Khatib v. County of Orange (9th Cir. - May 5, 2010)

The federal Religious Land Use and Institutionalized Persons Act basically says that the state can't burden religious practices for people in an "institution" -- e.g., a prison. Souhair Khatib is a Muslim woman who was placed in a holding cell adjacent to the Orange County courthouse and ordered to remove her hijab (her headscarf). Does that violate the statute?

It first depends on whether the holding cell was an "institution" under the statute. The district court held it's not, and this morning, the Ninth Circuit affirms.

It's a meaningful case on its own right, but made even more so by Chief Judge Kozinski's dissent. Which is classic Kozinski. Virtually every paragraph includes a tongue-in-cheek reference. I'll share just some of them, with the caveat that they're better in context:

(1) The first paragraph: "Freud is reported to have said that sometimes a cigar is justa cigar. And a facility used for holding prisoners prior to trial is a pretrial detention facility. The Religious Land Use and Institutionalized Persons Act (RLUIPA) covers prisoners held in certain kinds of institutions—defined to include both correctional facilities (such as prisons and jails) and pretrial

detention facilities. Souhair Khatib was held in a facility where prisoners are routinely detained awaiting trial and other court appearances. She was therefore held in a facility covered by RLUIPA and is entitled to its protections. This pretty much sums up the case for me. Everything below is unnecessary and you could easily skip it."

(2) The self-reference: "[T]he [majority] opinion overlooks the fact that the statute here has

its own rules of construction, codified at 42 U.S.C. § 2000cc-3. Among those rules is the following: “This chapter [meaning RLUIPA] shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.” Id. at § 2000cc-3(g) (emphasis added). Not every law that Congress passes has such a handy guide to interpretation; in fact, very few do. It seems to me that when Congress goes to the trouble of telling us how to construe a statute, and uses such phrases as “broad protection” and “the maximum extent permitted,” we need to pay close attention and do as Congress commands. The Supreme Court routinely relies on such express instructions. [Cited Quotation] And some of our nation’s hottest jurists have called for their more frequent use. See, e.g., Alex Kozinski, Should Reading Legislative History Be an Impeachable Offense?, 31 Suffolk U. L. Rev. 807, 819 (1998) (“[O]ne would hope that Congress would do the next best thing: instruct the courts how to resolve the close cases. This would not usurp the judicial function in any way; it would merely give judges instructions how to go about discovering the statute’s fine nuances.”)

(3) The cultural references: "Nor am I moved by the majority’s ex cathedra disquisition

about courthouse holding cells generally being “stark, barren, hard, and distinctly utilitarian.” Maj. at 6592. I suppose they’re quite different from your ordinary jail cell, which comes equipped with flat-screen TVs, mini-bars, iPod docking stations and Frette linens."

Let me add two other idiosyncratic points. First, if you've ever been in (or seen) the holding facility in O.C. at issue, I think you'd find Judge Kozinski's dissent even more persuasive. It's huge. Essentially like a mini-prison. This is no two-cell drunk tank. It's massive.

Second, the lineup is interesting. Judge Trott writes the majority opinion. Judge Kozinski dissents. And who joins Judge Trott? Judge Wardlaw.

Not what you might expect.

Arizona v. Harkins Amusement Enterprises (9th Cir. - April 30, 2010)

I completely agree with Judge Hug on this one.

Does the ADA require movie theaters to help blind or deaf people watch movies? They could do so, after all. For deaf people, you could require "open captions," which is the text you see at the bottom of movies or on televisions in bars (i.e., "subtitles"). You could alternatively require "closed captions," which essentially are open captions projected at the back of a movie theater and mirror-like things provided to individual patrons who want to have these captions appear superimposed on the screen for them (and them alone). And for blind people, you could have "narration," which is where a soundtrack essentially describes (for them) what's happening on the screen.

Plaintiff files a lawsuit claiming that the ADA requires all three. The district court dismisses the suit at the pleading stage. The Ninth Circuit affirms in part and reverses in part. Exactly rightly, in my view.

The ADA requires "auxiliary aids" for deaf and blind people, which federal regulations further expressly define as including interpreters, open and closed captioning, etc. So clearly what the plaintiffs are asking for isn't categorically out of bounds.

But as for open captioning, there's a preamble to another federal regulation that expressly says that that's not required for movie theaters. For good reason, in my view. Open captioning has the result of changing the movie experience for everyone, since everyone sees the captions, and some people (including me) don't like that. So I'm on board for dismissing this claim. Even at the pleading stage. That's not required.

But I also agree with the Ninth Circuit that you can't dismiss the rest. Closed captions and narration aren't mentioned in the commentary; moreover, they only affect patrons who choose to elect them. So it's a different deal.

Admittedly, maybe providing closed captioning and narration would be overly expensive or burdensome for the theater, in which case they're not reasonable accommodations under the ADA and hence not required. But you don't decide that at the pleading stage. 'Cause maybe they're not overly burdensome. That's why we have discovery, summary judgment, and (if necessary) a trial.

So the Ninth Circuit gets this one right. If it's not that burdensome for hearing- or visually-impaired persons to be able to watch movies with everyone else, they should be granted that right, and the ADA provides exactly that. Whether that's the case requires more than simply a judgment at the pleading stage.

Spot on.

Silvaco Data Systems v. Intel (Cal. Ct. App. - April 29, 2010)

I wasn't particularly interested in the underlying merits of this opinion, which is what it is. But I did find interesting Justice Rushing's comments about (of all things) the appendix. Not something we generally discuss at length in an appellate opinion.

Check it out (with citations deleted):

"Although this case was decided largely on the pleadings, it has somehow generated an appendix over 8000 pages in length. Seldom have so many trees died for so little. We see three causes for this wretched excess. The first is the inclusion of hundreds of pages of printouts of legal authorities retrieved from online sources. The rules require that, for the convenience of trial judges, some such materials be 'lodged' in the superior court when cited. There is no requirement that they be included in the record on appeal, and ordinarily they have no place in it. This court can more easily retrieve authorities through its own resources than it can find them—or anything else—in an 8000-page appendix.

A second cause of overkill is that each of the appendix's 27 volumes includes an index to the entire appendix. This would be a welcome convenience if not for the fact that the index is 103 pages long—a bulk that, replicated 27 times, consumes more than one-third of the appendix. This remarkable feat is achieved by listing not only every distinct filing, but every exhibit or attachment to each filing. We are thus called upon to thumb through page after page of references to exhibit titles, including lodged authorities (see preceding paragraph). This level of detail exceeds the requirements of the rules, and when it enlarges the index to the present extent, largely defeats the index's purpose.

The third source of unnecessary length is the duplicative inclusion of multiple copies of documents that were filed repeatedly in the superior court. We assume these duplicate filing were intended as a convenience to the trial court, but when they inflate a record to the present proportions they are hardly a convenience to us.

There are of course cases in which records this size, and many times this size, are unavoidable. But as the sheer size of the record increases, it become increasingly important for appellate counsel to take an active role in ensuring that the record is no larger, and no less easily navigated, than accuracy and necessity dictate. The present case appears to be one of those rare instances when, contrary to the maxim, superfluity does vitiate. (See Civ. Code, § 3537.)"

I particularly loved the obscure Section 3537 reference. Nice.

People v. Escudero (Cal. Ct. App. - March 30, 2010)

Here's another one that I'll let speak for itself.

Defendant's charged with molesting a 7-year old. Is it unfairly prejudicial to introduce evidence that he allegedly assaulted two adult women in their 30s after they got drunk and fell asleep?

Nope. Not according to the Court of Appeal. Molesting a 7-year old and assaulting an intoxicated adult are sufficiently "similar" and do not unfairly prejudice the defendant.

Oasis West Realty v. Goldman (Cal. Ct. App. - March 3, 2010)

Lawyers can speak and vote and petition with respect to public issues. Even if those views are directly contrary to the interests of a current (or former) client.

And when they're sued for doing so, they can file an anti-SLAPP motion, get the lawsuit dismissed, and recover their fees.

So holds the Court of Appeal.

Estate of Kraus (Cal. Ct. App. - April 27, 2010)

Janice Kraus was unmarried and had no children, and created a will that left most of her money to the Make-A-Wish Foundation and the Regents of the University of California. She had a brother, David, whom she specifically disinherited, since (1) he had a temper, (2) she was afraid of him, and (3) he had previously pimped $160,000 from her. She even put a clause in her will directing that her estate get back the missing $160,000. In short, her brother was to get nothing, and charities were to get the rest.

In October 2006, Janice had cancer, was dying, and was in hospice care. On the 22nd, while she was semi-comatose, David came in to the hospice with a "General Power of Attorney" form and had someone hold Janice's hand to write an "X" on the form. David then immediately used the form to raid Janice's bank accounts, grabbing four CDs from California National Bank collectively worth around $140,000, another $15,000 from Janice's Washington Mutual Bank account, and over $9,000 from a joint checking account that Janice had with her 91-year old mother. Janice died at 7:50 a.m. the next day.

The trustee sues David to recover the money and statutory penalties, and prevails. David appeals, but the California Court of Appeal affirms.

IMHO, far from being upset about the result, David should be happy he's not in jail.

Plummer v. Day/Eisenberg (Cal. Ct. App. - April 26, 2010)

That's a neat trick.

Once a case settles, a check is made out to X, Y and Z. X and Z are law firms, but Z is former counsel. There's a dispute about fee allocation, and Z won't sign the settlement check unless Z gets paid what Z says Z's owed.

So X signs the check, and transmits it to Z to cash, and instead of just one person signing on behalf of X, one person from X signs legibly and another person from X signs in a scrawl. That way, when Z signs, it looks like there are three signatures -- of X, Y and Z -- even though Y never signed.

It's a good trick. But it also states a claim for conversion.

Still, I like the creativity!

People v. Navarrete (Cal. Ct. App. - Feb. 1, 2010)

I like this. Basically, all of it. The opinion, written by Justice Rubin. What the trial court, Judge Patrick Meyers (in LA), did. What the trial D.A., Robert Britton, did. Essentially what everyone did. With the exception of Detective Andrew Serrata. Who seems to me to be everything we do not want our police officers to be.

I won't get that much into the case, in large part because the entire opinion's worth reading, and is also sufficiently short that one can do so fairly easily. I will say that my sense is that while I agree with Justice Rubin that Navarrete isn't totally obviously guilty, I do think he's in deep trouble, and may well have committed the offenses for which he was charged. For which I might also have given him even more than six years.

But I also agree that his conviction should be reversed. First, I'm quite confident -- especially given what subsequently transpired -- that the trial court properly found the police officers not credible when they said they gave the suspect his Miranda rights. Usually trial courts are very hesitant to call "testilying" by police even when they see it, but here, the trial court did so, and I was happy to see that. Though even here, notice (in footnote 2 of the opinion) how wary the trial court was to even do that.

At which point the officer blatantly violates the motion to suppress, and does so wilfully. The facts of this one are pretty striking; I'd say it was a made-for-television movie, except the way these things happen (and the details discovered) are more plausible. Anyway, I like how the trial court addressed the problem, and liked what the Court of Appeal did as well. Am I totally persuaded that the error wasn't harmless? No, not totally. But it might have had an effect on the trial. And the misconduct by the officer was so deliberate and wilful that even if I had any lingering doubts, they'd go against the conviction -- indeed, what transpired here might even amount to outrageous governmental conduct, albeit by only a single state actor.

In the end, though, the system got this one right. And I hope both that Detective Serrata does not hear the end of this one, as well as that the other people involved in this controversy know they did the right thing and would do it again.

Fulton v. Medical Board (Cal. Ct. App. - April 23, 2010)

It's bad enough when you lose an appeal in a published opinion. It's public, it's got your name in it, and it's forever.

But when your appeal is about your allegation that the California Medical Board shouldn't make public the information about your discipline (you resigned your medical license) and the events that led up to it (discipline by other states, malpractice judgment, etc.), because that's "harming your reputation" and hurting your business (you run a quasi-medical business and sign things "Dr." and "M.D."), the last thing you want is for the Court of Appeal to report in its published opinion all the things you're trying to keep hidden.

But that's exactly what the Court of Appeal does.

Call it irony. Call it justice. Call it whatever you'd like.

Regardless, that's got to be something that Dr. James E. Fulton isn't likely to appreciate.

Something to think about the next time you're thinking about filing one of these appeals. An appeal that says "You should keep X secret" may not only lose, but be itself counterproductive as well.

People v. Mathers (Cal. Ct. App. - April 22, 2010)

Sometimes I don't get what people are thinking.

Okay, so you deliberately wrote some bad checks. You opened up a checking account with $50, never made any more deposits, and wrote multiple bad checks on the account. That's fraud, but I understand it. You're a criminal. I get it.

I even understand it when, three months later, after the bank closes the account, you print a couple of new (bad) checks on this account off your computer and go to the Food Maxx store in Redding to try to get $482.63. Granted, this isn't the brightest thing in the world; obviously the store is going to run the thing and see the account is closed. But maybe the manager's lazy, so worth a shot. Again, I get it. Plus, even if they catch you -- which (here) they did -- maybe the manager thinks you're confused, or whatever, and doesn't call the cops.

Here's the thing I don't get. Why, later that night, do you go back to the same store with the same fake check and try to cash it again?! You're just begging the manager to call the cops this time. Which, not surprisingly, is what he does.

There's no other place in the universe you can try?! Or even in Redding?

Something that Robert Mathers gets to think about for the next nine years. And which the rest of us can think about for nine seconds.

Bad checks. Not rocket science. Those that pass them: Not rocket scientists.

Hammad v. Holder (9th Cir. - April 22, 2010)

There's a downside to paying someone to marry you so you can get your green card. Not only is it criminal, but if you're caught, the next time you marry a U.S. citizen -- even if for real this time -- you're going to find it difficult to stay in the United States.

And even the Ninth Circuit isn't going to be too upset about kicking you out.

Union Steel Union v. Shell Oil (9th Cir. - April 21, 2010)

Some cases are pretty clear when you just remember some basic principles. So much so that it's somewhat surprising that any court could come out the other way.

Let's take a case in which a plaintiff files a putative (uncertified) class action that's removed to federal court under the Class Action Fairness Act -- i.e., because there's minimal diversity and $5 million-plus at stake. The district court thereafter refuses to certify the class. Does jurisdiction still exist in federal court, or does the lawsuit get remanded?

There's a very simple foundational principle that answers that question: As long as jurisdiction exists at the outset, it persists. You can muck that central principle up with a variety of complex arguments, but that's basically the rule.

So the Ninth Circuit gets this one right, and properly recognizes that the district court got it wrong. Even after a refusal to certify, the case gets to remain in federal court.

There are additional policy and other reasons why this result should follow as well, but you don't even need to get to 'em. Sometimes the most straightforward part of a cases provides a pretty good answer itself.

Rincon Band v. Schwarzenegger (9th Cir. - April 20, 2010)

The analogy between watching sausage be made and watching how California strikes deals with Indian tribes over casino expansions and profits isn't a stretch.

Pokorny v. Quixtar (9th Cir. - April 20, 2010)

What?! You mean to tell me that a multi-level marketing scheme would really manipulate its contract of adhesion so much that its arbitration clause was both procedurally and substantively unconscionable?

Who'd have thunk?

People v. Superior Court (Cal. Ct. App. - April 6, 2010)

Was in New York for a long weekend. But that shouldn't stop the dissemination of knowledge:

Driving a truck down a steep hill when you should know that you're brakes might not work can lead to a conviction for murder.

So sayeth the California Court of Appeal, which reverses the dismissal of an indictment.

People v. Taylor (Cal. Supreme Ct. - April 15, 2010)

On this very special Tax Day, the California Supreme Court wants to remind you that you get a lot of value for your tax dollars. So it issues a 113-page opinion that unanimously affirms a sentence of death.

It's a somewhat unusual case, in that you rarely see such a pathologically calm perpetrator or such an incredible laydown on the fact that the defendant was pretty much clearly guilty. Here are the surprisingly pedestrian -- and yet simultaneously grisly -- facts:

"Around 9:30 p.m. on June 23, 1995, 80-year-old Rosa Mae Dixon sat in the living room of her San Diego home conversing with her sister Betty Hayes, who was visiting from Kansas. The women were startled and 'scared to death' when they looked up and saw defendant calmly standing in the room staring at them. Defendant, who was 22 years old at the time and lived nearby, apparently had entered the house from the back after tearing a hole through a mesh screen.

After mumbling something that might have been his name, defendant closed the front door over the security screen and sat down on the couch between the two women. When Dixon rose and asked defendant what he wanted, he grabbed the front of her nightgown. At Dixon's direction, Hayes went into the front bedroom to call 911, but when she picked up the telephone, defendant chased after her, jerked the receiver out of her hand, and pulled the cord from the wall. Defendant then grabbed Hayes by her clothing, took hold of Dixon in the same manner, and pushed the two women down the hall to a bedroom in the back of the house.

At some point before defendant forced Dixon and Hayes to the back bedroom, one of the women came outside onto the front porch, yelled for help, and then ran back into the house. Dixon's next-door neighbor, Erik Kirkpatrick, heard the cry and came to investigate. Receiving no response to his knock on the front door, Kirkpatrick went to the side of the house, looked through a window, and saw defendant on his knees hunched over Dixon. After hearing a male voice mumble something like, 'I don't want to have to hurt you,' and a female voice respond, 'Okay, just don't hurt me,' Kirkpatrick quickly returned to his own house to call 911 and waited for police to arrive.

Kirkpatrick's momentary look through the side window occurred just as events in the back bedroom had started to unfold. Defendant first pushed Dixon to the floor at the foot of the bed, removed her panties and pulled down his shorts. His first attempt to penetrate her was unsuccessful. He then picked up Dixon and slammed her onto the floor near the side of the bed, banging her head and knocking Hayes to her knees in the process. With more room to maneuver in the new location, defendant managed repeatedly to penetrate Dixon's vagina with his penis. Meanwhile, Dixon started breathing hard and gasping for air. At one point, defendant withdrew his penis, raised Dixon's head and attempted to place his penis inside her mouth. She resisted, turning her head to the side and saying, 'No,' while still struggling to breathe. When defendant released Dixon's head and let it drop to the floor a short time later, she was ashen and no longer breathing or moving.

Defendant then turned his attention to Hayes, swinging around to face her with his penis in his hand and asking if she 'wanted it.' When he did so, Hayes noticed there was semen on the tip of his penis. Defendant pulled up his shorts and started out of the room, passing Hayes's purse, which was sitting open on a table. He dug through it, complaining about finding only a few dollar bills until he discovered and pocketed about $65. Defendant continued on through the kitchen and out the back door.

Defendant got only as far as the back fence before being apprehended by Officers Gassmann and Caropreso, who, along with several other officers, had responded within minutes to Kirkpatrick's 911 call reporting a burglary in progress. When the officers asked defendant why he was in the yard, he first replied he thought the house was vacant. Defendant then offered that a White male named John Hall, who had left before the officers' arrival, 'just raped an old woman inside the house.' [Yeah, good alibi. That's definitely going to throw 'em off your scent.] A third officer retraced defendant's route back to the Dixon residence but found no evidence of a second assailant. Less than one hour later, the officers conducted a curbside lineup in the alley behind Dixon's house, and both Hayes and Kirkpatrick identified defendant.

Meanwhile, other officers had discovered Dixon lying on the floor of the back bedroom with her nightgown bunched up around her waist. There was blood on her leg and underneath her pelvic area, and she was unresponsive and not breathing. Rescue efforts, including cardiopulmonary resuscitation (CPR) and emergency heart medications, restored Dixon's pulse, and she was taken to the intensive care unit of a nearby hospital. But she soon suffered seizures and kidney failure and never regained consciousness. The following evening, after being declared brain dead, she was removed from life support."

Needless to say, in addition to being conclusively identified by eyewitnesses and basically caught in the act, there was also totally persuasive DNA evidence. Since Taylor killed an 80-year old woman for no reason -- admittedly, almost assuredly not intentionally -- and since it was a San Diego jury, the outcome wasn't much in doubt. Death penalty.

Nor was the result of the appeal. But the California Supreme Court nonetheless makes it official.

People v. Shafrir (Cal. Ct. App. - April 14, 2010)

Sometimes I feel like I'm saying things that are totally obvious. And yet seemingly daily, there appear new cases that prove that the message needs repeating.

Take this afternoon's opinion.

This morning, I said: "Don't drink and drive." Plus some other stuff. Fair enough.

But apparently I'll have to add: "If you drink, don't drive. And especially don't drive 110 mph." At 3:40 a.m., no less.

But it gets worse. Apparently I'll have to also add: "Particularly when you have three huge bags of weed in the car. Plus a paper bag with $50,000 in cash."

Yikes.

People v. Stacy (Cal. Ct. App. - April 14, 2010)

When you're arrested for drunk driving, don't make it worse by giving the officer the name of your cousin. They'll catch you. Pretty soon, usually; fingerprints, DMV photos, and all. And that'll add some additional time to your sentence.

Word to the wise. Of course, better not to drive drunk in the first place. Far better.

In Re Judicial Misconduct Complaint (9th Cir. - April 13, 2010)

There are certain things in life that are a virtual certainty. Death. Taxes. Stuff like that.

Here's one more to add to the list: When you make a judicial misconduct complaint, it's much, much more likely that you'll be found to have engaged in misconduct -- and sanctioned -- for making the complaint than that the judge is sanctioned. Because pretty much always, the nutjob isn't the one on the bench, but rather the guy staring at you in the mirror.

Now it's time for my noontime public debate (with my colleague Miranda McGowan) about whether it's constitutional to ban vibrators. Ah, academia.

Holley v. CDC (9th Cir. - April 5, 2010)

"Holley is an inmate at the California Medical Facility in Vacaville, California. He has, at various times, identified himself as a Christian, a Satan worshiper, and a Nazarite, and has attended Muslim services. Holley has stated that no established religion adequately describes his religious beliefs."

I'll bet.

'Cause being a Christian and a Satan worshiper are so closely related. It's so hard to distinguish between the two; sort of like the difference between Methodists and Baptists. Really subtle.

Christ/Satan. Satan/Christ. Really hard to figure out who to root for.

Hein v. Sullivan (9th Cir. - April 12, 2010)

Just because you have Erwin Chemerinsky representing you doesn't mean that you're going to win your habeas appeal. Even in the Ninth Circuit.

Notice, by the way, that Erwin's listed as from "Durham, North Carolina". Which I'm sure will come as news to the students and faculty at UCI.

Which shows how long federal appellate cases sometimes take to brief and resolve.

U.S. v. Maggi (9th Cir. - March 16, 2010)

No one really said that race doesn't matter anymore in the 21st century. But in case you thought otherwise, here's a case that proves that it still matters. Sometimes, dispositively.

Admittedly, this is about whether someone's an "Indian," which is a particular type of race. And a fact that clearly matters for purposes of the Major Crimes Act, which provides federal jurisdiction for certain crimes committed by Indians in Indian country. So I understand why it matters -- and why we have to examine -- whether Shane Maggi (as well as Gordon Mann) are "Indians."

Still, my mind couldn't help but draw the analogy between this opinion and those earlier cases about who's "really" black. One drop of blood? "Recognized" by the state as a mulatto? Those cases leave a strong taste in one's mind. And it's not a good one. So to see a modern case that makes an (even loosely) analogous inquiry is a little disturbing.

Again, we're talking about Indians here, and at least a little about sovereignty, so perhaps the more accurate analogy might be to determinations about who's really "French" or "German". But however accurate, that's not where my mind first went.

None of which is to insult the opinion. The inquiry is, again, doctrinally required. But even that says something. Or at least reminds us.

Kirk v. First American Title Ins. Co. (Cal. Ct. App. - April 7, 2010)

Usually I comment on (or critique) opinions. Sometimes I make snide comments. But sometimes -- albeit rarely -- all I really want to do is to let people know about an opinion because it's important and of practical interest.

This is one of those times.

It's about imputed disqualification and whether screening (f/k/a "Chinese Walls") works in California. Here's the Court of Appeal's conclusion, which helpfully comes in the first paragraph:

"When an attorney obtains confidential information from a client, that attorney is prohibited from accepting a representation adverse to the client in a matter to which the confidential information would be material. In this case, we are not concerned with the issue of disqualifying the attorney possessing the material client confidences from representing an adverse party; it is conceded that the attorney is disqualified from doing so. Instead, we are concerned with the issue of the vicarious disqualification of the attorney's entire law firm. We conclude that, under the circumstances of this case, automatic vicarious disqualification is not required, and that, instead, there is a rebuttable presumption that the attorney's knowledge of client confidences is imputed to the firm, which can be refuted by evidence that the law firm adequately screened the attorney from the others at the firm representing the adverse party. In addition, as the disqualified attorney has left the firm, the trial court's examination of the screen's adequacy should be on a retrospective, not prospective, basis."

Important stuff.

The opinion, which comes in at 55 pages, is pretty darn comprehensive. So all I'll add is one quasi-snide comment. The amicus brief on behalf of appellants is signed by a gazillion people, and might accurately be titled "Amicus Brief of Most of the Huge Law Firms In California, All of Whom Are Jonesing For PPP and None of Whom Want to Be Conflicted Out." The actual title, of course, is slightly different. Slightly.

U.S. v. Tello (9th Cir. - April 7, 2010)

I'm thinking of starting a new blog. One that's devoted exclusively to talking about opinions in which a guy on the internet "seduces" an FBI agent who's posing as a teenage girl. Content's no problem: there's tons of those cases.

I wrote about one from the California Court of Appeal on Monday. Today brings yet another opinion.

I'm joking about the blog, of course. Though I've probably already written about a dozen or so of these over the years. But the lesson remains: Don't try to seduce a "teenager" over the internet. It's not who you think. Really.

There's also a more subtle point, I think, and one which I hadn't thought about until today. My admittedly unscientific impression is that these internet sting cases result in published opinions at a much, much higher rate than ordinary criminal appeals. Or at least, given their numbers, I think that's gotta be the case, unless everyone and his mother's being convicted of this stuff.

I wonder why that's the case (if indeed it is)? I assume that part of the reason is that these cases have an unusually high rate of going to trial -- rather than plea out -- due to the relatively high sentences and the fact that the defendants are often not your "usual" criminals who understand that a stint in the joint is the price you must occasionally pay for your profession. But that can't be all of it. Maybe these cases are more interesting to clerks and/or judges. Maybe the relative wealth of the offenders enables and encourages them to hire higher-priced defense and appellate attorneys who come up with creative, novel or difficult appellate issues, thereby resulting in more published opinions. Or maybe the historically novel setting of the internet itself results in difficult jurisdictional and other issues that require an era of publication before the resolution of internet sex stings on appeal become as routinized as, say, bank robbery is now.

Something interesting to think about.

Anyway, for now, here's yet another case where an older guy (this one from Arizona) talks to a "thirteen year old" from the FBI and travels over state lines (to L.A.) to allegedly have sex with "her" but in fact to be busted.

Word to the wise. Screen names like (here) "Cutelagrl93" (i.e., Cute LA Girl Born in 1993) are more accurately "FBIDude67". Ignore at your peril.

U.S. v. Andrews (9th Cir. - April 7, 2010)

I understand pride of authorship. I also know that judges may occasionally change their votes after reading a draft opinion.

Those understandings aside, I always find it funny when I read an opinion by a three-judge panel in which the panel has to explain who's writing what and in which the "opinion for the court" is also authored by a dissenter.

So in this morning's case, for example, Judge Alarcon authors the opinion for the court on one issue, but dissents as to another. Which is sometimes efficient (though a hassle to follow), at least with larger panels.

But here, Judges Clifton and Fernandez both agree on every issue, and so Judge Clifton writes a "concurring" opinion that Judge Fernandez joins. Given this fact, it'd be a lot easier to follow if the majority opinion was authored by Judge Clifton (potentially just dupe-and-revising a draft and/or bench memo by Judge Alarcon) with a simple "partial dissent" by Judge Alarcon. Rather than having Judge Alarcon write the majority opinion in part and a dissent in part.

No biggie. You can still follow the opinion if you try. But easier is often better.

People v. Milosavljevic (Cal. Ct. App. - April 6, 2010)

Let's keep the Serbian names straight. Slobodan Milosevic was worse; he committed genocide.

But Peter Milosavljevic is far from a peach. He was sentenced to 965 years to life when found guilty of 38 counts of "forcible rape, forcible sodomy, forcible oral copulation, forcible penetration by a foreign object, false imprisonment, administering an intoxicating agent with intent to commit a felony, assault by means of force likely to produce great bodily injury, and other related offenses involving 10 victims." A dude I'm happy to see locked away.

Just a snippet of what he did, involving a single victim: "During the six-month period during which she lived with Milosavljevic, he raped her 20 to 35 times. When she refused to have sex with him, he reminded her of his threat to her family and that he knew their addresses and telephone numbers. On the five to seven occasions when she refused to have anal sex and tried to fight him off, he strangled her until she became unconscious. He also forced her to orally copulate him on many occasions, which she disliked because his penis had a bug spray taste to it."

Not only does Milosavljevic have to spend 965 years to life in prison, but he also has to endure the indignity of seeing the harshest thing I've ever read about someone printed forever in the pages of the California Appellate Reporter -- a publication, mind you, to which his cohorts in the penitentiary have access. "His penis had a bug spray taste to it." Oh my.

P.S. - Also don't confuse Milosavljevic with Milorad "Rod" Blagojevich. Who's also not a peach, but who's far better than either Milosavljevic or Milosevic. And who, as far as I know, also has no personal "Dude, your d**k tastes like bug spray" issue. Thankfully.

CRS Recovery v. Laxton (9th Cir. - April 6, 2010)

Here's an $85,000 diversity lawsuit that only a true aficionado of both IP and conflict-of-law doctrines could love.

I'm sure that includes at least three people in the universe. Maybe even four.

Shalant v. Girardi (Cal. Ct. App. - April 5, 2010)

It's a good day for disbarred California attorney Joseph Shalant, who not only learned today that the Court of Appeal reversed a (substantial) judgment against him for insufficient evidence, but who also sees the Court of Appeal reverse the dismissal of his own lawsuit against the adverse party.

But he shouldn't celebrate too soon. It may perhaps be that the reversal of the judgment against Shalant will stand, since -- like the Court of Appeal -- I don't see any precedent for the position that a suspended and/or disbarred attorney is required to advise his clients precisely why he's ditching a case. Should he? Yeah. Does the law require it? I doubt it.

But the reinstatement of Shalant's own lawsuit is another question. There's a split in the Court of Appeal here, with the current panel holding that Shalant's lawsuit couldn't be dismissed even though Shalant is a vexatious litigant who was litigating pro per because the lawsuit was initially filed by an attorney. That may, or may not, be right. But given the importance of the question, as well as the split below, I wouldn't be at all surprised to see the California Supreme Court grant review on that issue. As, indeed, it should. IMHO.

So a likely victory for Shalant, but part of which may not necessarily last forever.

People v. Nakai (Cal. Ct. App. - April 2, 2010)

When will people learn?

She's not 12. I don't care what she says online. She's a man. She's 35. She's working on private time (here, as a member of "Perverted Justice") to find online predators.

The ratio of actual 12-year olds willing to have sex with you (either actual or cyber) to the number of people pretending to be 12-year olds willing to have sex is probably 100 to 1. Thankfully, I might add.

Talk to people your own age. Attempt to seduce people your own age. At least roughly. And stay away from children, either actual or ostensible.

N.D. v. Hawaii Dep't of Education (9th Cir. - April 5, 2010)

Let me slightly critique this opinion by Judge Farris.

It's an interesting case, and a challenge I wouldn't have thought about on my own. Hawai'i (like many other states) is facing a downturn in tax revenue, and has decided to make up the shortfall by shutting down public schools on seventeen Fridays during the 2009-10 school year. One can debate the wisdom of this policy, but as a legal matter, as long as that policy is okay with the union (which has a CBA), that seems generally okay. Sure, the kids get 10 percent less education, but that's a policy dispute, not a legal one.

Plaintiffs, however, bring a creative lawsuit, and one which facially has some potential merit. The plaintiffs are parents of disabled kids, who are covered by an IEP pursuant to the IDEA. That plan for each kid essentially says that s/he is to receive X instruction -- a plan based upon Y number of school days -- and so shutting down the schools arguably violates both the plans as well as the "stay put" provisions of the IDEA, which generally provides that you can't change a plan once it's been approved.

So a good legal theory. Plaintiffs move for a preliminary injunction, but the district court denies it, holding that the public schools were making the best of a bad situation. The Ninth Circuit, on appeal, affirms, holding that the decision below was not an abuse of discretion because while the public interest factors on both sides were strong, the balance tipped in favor of the defendants because plaintiffs were not likely to win on the merits. "Generally applicable changes in policy" like the one at issue here, the panel concludes, are not governed by the "stay put" provisions of the IDEA.

A reasonable jurist could go either way, I think, as to the validity of this proposition. Particularly when the opinion concludes, in its final paragraph, with this important caveat: "Nor does our conclusion leave the parents of disabled children with no means of redress. N.D.’s claim is more properly characterized as a 'material failure to implement the IEP.' Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 822 (9th Cir. 2007). A school district’s failure to provide the number of minutes and type of instruction guaranteed in an IEP could support a claim of material failure to implement an IEP. The agency is required to address such a claim with a due process hearing, and full judicial review is available." That seems reasonable. Sure, that's a harder claim. But if such relief is available, I'm a fair piece more inclined to allow at least certain generalized changes past the stay put provisions than if no alternative avenue of attack was available.

The paragraph before this one, however, contains what I think is the weakest part of the opinion. That's where Judge Farris says: "Finally, plaintiffs argue that because their current IEPs are

their current educational placement and assume a five day school week, the reduction of the school week constitutes a change in the general educational program of the student. While they certainly assume some five day weeks, the IEPs also assume that there are some four day weeks when there are federal and state holidays. Those four day weeks are not mentioned explicitly in the IEPs. The four day weeks created by the furloughs are no different and do not constitute changes in N.D.’s educational program."

To me, that seems an incredibly specious response. After all, I'm sure the IEPs also assume and do not explicitly mention spring break and Christmas vacations either. So under the Ninth Circuit's theory, the plaintiffs' educational plan also wouldn't be changed if Hawai'i closed down the entire school system by declaring every week to be spring break -- or Christmas vacation to last eight months -- either. That just seems silly, and obviously wrong. The mere fact that X exists to a degree now doesn't mean that expanding X categorically isn't a change in a plan. It requires a qualitative judgment, perhaps. But that's different than what the opinion says, and in making short shrift of plaintiff's argument here, the opinion fails to offer a coherent response. At least in my view.

So an interesting case to start off the week.

Purifoy v. Howell (Cal. Ct. App. - March 26, 2010)

Want to practice pet law, but wondering how one goes about it? Here you go.

It's a neat little case, and one in the public interest. Basically about how long shelters have to keep animals before they whack 'em.

It's a straightforward statutory interpretation case, so not doctrinally all that interesting. Plus, the right result, I think, is a matter of common sense -- and one that Justice Jenkins (and the rest of the panel) get exactly right. "Business days" don't include Saturdays, even if a shelter is open. At least in this context. And the owners of pets get three days exclusivity to redeem the animal, and then additional days thereafter of nonexclusive redemption rights.

So good job by the Court of Appeal. As opposed to the trial courts here, which shuttled the matter to multiple judges with multiple (contradictory) rulings, ultimately resulting a (just) reversal.

Freedman v. Brutzkus (Cal. Ct. App. - March 11, 2010)

I love it when opinions are (1) concise, (2) well-reasoned, (3) of interest to the legal community, and (4) tells you everything a casual reader needs to know in the first several paragraphs.

Since that means I can convey the important information with a simple cut-and-paste.

As I can with this opinion. Here's what it says:

"The signature block on a contract bears an attorney signature under the legend 'approved as to form and content.' Does that signature amount to an actionable representation to an opposing party's attorney? We conclude that it does not. . . . We hold that this recital indicates that an attorney has advised or is advising his or her own client of the attorney's approval of the document's form and content, and does not, by itself, operate as a representation to an opposing party's attorney that can provide a basis for tort liability."

See how easy that is?

National Meat Ass'n v. Brown (9th Cir. - March 31, 2010)

Remember that Humane Society video from 2008 that showed "downer" cows -- cows unable to stand or walk without assistance -- being kicked, electrocuted, dragged with chains and rammed with forklifts at a California slaughterhouse? It's pretty shocking. And also led to the largest beef recall in U.S. history.

Given that backdrop, the National Meat Association's pending lawsuit against the State of California -- which (after the video) passed a statute to ban the killing of downer pigs -- isn't exactly the most sympathetic action in the universe. Sure, they've got a preemption claim, arguing that since the pig slaughterhouses here are federally inspected, they should be allowed to do what they want. Even if that means killing pigs who can't walk, potentially diseased, and are rolling around in other animal's filth. Still tastes good as bacon, right?

The Meat Association is able to convince the Eastern District of California, which granted a preliminary injunction against the enforcement of the California statute. But not the Ninth Circuit. Which vacates the injunction. Holding:

"Regulating what kinds of animals may be slaughtered calls for a host of practical, moral and public health judgments that go far beyond those made in the FMIA. These are the kinds of judgments reserved to the states, and nothing in the FMIA requires states to make them on a species-wide basis or not at all. Federal law regulates the meat inspection process; states are free to decide which animals may be turned into meat."

Since it's a Chief Judge Kozinski opinion, it's also got your usual asides. Including this one:

"The district court sought to distinguish Cavel and Empacadora: 'A nonambulatory pig is not a ‘type of meat.’ A pig is a pig. A pig that is laying down is a pig. A pig with three legs is a pig. A fatigued or diseased pig is a pig. Calling it something else does not change the type of meat produced.' In effect, the district court reasoned that states may ban the slaughter of certain species, but once a state allows a species to be slaughtered, it cannot impose further restrictions. Hogwash."

A knee-slapper, to be sure.

Geographic Expeditions v. Lhotka (9th Cir. - March 31, 2010)

Words to the wise: Hikes up Mount Kilimanjaro aren't always fun.

People v. Johnson (Cal. Ct. App. - March 30, 2010)

This morning's opinion may give some insight into the nature of police work.

Someone robs a Shell station in Sacramento at gunpoint on June 25, 2005. The police investigate.

Three days later, on June 28th, someone robs a Arco station in Sacramento at gunpoint. Same description, same m.0. There's even a surveillance tape. The police investigate.

Thirty minutes later, someone robs a Shell station in Sacramento at gunpoint. Same description, same m.o. Numerous witnesses. The police investigate.

Two days later, on June 30th, someone robs a Valero station in Sacramento at gunpoint. Same description, same m.o. The police investigate.

Later that same day, someone robs a Chevron at gunpoint. Same description, same m.o. More witnesses and yet another surveillance tape. The police investigate.

On July 5th, someone robs a Valero at gunpoint. Same description, same m.o. This time the gunman shoots a couple of bullets at the cashier. More witnesses, yet another surveillance tape. The police investigate.

Thirty minutes later, someone robs a Chevron at gunpoint. Same description, same m.o. More witnesses. The police investigate.

Thirty minutes later, having used up some bullets in the earlier shooting, the gunman buys a pack of bullets from a nearby Big Five.

Two days later, someone robs a Shell at gunpoint. This time, the gunman kills the cashier.

NOW the police really investigate. And catch the guy (and his crew) a couple days later.

Which makes one think that the police perhaps might have tried a little bit harder to catch the guy before someone got killed.

I know, I know: Resource constraints, limited budget, blah blah blah. Still. A dude's taking off gas stations. He's got a gun. Someone's clearly going to get killed eventually. Seems like a high priority to me.

A.H. v. Superior Court (Cal. Ct. App. - March 11, 2010)

Father has his kids taken away but wants them back. However, it's going to take a lot -- and I mean, a lot -- of rehabilitation before that's even potentially going to happen, if only based upon the circumstances in which this kids were found:

"Father has four children: Robert (seven years old), Laura (six years old), Makayla (four years old), and Alfred (three years old). . . . On October 21, 2008, the children were taken into protective custody after their parents were arrested on outstanding warrants. They had been living in deplorable conditions. Their home was a filthy basement containing an open sewer hole full of urine and feces. There was no refrigerator, and the children did not have enough food. They were not fed on a consistent basis. Mother, Father, and other residents in the home smoked methamphetamine when the children were present. Father gave the police a false name and claimed to be just visiting. He had a criminal record and was affiliated with gangs. Mother appeared to be under the influence of drugs. There were three prior child abuse reports regarding the children, including a substantiated report Laura required hospitalization due to rotten teeth. . . . Laura said she saw her parents steal and argue frequently. She said it made her younger siblings cry. All the children suffered from severe tooth decay."

And this ain't going to cut it:

"Father missed several appointments to have a drug patch applied. He missed two random drug tests. One test had been positive for benzodiazepines. Father ignored the parenting education facilitator's attempts to invite him to meetings. He did not attend any meetings or appear at the pretrial hearing on November 26. On that day, he was arrested for shoplifting. Before the six-month review hearing, the social worker reported Father was released from custody on January 5, 2009. He failed to respond to the social worker's attempts to contact him. On January 20, the paternal grandmother reported she had kicked him out of her home because she knew he was using drugs. Father did not participate in any 12-step meetings, enroll in classes, or drug test while he was out of custody."

Drugs more important than children, apparently.

People v. Warwick (Cal. Ct. App. - March 4, 2010)

I'll just tell the story on this one:

"Defendant was 18 years old when she gave birth to her son, later named Cameron, in April 2007. At the time, she was living with her mother, Barbara Villa, and her stepfather, Ray Villa, as well as defendant's aunt, Becky Hughey, and defendant's younger brother. Although she had apparently talked to her boyfriend and at least one friend about her pregnancy, she concealed her pregnancy from her family. She had seen doctors twice in April 2007 for other reasons, but did not inform them she was pregnant and did not seek any prenatal care.

In the early morning of April 15, defendant was at home and began having contractions. . . . the birth happened later in the morning, sometime after 9:30, perhaps around 10:30. She delivered the placenta and cut the umbilical cord with a pair of scissors; the cord did not bleed. Defendant did not hear the baby cry, but believed he was breathing. She 'wiped it off a little bit, cleaned his mouth off with a little, like a wet cloth.' Defendant stated that she 'tucked my blanket around him,' after which she fell asleep for 45 minutes or so. She woke when she heard the baby whimpering. Defendant felt exhausted, but she made sure the baby was breathing. She tried to breast-feed, but failed when the baby would not 'latch on.' After that, he did not whimper again, and according to defendant, he fell asleep.

At one point, Barbara came to the door, and defendant told her mother that she was tired. According to Barbara, this occurred at about 1:00 p.m., and she left defendant alone. Barbara returned, however, at about 3:00 p.m., and this time defendant opened the door and let her in. Defendant was very pale, and staggered out and went into the bathroom. Barbara went into the room and saw the baby on the bed. She called for help, and both Ray and Hughey responded.

Ray had CPR training from the military and through his job. At the time he entered the room, the baby had a blanket covering its forehead, but he was not wrapped in the blanket and was otherwise uncovered. Ray realized the baby was breathing and began performing CPR. Ray noticed the baby's nose and mouth had been cleared and saw that the umbilical cord had been cut. The baby was cool to the touch, was not crying, and appeared to be in distress. Hughey, meanwhile, called the paramedics. She described defendant as not acting like herself and thought she was in shock.

The paramedics arrived and discovered the baby had a very low respiratory rate, was pale, and generally unresponsive. The baby was nearly in cardiac arrest. At Riverside Community Hospital, emergency room doctor Ernest Woodhouse observed that the baby had a very low level of oxygen, was quite cool, and was in respiratory failure. The baby's temperature upon admission was 81 degrees. He was also in a coma, and the doctor described his overall condition as life-threatening.

Dr. Louis Martincheck, a neonatal specialist, described the baby as the most hypothermic he had ever seen. According to Martincheck, leaving an infant uncovered for five to six hours would explain the low body temperature, which is not a condition that is achieved quickly. Martincheck believed the baby would have died without medical intervention."

Words escape me.

Daniel v. Coleman Co. (9th Cir. - March 26, 2010)

Don't use an industrial heater inside a camper or tent. You can die.

I remember fondly using a Coleman heater when we would go on our yearly winter camping trip with my father and siblings. Having now gone "winter" camping without a heater with my own kids (I put "winter" in quotes because I'm in San Diego, where there's really no such season, with the exception of the mountains), I recall the heater even more fondly.

But use the right one. And be careful.

U.S. v. Castro (9th Cir. - March 26, 2010)

Let's say you're an illegal alien. Worse (for you), you were deported in 2003. Even worse, this transpired after you pled guilty to committing lewd acts on a 14- or 15-year old child. Presumably also after your prison term therefor.

For better or worse, you've now (again) illegally entered the United States. The country in which you want to live, I'm sure, but which (1) has deported you, (2) doesn't want you, and (3) knows about your prior conviction.

Two weeks ago, your ex-wife got arrested for smuggling illegal aliens to the United States. They know she's your ex-wife. Should you:

(A) Continue to hang out at her place. They wouldn't possibly come and search the place, would they? Or:
(B) Find another place.

Eduardo Castro said "(A)". An answer that gave him a sentence of around four years in prison to rethink this response.

Today, he gets remanded for resentencing. Due to the crazy categorical/modified categorical doctrine that occasionally results in bad consequences. Though even on remand, it's not looking good for Castro. He's still looking at years and years.

So for anyone out there in a similar situation: The correct answer is (B).

Int'l Soc. for Krishna Consciousness v. Los Angeles (Cal. Supreme Ct. - March 25, 2010)

I'm excited to be able to describe an opinion of the California Supreme Court in a single sentence that merely links to a movie clip. A movie that I like, no less.

So here goes:

After today's opinion here, we'll see no more of this.

Winans v. Timar (Cal. Ct. App. - March 25, 2010)

We've got a lot of legal doctrines that shield the jury room from scrutiny. We know they're making sausage in there. We don't want to see it made, notwithstanding the fact that we desperately rely on the resulting product. To have faith in the system, we'd just rather not know.

We can do that with verdicts. Albeit at a cost. We can't, however, do that with wills. And we don't. When there's a will contest, we actively inquire into the circumstances under which the will(s) were made, and why.

Unfortunately, sausage sometimes looks good by comparison.

See if you had the same reaction that I did to this case from the Court of Appeal earlier today.

My reaction was: "Ewww." I didn't especially like the circumstances that resulted in any of the bequests at issue. There just seemed to be a lot of (actual or potential) scheming, manipulation and abuse in an attempt to get the estate's assets directed their way in the will. Yuk.

And unlike sausage, the results don't even taste good. Except to the victors, of course.

In Re Marriage of McManus (Cal. Ct. App. - Feb. 25, 2010)

The caption of this case is In Re Marriage of MacManus. Which is otherwise unexceptional. As is the issue in the appeal.

But upon reading it, my mind harkened back to "The Usual Suspects". A wonderful film in which Stephen Baldwin plays Michael McManus and Kevin Spacey plays Roger "Verbal" Kint.

It's a neat little flick. Rather than reading this opinion, I suggest the movie. A lot more drama. Plus a cool ending.

P.S. - My favorite character in that one was actually Pete Postlethwaite, who plays Kobayashi, the subordinate associate of "Keyser Soze". Great actor. Wonderful part.

U.S. v. Christensen (9th Cir. - March 24, 2010)

If you sign on with the screen name "horneyguy59405" -- 59405 being a zip code in Great Falls, Montana, where you live -- and all of the sudden a "15-year old girl" starts chatting you up, do I really have to tell you: (1) it's not a 15-year old girl, and (2) is (a) a guy, and/or (b) the police?

I know it might be cold and lonely in the 59405. But that's no reason to get irrational, or your hopes up. It's a dude. It's the FBI. (Here, his name is Dan.) It's not who you think, and not someone you want to offer to have sex with. Much do you want to offer to pay the person for sex, and to pay more if "she" can find another 15-year old to have sex with you too.

This advice comes too late for Mark Christensen, who now gets to spend the next 17-plus years or so in the federal pokey. Live and learn.

Amerigraphics v. Mercury Casualty Co. (Cal. Ct. App. - March 23, 2010)

Want to see an example of insurance bad faith? Something that even the trial court described as "really terrible," "really, really bad," "a disaster," "total disaster," and "a very, very, very solid case for punitive damages, as solid as I have ever seen in my time on the bench."

Here you go.

The insurance company is Mercury Insurance. Remember that when you're investigating insurers and wondering about their reputation. Apparently, Mercury Insurance is really, really bad.

The other thing that's interesting about the case, beyond Mercury's reputation, is that this is another example of the indeterminate nature of the Supreme Court's current "due process and punitive damages" jurisprudence.

The jury here awards $130,000 in compensatory damages, and adds on $3 million in punitive damages. The trial judge whacks that down to $1.7 million. Then the Court of Appeal holds that the maximum punitive damage award permitted by the Due Process Clause is a 3.8-to-1 ratio.

Why 3.8 to 1? Is it a coincidence that this makes a nice, even, round number: $500,000? I think not.

Somehow I doubt that the Constitution imposes a due process requirement that just happens to result in incredibly round numbers. And yet that's what you often see.

Not that I can necessarily come up with a better due process test myself. But sometimes the best critique of an existing test is simply the seemingly arbitrary nature of the results that it engenders. Including an interpretation of the Due Process Clause that just so happens to result in exact multiples of $100,000.

Compton USD v. Addison (9th Cir. - March 22, 2010)

"Addison received very poor grades and scored below the first percentile on standardized tests during her ninth-grade year in 2002-2003. . . . [She] perform[ed] at a fourth-grade level. In the fall of her tenth-grade year, Addison failed every academic subject. The counselor considered these grades to be a 'major red flag.' Teachers reported that Addison was 'like a stick of furniture' in class, and that her work was 'gibberish and incomprehensible.' Teachers also reported that Addison sometimes refused to enter the classroom, colored with crayons at her desk, played with dolls in class, and urinated on herself in class."

Think that might perhaps be indicative of a problem?! Geeze.

Depressing. And the fact that it's in the middle of Compton only makes it even more so.

People v. Townsend (Cal. Ct. App. - March 15, 2010)

Here's a combination that's never good: (1) delusional paranoia, and (2) an obsession with Molotov cocktails.

Particularly in a guy who's previously been convicted of arson.

"Townsend's commitment offense in October 2006 involved possession of 'two unlighted Molotov cocktails.' At the time of this offense, Townsend had 'paranoid delusions.' These included his delusional beliefs that his neighbors were 'involved in systematically burglarizing homes . . . [and] malfeasance with the payment of mortgage payments . . . .' Townsend told law enforcement officers that 'he carries [Molotov cocktails] for self-protection.' [!!] Prior to his commitment offense, Townsend also had an arson conviction in March 2006.

Following his commitment offense, when he was a patient at a state hospital in 2008, Townsend sent a letter to a neighbor stating that he had placed 40 Molotov cocktails on her property. After the neighbor reported this incident, the police went to her yard and found 12 Molotov cocktails. Townsend subsequently told police that he was going to use the Molotov cocktails against 'bad guys in the neighborhood.'"

And you thought your neighbors were bad news.

Of course, I think there's an absolute Second Amendment right to carry Molotov cocktails for personal self-defense. Twenty-First Amendment too.

Xilinx v. CIR (9th Cir. - March 22, 2010)

Uh oh. It's an opinion by Judge Noonan. A concurrence by Judge Fisher. And a dissent by Judge Reinhardt. Look out! Here comes the battle of the century. High stakes. Critical principles. Vital constitutional liberties involving core ideological disputes. It's all about . . .

"[W]hether, under the tax regulations in effect during tax years 1997, 1998 and 1999, related companies engaged in a joint venture to develop intangible property must include the value of certain stock option compensation one participant gives to its employees in the pool of costs to be shared under a cost sharing agreement, even when companies operating at arm’s length would not do so."

Oh. Never mind.

Nonetheless, though the principles involved may not be critical to the ordinary person, this is actually an interesting opinion to read, if only because it's one of those incredibly rare cases in which a petition for rehearing actually matters and changes the result.

The original opinion, back in 2009, reversed the opinion of the tax court, in an opinion by Judge Fisher joined by Judge Reinhardt. But the petition for rehearing clearly changed Judge Fisher's mind, since a couple of months ago, he withdrew his opinion, and today, Judge Noonan -- who was the author of the original dissent -- writes the majority opinion, which affirms the tax court. With Judge Reinhardt holding fast to his original opinion.

So clearly petitions for rehearing aren't always a total waste of time. Just most of the time.

Plus, just because a PFR might change a judge's mind in a tax case once in a blue moon is not much reason to believe that it'll do so in your run-of-the-mill cases. Tax cases are different. Trust me.

I'll end by quoting the last footnote of Judge Reinhardt's dissent: "I, like Judge Fisher, am less than enthusiastic about the Commissioner’s explanation of how he believes we should resolve this case. His preference is that we find somehow that the arm’s length standard is met by way of the all costs requirement. I must confess that I have difficulty following his reasoning and, like Judge Fisher, am not persuaded by that argument. However, the Commissioner then says that if we still believe that the two provisions are in conflict, we must apply the rule on which Judge Fisher originally relied and on which I continue to rely. I guess I am just not as sensitive as Judge Fisher. Simply because the Commissioner advanced an argument that we reject, but then argued that if we reject it, we should apply the rule that we held applicable in our opinion is hardly a reason for abandoning the rule that we believed to be correct. We can’t expect anyone, let alone the Commissioner of Internal Revenue, to agree completely with everything we say. Rejecting the Commissioner’s first argument leaves us exactly where we were before he advanced it: The two regulations are in conflict, and (as Judge Fisher and I once agreed) that conflict must be resolved by applying the specific regulation rather than the general one."

Too funny. A reminder that judges -- even appellate judges -- are people too.

In Re Marshall (9th Cir. - March 19, 2010)

Sorry, Anna Nicole Smith. (Or, more accurately, the spirit of Vickie Lynn Marshall, her 3-year old daughter Danniellynn Stern -- the heir to Anna Nicole Smith's estate -- and Larry Birkhead, the three-year old's DNA-established father.)

No $450 million judgment for you.

This saga has played out for the last 15 years, ever since the 89-year old billionaire's death, and includes litigation in a Texas probate court, a federal bankruptcy court, the Ninth Circuit, and even a decision on the merits in the United States Supreme Court.

But I think this one's pretty much all over but the shouting. Here's a decision on the merits. That finds, in a long and hyperprocedural opinion, that the relevant bankruptcy claim that gave rise to the $450 million judgment in favor of Smith was compulsory but non-core, and thus the Texas probate decision was the first "final" judgment, a judgment that voids the bankruptcy court's judgment as a matter of issue preclusion.

Yes, the last installment of this dispute, which involved the "probate exception" to federal jurisdiction, went up to the Supreme Court. So procedural things sometimes are subject to review by an authority higher than a panel of the Ninth Circuit. Particularly in high-profile cases.

But I don't think that's going to be the case here. I think this one's the end of the line. To the benefit of the heirs of E. Pierce Marshall (the billionaire's son) and to the detriment of the heirs of Anna Nicole Smith.

People v. Gamache (Cal. Supreme Ct. - March 18, 2010)

It's a California Supreme Court death penalty opinion. So I don't have to tell you how it's coming out, or what the vote's going to be. That you already know.

But the one today has a twist. The California Supremes say, essentially: "I've got some good news, and I've got some bad news."

Bad news: We're unanimously affirming your conviction and death sentence. So there you go. Ditto for your three additional life sentences, and plethora of additional enhancements.

Good news: We're getting rid of one of your gun enhancements as duplicative. So you only have to be executed, spend three lives in jail, and 40 or so extra years, not 48.

Oh, yeah. More bad news. But we're also holding that the trial court gave you too little time on the gun enhancements on other counts. So maybe it's 48 -- or 53 -- additional post-death years as well. Sorry about that.

But when you die. On your death bed. You shall receive total consciousness.

So you got that going for you. Which is nice.

U.S. v. Cha (9th Cir. - March 9, 2010)

We don't have a plethora of published Ninth Circuit opinions coming out of Guam. Interestingly, though, while I haven't run the numbers, my gestalt impression is that (1) almost all of the "forced sex trafficking" cases come from Guam, and (2) those types of cases make up a palpable fraction of the number of published opinions from Guam.

Here's another.

What's also interesting about the opinion is that it gives an outside observer a little bit of insight into a couple of aspects of the culture of Guam. My younger brother Brian was a teacher in Guam for a couple of years, and my wife (then-girlfriend) once visited him there when she was a clerk and her judge was sitting by designation there. So I already knew a little bit about the place. But it's always nice to read things that confirm the accuracy of the stories you hear from others.

One thing about Guam is that there are a lot of snakes. But the Ninth Circuit's opinion focuses on two other somewhat unseemly aspects of the place.

First, prostitution. There's a lot of it. Including women who are forced into it by brothels who ship the women over (typically from Asia) and keep them confined against their will. As Judge Beezer puts it in this case:

"It was Saturday evening, January 12, 2008, in Tamuning, Guam, when Officers Manibusan and Laxamana pulled into the parking lot of the Blue House Lounge karaoke bar to investigate a report they had received earlier that evening. Sonina Suwain (“Ms. Suwain”), who was from Chuuk, had reported that the owner of the Blue House Lounge, Ms. Cha, had Ms. Suwain’s passport and was refusing to return it. When the officers arrived at the Blue House Lounge, Ms. Suwain told the officers that two of her cousins from Chuuk, Cindy and Vivian, were being held inside the Blue House Lounge against their will.

Officer Manibusan sent Officer Tan, who had just arrived with several other officers, into the Blue House Lounge to find Cindy and Vivian so he could determine whether they were there 'on their own free will.' When Officer Tan entered the lounge, the karaoke machine was playing and customers were drinking at the bar. He found Cindy waiting tables. Officer Tan asked the bartender where he could find Vivian, and the bartender pointed to several numbered doors in the back of the restaurant. Officer Tan recognized these rooms as 'comfort rooms,' which are fairly common in karaoke bars in Guam. [!!] In these rooms, customers 'can buy drinks and take the waitress into the room and watch TV or sing songs or just chat.' [Or 'whatever', I'm sure] Officer Tan heard a woman’s voice coming from one of the comfort rooms and knocked on the door. Vivian emerged looking disheveled, and a man stood hiding behind the door with his pants 'barely on'—unzipped, unbuttoned, and unbuckled.

Once Officer Tan and the two women were outside, the women, crying, reported that they were being prostituted against their will. They maintained that Ms. Cha kept their passports and that if they refused to have sex with a customer, Ms. Cha would refuse to feed them that night."

Second, the police. You can read the whole opinion for the full story of what transpired -- and, more importantly, why what the police did queered the prosecution. But here's a taste:

"The poignant facts of this case demonstrate why Fourth Amendment possessory and privacy interests are greatly affected by the seizure of a dwelling. Mr. Cha was rendered homeless for the duration of the seizure. When he left his wife at the police station at 8 a.m., he went home only to find that he was barred from entering. He then waited outside his house for most of the day until 7 p.m. when an officer finally accompanied him to retrieve his diabetes medicine. He then waited outside his residence until at least 1 a.m. The next day he waited outside as well, only to travel to his wife’s arraignment. The search began at 2 p.m., and he helped the officers during the search that lasted until 1 a.m. Tuesday morning. Only then was he allowed to return to his house—nearly 48 hours after being excluded. . . .

Officer Perez testified that he was never taught at the police academy that “'time was of the essence’ once the police have secured a premises” or “that the police had to act with deliberate haste to obtain the warrant.” See McArthur, 531 U.S. at 332. Indeed, the United States argues that “Officer Perez . . . did not know that he had a duty to diligently pursue the drafting and eventual approval of the warrant by a detached magistrate.” Appellant’s Br. at 23. The Guam police department’s failure to know the governing law was reckless behavior; the police officers were a far stretch from Leon’s “reasonably well trained officer.” . . .

[N]one of this delay was “unavoidable”—the officers had probable cause at 1 a.m., and Officer Perez could have drafted the warrant application at least after the 12 p.m. briefing. The officers, however, had a “nonchalant attitude” and proceeded in a “relaxed fashion.” . . . Not only were the police errors deliberate and culpable, they were systemic. Although the officers raided the Chas’ prostitution business at 1 a.m. Sunday, the officer tasked with preparing the warrant application was told only to arrive at the police station at noon. The investigating officers were supposed to have their reports completed by 3 p.m., but they did not finish them until 6:30 p.m.; it is unclear whether they knew that the premises had been secured at all. Officer Perez had a “personal preference” to read the reports, so he waited until 6:30 p.m. on Sunday to begin drafting the warrant application. And further delay was occasioned by the Chief Prosecutor,

who asked to review the warrant application Monday morning. Finally there was no departmental training or protocol instructing the officers that a warrant must be secured reasonably quickly after a premises has been seized. As far as this record shows, the “nonchalant attitude” that the district court condemned was pervasive in the Guam law enforcement apparatus."

Overall, Judge Beezer's opinion doesn't paint a very favorable opinion of Guam, I'd say.

I did like one thing, however. Apparently it's pretty sweet being a lawyer there. Or at least that's what I got from a tiny little snippet of the opinion. Which mentioned that when Mr. Cha went home at 8:00 a.m. -- after accompanying his wife to the police station for seven hours of interrogation -- he found that his house was guarded by police, who refused to let him enter. So what did Mr. Cha do?

"He called his lawyer, Mr. Van de veld, anxiously recounted the night’s events and told Mr. Van de veld that 'the police were still there and would not allow him access to the premises.' Mr. Van de veld told Mr. Cha that he would stop by as soon as he finished his golf game. [!!] Around 12:45 p.m. [!!], Mr. Van de veld, with his golf buddies in tow, arrived at the Cha residence."

Nice. "Look, I know your wife has been interrogated by the police all night, and is under arrest for forced sex trafficking and prostitution, and that you're being excluded from your home and can't get your diabetes medication. But I'm about to tee off. See you in five hours, okay?"

I wish we could get away with that in the States.

SIEU v. U.S. (9th Cir. - March 17, 2010)

I agree that when a statute says that a penalty of $20 a day "shall" be imposed upon a taxpayer that fails to timely file a tax return, except if there's a finding of reasonable cause, this penalty is mandatory. If, as here, the taxpayer doesn't timely file, and doesn't have reasonable cause, a district court can't reduce the penalty just because it seems a bit harsh. The statute says what it says.

The only thing I'd add to Judge Kleinfeld's opinion in this case are two brief comments. First, the case seems totally easy to me, and the opinion's only seven pages. How'd this one take almost a full year after oral argument to write? Second, I'm sure that the taxpayer is right that the IRS has abated many, many penalties notwithstanding the mandatory language of the statute. The opinion responds by saying "How do we know that for sure?" and by then distinguishing a couple of cases. But I think the more direct answer is that merely because the executive branch, as it executes the laws, may have discretion to abate mandatory penalties doesn't mean that the judiciary has similar discretion. Executives can plea bargain and grant clemency. Judges can't.

But the basic holding of the case seems totally right. "Shall" means "shall".

In Re Moses (Cal. Ct. App. - March 16, 2010)

The Moses in this case is not exactly like the other Moses. Unless history somehow failed to record that the old Moses -- like the current one -- "consumed copious amounts of alcohol and . . . visited Willie Rhodes, whose brother had killed Moses's father in a gambling dispute five years before, [whereupon] Moses shot Rhodes once at close range, killing him, and fled."

That said, while in prison, the current Moses apparently has been darn similar to his namesake. "Moses‘s behavior in prison has been exemplary. He has a nearly spotless disciplinary record (his only instance of misconduct was watching television without using the required headphones 27 years ago). He has performed years of outstanding work in the prison laundry. He has shown insight into the causes of his actions and worked to understand and change his behavior by engaging in decades of self-help programs such as Alcoholics Anonymous (AA) and the Victim Offender Reconciliation Group (VORG.) He has consistently taken responsibility and repeatedly expressed remorse for his commitment offense."

But this is California. In which, unless you're literally able to part the Red Sea, the Governator isn't going to let you out on parole if you've been convicted of murder. So "after 29 years, 13 parole consideration hearings, and three decisions to grant parole by the Board of Parole Hearings (Board), Moses remains in jail. Governor Arnold Schwarzenegger has reversed all three of the Board‘s decisions to release Moses. We ask why?"

Why indeed. Though, in truth, we all know the answer.

So the Court of Appeal is forced to take on the tasks deliberately abdicated by the political branches of the state. And does so here.

"The Governor found that Moses‘s release on parole posed an unreasonable risk of danger to public safety for three reasons, each of which is seriously flawed. First, the Governor concluded that the second degree murder was ―especially atrocious. This conclusion is not supported by the evidence, and not only because the Governor ignored, or inaccurately described, certain critical and undisputed factual circumstances. Second, the Governor concluded that, while Moses ―says he accepts responsibility for his actions and is remorseful, he maintains that he shot [Rhodes] in self defense. Moses has not maintained such a claim; furthermore, any discrepancies between Moses‘s account of the shooting are insignificant in light of his undisputed acceptance of responsibility for the crime, his repeated expressions of remorse, and his postconviction history. Third, the Governor stated that, at the time of the murder, Moses ―had a significant record of criminal violence, even though Moses did not have such a record. The Governor‘s analysis merely mentions without discussion other very significant parole suitability factors, such as Moses's flawless behavior in prison for the last 29 years. In short, the Governor‘s reasoning relies heavily on immutable factors, at times unsupported by evidence, and amounts to little more than the 'rote recitation' of only those factors suggestive of risk. (See In re Lawrence (2008) 44 Cal.4th 1181, 1210 (Lawrence).) . . . We conclude that there is no evidence in the record to support the Governor‘s repeated reversals of the Board's grant of parole and that further consideration by the Governor cannot fill that void. Therefore, we hold that the Governor‘s reversal of the Board‘s decision to grant parole violated Moses‘s due process rights. We grant Moses‘s petition, order the Governor to vacate his decision, and reinstate the Board‘s July 10, 2007 grant of parole."

In short, at least with respect to Moses, the Governator's decision was far from reminiscent of Solomon.

Mike v. FTB (Cal. Ct. App. - March 5, 2010)

A couple of things I already knew, even from my relatively skimpy reading of Indian law over the years.

First, states can't tax income that a Native American who resides on her tribe's reservation from activities conducted on the reservation. That makes sense. It's another sovereign. There you go.

Second, states can tax income that a Native American who resides outside a reservation receives, even from activities conducted on the reservation. That too makes sense. You're a resident on the lands of the taxing sovereign. That sovereign can tax you. Even for income that you receive from activities in another sovereign. No different than foreign countries. I get it.

Here's the tough part -- and the one at issue in this opinion. What if you're a Native American, and a member of a tribe, but you reside on another tribe's reservation? Can the state tax you on the income you receive from activities conducted on your own reservation?

That's a toughie. And I admittedly didn't know the answer before I read this opinion.

Even after reading the opinion, I'm still not 100% sure I know the correct answer. But (1) I at least now know (for sure) what the law is according to the California Court of Appeal, and (2) Justice McDonald convinces me -- on the merits -- that the right answer may well be "Yes."

So when Angelina Mike gets $365,000 in 2000, which is her share of her tribe's casino profits, California can tax it. That's the law. And Justice McDonald helpfully explains why.

I'm on board with that, I guess. With the simple caveat that it seems strange. In two ways.

First, imagine that we're not talking about an Indian tribe, but a different kind of sovereign; say, a foreign country. The analogy here would be: Can California tax a person who lives in Canada on income that she received from activities in Mexico? The clear answer would be "No". Yet, in the present case, change "Canada" to "The Agua Caliente Band of Cahuilla Indians Reservation" and "Mexico" to "The Twenty-Nine Palms Band of Mission Indians Reservation" and you've got a different result.

That seems weird. Now, I understand that tribes are "domestic" sovereigns, and hence the law somewhat different than "pure" foreign countries. But there' still something there.

Second, on a practical level, what are people like Angelina Mike supposed to do? Indian tribes didn't exactly thrive post-1776, if you know what I mean. In the present case, for example, Mike's tribe contains only twelve people over the age of 18. Plus, it's not like the government selected really great places upon which to place the reservations for Native Americans. Again, here, the reservation for Mike's tribe consists entirely of a 240-acre section near Coachella -- big enough for a casino, a parking lot, and a sanitation place, which is what's on it -- and a 160-acre section near Twenty-Nine Palms. The latter of which is pure, undeveloped desert land, with no electrical, water, or sewer facilities, and has no developed roads or other infrastructure.

What exactly is Mike supposed to do? Live alone, in the middle of the desert, with no electricity, water, or toilets? Or live in the sewage plant? Hardly palatable choices. So she does what any reasonable person would do, especially who cares about tribal membership and native heritage, and lives on the closest Indian reservation -- 18 miles away -- that's technically for a different tribe, but one that "share[s] many historical, familial, social, and genetic ties" with her tribe.

But that means she gets taxed. Even for stuff that occurs entirely on her reservation. So the price to be a truly "sovereign" Native American, at least for people like Mike, is that you've got to either live in sewage or without any sewage at all.

Seems harsh. Maybe that's indeed what the law says. But it's still harsh.

D.C. v. R.R. (Cal Ct. App. - March 15, 2010)

Cases involving "X.X. vs. YY" are often interesting. This one is no exception.

I recall reading about the underlying events somewhere. This is one of the lawsuits that followed.

Essentially, a 15-year old actor-student at Harvard-Westlake posted a facebook page that some people might find pretentious. Prompting an all-out assault by his way-too-cool classmates. Including a variety of outright threats of violence and unambiguously homophobic comments based upon the student's perceived sexual orientation.

The student then sued, and while he had to arbitrate his dispute with Harvard-Westlake, no so with respect to the students themselves. One of whom, in response to the lawsuit against him, filed an anti-SLAPP motion. The trial court denied the motion, the defendant appealed, and the Court of Appeal -- in a divided opinion -- affirmed.

I won't reveal all of the sophisticated commentary (*sarcasm alert*) that the other Harvard-Westlake students wrote on the student's facebook page; for that, read the opinion. But I'll share what the defendant here wrote, which is both at issue in the appeal and which will give you the general tenor of the comments the plaintiff received:

"Hey [plaintiff], I want to rip out your fucking heart and feed it to you. I heard your song while driving my kid to school and from that moment on I've . . . wanted to kill you. If I ever see you I'm . . . going to pound your head in with an ice pick. Fuck you, you dick-riding penis lover. I hope you burn in hell."

Nice.

Defendant says he was just "joking" -- though his lengthy declaration, not surprisingly, give a much more nuanced version of the message -- and asserts that his communication was protected by the First Amendment as well as a "communication in the public interest". Needless to say, I am somewhat dubious about the latter component, and the Court of Appeal didn't agree either. You're not a public figure merely because you have a facebook page. Even if you're a wanna-be actor too.

Justice Rothschild dissents, and it's a pretty strongly-worded opinion. Less strongly worded than the defendant's message, of course, but still, you get the jist. Here's a sample: "[T]he majority‘s reasoning [] alters the legal landscape to the severe detriment of First Amendment rights. In deciding that the post was unprotected, the majority holds defendants to an evidentiary standard that conflicts with controlling California Supreme Court precedent, disregards defendants‘ evidence on the basis of invalid factual inferences and unsupported legal theories, and ignores the relevant case law by failing to consider the entire factual context in which [defendant's] post occurred."

It's an interesting debate. As well as a reminder that there may well be consequences that you might want to consider before hitting the "Send" button. Especially if what precedes it entails a death threat.

P.S. - The majority opinion protects everyone's anonymity by using initials, but it's not too hard to figure out who we're talking about. Since the opinion also tells us the pseudonym the plaintiff uses in his entertainment work: Danny Alexander. From there imdb is but a click away.

Grotenhuis v. County of Santa Barbara (Cal. Ct. App. - March 15, 2010)

There are presumably many reasons why rich people transfer their home to "corporations" they control. Truthfully, I don't know what those reasons are. But I bet they have something to do with taxes and asset protection. In short, there are financial upsides to these deals.

But you can't get the upsides of corporate ownership and then avoid the downsides on a theory that the "true" owner of the home is an individual and hence eligible for a home rollover.

We use alter ego liability to impose liability and avoid injustice. Not the other way around.

Yep.

P.S. - Justice Yegan spells it right throughout the entire opinion, with the exception of the second paragraph. It's "principal" residence, not "principle".

Guggenheim v. City of Goleta (9th Cir. - March 12, 2010)

I feel bad repeatedly talking about en banc review during the last couple of days. I know I must sound like a broken record sometime.

That said, it's an important component of the process.

Here's a case that I said back in September would probably get taken en banc even though the panel opinion was joined by both Judge Bybee and Judge Goodwin. Even though it was a largely fact-bound opinion about whether a particular city's mobile home ordinance constituted a taking.

And today the Ninth Circuit did precisely that. If only to prove that even a broken clock -- like a law professor -- is typically correct at least twice a day.

(I say "typically" since a broken clock is potentially correct three times on the day that daylight savings time ends and potentially only once on the day daylight savings time begins.)

Norse v. City of Santa Cruz (9th Cir. - March 12, 2010)

I talked about the original panel opinion here. Noting that it's rarely a good idea to give a Nazi salute, or to compare pretty much anything to the Holocaust.

But we haven't heard the last of such time-honored practices. Because today the Ninth Circuit took the case en banc.

People v. Puluc-Sique (Cal. Ct. App. - March 8, 2010)

Yes, Virginia, the California Attorney General's Office really did argue that the appeal should be dismissed because the fugitive disentitlement doctrine applies to a criminal defendant who was involuntarily deported.

Fortunately, the Court of Appeal recognized the silliness of this argument.

There's a world of difference between a dude that flees the jurisdiction and a dude who's thrown out of the jurisdiction. The former may well not be able to appeal his conviction, but the latter can. It's one thing for a court to say that a guy has to take the bad (his conviction) with the good (his escape from justice). It's wholly another to say that someone had to take the bad (his conviction) with the bad (his deportation).

Regular litigants often make a number of extraordinarily bad arguments, on the theory that it's sometimes worthwhile to throw a ton of stuff at the wall and see what sticks. But that principle usually doesn't apply to attorney general's offices, who are able to take a broader -- and more informed -- view.

But there's an exception to every rule. This one's one of 'em.