, Justice Cooper concludes that such a rule would give trial judges way too much leeway in setting fee awards and potentially unjustly punish prevailing parties.

Justice Rubin and Justice Cooper both make very good arguments. On the merits, I tend to lean a little bit in favor of the former, though that may be in part for policy (rather than doctrinal) reasons, as I believe that this is a huge problem area and one that demands at least an attempt at a solution. Admittedly, cutting a fee award doesn't really work in the vast majority of cases, most of which neither allow recovery of fees nor even get to trial. But it's a start.

Anyway, read the debate. It's a good one. And another reason to tell your clients to tell the truth. Even when you're not so sure that's really the most economically rational decision.