Nurre v. Whitehead (9th Cir. - Sept. 8, 2009)

We know you can't (usually) have a prayer at your high school graduation ceremony. What about singing Ave Maria? Do you have a First Amendment right to do so? Or can a school legitimately prohibit such a religious performance at graduation based upon a desire for inclusiveness and previous complaints?

You've got a pretty favorable pro-plaintiff panel drawn for this one, at least relatively: Judges Beezer, Tallman and Milan Smith. The majority -- in an opinion written by Judge Tallman -- concludes that the plaintiff's rights weren't violated by the prohibition. Judge Smith, by contrast, concludes that plaintiff had a First Amendment right to play the song at graduation.

Judge Tallman understandably writes a fairly narrow opinion; indeed, one that's much more constained and limited than the one that'd be written by a number of other judges on the Ninth. A good sense of the tone and content of his opinion can be obtained by reading the following paragraph therein:

"Contrary to Judge Milan Smith’s understanding of our holding, we do not seek to remove all religious musical work from a school ensemble’s repertoire. Nor do we intend to substantially limit when such music may be played. We agree with him that religious pieces form the backbone of the musical arts. To ignore such a fact would be to dismiss centuries of music history. Instead, we confine our analysis to the narrow conclusion that when there is a captive audience at a graduation ceremony, which spans a finite amount of time, and during which the demand for equal time is so great that comparable non-religious musical works might not be presented, it is reasonable for a school official to prohibit the performance of an obviously religious piece."

Moderate. Respectful. Deferential to the role of religion in society. As well as to the decisions of government officials in attempting to balance potential Establishment Clause problems.

Judge Smith comes out the other way, with a warning of the dire consequences of today's decision, saying that "the practical effect" of this opinion "will be for public school administrators to chill—or even kill—musical and artistic presentations by their students in school-sponsored limited public fora where those presentations contain any trace of religious inspiration, for fear of criticism by a member of the public, however extreme that person’s views may be." Judge Smith also repeats the type of "culture wars" refrain we increasingly see from some conservative members of the judiciary (and elsewhere). For example, in the following line: "The taking of such unnecessary measures by school administrators will only foster the increasingly sterile and hypersensitive way in which students may express themselves in such fora, and hasten the retrogression of our young into a nation of Philistines, who have little or no understanding of our civic and cultural heritage."

Judge Smith ultimately concludes that school officials had qualified immunity, however, and I think that of all the lines in his opinion, this one rings the most true to me: "I readily acknowledge that no bright lines exist in this complex field of First Amendment law, and I sympathize with school officials, who often find themselves in a Catch-22, subject to criticism and potential law suits regardless of the position they take. Because of this unfortunate reality, I conclude that qualified immunity is appropriate in this case." But in the very next line, Judge Smith says: "But I also believe that, unless the courts provide balanced guidance on where those not-so-bright lines lie, we only perpetuate the confusion, encourage further litigation, and stunt student artistic expression in violation of the First Amendment." The problem, to me, is that even under Judge Smith's view, it's exceedingly difficult (if not impossible) to figure out where those lines exist -- even for individual judges (like Judge Smith), much less for an entire circuit (or the judiciary as a whole). For example, Judge Smith's opinion appears to agree -- though even this is far from clear -- that school officials could prohibit playing Up Above My Head at graduation, as (according to Judge Smith) that particular song says the word "Lord," refers to "heaven," and arguably (though disputedly) refers to Jesus Christ. But is even Ave Maria itself really that different? From my (largely uninformed) viewpoint, personally, I can recognize Ave Maria pretty readily, and my longstanding belief was that it's a deeply religious song, whereas I don't really know anything all (nor have any preconceived notions) about Up Above My Head. Which I admit sounds religious too, but I hardly view 'em as wildly divergent; indeed, when I listened to the latter, I was mostly just rocking out, and didn't for even a second really even think about its message. Whereas that's definitely not the case with Ave Maria. In any event, wholly beyond the particular songs here, as a doctrinal matter, Judge Smith doesn't really provide any real guidelines (much less "rules") about which songs can be constrained and which ones students have a First Amendment right to sing to a captive audience, and that seems a problem to me.

Moreover, some of what Judge Smith says just strikes me as factually wrong. He says, for example, that "the playing of the Ave Maria arrangement could not have reasonably been interpreted to convey a religious
message," and is instead just a "pretty piece." Really?! Maybe I'm an example of someone who's unreasonable (though I think not). But when I hear the words "Ave Maria", my head also says "Religious". So, for example, when I hear a reference to the Ave Maria Law School, I don't think: "Synonym for 'Pretty School'". I instead think: "Synonym for 'Religious School'". Ditto for music. You sing "Hosanah in the Highest" at graduation and I'm pretty sure even Judge Smith's going to agree that's uncool.

So maybe at the end of the day we're talking about a judgment call. Since I agree that, at the one end, there are songs like When the Saints Go Marching In that are pretty much secular at this point, and maybe (though I'm not entirely positive even on this point) school officials shouldn't be allowed to prohibit them on the ground that someone in a captive audience might react negatively. But I'm not sure Judge Smith has persuaded me that Ave Maria is in the same class. Even the "contemporary", purely instrumental version.

I also wonder -- though perhaps this is just the cynic in me -- if even Judge Smith believes the strong version of what he's saying. To take one example: He asserts, as a factual matter, that Ave Maria has "a title in a dead language whose meaning would be unrecognizable to most attendees of the graduation." Really? I agree that the title is in a dead language, and one which I personally know almost nothing about. But do you really think that most average attendees of a high school graduation, upon hearing the title Ave Maria, wouldn't have any idea about the meaning of those words? Wouldn't be able to say, as I would: "Look, I don't have any idea who Ave Maria was, or what (in Italian, Latin or otherwise) the song's about, but I'm pretty darn sure it's religious; probably some Saint or something."? As a factual matter, I just think I disagree with Judge Smith. I think the fact that it's in Latin doesn't stop it from being "recognizable" to the average person. Far from it. And I'm not at all someone who has an overly charitable view of the cultural intelligence of the common man.

So this is a problem, I concede. Some songs you can prohibit, at least at a state-sponsored, time-limited forum in a ceremony with no real alternative. Maybe we're reluctant to say that you can prohibit any song in such an arena for fear that school officials might ban Born to Run or some other obviously secular song. (Or maybe we are willing to vest that decision entirely in school officials; I don't know).

But is seems to me that Ave Maria is in a different class. Nearer to "Our Father" than "Crimson and Clover". I'm not sure I can draw a definitive line. Nor that anyone can. But wherever the line is, I think that Judge Tallman is right that this particular song is over it.

U.S. v. Lam (9th Cir. - Sept. 8, 2008)

Come on, Willie! You're smart. I know you must have thought about it, right? Why not pull the trigger?

The question is whether a fugitive from state court proceedings who's filed a claim in a civil forfeiture action can have his claim struck under the fugitive disentitlement doctrine/statute. Here, the U.S. filed a forfeiture action against currency allegedly traceable to the defendant's crimes (crimes the U.S. then indicted him for), the defendant filed a claim to these funds, the state court then indicted the defendant on 101 counts, and the defendant showed up to two pretrial conferences in state court but then skipped town three days before trial.

Under those circumstances, can you strike the defendant's claim in the forfeiture action? The district court decided you could, and the Ninth Circuit (rightly) agrees.

So what's my beef? Opportunity. To be more precise: Missed opportunity. The defendant's a fugitive. He's fled, and not yet been caught. So Judge Fletcher's constantly calling him a fugitive.

Which is fine. But his name! It's perfect. He's not just a fugitive. He's on the lam. He took it on the lam right before trial. The dude's name is Lam. You can't work that in somehow?!

Trust me: If this was a Kozinski opinion, there'd be about 114 puns and variations on the theme. I kept waiting for at least one from Judge Fletcher. But he played it straight.

Damn him.

Al-Kidd v. Ashcroft (9th Cir. - Sept. 4, 2009)

Labor Day. A nice day to sit back and reflect upon one's relationship with work.

For those spending the day at home, it's a good day to reflect upon the importance of friends, family and fun. For those spending the day at work -- as I am -- it's perhaps a good day to reflect upon the values and choices that bring you there. Particularly, the goals that motivate one's decisions: what objectives -- hopefully ones with exceptional value -- you wish to accomplish through your devotion and hard work.

Meanwhile, in other "deep thoughts" for the day, perhaps reflect upon this case. Which was published on Friday, of course -- since neither the state nor federal bench works (at least officially) on Labor Day.

It's about the War On Terror. And a whole lot more.

Judge Milan Smith took almost a year and a half to write the thing. It shows.

Check it out. And enjoy a bright and sunny Monday.

In Re Craig (9th Cir. - Aug. 26, 2009)

Feel bad about the size of your student loans and potential inability to repay them?

Trust me. It could be worse. You could be Cheryl Craig.

Ms. Craig racked up $80,000+ in student loans (including interest) attending Pima Community College and the University of Arizona to get an AA in paralegal studies in 1992, and a BA in sociology in 1996. But she's now 47 years old and has only been able to find work as a customer service representative for Anderson Financial Network, earning $10 per hour and typically working fifty to sixty-five hours every two weeks.

How's her life at $10/hour and $80,000 in student loan debt? Not so good. Her income in 2004 was $16,815, and she had monthly expenses of $1,873, which included a $150 monthly mortgage payment on her mobile home. Not exactly living a life of luxury in the deserts of Arizona, eh?

But at least she's got her health, right? Uh, well, sort of. "Craig’s employment [] was protected under the Family Medical Leave Act, which permits Craig to miss up to 400 hours of work per year as a result of doctor certified medical issues and still keep her full-time employment status. This is significant because Craig suffers from numerous serious medical problems, including asthma, diabetes, chronic bronchitis, heart problems (she had a heart attack in 2002), acid reflux, irritable bowel syndrome, and chronic back problems. These medical problems require the monthly intervention of, and monitoring by, several physicians, and a daily regime of prescription drugs. Even with the benefit of health insurance, Craig’s out-of-pocket medical costs were approximately $350 per month in 2004."

Crickey.

I'm not a big fan of forgiving student loans. But at some point, it's just not plausible to pay 'em back. To me, this looks like one of those times.

Carrera v. Maurice J. Sopp & Son (Cal. Ct. App. - Sept. 3, 2009)

Here's a great case decided by the California Cout of Appeal earlier today that encapsulates both a variety of policy/doctrinal choices as well as exemplifies how not-so-easy being a judge is even you're in fact a "pure umpire" who's merely "calling balls and strikes." (Hat tip: Chief Justice John Roberts, who came up with this only-true-sometimes analogy.)

Longstanding California legal principles say that absent "special circumstances," the owner or bailee of a motor vehicle has no duty to protect third persons against the possibility a thief will steal the vehicle and injure them with it. But there's also a specific California Supreme Court case (Avis) that says that "‘special circumstances’ exist when heavy vehicles are left unattended and available for use by those not accustomed to driving them."

So here's the question. Ray Bermudez, released on parole earlier that day, gets drunk on his bus to L.A., hops off in Huntington Park, enters a tow truck shop through an open gate, spies a tow truck with the keys left in the ignition, steals it, and promptly runs over numerous people at a bus stop. Is the tow truck shop liable?

(For what it's worth, Bermudez himself gets convicted of three counts of murder, and is sentenced to 140 to life. But he's penniless (obviously), and this is a civil case, so all we care about at this point is whether the tow truck shop has to pony up.)

Whatcha think? The trial court said it "struggled" with this tough case, but ultimately granted summary judgment to the shop. Does it matter that no vehicles had ever previously been stolen from the shop in its 31-year history? Does it matter that the security cameras showed that Bermudez had no trouble at all hopping in the tow truck and starting it? Does it matter that there were two cars stacked behind the tow truck and that Bermudez got out of the lot by smashing a couple of cars and driving through a canopy (though some of this, I think, was not actually necessary, but was because he was drunk)? Does it matter that the theft was in broad daylight in an occupied lot with many employees around? Does it matter that Huntington Park has, to use the words of Justice Klein, a "high transient population" -- moreover, that H.P. has the highest rate of vehicle theft in the nation?

Which way do you come out? Plus, even if you're leaning one way or the other, procedurally, what do you do? Do you grant summary judgment to the shop? Grant summary judgment to the plaintiffs? Let a jury decide -- even though the actual facts are entirely undisputed?

I'll leave you to it. But don't forget to check out the last page of the opinion. A photograph captured from the security camera showing the tow truck, driven by Bermudez, dragging the lot's canopy as it crashes out of the lot. Fuzzy, but a cool (and definitely unusual) way to end an opinion.

Yolo County Dep't of Child Support Svcs v. Lowery (Cal. Ct. App. - Aug. 23, 2009)

Guess what happens when your 12-year old son molests your daughter (his stepsister) and gets involuntarily removed by the State from your home (and put in foster care) as a result?

Answer: You have to pay the State for the foster care.

Wences v. City of Los Angeles (Cal. Ct. App. - Sept. 2, 2009)

There are lots of police misconduct/shooting cases in which the officer has acted pretty egregiously. But I gotta say that what Officer Cesar Wences did here seems relatively reasonable to me.

I'm glad that his discipline was slight, and that the official reprimand he received didn't stop him from getting a promotion. I'm sure the entire process has frustrated him, thereby resulting in his overblown (in my mind) rhetoric that he has an absolute right to defend himself by shooting near people -- one which the LAPD can't regulate or even attempt to discipline. But even though I don't agree with that extreme view, I can't say that I think what he did here was unreasonable. Is it what I'd have done? Probably not. But it still seems within the bounds.

As to the law, Justice Zelon gets this right, and remands for an independent determination by the trial court. My hope -- at least from the facts revealed in the opinion -- is that the court ultimately reverses the reprimand.

U.S. v. Inzunza (9th Cir. - Sept. 1, 2009)

We had a high-profile corruption case down here in San Diego a while back involvoing three members of the City Council. It had salacious facts and involved alleged bribery to change the laws that regulate strip clubs, so the media took to calling it "Strippergate". Which I love.

Nice place to stay, Strippergate. Comfortable beds. Though a bit loud.

Anyway, one of the defendants (Lewis) died, another was convicted on pretty much all counts (Inzunza), and the third (Zucchet) was convicted on a plethora of charges but had all but two of those convictions thrown out by the district court judge for insufficient evidence (and a new trial granted for those two to boot). So an ultimate win for one defendant, a loss for one defendant, and let's call it a tie for the one who died. As a result, everyone who's alive participates in the appeal, with Inzunza appealing his convictions and the U.S appealing the tossing of the verdicts against Zucchet.

The panel that's assigned once the case goes up is a strong split one: Judge Canby (on the left) and Judges Bybee and Milan Smith (on the right). The parties raise a plethora of different issues on appeal, but the Ninth Circuit's nonetheless able to write a unanimous opinion. Pretty impressive, though they're able to do so in part because they're simply affirming everything the district court did.

Judge Canby writes the opinion, and starts out by getting in some subtle humor, which is awesome. Here's the second paragraph: "In 2000, the San Diego City Council enacted an ordinance banning touching between exotic dancers and patrons: the so-called No-Touch ordinance. This ordinance replaced another provision banning only “lewd and lascivious” conduct at clubs. The bright line aspect of the No-Touch ordinance made for easier law enforcement and eliminated the need to spend public funds on lap dances for undercover police officers. It also put a damper on strip club profits."

Ultimately, Judge Canby agrees that Inzunza's guilty and Zucchet's innocent. Or, more accurately, that Inzunza's guilty but with Zucchet there's reasonable doubt. There's also a lingering issue about the legal requirements for "honest services" fraud that's at issue in the trial as well as in a pending Supreme Court case, so the Ninth Circuit stays the mandate to see how that all plays out. But essentially everything stays the same as it was in the district court for now.

I thought that Judge Canby did a good job of both (1) highlighting the evidence that demonstrated that Ralph Inzunza was indeed guilty, and (2) contrasting that evidence to the stuff against Zucchet, who was a far more peripheral figure and against whom the evidence was relatively slim. (Full disclosure: Zucchet is a neighbor of mine, and I often see him walking around with his kids, but I don't know him personally.) I also especially liked Judge Canby's discussion of the extremely difficult problem of policing the line between illegal bribery and legal bribery -- or, more descriptively, between bribery and "legitimate" campaign contributions. Here's some good stuff from Judge Canby on that topic:

"We confess considerable uneasiness in applying this standard to the acceptance of campaign contributions because, in our flawed but nearly universal system of private campaign financing, large contributions are commonly given in expectation of favorable official action. . . . Money is constantly being solicited on behalf of candidates, who run on platforms and who claim support on the basis of their views and what they intend
to do or have done. [Cite] . . . How, then, in the potentially polluted atmosphere of campaign contributions, can we tell a criminal agreement from a large campaign contribution accepted from a contributor who expects favorable results?"

This seems spot on to me. I'm not entirely persuaded by Judge Canby's solution: that the line is at the "quid pro quo" point, as this itself seems infinitely fuzzy. But my sense is that Judge Canby's not all that comfortable with it either, and recognizes that the only defense of this position is that it's better than the alternative. Call it a "problem of the beard". We know there's a difference between a guy with a beard and a guy without one, but we can't draw a line between that's at all objective. We simply know there's a line and can tell you -- or try to tell you -- which is which merely by looking.

So I'm mostly on board for what Judge Canby does here. His discussion of the facts is extremely detailed and coherent, so on the main points, I think he's right. The opinion tends to fade as it progrsses, and starts giving subsidiary points merely summary consideration, but that happens sometimes. Not something that's to be encouraged, of course. But it happens.

The one area where I might diverge a bit from Judge Canby in his discussion of the alleged Griffen error. At trial, Inzunza didn't testify. Which is his Fifth Amendment right. But at closing argument, the prosecution made a big deal out of that fact, which you can't do. The AUSA didn't come right out and say "Why didn't the defendants testify?" But essentially said precisely that by making a big point, right at the end of its rebuttal closing argument, by approaching the defendants, looking at them with an outstretched hand pointing in their direction, and referring to the 1919 Chicago White Sox scandal by quoting the famous lament to the corrupt player Shoeless Joe Jackson: “Say it isn’t so, Joe. Say it isn’t so. Say it isn’t so.”

The district court held that wasn't a comment on the defendant's failure to testify. But I think it crystal clearly was, and that Judge Canby rightly so holds. Particularly in the context of this trial, repeating "Say it ain't so" when you're pointing at the defendants who haven't testified -- and comparing it to one of the most famous corruption cases in history, and in which the whole point of the story is that you know that Shoeless Joe was indeed guilty because he didn't tell the fan it wasn't so -- is a direct comment on their failure to testify.

Judge Canby, however, holds that the error was harmless. On this point I'm not entirely persuaded. Judge Canby admits that the comment came right at the close of the prosecution's rebuttal -- right before the jury retired to deliberate -- but responds that this impact was dissipated because "the argument continues for another twelve transcript pages." But come on. Twelve transcript pages is like two or three minutes at most. Clearly this was a central point of the rebuttal; moreover, it was a particularly powerful one.

Judge Canby nonetheless concludes that Inzunza would have probably be convicted anyway, even without the prejudicial comment on his silence. But even the district court concluded that the evidence against this defendant was "not overwhelming," and Judge Canby himself spent a half-dozen pages at the outset of the case explaining just how tough it is to draw a line between legitimate and illegitimate contributions. Especially in light of these circumstances, it seems way, way too facile for the panel to conclude that the error was likely harmless -- much less that it was harmless beyond a reasonable doubt. So I think this is a serious problem.

I do agree with Judge Canby on one point in this regard. The jury might well have convicted Inzunza even without the Fifth Amendment violation. After all, it convicted Zucchet even though every judge now agrees that the evidence against him was insufficient. But this additional fact seems to me only to highlight the need to grant a new trial and to vest less confidence in the jury's judgment and the allegedly "harmless" nature of the prosecutor's comments. Indeed, to me, the fact that the jury convicted Zucchet even though we all agree that the evidence against him was insufficient may well suggest that the "Say it ain't so" comment worked: that the jury was indeed so prejudiced by the prosecutor's comment about the failure of Zucchet and Inzunza to testify that they voted to convict even an individual against whom every rational juror would concede there was reasonable doubt.

Particularly given how the entirety of the trial played out, I'm just not at all convinced that the Griffen error here was indeed harmless, much less that we can be totally confident in that fact and in the deference that the Ninth Circuit gives to the jury's verdict against Inzunza. To be clear: I'm not at all saying that Inzunza is in fact innocent, and Judge Canby does a darn good job of persuading me that he's probably guilty. But being more than likely guilty isn't an adequate substitute for having a neutral and unprejudiced jury conclude that you are indeed guilty beyond a reasonable doubt. Which I just don't think has ever transpired here.

People v. Hach (Cal. Ct. App. - Aug. 25, 2009)

Before I read this case, I'd have told you: "Those stupid 'chat line' commercials you see on late-night television are absurd. There's no way you can meet an actual woman on those things."

But now I have to revise my assessment. As follows: "Maybe you can meet a woman, but watch out. Her common law husband may kill you."

Hardly seems worth the $2.99 a minute in either case, eh?

Stevens v. Tri Counties Bank (Cal. Ct. App. - Sept. 1, 2009)

I've got plenty of joint accounts, not surprisingly. I've never really thought about them, which is also neither surprising or unusual, I imagine. I always thought the rule was -- as indeed it is -- that anyone who's listed on the joint account can withdraw whatever amounts they want. That's why you've got to trust 'em. Apparently there's also legal recourse if they withdraw more than their "share" -- which is good to know -- in order to stop, say, a departing spouse from taking all the money. In that case, the one owner would have a claim against the other owner for pimping anything beyond his or her "share" of the community property. But that's a fight for the respective owners to duke out. As far as the bank's concerned, everyone listed on the account is entitled to withdraw whatever they want. Makes sense.

But with that background in mind, let's get one level deeper. Imagine that X and Y have a joint bank account. Can Y add Z to this account without X's consent? Would the bank be liable to X if it permitted Y to do so and Z then took all the money out of the account?

This is a tough one for me. On the one hand, the nature of joint accounts is that you've got to trust your co-account owner. If you open a bank account with Y, you're taking the risk that Y will withdraw all the money, spend it on crack, and leave you with nothing. So if you've got to trust Y, then don't you also implicitly trust Y not to add Z to the account as well? What's the difference between Y adding Z to the account, who then takes all the money, versus Y taking all the money and giving it to Z? Why should the bank be liable to X in the first set of facts but not in the second?

On the other hand, trusting Y not to take the money does seem a little bit different than trusting Z. It might make sense to say that the bank can only let Y take the money -- which would leave Y liable for withdrawals in excess of Y's share -- but can't let Y add Z to the account and then have Z take the money, which may perhaps (if allowed) leave only Z (rather than Y) liable for any excess withdrawals. You trust Y, in other words, not to take the money, but you don't want to let 'em add an unknown Z without your consent.

Or at least that's perhaps the right default rule: the one that makes the most sense, but is one that the parties can contract around. Though I might even go farther and say that's the right rule, and one that can't be waived (though on that point I'm far from sure). What's the point -- the purpose -- of allowing Y to add Z without X's consent? What benefit does that create, especially since, as we already know, Y could already withdraw the funds to which s/he's entitled and give 'em to Z. Why let another potential tortfeasor into the account without the express consent of all holders? Seems to me that, as a protective measure, you might want to make that rule unwaivable, especially since we all know that if Rule X is waiveable, and potentially creates liability for the bank (here, for allowing Y to add Z), banks will probably insist upon waiver in a contract of adhesion, thus defeating the value of a default rule.

Those are my initial thoughts on the subject, anyway. Which are far more than are necessary to resolve this case, which simply holds that the actual law is that the bank can indeed be liable for allowing Y to add Z (who then withdraws all the money) at least when such conduct isn't permitted by the bank's rules.

Though, as I said at the outset, this isn't -- and wasn't -- a foregone conclusion, either as a matter of policy or (perhaps even more confusingly) as a matter of statutory interpretation in California. But it's nonetheless the law.

So think about that joint account. For at least a second, and for slightly more than the facile inquiry regarding how much is therein.

People v. Thrasher (Cal. Ct. App. - Aug. 21, 2009)

Carlos Thrasher skips out on $17,000+ of unpaid rent for an office he rents from his landlord, Ziad Alhassen. After Thrasher repeatedly tries to get Alhassen to forgive this amount, and after Alhassen threatens to sue, Thrasher finally agrees to pay the unpaid rent -- and signs a promissory note for it.

Shortly thereafter, Thrasher gets appointed to the West Covina Planning Commission, and certifies under penalty of perjury that he doesn't have any loans due to anyone. Within a year, a company owned by Alhassen comes before the Planning Commission with a request that's critical to a development project it's doing, and Thrasher repeatedly and successfully spearheads the opposition to this request. Can you say: Payback?

Perjury? Or at least a conflict of interest?

Not according to the Court of Appeal.

P.S. - I'd definitely hire Thrasher, who's no longer on the Planning Commission, as my financial advisor. Easy access at Fouth and Figueroa. 'Cause it's all about trust and integrity.

Hilton v. Hallmark Cards (9th Cir. - Aug. 31, 2009)

It's tough to figure out who to root for when Paris Hilton sues Hallmark Cards.

Does Paris Hilton get money for Hallmark putting her face and catchphrase ("It's hot") on a birthday card mimicking "The Simple Life"? Does Hallmark get to file an anti-SLAPP motion, and is it entitled to prevail?

Justice O'Scannlain gets the result right, and affirms the district court's denial of Hallmark's anti-SLAPP motion (and dismisses Hilton's interlocutory appeal of the denial of its 12(b)(6) motion). He also gets in some light comedy, which is nice. (Typical example: "[Hilton] is also famous for starring in “The Simple Life,” a so-called reality television program. The show places her and fellow heiress Nicole Ritchie in situations for which, the audience is to assume, their privileged upbringings have not prepared them. For example, work.")

But while there are parts of the opinion I like, as well as agree with, there are other parts I find less compelling. On the merits, for example, I'm not at all sure that I agree that Hallmark's conduct even properly gives rise to an anti-SLAPP motion. Sure, what Hallmark did entailed free speech, but to be protected, it's gotta be free speech in connection with a matter of public interest. Putting Hilton's face and catch phrase on a birthday card doesn't qualify in my mind, either as a matter of first principles or precedent. This is just regular old commercial conduct, and the fact that it's a celebrity doesn't change things. Misappropriation of someone's likeness doesn't -- and shouldn't -- get anti-SLAPP protection; instead, you just litigate these things out like any other case. Judge O'Scannlain's contrary analysis doesn't persuade me otherwise.

More broadly, I think this opinion may demonstrate something that I hadn't really considered before; namely, how difficult it may be for out-of-state appellate judges to grasp an area of state law that's non-routine yet fairly detailed. As I was reading Judge O'Scannlain's analaysis of California law, there were quite a few places where I said to myself: "No, that's not really right" or "That's a bit off." Moreover, the entire opinion sounds like it's written by a person who, prior to authoring the thing, has never even heard of an anti-SLAPP motion, and who's doing their best to articulate the relevant doctrines and resolve the appeal based upon a fairly superficial, first-level reading of the cases cited in the briefs.

Which, quite frankly, may in fact be the case. We know the bench memo and draft are written by a law clerk, after all, most of whom went to a national law school. How much do you learn about anti-SLAPP motions in your first -- or any other -- year? Almost invariably nothing. So you really do often start these things knowing nothing at all about the subject, and I'd not be at all surprised if the opinion reflects that fact.

That's not a slam. Or at least I don't intend it as one. When I was clerking, for example, I recall writing a trademark opinion -- one that continues to be quite relevant in the field -- even though I knew nothing at all about the subject area and felt like I was (of necessity) just skimming the surface of an in-depth body of law. Did I do a tolerable job? I hope so. Could someone with a great deal of expertise and experience in trademark law have done better? I'm sure they could. That's the nature of the beast.

What this opinion nonetheless highlighted for me is the importance -- or at least benefit -- of having appellate judges who are not only smart, but who also have a particularly broad level of background knowledge and expertise. That's hard to achieve. For example, here, I have no doubt that Judge O'Scannlain and his clerks are smart, and hardworking as well. Nonetheless, on a state-law topic like this -- one with a lot of cases, and a lot of detail, but which you don't see on the federal level every day -- the end product is an opinion that's often superficial as well as (in my opinion) materially wrong. Does it reach the wrong result? No, thankfully. But it does make for some dubious precedent. And were the facts of the tort itself different, it would have reached an erroneous result. Which would have been even worse.

You've got a lot of federal appellate judges who are good at, say, criminal cases, in part because they were former prosecutors and/or district court judges who spent most of their days on such matters. When you get to civil cases, however, and particularly state-law issues, sometimes you see opinions that are not so great. Even if written by perfectly decent chambers.

In my mind, this is one of them.

U.S. v. Gallenardo (9th Cir. - Aug. 28, 2009)

You think your husband may be cheating on you. You're thinking about looking through his briefcase to see if you can find any signs of infidelity.

Do you really want to know? What if what you find instead are pictures of a naked sixteen year old boy in the basement of your home?

Yokoyama v. Midland National Bank (9th Cir. - Aug. 28, 2009)

I like a fight as much as the next person. Really I do. But I'm not sure there's much there here.

This is a case where the district court denied class certification in a "deceptive marketing" case (here, involving annuities to seniors). Once I read that, I thought: This thing's gonna get affirmed. We give tons of deference to district courts in certification decisions, so the odds of reversal are pretty slim.

But the more I read about the facts, the more I thought: "Wait a minute. This is actually a perfect case for class certification. Plaintiffs may well have a shot." The allegedly deceptive material was all written -- in a brochure that was given to all of the members of the class. Moreover, the district court denied certification on the basis that each class member would have to demonstrate reliance, but that's not an accurate statement of the law of Hawai'i; instead, liability's based upon an objective test regarding whether the misstatement has a tendency to deceive. That's an issue common to the class, which means the thing should probably have been certified.

Which is essentially what the panel unanimously held, reversing and remanding the case back down to the district court.

So what's the fight about, you ask? Arguably, merely semantics. And indisputably about the appropriate standard of review.

Judge Schroeder writes the majority opinion. She says that while general class certification decisions are reviewed for abuse of discretion, the district court's alleged error of law in that decision is reviewed de novo. She spends a lot of time articulating and defending this principle, essentially saying that since a district court's legal error would be an error of law and hence a per se abuse of discretion, the review here is essentially de novo.

Judge Randy Smith, however, concurs, and takes serious issue with Judge Schroeder's articulation of the standard of review. He says, sure, errors of law constitute an abuse of discretion, but we still review the class certification decision for abuse of discretion rather than de novo. And, he says, if we wanted to do anything else, we'd have to take the case en banc. But, again, he agrees that the legal error here constituted an abuse of discretion that requires reversal.

Even after thinking about this for some time, I simply don't understand what all the fussin' and figtin' is about. It seems to me that we're just talking about different words here, not different concepts, and that both of these positions are substantively identical. And, at a minimum, that any differences are sufficiently marginal that there's not much reason to get especially snippy about an opposing view. (For a taste, even though Judge Schroeder reaches out to call Judge Smith her "respected dissenting colleague," he in return refers to her opinion as an "assault on Ninth Circuit precedent" and her legal analysis as "glib".)

It seems to me that both sides are really talking about the same thing. For Judge Smith, all As are Bs, and all Bs are Cs, and those are the steps you take. For Judge Schroeder, all As are Cs. Those articulations are indeed different. But they're also equivalent. Nothing rides on which approach you use. As, indeed, nothing rides on the differential analysis here, as everyone agrees that (1) we review legal errors de novo, and (2) legal errors constitute an abuse of discretion, and hence (3) where, as here, there's a legal error, we reverse and remand.

So, again, I like fights. I do. I just don't especially see a substantive one here.

Airlines Reporting Corp. v. Renda (Cal. Ct. App. - Aug. 27, 2009)

For what it's worth, I think that Justice McIntyre is right in this case. When a plaintiff gets a judgment in another state by default, and thereafter registers this judgment in California, the defendant can assert the absence of personal jurisdiction in the rendering state at any time. They're not bound by the 30-day limit established in CCP 1710.40. At the same time, the contrary argument raised by the (losing) appellant here shouldn't be sanctioned.

The only thing I'd add to Justice McIntyre's analysis is this. Justice McIntyre focuses on the fact that judgments without personal jurisdiction are void. Which is totally true, of course. But that does not mean that sister states can't place their own internal or procedural limits -- if they prefer -- on challenges to such judgments. For example, if CCP 1710.40 said that once a sister state judgment was registered, you had 30 days from notice of that registration to challenge personal jurisdiction in the rendering state, or be forever barred from any such challenge in California, that'd be permissible. California could then enforce the "void" judgment -- moreover, the plaintiff would be affirmatively entitled to do so -- after the expiration of that 30-day period. Sure, the sister state judment wouldn't be entitled to full faith and credit under the Constitution, but California could nonetheless permissibly grant it such effect as a matter of legislative grace. And the Due Process Clause would mean that the sister state judgment wasn't initially valid, but assuming the registration state (here, California) had both jurisdiction and proper notice -- which it seems exists here -- the 30 day rule would be a permissible one, and the judgment of the California court would be constitutionally valid.

Admittedly, in the end, I agree with Justice McIntyre that Section 1710.40 doesn't do that; instead, that it adopts a preferred rather than exclusive means through which to challenge a registered sister state judgment. I'm just saying that, if it were me, I might have relied a little less on the whole "void" stuff. Which is true, but not really what the case turns on. Crazily enough, even void judgments can be enforced sometimes. Just not here.

People v. Moberly (Cal. Ct. App. - Aug. 19, 2009)

It seems stupid in retrospect, of course. But I'd have also said it's not very wise at the time. So let me reiterate the message I learned from this case.

Yes, he's your 59-year old father, and he presumably loves you. But you two have just left a somewhat emotional therapy session, and you've got four children of your own you need to think about. When, after the counseling session, you go to your father's home to try to talk with him, and he pulls a gun on you, sure, he's probably just emotional, and probably doesn't categorically intend harm.

Nonetheless, when he tells you to leave, simply walk away. Do not -- I repeat, do not -- instead touch your head to the gun and say: "Go ahead, Dad. Go ahead and shoot me."

Because he just might.

U.S. v. Comprehensive Drug Testing (9th Cir. - Aug. 26, 2009)

Oh my God. This is such a freakishly good opinion.

Okay, okay. Maybe I should have high expectations. It's an en banc opinion, so you know it's going to get scrutiny. It's about the BALCO case, so it's going to get press coverage. Finally, it's written by Chief Judge Kozinski -- and on a topic (electronic privacy) in which he's keenly interested -- so his normally wonderful writing is presumably going to be even better.

But still. This is amazing. And I don't say that lightly. In my dreams I could write an opinion this good.

It's clear. It's concise. It provides meaningful, systemic guidelines. It's just. It's got a keen sense of both the practical way the world works as well as the dangers inherent in certain conduct. In short, it's exactly what I want in a wide-ranging opinion that makes meaningful precedent. (It also absolutely crushes the dissents of Judges Ikuta and Callahan, and even does so in a relatively nice way. Which just proves that you can afford to be generous when it's clear to everyone that you're both winning and right.)

I'm sure that I have a particularized fondness for this opinion because I've occasionally served as precisely the type of special master to search warrants to which Chief Judge Kozinski refers in the opinion (albeit in the non-electronic context), and agree that that's an extremely valuable role sometimes. But even without that experience I'd still find the opinion spot on. It's not that this is an easy case or that the result is self-evident. It's that Judge Kozinski writes something that, to me, is both exceptionally powerful and utterly persuasive.

I will say one more thing about Alex. As he's gotten older, and perhaps more bored/jaded, he's gotten a bit crankier and less fun at oral argument. But his opinions -- always good to begin with -- are as good now, and often even better, than they were a decade ago. He's definitely in his stride. And this one's a classic example.

If you only read a dozen Ninth Circuit opinions this year, this should be amongst them.

People v. Flores (Cal. Ct. App. - Aug. 19, 2009)

Here's a tolerable law review topic. One which I'll illustrate with the following hypothetical, which is an extreme application of the principle:

In 1993, the rules in murder cases allow introduction of X, Y and Z into evidence to prove an offense. In 1994, Flores allegedly commits a murder and flees to Mexico. In 1995, the Legislature changes the evidentiary rules, holding that not only are X, Y and Z admissible, but so are A through T -- all of which are things that are only tangentially relevant to the crime, but which allow the prosecution to "dirty up" the reputation of any defendant and thereby make a conviction easier. Flores in captured and prosecuted in 2006. Would the introduction of A through T violate the Ex Post Facto Clause?

What do you think as a matter of first principles? Would your analysis be altered given the classic exposition of the Ex Post Facto Clause in Calder v. Bull (which was reiterated by the Supreme Court in 2000), in which Justice Chase -- way back in 1798 -- said:

"I will state what laws I consider ex post facto laws, within the words and the intent of the prohibition. 1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender."

Hmmm. Whatcha think?

I'll give you the answer at least according to the California Court of Appeal. No Ex Post Facto Clause violation in our hypothetical. Read the opinion to see why (and whether you agree).

In Re A.I. (Cal. Ct. App. - Aug. 25, 2009)

Sometimes concepts like "fairness" and "equity" get lost in the shuffle. Not here.

Defendant (a juvenile) files a motion to suppress based on an illegal search. Since most of the prosecution's witnesses on this motion are the same on this motion and at trial, defendant agrees not to make them come back a second time. Instead, if defendant loses the suppression motion, the court will just proceed with the trial that same day, with the (few) other witnesses added at the end.

So the suppression motion proceeds, at the end of which the court denies the motion. So now it's time for the trial. But the defendant's eligible for deferred entry of judgment, so after losing the suppression motion, he says he'd like to plead guilty and get deferred entry. But the prosecutor says: "Sorry. You agreed to let the suppression witnesses count at trial, so the trial's technically already 'started,' which means you can't plead guilty and get deferred entry. If you hadn't been so generous, you could have gotten deferred entry after losing the suppression motion. But you didn't, so you can't." And the trial court agrees.

But not Justice Scotland. Who holds that "the minor's counsel deserves a pat on the back, not a stab in the back, for agreeing to a procedure intended to benefit the court and the prosecutor by avoiding repetitive testimony that would have unnecessarily burdened witnesses and used up precious juvenile court time." And reverses the judgment below, holding that the "trial" didn't start just because the defendant was willing to avoid the need for the witnesses to testify anew. In a decision that seems entirely right to me.

By contrast, wholly unrelated to the holding, I wanted to say that I found the defense in this case to be, well, downright silly. The minor's caught with 4.3 grams of marijuana, a digital scale, several dozen plastic baggies, and $512 in cash. His defense to the charge of possession for sale was that the marijuana was for his personal use -- that the scale was to "make sure the seller gave [him] the right amount"; the baggies were to "moderate how much [he] smoke[d]"; and the cash was the proceeds of a check.

Uh, dude. Thank God you pled guilty. Because I cannot think of a less persuasive story.

Fortunately, for you anyway, deferred entry of judgment it shall be. And I think that's by far the right call.

People v. Dungo (Cal. Ct. App. - Aug. 24, 2009)

From the outset of the opinion, it's not looking good for the defendant. Justice Blease begins with:

"Defendant Reynaldo Santos Dungo admitted choking his girlfriend Lucinda Correia Pina to death, but claimed he did so only after he was provoked to the point of losing control, and thus, was guilty of at most voluntary manslaughter. The jury disagreed and found defendant guilty of second degree murder . . . ."

That's not exactly how you want to see an opinion commence if you're on the defense side.

But how quickly things can change. Check out the subsequent two paragraphs:

"At issue is the defendant's Sixth Amendment right to cross-examine the pathologist (Dr. George Bolduc) who prepared the report on the cause of the victim's death. A critical fact in the trial was the duration of the choking, which bore on the defendant's culpability, whether he was guilty of murder or voluntary manslaughter. Dr. Lawrence was not present at the autopsy on the victim's body and was permitted to testify, over defendant's Sixth Amendment objection, as to the cause of death, including the amount of time the victim was choked before she died. In doing so, he relied on the facts adduced in an autopsy report prepared by Dr. Bolduc, Dr. Lawrence's employee.

The autopsy report itself was not admitted into evidence, though Dr. Lawrence disclosed portions of the report to the jury, and defendant was not able to cross-examine Dr. Bolduc either on the facts contained in the report or his competence to conduct an autopsy. Dr. Lawrence testified at a preliminary hearing that he was aware that Dr. Bolduc had been fired from Kern County and had been allowed to resign "under a cloud" from Orange County and that both Stanislaus and San Joaquin Counties refused to use him to testify in homicide cases. He explained that if Dr. Bolduc testifies "it becomes too awkward (for the district attorney) to make them easily try their cases. And for that reason, they want to use me instead of him.""

Say no more. I'm pretty confident where this one has to go at this point. Conviction reversed.

Thta's how quickly the worm turns sometimes.

Benyamin v. Holder (9th Cir. - Aug. 24, 2009)

Few things in life are certain. Death. Taxes. Stuff like that.

But let me add another item to the list. I'm exceedingly confident that if you're the BIA, and if you draw Judge McKeown as part of your panel on appeal, she isn't going to be all that pleased when you deny asylum on the ground that the child's threatened female genital mulilation "isn't really all that bad."

Okay, so that's a slight exaggeration of what the BIA said. Here are the actual quotes: Comparing a five-day old infant's involvuntary Type I genital mutilation to "a minor form of genital ritual," the BIA said that this act was "less extreme" than other situations in which people hack off parts of your body -- thanks for that, BIA --and "involves minimal short term-pain, suffering, and complications." Hence you're not eligible for asylum even if the applicant can demonstrate that that'll happen to her (or her child) if she's deported.

Needless to say, that ain't how Judge McKeown views it. Or the rest of the panel (Judges Betty Fletcher and Randy Smith). Or anybody else who's rational, in my view.

I surely can't complain about the opinion, which is both well-written as well as reaches the right result. The only thing I might have added is a less sterile description of what's at stake. The opinion nowhere describes the procedure we're talking about other than calling it "Type I." Descriptive words like "clitoridectomy" -- or even "clitoris" -- are nowhere in the opinion, or even a routine description of what transpires and why.

Now, I understand that maybe we're writing for the squeamish, but when the opinion is all about why this procedure is still horrible (albeit less devastating than, say, Type IV), I think it'd be helpful to be more than clear about what we're talking about. This is not a piercing. This is not a minor act. This is something that's incredibly substantial, and its involuntary practice more than justifies asylum.

Judge McKeown does a very good job describing how Type I multilation can cause complications, damage to the psyche, etc. But we need a little more of this type of stuff as well. Because, especially here, the more you know, the more persuasive the opinion.

At least in my view.

U.S. v. Gonzalez (9th Cir. - Aug. 24, 2009)

Headline of the Day: "Ninth Circuit Concludes That Police Search Was Proper And Hence Evidence Was Lawfully Admitted, But Supreme Court Grants Certiorari, Vacates and Remands, At Which Point Ninth Circuit Is Forced To Reverse."

Or, more concisely, "Man Bites Dog."

Humanitarian Law Project v. U.S. Treasury Dep't (9th Cir. - Aug. 24, 2009)

The majority opinion describes the issue presented with the following opening line: "We are asked to invalidate the President’s authority to designate terrorist organizations when there is an extraordinary threat to national security . . . ." At which point you can pretty much figure out where the rest of this one's going.

There's a dissent as well, and as between Judges Rymer and Pregerson, you can easily intuit which one's writing the majority opinion and which one's writing on the bottom side.

Personally, I didn't think plaintiffs here had much of a shot anyways. Certainly not in the Supreme Court (if it ever got there), and not even in the Ninth Circuit. The case was argued on appeal by a very bright academic, David Cole, and I have no problem whatsoever with the arguments that were made. But I think the best they had was a non-zero chance of prevailing.

Which may be enough, of course, for public interest work. At least if you ignore the downside of creating potentially bad precedent for future cases. Something to consider, anyway.

Of course, I could be totally wrong. Maybe this one gets taken en banc, reversed, and then affirmed by the Supreme Court on a 9-0. But somehow I doubt it. I think Judge Rymer wins this one.

U.S. v. Brandau (9th Cir. - Aug. 21, 2009)

The best way to reflect what an opinion says is often to use its own words. But on occasion, the message that one should receive from an opinion is nowhere expressed therein. That's where I can help.

Take this opinion. On its face, it's a simple remand order. Plaintiffs challenged a policy, it's unclear whether or not that policy is moot since it has been largely discontinued, and so the Court of Appeal remands to allow the district court to determine whether the practice persists. Pretty straightforward, right?

Except if you read between the lines. Intended or not, this is what I read from the blank spaces in the opinion:

"The Eastern District of California shackles every single criminal defendant at his or her initial appearance, in full body (leg and arm) restraints. This includes the two plaintiffs here, both of whom manifestly present no security danger whatsoever. (The first defendant was a guy arrested in Yosemite the previous night for public intoxication, and the second was a woman charged with submitting false claims to FEMA and who, given her cooperation, the FBI let self-surrender herself to the Marshal.) But after this practice got some attention and some litigation, it was revised, and now the Eastern District's policies provide for presumptive shackling but at least ostensibly allow individualized determinations as to whether shackling is necessary.

The US Attorney argues the case is therefore moot. But there are lots of exceptions to that rule. Plus, at oral argument, both sides basically admitted that everyone still gets shackled, and that they've never actually seen any individualized determinations that the rules allegedly allow.

So where does this leave us? Well, absent a little more evidence in the record, we're a bit hesitant to reach the merits at this point, given at least the possibility of mootness. So we'll go ahead and remand for an evidentiary hearing. Nonetheless, based on what we've said thus far, everyone should get a pretty good sense at this point how this case will eventually come out. Do we need to remind everyone, for example, that the panel consists of myself (Judge Reinhardt) -- take a flying guess as to how I'm voting -- Judge McKeown -- hardly a "Shackle 'Em All And Let God Sort 'Em Out" jurist -- and Judge Noonan, who's more than willing to express outrage when he perceives it? We've got the case now, and we're getting it back after remand. Got a clue as to where this one is headed?

Lest you not get the hint from the tone and content of our opinion -- which ostensibly doesn't say anything at all about either the merits or the mootness issue -- let's do a couple of more things at the end of the opinion to help clarify things for you. Like assigning the case to an out-of-Eastern-District judge on remand. And ordering that all the judges in the Eastern District be notified of this opinion, and adding at the end that they aren't represented by the U.S. Attorney's Office in this one, so they might want to retain separate counsel.

Can you take a hint? Do you think we want you to stop the policy of shackling everyone? Can you at all read between the lines, or do we also need to physically bludgeon you as well?"

That's my take, anyway. If I'm the Eastern District, I make a new rule and start conducting individualized determinations. Becaause I can read. Even a decision, like this one, written in invisible ink.

U.S. v. Saavedra-Velasquez (9th Cir. - Aug. 21, 2009)

I can't say it any better than Judge Reinhardt, who authors the opinion:

"As an “attempt” in the state of California requires only “slight acts in furtherance of the [criminal] design,” People v. Superior Court, 157 P.3d 1017, 1022 (Cal. 2007) (emphasis added), one would reasonably expect that the California definition was categorically broader than the definition at common law, which requires a “substantial step towards committing the crime,” United States v. Sarbia, 367 F.3d 1079, 1085-86 (9th Cir. 2004) (emphasis added). Strangely enough, however, we are required by precedent to conclude that the two definitions are functionally equivalent."

Hence an attempted robbery in California entails a "crime of violence" for guideline purposes even though such an act is ostensibly impermissibly broader than the common law definition. The basic rationale being that even though the California Supreme Court has said that only a "slight" act is sufficient, as actually applied by the California judiciary, that's not in fact the case: they actually require a "substantial" act in practice even though precedent says that the test only requires a "slight" act.

You also gotta love Judge Reinhardt's concurrence to his own opinion. Take a look:

"It does not take a learned legal scholar to grasp the difference between the words “slight” and “substantial,” but it does, apparently, take members of the judiciary to equate the two terms. . . . “Slight” and “substantial” are opposites — according to the dictionary if not the Federal Reporter. “Slight” is defined as “small in amount, degree, etc.” or “of little importance . . . ; trivial.” E.g., Random House Dictionary of the English Language 1340 (1979). “Substantial,” by contrast, means “of ample or considerable amount, quantity, size, etc.” or “essential, material, or important.” Id. at 1418. Today we have compared a definition of attempt that requires an act “of little importance” with a definition of attempt that requires an act that is “essential, material, or important,” and we have held that the two standards are the same. That conclusion is nonsensical. It is not our function to devalue the English language by disregarding the meaning of words.

Nevertheless, because California’s “slight acts” test appears to be indistinguishable from the test employed in Nevada, I am bound by Sarbia and therefore compelled to reach the conclusion that I and my colleagues unanimously do. My obligation to follow precedent must override both logic and my sensibilities — not for the first time and, I am sure, not for the last."

Classic.

Rodriguez v. Hayes (9th Cir. - Aug. 20, 2009)

In a case brought by the ACLU on behalf of aliens detained for more than six months without a bond hearing while engaged in immigration proceedings, when the plaintiff files a motion for class certification -- and the defendant opposes it -- is it really too much to ask the district court to say something about the merits of that motion beyond a conclusory two-sentence disposition? You know: Factual findings, legal analysis, etc. etc. To do, one might say, one's job?

It'd make the parties happier. It'd lessen the burden on the appellate courts. If nothing else, it's a common courtesy.

Let's just say that this case doesn't arise from Judge Hatter's best work.

In Re Johnson (Cal. Ct. App. - Aug. 4, 2009)

So you want to be a justice on the Court of Appeal (or a law clerk there), eh? The excitement. The novelty. The power. The duty to personally review articles in Men's Health about how to give women a really good orgasm to see whether a prisoner can be properly written up for having them. It's enough to give you chills.

No snarky comments allowed, by the way, on the fact that the prisoner here need not read the article anyway since he's going to be in prison for a long time and have no ability to use his new-found skills. Remember: Prison's all about rehabilitation. We want you to be ready, willing and able to reenter society once you get out. Really, really ready. On all fronts.

P.S. - On the merits, I agree with Justice Wiseman that there's no due process right of judicial review for the issuance of CDC 115's that don't involve the loss of custody credits. I did want to add, however, that I think it's a tougher question -- one that's admittedly not raised by this case -- whether such a right exists with respect to 115s that are subsequently relied upon by the parole board to deny parole. It seems to me that in such cases, continued custody is indeed at issue, at which point due process rights validly attach. Just something to think about in the future.

U.S. v. Harrison (9th Cir. - Aug. 19, 2009)

I wish all opinions were like this.

The majority opinion, written by Chief Judge Kozinski, is concise, witty and fun. It also contains a tone that seems exactly right to me.

Here's how the majority opinion describes the facts:

"This is a tale of two Rex Harrisons. The first is the Harrison of Officers Jenkins and Kirby, two military police officers, who describe a man so drunk he could barely stand straight. A man who reeked of alcohol at a distance of six feet. Who snarled, “I don’t think I should have to give you shit” when asked for his driver’s license. A man who punched Officer Jenkins in the face and told Officer Kirby, “I’m not afraid of you and I’m not afraid of your fucking dog.”

The second Rex Harrison is the man of his own telling. This Harrison had only “a couple of beers with dinner.” When confronted by the officers, he humbly apologized for trespassing. This Harrison was calm and non-confrontational; he had the milk of human kindness by the quart in every vein. He certainly never hit anyone.

The jury must have believed the first story because it convicted Harrison of two counts of assaulting a federal officer. He appeals."

I like it. I'd have liked it even more if Judge Kozinski had managed to work in the tale of a third Rex Harrison, but that's neither here nor there. (POSTSCRIPT - Of course, Judge Kozinski indeed did so, which I'd have realized if I were nearly as big of a fan of showtunes as those in his chambers. Hence the "milk of human kindness by the quart in every vein" line.)

I also liked Judge Kozinski's straightforward discussion of the errors at trial, which I think had exactly the right proportion of measured anger. Here's a sample:

"It’s black letter law that a prosecutor may not ask a defendant to comment on the truthfulness of another witness, [cites], but the prosecutors here did just that. One prosecutor asked: “You’re saying that [they’re] going on the stand, swearing an oath to testify to the truth and then lying . . . ?” He even pitted his own credibility against Harrison’s, asking, “So I’m in the conspiracy against you, is that right?” These were not isolated incidents: Improper questioning was an organizational theme for the prosecutor’s entire cross-examination.

The vouching was similarly patent. The government was entitled to rebut Harrison’s suggestion that Officers Jenkins and Kirby were motivated to lie, but it crossed the line when one prosecutor mentioned during closing that the officers had been promoted “with no adverse action whatsoever” after an internal military investigation. This clearly “suggest[ed] that information not presented to the jury,” but available to the investigators, supported the officers’ testimony. [Cite] And it would be hard to find a clearer case of “placing
the prestige of the government behind a witness,” id., than the prosecutor’s statement that the “[g]overnment stands behind” Officers Jenkins and Kirby.

The government concedes the impropriety of many of these statements, but points out that the prosecutors were Special Assistant United States Attorneys on loan from the military. That’s no excuse at all; when the United States Attorney endows lawyers with the powers of federal prosecutors, he has a responsibility to properly train and supervise them so as to avoid trampling defendants’ rights. Indeed, everyone involved could have done better: The defense attorney should have objected as soon as he saw the prosecutors step out of line. And the respected and experienced district judge should not have tolerated this protracted exhibition of unprofessional conduct."

The only place where I think Judge Kozinski, joined by Judge Callahan, goes astray is in the dispositive section on harmless error. The majority concludes that Harrison was clearly guilty, and hence that the plethora of misconduct didn't matter. But Judge Bybee does an outstanding job of refuting this argument in his dissent. This was a classic credibility contest -- one that we traditionally leave for resolution by a jury, not three judges on the Court of Appeals who weren't present at trial. Judge Bybee's analysis is also perfectly restrained, as he (rightly) admits that Harrison wasn't credible on a number of collateral points but that a reasonable jury might well have nonetheless concluded that his story on the central point was credible (or established reasonable doubt). This is especially the case since Judge Bybee totally wins, in my view, the debate about the physical evidence. Here's the money portion of that discussion from Judge Bybee:

"The physical evidence bearing on this question didn’t amount to a hill of beans. Investigator Sutherland testified that Officer Jenkins had a bruise on his face shortly after the initial encounter with Harrison and he described the bruise as a “7 to 8” on a scale from one to ten; however, Investigator Sutherland took two photographs of Officer Jenkins’s face within hours of the disputed events, neither of which depict any noticeable redness or swelling. [Compare ER 415-16, with DSER 1-3]. Even assuming that Officer Jenkins’s injuries were indeed far more severe than these photos indicate, any such injuries are quite arguably consistent with Harrison’s version of events, in which he claimed that Jenkins initially tackled him and that both of them then hit the ground hard. The majority also relies upon testimony of an injury to Harrison’s
knuckles, but we don’t have any visual evidence indicating the severity of this injury; given the government’s
seeming exaggeration of the injuries to Officer Jenkins’s face, I am not inclined to take this testimony at face value (no pun intended) and the majority shouldn’t either. In any event, while the jury could have found this to be evidence of assault, it also could have accepted Harrison’s claim that any such injury was the incidental result of Jenkins having tackled him. Contrary to the majority’s characterization then, the jury’s determination on count one indeed involved little more than a credibility contest between Harrison on the one hand, and Officers Jenkins and Kirby on the other."

That seemed exactly right to me.

So while I thought that Judge Bybee had the better of the argument, especially given my principled reluctance to resolve credibility contests on appeal, I don't want to lose track of my central point, which is that I thought that both of these opinions were extremely good and exceptionally well-written. Definitely worth a read.

U.S. v. Hector (9th Cir. - Aug. 18, 2009)

I must admit I'm surprised.


Defendant gets convicted of two counts at trial: (1) receipt, and (2) possession of child pornography. The Ninth Circuit subsequently holds that you can't be convicted of both. So which conviction stands, and who decides? (This matters a ton since receipt has a five-year mandatory minimum but possession doesn't.)

The first paragraph of Judge O'Scannlain's opinion framed the question as: "As between the prosecutor and the trial judge, who determines which conviction to vacate when a defendant has been convicted of multiplicitous offenses in violation of the Double Jeopardy Clause?" When I read that, my initial reaction was: "I would think the prosecutor gets to decide, since they are the ones who brought the charges in the first place, and thus have the discretion to drop one or the other at outset -- a discretion that presumably continues." I also had a sense that Judge O'Scannlain would probably feel the same way.

But after reading the opinion, I learn not only that Judge O'Scannlain comes out the other way, but also that he's right -- and that my initial impression was wrong. Here's a case where (1) there's a rule, and (2) the rule matters.

Federal Rule of Criminal Procedure 48(a) says: “The government may, with leave of court, dismiss an indictment, information, or complaint. The government may not dismiss the prosecution during trial without the defendant’s consent.” Judge O'Scanlain persuades me that, yep, that means the court -- not the prosecutor -- gets to decide which count gets dropped post-conviction, at least when (as here) the defendant won't consent to dropping the possession count given the differential sentencing regimes.

You learn something new every day.

People v. Hochanadel (Cal. Ct. App. - Aug. 18, 2009)

A mixed bag (pardon the pun) today for pot dispensaries in California. On the one hand, the Court of Appeal uphold the dispensary provisions of the Medical Marijuana Program Act against various challenges -- a result that's huge for storefront operations. On the other hand, with respect to the particular defendants here (the proprietors of "Hempies" in Palm Desert), the Court of Appeal reverses the dismissal of the charges against 'em and confirms that dispensaries can't be "primary caregivers" under the Compassionate Use Act (though they may be permissible "collectives").

So check it out if you're a big medical marijuana person.

It's also an informative opinion for those of us sitting on the sidelines, especially since the factual recitations of the opinion go into a fair amount of detail about the financial condition of the business here. For example, I was surprised at both the volume of business -- the store had annual revenues of $1.7 million a year -- as well as its precarious financial status, with expenses of $2.6 million even without including rent and utilities. That may make for a good internet startup in the old days, but I didn't realize that dispensaries were "upside down" in this fashion.

Plus I thought it was interesting that the dispensary here apparently sold weed for above market costs, which I had always thought was opposite of how these things generally worked. Hempies was apparently selling pot for $260/ounce (and other weed for $260/half-ounce). Based on my very limited knowledge of the market, I initially thought that sounded somewhat reasonable (at least the former), but apparently that's around twice the price of mid-grade chronic on the street. And even at that, they still can't make a profit.

My interest in this topic has been piqued lately because I have lately started hearing radio advertisements for medical marijuana dispensaries -- something that I've never heard before. They're invariably on the "hard core"/progressive music stations, which both proves that the advertisers know their market as well as is likely indicative of what types of stations are probably willing to accept these ads.

Still, I found it fascinating that we now have mass media avertisements, over federally regulated airwaves, for a product that is indisputably illegal to possess or sell. We clearly live in a rocking world.

U.S. v. Alba-Flores (9th Cir. - Aug. 18, 2009)

Alba-Flores drives eight pounds of meth into San Ysidro and is caught. He's facing a ten-year mandatory minimum, but he strikes a deal with the government. Everyone agrees that he'll plead guilty and provide all the information he can about his offense and his confederates, and in return the government will recommend application of the safety valve so that Alba-Flores can potentially get below the ten years.

Everything goes as planned, except for one hitch. Alba-Flores had previously pled guilty to driving on a suspended or revoked license, which (of course) pales in comparison to his current offense. But when the parties discovered that he had been sentenced to three years of probation therefor, that meant that Alba-Flores had more than one criminal history point, which made him ineligible for the safety valve.

At which point Alba-Flores does a pretty bright thing. He goes up to Kern County, which is where he was convicted of the license offense, and asks the judge to reduce the charge to an infraction and dismiss terminate probation nunc pro tunc -- a request the court grants. Since his probation had now been terminated short of one year (his probation started on February 22, 2006 and the order was entered on February 13, 2007), Alba-Flores loses the criminal history point and qualifies for safety valve relief. Or at least so he argues.

But the Ninth Circuit, in a split opinion, disagrees. I won't belabor the extensive discussion of precedent in the various opinions, though it's interesting stuff. The majority opinion is authored by Judge Fernandez and joined by Judge Randy Smith. No huge surprise there. Let's see if you can figure out who authors the dissent. Since it's a very interesting piece of work in its own right, I'll help Name That Tune by giving a fairly expansive snippet thereof:

"Four months ago, in United States v. Mejia, 559 F.3d 1113 (9th Cir. 2009), we explained that the Guidelines calculate criminal history based on probation actually served, rather than the amount of probation originally pronounced. . . . Alba-Flores served eleven months on probation for driving with a suspended license so, under Mejia, he didn’t serve a “term of probation of more than one year” and gets no criminal history points for this offense. U.S.S.G. § 4A1.2(c)(1)(A).

The majority refuses to follow Mejia, precipitating a conflict in the law of the circuit. My colleagues seek to justify themselves by claiming that Mejia didn’t “intend to hold that when a person was actually under a probation sentence of more than a year at the time he committed his federal offense, he was not under a criminal justice sentence if he had not yet completed over a year of that state probation term.” Maj. Op. at 11269. But neither of my colleagues was on the Mejia panel, so they couldn’t possibly know what Mejia “intended” beyond what its words say. And its words quite clearly say nothing like what the majority holds. If we were all free to ignore the language in opinions based on what we believe they secretly intended, the law of the circuit would be meaningless. . . .

The majority compounds the problem by relying on two out-of-circuit cases featuring defendants who actually served over a year of probation. . . . The majority nevertheless declares that the “same odor of gaming the federal sentencing system” emanating from those cases “emanates from this one.” Id. at 11269. Perhaps the out-of-circuit cases have a point when state courts try to retroactively call a fish a fowl, but what possible “gaming” can there be when the state court reduces a criminal defendant’s sentence prospectively so he actually serves less time? The federal system relies heavily on state courts in sentencing defendants and it’s wrong and pernicious to call these judgments into question because the state judges may have taken
into account the effects on federal sentencing. State judges are often mindful of the federal implications of their sentences, as well they should be. The majority is wrong to cast aspersions
on this salutary practice. . . .

In addition to creating a conflict in the law of the circuit and injecting uncertainty into sentencing, the majority contravenes the general principles of modern sentencing jurisprudence: “One theme runs through the Supreme Court’s recent sentencing decisions: [United States v.] Booker empowered district courts, not appellate courts . . . . [and] breathe[d] life into the authority of district court judges to engage in individualized sentencing . . . .” [] If a district court disagrees with the guidelines or feels that state courts are meddling, it has broad discretion to give an above-guidelines sentence. The majority stands this principle on its head by forcing district courts to give extremely harsh sentences against their better judgment.

Neither of the judges who actually sentenced Alba-Flores—a first-time, unarmed, hapless drug deliveryman who’s only prior was driving with a suspended license—thought he deserves to spend ten years in federal prison. The state court judge didn’t think so and terminated Alba-Flores’s probation early to avoid the harsh effects a longer period would have on his federal sentence. The federal judge agreed with the state judge but (wrongly) felt handcuffed by the pre-Mejia law. SER 210 (“[A]s I’ve said before, I’m not particularly keen about the idea of imposing minimum mandatory sentences in a case such as yours . . . but I think I’m bound to by law.”). We shouldn’t be so eager to override the hands-on judgment of two trial judges who have actually seen the defendant and are far more familiar with his need for punishment than we
are."

So there you have it. A pretty involved statement of legal principles. Who's it from? The only hint I'll give is that it's an active member of the Ninth. You've got three guesses.

Here's the (slightly surprising, though not stunning) answer.

U.S. v. Thongsy (9th Cir. - Aug. 17, 2009)

There are limits to where experience can take you. For example, I've never slept in a tent with two other guys guarding an 160-acre marijuana field in southern Oregon with 8,918 marijuana plants. Or at least I'm not going to admit that I have. Nor have I, while sleeping in such a tent, had a .45 semi-automatic pistol on my sleeping bag alongside a rifle and other firearms in the tent. So I admit that my particularized experience in this area is not totally on point.

But, still, I don't think it's hard at all to conclude -- as the Ninth Circuit does here -- that even though there's no hard-and-fast "evidence" that the guy lying in the sleeping bag (as opposed to either of the other two guys) was the one who "possessed" the .45, and similarly no absolutely conclusive evidence that he was using the gun to guard the field (as opposed to, say, just target shooting), I can still say with extreme confidence that both of these facts are true. Even with my lack of personal experience in this area. We all know that you possessed the gun and why you had it. And when the jury convicts you therefor, your argument on appeal that you should be acquitted based on insufficient evidence is not going to be persuasive. Not to Judge Ikuta -- who authors the opinion -- or pretty much anyone else either.

Yes, technically, there might be an alleged "deficiency" in the direct evidence, and I understand the argument that there's no proof beyond a reasonable doubt. But the law ain't blind. Neither are juries. Hence the result here.

Fashion Valley Mall v. County of San Diego (Cal. Ct. App. - Aug. 17, 2009)

This one might be interesting only to people who live in San Diego and who shop at the Fashion Valley Mall. But since that's an appreciable fraction of my friends and neighbors, I'll mention it.

Otherwise, it's a boring, fact-specific tax case about whether a particular transaction resulted in the transfer of 50% versus 100% of the mall (and hence changed its tax basis). On the upside -- at least for residents of San Diego -- the County of San Diego wins in the Court of Appeal, which means several more million dollars per year in taxes from the owners of the mall.

So I figure all we gotta do is win another thousand or so of these cases and, poof, San Diego's budget problems will be solved. (On the downside, the law firm that structured this transaction in an unsuccessful attempt to avoid taxes is probably pretty unhappy today.)

Ransom v. MBNA Bank (9th Cir. - Aug. 14, 2009)

When you file for bankruptcy under Chapter 13, you get to deduct from your projected disposable income the "ownership costs" of a vehicle; e.g., lease or loan payments. But do those costs also include the costs of owning a vehicle you own free and clear?

This is an issue that's beguiled courts for several years, and on which the various circuits are intractably split. The Ninth Circuit joins the fray today, holding that the answer is "no".

Judge Trott ends his opinion in an interesting way, which I thought had some validity and which I'll share. He says:

"The 'correct' answer to the question before us, which the courts have been struggling with for years—at the unnecessary cost of thousands of hours of valuable judicial time—depends ultimately not upon our interpretation of the statute, but upon what Congress wants the answer to be. We would hope, in this regard, that we the judiciary would be relieved of this Sisyphean adventure by legislation clearly answering a straightforward policy question: shall an above-median income debtor in chapter 13 be allowed to shelter from unsecured creditors a standardized vehicle ownership cost for a vehicle owned free and clear, or not? Because resolution of this issue rests with Congress, we have taken the unusual step of directing the Clerk of the Court to forward a copy of this opinion to the Senate and House Judiciary Committees."

I liked this out-of-the-box thinking, and there's definitely no downside to it. Though I also had the following two brief thoughts. First, as far as I can tell, the dispute on this point has only existed for years, not decades, so I'm not sure it's as desperate (or unusual) as Judge Trott's conclusion might make it appear.

Second, as I was reading the opinion, I actually had a slightly different reaction than Judge Trott. My reaction was: "Even though this is a piddling dispute, it seems common enough, and the circuits are surely split, so this looks like a case the Supreme Court should take up." Which seems both more likely than Congress taking it up and perhaps the usual course. What I traditionally expect in cases like this is that the matter percolates for a while, the circuits either reach a consensus or solidify the split, and then the Supreme Court steps in to resolve the matter -- at which point Congress can act to change the result if it doesn't like it.

There's no reason, of course, that Congress couldn't step in earlier. And I agree that doing so would be a good idea; assuming, of course, there's no tradeoff with something more important (e.g., getting out of a recession, dealing with multiple ongoing wars, etc.). So, again, I'm not at all against what Judge Trott's done here. But if it were me, I might also have added something like: "Barring prompt Congressional disposition, we would also suggest that this matter is worthy of prompt resolution by the Supreme Court; moreover, that the present case would be an appropriate vehicle in which to do so."

If Congress wants to pass a statute after the Court has granted certiorari, all the better. But at least this way we'd know that, one way or another, we'll get an answer.

Just a suggestion. Again: I like Judge Trott's creativity here.

People v. Neely (Cal. Ct. App. - Aug. 13, 2009)

Comparing cross-jurisdictional debates is sometimes enlightening. For example, for all of the high-profile commentary and precedent about the wisdom and validity of the federal sentencing guidelines, far too often overlooked is what happens in California. In which the sentencing regime is arguably equally (if not more) complicated, equally (if not more) determinate, and which has generated its own substantial debate.

For this reason, I was totally psyched for this opinion. Which Justice Perren begins (after a brief introduction) as follows:

"For over 30 years, opinions of the California Courts of Appeal have commented on the frustrating and needless complexity of the Determinate Sentencing Law (DSL). Reversals and remands for resentencing resulting from the misapplication of the DSL litter the pages of appellate decisions, both published and unpublished. [citations omitted] This is yet another such case to fall victim to the "labyrinthine procedures," [citation] of the "legislative monstrosity" [citation] whose "mind-numbingly complicated" [citation] statutes are "capable of ensnaring even its most erudite afficionados." [citation]"

Sweet!

I'm sure Justice Perren's right. That said, I also gotta say that he actually helps out a lot -- at least to the unenlightened masses such as myself -- by explaining this system. Indeed, he explains it so well that at the end, I was actually thinking to myself: "Wait. I can actually understand this. Cool!"

So I thought I'd share his description for the equally uninformed (with citations omitted):

"Section 1170.1 sets forth the sentencing protocol for felony offenses for which a determinate low, middle or upper term of incarceration is imposed. It also sets forth the rules for imposing a consecutive sentence through the designation of "principal" and "subordinate" terms. First, the trial court is required to select a base term--either the statutory low, middle or upper term--for each of the crimes. Second, if the court determines that a consecutive sentence is merited, it must designate the crime with the "greatest" selected base term as the principal term and the other crimes as subordinate terms. Third, the court sentences the defendant to the full base term it selected for the principal term crime and one-third of the middle term for any crimes for which the sentence is ordered to run consecutively. A subordinate term is one-third of the middle term even if the trial court had initially selected the lower or upper term as the base term.

Offenses for which an indeterminate sentence of life imprisonment or death can be imposed are not subject to section 1170.1. Consequently there are no principal and subordinate terms to be selected. The court simply imposes the statutory term of imprisonment for the indeterminate sentence crime which in this case is 25 years to life.

Once the court determines what sentence is to be imposed for the indeterminate term offenses and the determinate term offenses, it combines the two to reach an aggregate total sentence. Nothing in the sentencing for the determinate term crimes is affected by the sentence for the indeterminate term crime.

Such sentencing has been conceptualized as sentencing in separate boxes. Applying this "box" analogy to the instant case, the indeterminate term crime of first degree murder is placed in one box. The court imposes the required 25 years to life sentence and, in the same box, adds any enhancements to that sentence. The total sentence in the indeterminate term box is 25 years to life for the murder plus 10 years for the firearm enhancement.


A second box is created to include the three determinate sentence crimes. Applying section 1170.1, the court would select a base term for each of the crimes, set the crime with the greatest base term as the principal term, impose the full base term as the sentence for the principal term crime, and impose one-third of the middle term as a consecutive sentence for any subordinate term crimes. Should the court choose to run one or more of the determinate terms concurrently, it would impose the full selected base term and order it to be served concurrently with the principal term. In this case, the greatest base term was the four-year middle term selected for the drug crime. That crime would have been designated the principal term and received a full four-year sentence.

The consecutive sentence for the King attempted robbery would have been eight months (one-third of the two-year middle term).

After these calculations, the second box would be complete and contain the total sentence for all the determinate sentence crimes. The court would add the term of the second box to the term of the first box to arrive at the total aggregate sentence."

So there you have it. "California Sentencing In A Nutshell".

People v. Martinez (Cal. Supreme Court - Aug. 13, 2009)

Thinking about hiring a babysitter who lets her drug-addled boyfriend -- who carries a buck knife on his hip and who's previously drawn a picture for your ten-year old daughter of a cross dripping with blood -- visit her while she's babysitting your children?

Think again.

Flores v. Horne (9th Cir. - Aug. 13, 2009)

This is surely amongst the shortest published dispositions of the Ninth Circuit recently, which states in its entirety: "We remand this case to the District Court to comply with the Supreme Court’s decision in Horne v. Flores, 129 S. Ct. 2579, 2607 (2009)."

Sometimes you're just a functionary.

People v. Peyton (Cal. Ct. App. - Aug. 10, 2009)

Okay, so I clearly was not at the trial. But just based upon reading the Court of Appeal's opinion, are you really sure the defendant's in fact guilty? I mean, like, positive of it, as opposed to just willing to believe it? Positive enough to sentence him to 66 years in prison without any apparent criminal history whatsoever?

The following is admittedly irrational and wrong of me. But I'll share it anyway: I'm somewhat internally more reluctant to believe guilt in closely-disputed cases when the sentence is (essentially) life in prison as opposed to, say, a decade. When it's 10 years, I tend to say: "Well, I'm not positive from what I read that you're guilty, but you could easily be, so I guess I'm on board." Whereas when it's, say, death or life in prison, I'm inclined to really want to be totally sure the guy's guilty.

Which I'm not here. (But, again, I wasn't at the trial.)

Does anyone else share my irrationality? Is there any part of this guy's sentence, given the facts, that disturbs anyone?

People v. Flores (Cal. Ct. App. - Aug. 11, 2009)

Speaking of sentences, what do you think the appropriate sentence is for spitting on a prison guard?

How about five years?

Too long? Too short?

People v. Moore (Cal. Ct. App. - Aug. 11, 2009)

Why did it take almost four full years after the discovery of the fraud to file criminal charges? Moreover, why does someone who steals $44,000+ from the LA Dep't of Public Social Services get probation when someone who steals a slice of pizza may get 25 to life?

Doesn't make sense to me.

U.S. v. Monghur (9th Cir. - Aug. 11, 2009)

Judge Tallman finds -- in a quite well-written opinion -- that there's a qualitative difference between (1) forthrightly admitting to the police that you have cocaine in a closed container, which suffices to waive your Fourth Amendment privacy expectations, and (2) using secret code words in a jailhouse telephone call that you know is monitored in the hope that your confederate can dispose of some evidence, which does not.

But Judge Tallman then concludes the opinion by hinting to the district court that this might be a good case in which to apply Chief Justice Roberts' suggestion earlier this year (in Herring) that courts shouldn't apply the exclusionary rule when they don't feel like it. (I'm paraphrasing, of course, but that's pretty much how I view it.)

There are lots of ways to lose a criminal appeal. Even when you technically win. This one's another.

Gilman v. Dalby (Cal. Ct. App. - Aug. 10, 2009)

Here's a case that's important to any attorney with a personal injury practice. It's also one that I think does an outstanding job of analyzing and resolving the competing public policy considerations at issue.

The simple question is whether an attorney or medical lien has priority when both exist. For example, a guy gets hit by a car, goes to the hospital and incurs expenses for medical services (thereby resulting in a lien), and then goes to a lawyer and incurs costs and fees for legal expenses in suing the defendant (thereby resulting in another lien). If the result of the lawsuit is $X, and X is insufficient to fully pay both the medical provider as well as the hospital, which one of 'em gets stiffed?

The traditional rule is that the lien that's first in time has priority. Which would mean that the medical lien prevails. This result is consistent with the fact that the medical expenses also largely generated the recovery of $X from the defendant as compensation for out-of-pocket losses.

But Justice Scotland rightly holds, I think, that notwithstanding these considerations, the attorney lien has superior priority. Read the whole thing to see why; it's not especially long, and is extremely cogent.

I do wonder whether a group of doctors would write a similar opinion. My sense is that judges -- who know how litigation like this practically works -- have a heightened understanding than outsiders regarding why attorneys need to be paid first. A cynic might view the opinion as lawyers looking out for their own. I can understand such a perspective, though think it's off. I instead think this is an example of lawyers perhaps knowing more than others and, in light of this knowledge, recognizing that public policy is indeed advanced by a decision that favors the lawyers.

I did have a tangential thought regarding why it isn't worth at least considering whether public policy would be maximally advanced by having both liens have equal priority; e.g., each of 'em taking a haircut when there's not enough money to go around. Such a position seems at least plausible to me. Ponder if you think that'd be an even better (or worse) position than the one adopted by the Court of Appeal.

I'm not necessarily advocating it. I just think it's worth thinking about.

Regardless, today: Lawyers 1, Doctors 0.

Richter v. Hickman (9th Cir. - Aug. 10, 2009)

It's overstated to say that who's drawn for the en banc panel invariably matters. It's not too much, however, to say that it's often very important what the wheel brings. Here's a good example.

It's an ineffective assistance of counsel habeas case that gets dismissed by the district court and, back in April of 2008, is unanimously affirmed by the panel, which consists of Judges Beezer, Trott and Randy Smith.

The case then gets taken en banc. Recall that Democratic appointees are more numerous on the 9th Circuit than Republican appointees: the split is 16-11 (or 15-12 if you count Judge Tallman, a Republican appointed by Clinton as part of the Washington deal, where he's most accurately counted). But Judges Trott and Beezer are eligible to be part of the draw if they want since they were on the panel. As it turns out, none of the panel members get drawn, but the draw still results in Republican appointees outnumbering Democratic appointees on the en banc panel 6-5. You gotta like that if you're the government.

But here's the rub. Not everything's rock solid. Votes aren't ordained in stone, nor do they depend entirely on who appointed you or your political beliefs. Sure, there are pretty certain votes in en banc criminal cases, but there's a decent middle -- a fair number of reasonable people who can be swayed.

So, as it turns out, it's indeed a close case: the final vote is 7-4. But not necessarily the way you might expect. Judge Reinhardt writes the en banc opinion, and Judge Bybee authors the dissent. Which pretty much gives away the ending. Judge Reinhardt gets all the Democratic appointees on his side (Judges Silverman, Wardlaw, Fisher, and Paez), and Judge Bybee gets the hard-core conservatives on his (Judges O'Scannlain and Ikuta, plus Judge Kleinfeld).

But Chief Judge Kozinski and Judge Milan Smith join Judge Reinhardt. Which makes for a solid flip. There's your dispositive "middle" in this one. A pretty darn conservative middle, I might add: particularly in criminal non-civil liberties cases. But the dispositive middle it is.

I can promise you the result would have been different if, say, the draw had picked the other Judge Smith. Or if the Chief Judge wasn't invariably selected and instead Judge Rymer took that slot (or Judge Bea was Chief). So sometimes slight differences in draws -- or in procedures -- can make a difference. And, sometimes, you can't necessarily tell the result from the draw. Even if you think you can. Sometimes you've got to actually read the facts and see if this is an especially persuasive case in which some of the less locked-in judges on the Ninth Circuit might come out the way the case factually leans. This is a very good example.

P.S. - The breakdown also gives you a decent hint as to what'll happen to this one at the certiorari stage as well.

People v. Perez (Cal. Ct. App. - Aug. 4, 2009)

Here's a classic case of an appeal to which I'd have stipulated error.

Alejandro Perez forcibly took a $29 pair of pants from someone else (the victim wasn't wearing them; he had just bought them). He's convicted of second degree robbery. Fair enough.

Perez isn't a gang member but he has previously "tagged" places and is friends with a couple of gang members. So as a condition of probation, Perez is precluded from associating with gang members, be near gang activities, wear gang colors, associate with taggers, etc. Again: I'm fine with all that.

Here's the thing: Perez is also ordered not to "attend any court hearing or be within 500 feet of any Court in which [he] is neither a defendant nor under subpoena." What?! Where the heck does that come from?! He's never threatened a witness or trespassed on Court property or done anything to justify this condition. And we're talking about constitutionally protected rights here; the right to attend trials, to voluntarily testify, to file civil actions, etc. Not to mention the right to go to a county law library (which are often at or near the courthouse), attend a city council meeting (ditto), etc. This just seems a flatly and clearly impermissible condition of probation. And yet we spend time, effort and money -- on both the Attorney General's side as well as on the public defender's side and in the Court of Appeal -- to litigate and attempt to defend this clearly invalid provision.

Confessing error is a good thing -- indeed, often a very good thing -- on occasion. This was one of those times.

Even though the Court of Appeal does the right thing, I'm disappointed that it had to go this far.

In Re FairWageLaw (Cal. Ct. App. - Aug. 4, 2009)

Want to see an ugly law firm breakup, in which two California lawyers -- David J. Fuller and Henry Schrenker -- voted to dissolve the firm after the third (John Heurlin) was suspended from the practice of law for two years? Here you go.

Heurlin ends up prevailing on appeal; not on the merits, but he does obtain a remand. Though not before getting repeatedly slammed by the Court of Appeal for his conduct towards his former partners.

Just a reminder to enter a law practice only with those people you really, really like. Otherwise it can get really, really ugly.

Milner v. Dept. of Navy (9th Cir. - Aug. 5, 2009)

Did I wake up this morning and accidentally travel back in time?

I vaguely recall that the Ninth Circuit used to (and perhaps still does) issue "summaries" -- sort of like the syllabi issued by the Supreme Court -- as part of the paper slip opinions. But I don't recall seeing one of these for a least a decade or so, or at least not on the electronic (as opposed to paper) versions of the opinions.

And yet, today, lo and behold, there's a summary in this opinion. And there's another one in this opinion as well. Even though there's not a summary in any of the other opinions for the day.

Which I cogently put down to selective time travel. At least until someone explains otherwise to me. (Both opinions with summaries have dissents, but I can't imagine that's the unifying theme. Or is it?)

The mysteries of the universe continue.