City & County of San Francisco v. USCIS (9th Cir. - Dec. 5, 2019)

It's a hot-button topic.  The Trump administration issued an executive order that bars people who have previously received non-cash public benefits (e.g., SNAP and Section 8) from immigrating.  That doesn't really affect people who seek to come to the U.S. from other countries; those people haven't typically gotten non-cash benefits, since they haven't even been here.  It instead primarily stops people who are in the U.S. (e.g., undocumented aliens) from legalizing their status, even if they're otherwise eligible.

The district court entered a preliminary injunction against the order.  The Ninth Circuit stays that injunction -- thereby letting the executive order go into effect -- in a split opinion.

Not surprisingly, the majority opinion is a long one.  Seventy-three pages long.  When you know something's high-profile, you're typically going to spell out your reasoning at length.

The other thing that's not surprising is how the case comes out.  In the majority are Judges Bybee and Ikuta.  Dissenting on the merits is Judge Owens.  This is exactly as one would have expected once the panel was drawn.

What's a little bit surprising is nonetheless the brevity of Judge Owens' dissent.  As I said, Judge Bybee's majority opinion is super long.  Yet I can quote Judge Owens' dissent in full; it's that short.  He says:  "While I concur with the majority’s jurisdiction analysis, I otherwise respectfully dissent. In light of the: (1) government’s heavy burden due to the standard of review, (2) opaqueness of the legal questions before us, (3) lack of irreparable harm to the government at this early stage, (4) likelihood of substantial injury to the plaintiffs, and (5) equities involved, I would deny the government’s motions to stay and let these cases proceed in the ordinary course. See Nken v. Holder, 556 U.S. 418, 427, 433-34 (2009) (holding that a “stay is an ‘intrusion into the ordinary processes of administration and judicial review,’” and “[t]he party requesting a stay bears the burden of showing that the circumstances justify an exercise of [judicial] discretion” (citation omitted))."  Okay then.  I assume we'll see more once the merits are addressed (rather than merely the stay), but for now, that's all that Judge Owens feels the need to say.

What's only a little bit surprising is that Judge Bybee not only authors the majority opinion, but also a brief concurrence of his own.  As I've often said, Judge Bybee is often smart and insightful, and while I'm not a huge fan of concurring in one's own opinions, I think it sometimes makes sense, particularly in high-profile cases in which you want to make a specific or non-legal point.  So I was interested in Judge Bybee's particular take.  Was I particularly excited that he labeled his concurrence "BYBEE, Circuit Judge, concurring, perplexed and perturbed"?  No.  I was not.  Those types of labels aren't especially compelling to me.  Particularly when you're responding to your own opinion.  You won.  Being "perplexed and perturbed" seems especially unusual in such a setting.  There's no real need, in my mind, to add these adjectives.  They detract rather than add.

But whatever.  Go ahead.  It's just sort of a lame start to the thing.

I was more interested in two particular components of Judge Bybee's very short (five-page) self-concurrence.

Judge Bybee's central point therein is his reminder that things that you think might be political aren't always political.  That sometimes, including here, things are actually based on law, and aren't purely naked ideological preferences.

I thought that entirely appropriate, as well as beneficial.  Of course everyone's going to think that this decision is purely political.  You've got two extremely conservative Ninth Circuit judges, appointed by a Republican president, in the majority in an opinion that reaches a conservative political result on a hot-button topic (immigration), and a lefty judge appointed by a Democratic president dissenting.   It's not a surprise that people might -- indeed, assuredly will -- view this as a politically-based result.  So it makes perfect sense to me for the author of that opinion to confront the elephant in the room head on.  And to do so in a concurring opinion.  Good job.  That's at least an effort at transparency, and one that adds rather than detracts.

And Judge Bybee makes that argument concisely, which is another bonus.  Whether you find that claim persuasive, of course, is another matter.  But I'll leave that for others to decide.  All that I want to mention in that regard is the exceptionally narrow claim that Judge Bybee elects to make.  He goes out of this way to point out that a judge's political and ideological preferences don't uniformly map on to the legal outputs of that same judge.  He says:  "Oh, I am not so naive as to think that a simple declaration of judicial neutrality will quell inquiry into judges’ backgrounds, prior writings, and opinions. The battles over judicial nominations provide ample proof that our generation of lawyers bear a diverse set of assumptions about the nature of law, proper modes of constitutional interpretation, and the role of the judiciary. These are fair debates and they are likely to continue for some time. We can only hope that over time our differences can be resolved by reason and persuasion rather than by politics by other means. But I don’t know of any judge—at least not this judge—who can say that every opinion and judgment she issued was in accord with her preferred policy outcomes."

The limited nature of that last line seems telling (and somewhat surprising) to me.  Judge Bybee merely says therein that the judges he knows can point to at least one opinion in their career that does not align with their political preference.  ("I don’t know of any judge—at least not this judge—who can say that every opinion and judgment she issued was in accord with her preferred policy outcomes.") (emphasis added)  Well, yeah.  I'm sure that's true.  But what an incredibly limited claim to make:  that in the hundreds or thousands of opinions one has written or joined, we can point to one that would not reflect a judge's naked political preference.  If that's the best defense one can make to the claim that judges decide cases politically, rather than legally, then that's fairly telling.  Particularly when articulated in a high-profile case that came out exactly on preexisting political lines.

Personally, I'd go further.  I honestly believe that judges routinely issue lots of opinions that are not in accord with their preferred policy objectives.  Not just one or two.  And would be happy to say so.

Do judges issue lots of opinions that are in accord with their preferences?  Of course.  Are those desires or pressures greater, perhaps, in high-profile cases on hot-button topics?  I suspect they are.  So I wouldn't make an overly strong (or absurd) claim that political preferences are meaningless, at least as a descriptive (as opposed to normative) matter.  There are tons of cases in which I think the correct legal result is X even though my ideological desire is Y.  That's what it means to engage in legal analysis rather than merely articulating (or justifying) one's political preference.

So I thought that Judge Bybee's defense in this regard was a little damning with faint praise.

The other thing that I thought was unusually soft was how Judge Bybee ended his concurrence.

After making several salient points about the non-ideological nature of judging etc., Judge Bybee concludes his concurrence with the following paragraph:

"By constitutional design, the branch that is qualified to establish immigration policy and check any excesses in the implementation of that policy is Congress. See U.S. CONST. Art. I, § 8, cl. 4. And, so far as we can tell from our modest perch in the Ninth Circuit, Congress is no place to be found in these debates. We have seen case after case come through our courts, serious and earnest efforts, even as they are controversial, to address the nation’s immigration challenges. Yet we have seen little engagement and no actual legislation from Congress. It matters not to me as a judge whether Congress embraces or disapproves of the administration’s actions, but it is time for a feckless Congress to come to the table and grapple with these issues. Don’t leave the table and expect us to clean up."

I get that point on multiple different levels.  For one thing, when you've written an opinion that will hack off a ton of people and will have them calling it unjustly political, it makes sense to blame someone else.  And who better to blame than a "feckless" Congress, one of the least trusted American institutions?  So as a matter of pure deflection, ending the concurrence that way makes sense.  Plus, Congress really does pass a lot of totally ambiguous (or confusing, or contradictory) statutes and leave it to the judiciary to "clean up the mess."  So, as a general matter, I get that point as well.

But, dude.  In this case, we're dealing with the validity of an executive order.  Something that the President did.  On his own.  That expressly went around Congress.  And that was promulgated only in August 2019, a mere four months ago.

What the heck does a swipe at Congress have to do with the validity of the executive order at issue here?!  If there's a problem with that order, it's a problem that was generated by the President, not Congress.  Full stop.  It's not that Congress left the judiciary with a mess to clean up.  It's that the presidential decision to bypass Congress made a potential mess.  The alleged ire seems to me to be directed at exactly the wrong party.

So when the concurrence says that Congress "left the table" here, it's me that's left "perplexed and perturbed."  What exactly did Judge Bybee want Congress to do here?  Instantly pass legislation that overruled the executive order?  Yeah, that's going to happen.  We have a split Congress, half of which (the Senate) is controlled by the President's party and who's likely in favor of the executive order at issue and the other half (the House) that goes the other way.  What the heck do you want a political institution of that nature to do here?  And let's say they did make it easy for the judiciary; say, both the House and Senate passed a bill that said that non-cash benefits couldn't be counted.  Do you have any doubt whatsoever about whether the President would veto such a bill?  A veto that no way gets overruled by two-thirds.

Whenever people complain about "Congress" not doing something, they constantly ignore the fact that Congress alone can do extraordinarily little, and that a failure to act is often the direct result of presidential obstruction and/or lack of initiative.  It generally takes the approval of Congress and the President to pass a statute.  Blaming the former while ignoring the latter is classically just a way of ignoring the role of the person you like while putting the onus on a diffuse body virtually no one respects.

And, again, we're dealing with an executive order here.  Whatever your views on executive power -- too strong, not strong enough, just about right -- whatever problems exist in the present case arose because the President exercised that power.  He was the one who not only "left the table" and told the judiciary to "clean up," but who excluded Congress from the table in the first place.  For the same reason Judge Bybee shouldn't blame me for any mess arising from a dinner at his house to which I was not invited, so too, in my mind, should Judge Bybee not blame Congress for any mess arising from an executive order that in no way, shape or form was the doing of Congress.

So I get the expression of frustration at Congress.  Both politically and on the merits.  But not here.  And, to me, it makes Judge Bybee's concurrence end with a whimper rather than a bang.  He saves the worst argument for the very end, and one that (in my mind) again detracts rather than adds.  At least as applied here.

People v. Ollo (Cal. Ct. App. - Dec. 5, 2019)

I'll slightly rephrase the question raised by the Court of Appeal in today's opinion.

You've got an 18-year old boyfriend and a 16-year old girlfriend.  The boyfriend says he's scored some coke and wants to know if the girlfriend wants some; she says yes.  She comes over, they have sex, and the girlfriend takes a toot.  Totally unknown to the boyfriend, the "cocaine" he's been sold is actually fentanyl, and she dies.

We know he's guilty of giving a controlled substance to a minor.  Two questions:  (1) Is he also guilty of personally inflicting great bodily injury on the victim?  He (of course) intended the act that led to a death -- even though he clearly didn't intend the death -- but is the victim's voluntary ingestion of the drug a superseding cause?  (2) If the answer to (1) is "yes," what's the appropriate sentence?

The Court of Appeal is split on the answer to (1).  Today's opinion falls on the side of saying that you are indeed criminally responsible for inflicting great bodily injury in this setting, and that it's not a defense that the victim took the drug voluntarily.  And, as for (2), Mr. Ollo -- Treyvon, if that means anything to you -- gets sentenced to twelve years in prison.  For a death that he clearly didn't intend.

Of course, if it's one's own daughter who dies, the desire for vengeance would undoubtedly be strong.  Maybe you'd want the 18-year old to spend a dozen years in prison.  On the legal question, I'm not at all certain the Legislature wanted people convicted of inflicting great bodily injury -- a serious offense -- when the victim engaged in voluntary conduct that led to the death.  Maybe not.  Maybe so.

On a policy level:  You help a friend trespass and they accidentally fall to their death; guilty of this serious offense?  You give a friend with a severe headache one of your prescription Tylenol with codeine pills and she dies; guilty of deliberately inflicting great bodily injury upon her?  You intended the act, after all, and that act is not legal.  Twelve years in prison?  For you or, if it was your child who tried to help with the headache instead of you, your 18-year old daughter?

Maybe.  Maybe everyone's okay with calling these things the infliction of great bodily injury.  But there are very, very serious offenses involving the deliberate infliction of great bodily injury in which the defendant doesn't get 12 years in prison.  I'm just not sure that we're trying to fit a round peg into a square hole when you've got one crime (furnishing drugs to a minor) that squarely fits the offense but we charge a much greater offense that's generally used for deliberate attacks and the like.

Garcia v. Rosenberg (Cal. Ct. App. - Dec. 4, 2019)

Good decision by Justice Hill to publish this opinion today.  And good ending thereto.

I too found disturbing the trial court's unquestioned reliance upon the self-serving declaration of the defendant in this malicious prosecution action hat the lawsuit was dismissed only because a client representative couldn't attend the MSC.  ("The reason or intent of Allstate and Rosenberg behind the dismissal of the subrogation action is a matter uniquely within their knowledge, and apparently the only evidence the trial court considered on that issue was Rosenberg’s declaration stating his intent. The Garcias were not likely to have direct evidence of Rosenberg’s intent, but there were inferences to be drawn from the circumstantial evidence. Rosenberg did not deny that, within a few months after the subrogation action was filed, the Garcias provided him with a document from the Department of Motor Vehicles showing they had sold the Aerostar and filed a release of liability six months before the accident with Allstate’s insured. It was undisputed Rosenberg and Allstate pursued the subrogation action vigorously for seven years, including garnishing the Garcias’ wages, placing a judgment lien on their home, having their drivers’ licenses suspended, and declining to consider the possibility of the Garcias’ innocence in light of the evidence they presented, then suddenly dismissed it shortly before trial. The evidence would support an inference in the Garcias’ favor that Rosenberg’s stated reason was a convenient excuse for a last minute dismissal to avoid a trial he deemed likely to result in a judgment against his client.")  So good to see the Court of Appeal refuse to affirm on that basis.

And even though the case gets affirmed in the end, it's nice that Justice Hill ends the opinion by saying:  "In closing, we note that the Garcias’ plea for justice, made at oral argument, did not fall on deaf ears. We understand and appreciate the obstacles they faced in attempting to defend themselves in the subrogation action and prosecute their malicious prosecution actions."  It's always good to remember that we're dealing with people.  Real people, real problems.  Not merely abstract issues of law.

Even when those legal principles constrain our actions and make the case come out in a way that might not be intrinsically morally pleasing.

People v. Leelu (Cal. Ct. App. - Dec. 3, 2019)

It's a telling sign when the Court of Appeal says that, under the relevant statute, a defendant's mental competence should definitely have been evaluated by two different experts (rather than only one), but that the defendant was so clearly out of it that the error was harmless.  Which is what happens here.

You can see why, though.  Ms. Leelu was charged with trespassing, and then later charged with stalking.  She wanted to represent herself.  (Always a bad sign.)  She tells the trial court:

“I know my rights. I can have jury trial representing myself. [¶] . . . [¶] All psychiatry. And they arrest me so many times in the past couple years, but now I want to be candidate of U.S. senator. We need to change to make a difference, as Donald Trump said.”

Well, now.  All right, then.  Not the most relevant commentary in the world, but at least I know what you're saying.

But it gets worse.

When the trial court expresses doubts about Ms. Leelu's competence, she responds:  "I will let all 32 million people know this judge use police to harass me and my husband and always do things, keeping asking money from me, no jury trial at all. And the police chief right to hire and --.”

Okay.  That's not exactly helping you there, Ms. Leelu.  Pretty much exactly the opposite.

The doctor who subsequently evaluates her gets to spend more time with her.  And gets more of the same.  Plus. 

"Dr. Cohen opined Leelu “is not rational or coherent in conversation, she cannot express herself such that others can understand her meaning, and she misperceives, or cannot comprehend what others are saying to her. She is confused and misinformed about her legal case, and gets facts intertwined with her delusions.” For example, Leelu “insists that her attorney is ‘The Senior Minister of the Interior,’ from Canada, and he would be defending her except he lost his Canadian driver’s license, and must return home to get a replacement.” Dr. Cohen observed Leelu “spoke in a rapid, pressured manner. . . . Much of her speech was repetitious, involving favored paranoid themes of individuals, government and religious organizations planning to harm her, the police harassing her, and her ability to discern ‘hidden’ meanings and messages that escaped the notice of everyone else. She was almost never able to speak in a manner that was rational, coherent, or logical. For example, when asked how she remembers things that may be important to her in the future, she replied, ‘I have a diamond ring with an iPad inside it.’”

And now you see why the Court of Appeal holds that the failure to appoint a second expert was harmless.  'Cause we sort of know how that second one would have come out.

Though I'd have loved to check out that alleged "diamond ring with an iPad inside it."  Sounds cool.

People v. Beck & Cruz (Cal. Supreme Ct. - Dec. 2, 2019)

Imagine that someone asked you to write a book.  An entire book.  How easy would that be?

Now imagine that the person told you that nothing you said in the book would matter.  Plus, as a bonus, you'd be discussing events that occurred 30 years ago, and that currently concern very few people.  How excited would you be to take on such a task?

I ask this after spending quite a bit of time -- trust me, quite a bit -- reading this opinion from earlier today. Which spans 185 pages.  Which affirms the convictions and sentences for a 1990 murder in which several people were sentenced to death but in which the probability of these defendants actually being executed is essentially nil.

Do you want to do a good job on the opinion?  I'm sure you do.  There are lives at least allegedly at stake, and these are serious crimes.  Nonetheless, I suspect that as you're writing the opinion and hit pages 100 or 120, you start to just want it done and over with.  If only because, as a practical matter, none of this will make much of a difference in the end.  The defendants will die in prison, a natural death, either way.

But read the entire thing if you'd like.  It's a unanimous opinion, and a horrible crime to be sure.

From 1990.  In which the defendant's fate is already set.

People v. Lopez (Cal. Supreme Ct. - Nov. 25, 2019)

Justice Kruger writes a pretty good introduction to this opinion, which overrules precedent and explains why.  She writes:

"Acting on an anonymous tip about a motorist’s erratic driving, a police officer approached defendant Maria Elena Lopez after she parked and exited her car. When the officer asked if she had a driver’s license, she said she did not. Police then detained her for unlicensed driving and, without asking her name, searched the car for Lopez’s personal identification. They found methamphetamine in a purse sitting on the front passenger’s seat.

The trial court held the search was invalid under Arizona v. Gant (2009) 556 U.S. 332 (Gant), which narrowed the scope of permissible warrantless vehicle searches incident to a driver’s arrest. The Court of Appeal reversed. It held that the search was authorized under this court’s pre-Gant decision in In re Arturo D. (2002) 27 Cal.4th 60 (Arturo D.), which allowed police to conduct warrantless vehicle searches for personal identification documents at traffic stops when the driver failed to provide a license or other personal identification upon request.

We granted review to consider the application and continuing validity of the Arturo D. rule in light of subsequent legal developments. At the time Arturo D. was decided, no other state or federal court had recognized an exception to the Fourth Amendment’s warrant requirement for suspicionless traffic-stop vehicle searches. The same holds true today; California remains the only state to have recognized such an exception. Considering the issue in light of more recent decisions from both the United States Supreme Court and our sister states, we now conclude that the desire to obtain a driver’s identification following a traffic stop does not constitute an independent, categorical exception to the Fourth Amendment’s warrant requirement. To the extent Arturo D. held otherwise, we conclude that rule should no longer be followed. We reverse the judgment of the Court of Appeal and remand for further proceedings."

Not surprisingly, the decision is not unanimous.  It's instead a 4-3.  The dissent is authored by Justice Chin, which isn't surprising, since he was in the majority in Arturo D.  Alongside Justice Chin in the dissent are Chief Justice Cantil-Sakauye and Justice Corrigan; again, about what you'd expect.

But it's a new California Supreme Court.  It's not just that Gant came along in 2009; a case that itself departed from precedent.  It's also that the composition of the California Supreme Court is different -- more left-leaning -- than it was 17 years ago.  Which in part explains this opinion.

Though not entirely.  This is how the dissent ended in Arturo D. back in 2002.  Bear with me, as it's a little long:

"Who among us can ever forget the horrendous events of September 11, 2001, when our nation suffered the most destructive terrorist assault in our history? As this opinion is being written, our nation is undergoing a painful recovery from the devastating physical and psychological effects of that day. One part of this recovery process has been an effort to devise and implement more effective methods of law enforcement to protect the security of our citizens and our institutions. Another and equally important part of this process must be a rediscovery of and rededication to the principles upon which our nation was founded and which have made it a true beacon of liberty throughout the world.

One principle, so basic to our personal liberty, is the prohibition that the Fourth Amendment to the United States Constitution places on unreasonable searches and seizures. In determining whether a search is "unreasonable," a court must adhere to the decisions of the United States Supreme Court articulating the meaning of that word in a similar case. Virtually identical to the two cases here is the high court's unanimous decision in Knowles v. Iowa. [Cite] There, the court held that when a police officer has stopped a motorist for a routine traffic violation, and the officer has not arrested the motorist, the officer may not rummage through the vehicle.

Today's majority decision does nothing to enhance our security and does much to erode our Fourth Amendment rights. Under California law, an officer making a routine stop for a traffic violation may arrest a motorist who fails to produce proof of identity and, within the limitations of the Fourth Amendment, may search the vehicle incident to the arrest. Given this ability, there is no justification for the warrantless, nonconsensual search of a car's interior when the officer has made no arrest and the officer lacks probable cause to believe that the car contains contraband. In announcing a blanket rule authorizing such searches, the majority disregards the high court's decision in Knowles and chips away at one of the fundamental freedoms guaranteed by our federal Constitution."

Sure, that dissent was written by Justice Kennard.  But it was also joined by Justice Brown.  So it's not completely a left-right issue.  There's definite room for concern on both sides of the aisle.

People v. Wilson (Cal. Ct. App. - Nov. 20, 2019)

I'm usually pretty confident that what I say is right.  At least in my own mind.  (Others, obviously, may disagree.)  But when I'm not confident, I'm happy to say so.

So when I read this opinion, I definitely had a thought.  A thought that I think is right.  But I'm not a hundred percent sure.  Hence the caveat.

But if I am right, the Court of Appeal gets this one wrong.

Here's the deal:

The defendant in a criminal case makes a request to represent himself.  The trial court denies it on the ground that the request was equivocal (e.g., uncertain/conditional).  Defendant appeals.

On review, the Court of Appeal concludes that the trial court was wrong, holding that the request was squarely unequivocal.  So reversal, right?

Wrong.  Because the Court of Appeal thereafter holds that the request was nonetheless untimely, so the trial court properly denied the request -- albeit on the wrong basis.

Okay, we know that the Court of Appeal reviews judgments, not decisions, and thus may affirm on alternative grounds.  That part's clear.  So if, for example, the untimeliness of the request precluded the trial court (jurisdictionally or otherwise) from granting it, it makes total sense to affirm on the alternative timeliness ground.

But, here, the Court of Appeal recognizes (correctly) two different things, both of which to me seem to preclude a decision to affirm on these alternative grounds.

First, the Court of Appeal flatly says that the request here "was not timely," but its support for that proposition is merely citations that the Court of Appeal describes as holding that "a Faretta motion made on the day of trial may be found to be untimely (People v. Frierson (1991) 53 Cal.3d 730, 740, 742), as may one made four days before trial is to begin (People v. Scott (2001) 91 Cal.App.4th 1197, 1205)." (emphasis added).  "May" does not mean "Is".  "May" implies discretion.  As, I imagine, do the holdings referred to by the Court of Appeal.  So, yes, the trial court perhaps could have found the motion untimely.  But it didn't.  Nor, I strongly suspect, was it required to so find.  To put it another way, the trial court could have found the motion timely, even though it was made only a day before the trial.  That's for the trial court to decide.

If something's subject to the discretion of the trial court, and the trial court doesn't exercise that discretion (e.g., because it erroneously fails to do so because it bounces the motion on a different, erroneous, basis), isn't the proper remedy to reverse and remand for the exercise of that discretion?  Not to simply affirm because the trial court could -- but didn't, and was not required to -- exercise its discretion in a particular way?  I would think that's the necessary, and valuable, structure of appellate review.  Otherwise you're depriving the trial court (as well as the parties) of its discretion.  As well as getting it wrong.  Since, for example, the trial court here might well have been thinking:  "I will deny the motion because it's equivocal, but had it been unequivocal, I'd have found it totally timely and would have granted it, holding (correctly) that a day before trial is enough time."  Something that a straightforward decision to affirm (like here) precludes.

The second problem is related to the first, though I think it's independent as well.  The Court of Appeal notes that even had the request been untimely (and, as noted above, a trial court may have perhaps properly concluded otherwise), even "an untimely Faretta request requires consideration of the quality of counsel’s representation, the defendant’s prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion" -- things that (again) the trial court does, in the exercise of its discretion, not the Court of Appeal.  The Court of Appeal decides, again, that the trial court could have evaluated these factors to support the denial of the Faretta request, and (persuasively) explains why.  But I have no doubt that the trial court could also have evaluated these same factors and (properly and persuasively) come to the conclusion that they support the grant of the untimely Faretta request instead.

That's what we mean by -- and is often the case with -- "discretion".  One can go either way.

And if the trial court can go either way, then it's for the trial court to decide which way to go.  Not for the Court of Appeal to decide to take that option away -- to obviate this discretion -- by affirming on a basis that the trial court may well have rejected.

So, yeah, we review judgments, not reasons.  But I think we routinely reverse and remand for the exercise of the trial court's discretion, especially when (as here) the trial court never exercised that discretion because it erroneously decided the case on other grounds.  Seems to me that we should obviously (and correctly) do that here as well, rather than -- as the Court of Appeal does -- simply affirm the decision below.

Now, ultimately, do I think the trial court will come out the same way as the Court of Appeal?  Absolutely.  I have little doubt that the trial court, upon remand, would say "Yeah, I didn't like the request, and had I thought it unequivocal, I would have denied it as untimely anyway."  At which point the ultimate result would be the same.

But being confident -- based on human psychology and intuition -- about a result is one thing, and actually having it be done legally is another.  There's a chance (albeit not a big one) that the trial court would honestly and forthrightly say upon a remand, "You know, had it been unequivocal, in the exercise of my discretion, I'd have granted it."  And if that's the case, then I think we all agree the guy should get a new trial.

So I'm on board for occasionally affirming on alternative grounds.  It sometimes expedites things.

But not when, as here, the trial court's discretion on those alternative, unaddressed grounds can go either way.

And I think that's the right result not only normatively, but even under existing precedent.

Patterson v. Padilla (Cal. Supreme Ct. - Nov. 21, 2019)

I don't think it's very surprising that the California Supreme Court struck down today the challenged provisions of the Presidential Tax Transparency and Accountability Act (Elec. Code, § 6880 et seq.), which prohibit the Secretary of State from printing on a primary election ballot the name of a candidate for President of the United States who has not filed with the Secretary of State the candidate’s federal income tax returns for the five most recent taxable years.  The language of the California Constitution in that regard (article II, section 5(c)) are nontrivially to the contrary.  So you've got a unanimous decision today that largely reads as one would expect.  Nor is it surprising that the opinion's author is Chief Justice Cantil-Sakauye.  That too is as it should be.

But it is interesting to see Judge Cuellar's concurrence.  He's the only person who writes separately.  And he does so to highlight why, in his view, it makes eminent sense to have presidential candidates reveal their tax returns -- and for the electorate to require as much.  All of this notwithstanding the holding in which he joins.

All good stuff.

People v. Lopez (Cal. Ct. App. - Nov. 20, 2019)

A guy is a heroin user, and to support his habit, a relatively low-level seller of the stuff.  He's high on heroin himself when he gets caught with 35.9 grams of the stuff -- around 0.08 of a pound.  That stuff is contained in 24 separate bindles.  He's also got some money on him: three $20 bills, three $10 bills, and 11 $1 bills.  That'll give you a sense of what type of heroin dealer he is.

He's sentenced to 17 years, 8 months in prison.

Clearly, people should not sell (or use) heroin.  Of that I have little doubt.

Though I wonder what history will say about locking people up for nearly twenty years for this type of stuff.  Or even, after the Court of Appeal's partial reversal, a decade-plus.  There's some solace, to be sure, that one (potentially) gets time off for good behavior, at least on the state side.  But there's an underlying problem here.  One for which we're not even approaching a solution.

So we use potentially lengthy periods of incarceration.  Someone less lengthy than we imposed in the recent past.  But still lengthy.  Without, I suspect, much of a resulting dint in the underlying trade.  As a plethora of heroin users are going to sell the stuff, if necessary, to pay for their habit.  As sure as the sun rises in the morning and sets in the evening.  Regardless of the length of their potential imprisonment.

And there are always others to take their place after any particular user/dealer is put on ice.

The nature of the trade.

Vega-Anguiano v. Barr (9th Cir. - Nov. 19, 2019)

I'm on the sixth page of the Ninth Circuit's only published opinion today, reading along with dense text.  Yet I'm not even past the official "Summary" yet.  The actual opinion hasn't even started.

It's a super tiny caption.  But the "Summary" is incredibly long.

In part, that's a result of there being (1) a majority opinion, (2) a concurrence, and (3) a dissent.  You want to summarize all of these.  I get it.

But still.  The actual (three) opinions are less than 20 pages.  total.  A "summary" that takes up 5 pages could probably be a bit more concise.

Silbaugh v. Chao (9th Cir. - Nov. 14, 2019)

Now here's a neat little case.  Especially if you're (like me) a professor who teaches civil procedure.

It's a relation back case under Rule 15; in particular, against the United States.  You get relation back (for statute of limitations purposes) against the government under Rule 15(c) under if you've made a mistake in naming the correct party -- e.g., here, you named your supervisor as the defendant instead of the formal head of the relevant executive agency (here, the Secretary of Transportation) -- but then later correct that mistake and the U.S. knew within 90 days that you made that mistake because you delivered "process" on the Attorney General or relevant U.S. agency.

The question in this case is:  What does the Rule mean by "process?"

Truthfully, it's got a totally straightforward meaning.  By "process" we mean the summons and complaint.  The documents that you use to commence a lawsuit.

Which is precisely what the plaintiff here did.  She served a copy of the summons and complaint on both the U.S. Attorney as well as on the Attorney General.  End of story, right?

Not quite.

Because the copy of the summons here was not signed by the court clerk.  Which it normally has to be in order to constitute proper service; e.g., to require the defendant to respond to the complaint under penalty of default.

So does an unsigned copy of the summons (plus the complaint) count as "process?"

Under the normal service of process rules, the answer would clearly be "no."  It doesn't count as "process" -- or, more accurately, it doesn't count as valid process.  It wouldn't be sufficient to permit the court to exercise jurisdiction or to award a default judgment.

Which is why, intuitively, you might think that "process" is defined in the rule as a summons that's signed by the clerk plus a complete copy of the complaint.  And, if the rule was defined that way, the U.S. would be right, and there'd be no relation back here.

But you'll look at the FRCP in vain for such a definition.  It just uses the word process.  Repeatedly, to be sure.  But it doesn't define it.

Which leaves it open for Judge Watford to hold as he does here.  The U.S. was indeed served with "process," he says, because it definitely received a summons and the complaint.  Which means that the purpose of Rule 15 was satisfied; it knew full well that it had been served, albeit that a mistake had been made in the formal naming of the defendant.  Hence there's relation back.  Since Rule 15(c) does not say there has to be service of "valid" process to get relation back, the point of relation back is to ensure notice (which there was), and we strongly prefer adjudications on the merits rather than hypertechnical procedural dismissals.  So held.

All of which seems right to me.

I'll add one other point in this regard that Judge Watford's opinion doesn't mention.  Not only do I not see a formal definition of process as including a signed summons, but there are other provisions in the FRCP that suggest that the rules are fully capable of requiring process to be "valid" when they so require.  For example, in Rule B (governing attachment), paragraph (2)(a) says that a court may not order garnishment or attachment unless "the complaint, summons, and process of attachment or garnishment have been served on the defendant in a manner authorized by Rule 4."  So if process wasn't served in this manner (e.g., the summons wasn't signed), it'd be invalid, because the rule says so.  Yet Rule 15(c) doesn't do the same thing.

In any event, I think that Judge Watford rightly interprets the rule here to be consistent with its obvious (and salutary) purpose.  We give relation back when there was notice.  Here, there was notice.  Yes, we're a bit nit-picky when the United States is concerned, and, yes, the United States has promulgated rules that are very much in favor of . . . surprise, surprise . . . the United States.  But the rule here just says process, and that means and summons and complaint, and that's indeed what the U.S. got.  That it wasn't signed isn't part of the rule.  Even though that's what you might ordinarily think "process" means as applied to other rules with slightly different purposes.

Fair enough.

Altera Corp. v. CIR (9th Cir. - Nov. 12, 2019)

Today's an unusual day indeed.

The Ninth Circuit publishes this today.  It's a dissent from the refusal to take a case en banc.  Nothing totally unusual about that, right?

Except it's a tax case.  Not the usual subject of an en banc call.  And not even a tax case that affects a huge number of "regular" people:  It's about a Ninth Circuit opinion last year that upheld a Tax Court ruling that related entities must share the cost of their employee stock compensation.  Yet that opinion sees a huge volume of amici and a spirited dissent for the refusal to hear the case en banc.  Not your usual degree of attention to a tax opinion.

The opinion is unusual is one other way as well:  the huge number of recusals.  How many?  Not one.  Not two.  Not three.

Ten different Ninth Circuit judges recuse themselves from the en banc call:  Judges McKeown, Wardlaw, Bybee, Bea, Watford, Owens, Friedland, Miller, Collins, and Lee.

So it's an opinion that may affect at least a nontrivial number of people in a particular socioeconomic group.  Including but not limited to Ninth Circuit judges.

People v. Chubbuck (Cal. Ct. App. - Nov. 12, 2019)

Defendant was convicted of unlawfully taking a motor vehicle, but it's not your usual stolen car case. Indeed, I'm not even sure what the defendant was trying to do.  He breaks into a storage yard at 4 a.m. and then starts driving -- inside the storage yard -- a vehicle that's typically used to move storage containers, and does so for 15 minutes or so.  The owner of the storage yard and the police then arrive and arrest him.

What was he trying to do?  Steal a storage container?  If so, he was remarkably bad at it, and didn't even seem to try.  Just joyride in the storage facility?  Weird.  And hardly worth the seven years in prison he received.

So not your usual stolen vehicle case.

And not your usual name, either.  The defendant's first name is "Jhyy."  Last name:  Chubbuck.  The opinion even contains a footnote (the first one) about the defendant's name, which was apparently erroneously entered on the abstract of judgment.  Definitely a unique first name, and one I have not seen before.

Board of Trustees v. Chambers (9th Cir. - Nov. 7, 2019)

The Ninth Circuit has only published a couple of opinions in all of November, but the opinion today is a memorable one, if only for its brevity.  The split panel opinion (a year ago) was 64 single-spaced pages, and waxed poetically about whether the voluntary cessation doctrine of mootness applied to cases in which the government lost a lawsuit, repealed the relevant statute, and refused to promise that it wouldn't reenact the thing.

But you'll be hard-pressed to find a shorter en banc opinion than the one issued today, which resolves the dispute (1) unanimously, and (2) in well under a dozen pages.  (Indeed, a full half of the opinion consists entirety of the caption and list of lawyers and amici.)  The en banc court says, basically, that other circuits have found that mootness applies in situations like these, so we're going to join them. Notwithstanding the contrary view of the majority in the panel decision we're reversing.

So short.  And (relatively) speedy.  Though I'll note that it still took the en banc court nearly five months two write its five-and-a-half pages of text.

People v. Martin (Cal. Ct. App. - Nov. 5, 2019)

There's nothing published by the Ninth Circuit or the California appellate courts today.  So I took a brief look at this opinion.  If only because the defendant's name (like mine) was "Martin."

And it's a somewhat weird one.  At least for a relatively unsophisticated reader like myself.  The defendant is a 22-year old who stole a car in Florida, drove it to California, and then led police on a high-speed chase before ditching the vehicle and being caught.  He's got a bit of a criminal history in Florida, but it seems like he's not totally irredeemable.  And does some fairly strange things when he's caught by the police.  (For example, from the opinion:  "Another officer subsequently located defendant walking on Needles Highway, waving his arms as cars passed by, as if he was trying to flag one down. As the officer approached him, defendant lay down on the ground. The officer pulled his patrol car over and got out. Defendant yelled to him, 'Please place me in handcuffs before your partners get here.' He was breathing heavily and asked if he could sit in the patrol car."  Not exactly how most police chases end.)

But okay.  He's convicted of felony evading the police, and it's time for him to be sentenced.  The court thinks that the chase wasn't all that long (two minutes), and Mr. Martin's criminal history isn't all that egregious, so it says that it's going to sentence Mr. Martin to probation.  But the court also says it's a little bit concerned for Mr. Martin's welfare since he doesn't have any family or friends in California (having just gotten here in his stolen car), so orders a recess for Mr. Martin to talk with his counsel to figure out what the most beneficial probation arrangements would be.  Maybe transfer the case (or probation) to Florida?  Something like that.

Here's the part I don't totally understand.  After the recess, Mr. Martin and his counsel come back, and they say that Mr. Martin would just rather be sentenced to prison than receive probation.  The trial court says (essentially), "Really?"  But, yeah, that's what Mr. Martin wants.  To the trial court sentences him to the low end of the imprisonment range.  Which is still 16 months in prison.

Why would someone want to be incarcerated rather than go on probation?  Seems like a no-brainer that the former is worse than the latter.  Strange, eh?

Though I can think of two possible explanations for Mr. Martin's choice.

First, he might think that he'll violate probation anyway.  In which case, yeah, get it over with.

Second, he might think (perhaps combined with the prior explanation) that given his time already served, the ultimate prison sentence won't matter much anyway.  The opinion mentions as an aside that Martin got credit for 256 days of prior jail time.  With a sentence of 16 months, with time off for good behavior, maybe those 256 days of credits means he's not looking at much additional time in actual prison anyway.  Better that, one might perhaps think, than an extended period of probation.

So an interesting choice.  By an interesting guy, Mr. Martin.

U.S. v. Norris (9th Cir. - Nov. 4, 2019)

This seems right to me.  As well as pretty darn good police work.

Someone's sharing child pornography.  The police look up the IP address and discover that it's coming from a router in Apartment 242, and the police obtain a search warrant for that address.

Except that when they execute the warrant, they discover that there's not child porn on the computer there.  So where's the child porn coming from?  They download the access data from the router in that apartment and discover that someone else's computer has been access this router -- notwithstanding the fact that the router is password-protected.  Surprise!

Which is a pretty good move by the child pornographer at issue.  You're worried that the police might figure out it's you if you use peer-to-peer sharing over your own internet connection.  So you use the connection of someone else.  Someone innocent to cover your tracks.

So the police are stymied, but not for long.  They subsequently start using an open-source software program that's aptly named "Moocherhunter" to find out who's been using the router in Apartment 242.  They use a directional antenna and find out that the signal of the computer that's accessing the router in Apartment 242 is much stronger when it's pointed at . . . Apartment 243.

So the police then obtain a search warrant for Apartment 243.  And, lo and behold, they find two computers there that have indeed accessed the router in Apartment 242 and that contain kiddie porn.

Hence the arrest and conviction.

The defendant appeals, saying that the "search" using the Moocherhunter software violated the Fourth Amendment.  But the Ninth Circuit disagrees.  Which seems right.  If you're pumping out electronic transmissions from your computer to pimp your neighbor's password-protected internet connection without his consent, it's not impermissible for the police (or anyone else) to investigate where those transmissions are coming from.  You shouldn't be grabbing their internet in the first place, and your transmissions are in any event public and it's okay for someone else (including but not limited to the police) to point software in your direction to figure out where those transmissions are coming from.

Makes sense to me.  As well as to Judge Rawlinson and the rest of the panel.

AAAJ-LA v. Padilla (Cal. Ct. App. - Nov. 4, 2019)

There's a fight about the degree to which Section 14201 of the Elections Code requires the California Secretary of State to post facsimile ballot materials in languages other than English.  The Court of Appeal resolves that fight.  A resolution in which both sides in a little bit.

What was most interesting to me was to see the list of what languages we're fighting about; in particular, what languages have "minority language groups" that constitute three percent or more of a precinct's population.

Some of the candidates are obvious:  Spanish, Chinese, Mandarin, Korean, Vietnamese, etc.  Some are much less so.

Which of the following language(s) do you think do not have a precinct in California in which three percent or more of the population primarily speaks the relevant language:

(A) Tagalog;
(B)  Formosan;
(C)  Ilocano;
(D)  Khmer.

Answer:  We've got precincts for all of these.  To be honest, I had never even heard of (C), and had to look it up.  More proof that you can learn something new every day.

O'Grady v. Merchant Exchange Productions (Cal. Ct. App. - Oct. 31, 2019)

If you're a company and you add a mandatory "service charge" to the bill, does that constitute a "gratuity" (i.e., tip) that has to be shared only with the relevant service people?

The Court of Appeal says:  "Maybe."

When I first thought about it, that answer didn't seem particularly compelling.  But the more I thought about it, the more it seems to me that the Court of Appeal's answer is correct.

I could imagine lots of "service charges" that fairly clearly aren't gratuities (at least to me).  Even if they're invoked in the traditional food and beverage industries.  For example, say a business added a $3.00 "service charge" for room service, and had a separate category on the bill for a tip.  To me, that charge is fairly clearly not a gratuity.

By contrast, imagine that the hotel adds an 18% "service charge" on to room service bills, and does not include a line for tips.  Well, to me, I'd almost certainly think that's going to the server.  That's a gratuity to me.

I can imagine a million different types of variations.  Here, it's a 21% service charge imposed by a banquet facility.  Well, it's close to 15 and 18 percent, which is the typical "tip" amount.  But it's not exact.  And it's on banquet stuff, which is not a totally mainstream tipping area.  So I could see someone going either way.

Which is what the Court of Appeal is basically saying.  It depends on the fact.  There's no categorical rule.  Sometimes "service charges" are tips.  Sometimes they're not.  Depends on a ton of things.

Not a bright-line rule, so it'll have some transaction costs and uncertainty.  But still the right rule.

Hodges v. County of Placer (Cal. Ct. App. - Oct. 29, 2019)

I get it, Court of Appeal.  I really do.  You're saying that just because the County put the money that belonged to the plaintiff into a "trust" account doesn't mean that there was actually a "trust" (e.g., fiduciary) relationship between the parties.  Just like -- as you say -- "a panda is not a true bear."

But doesn't the partial injustice of the present case nonetheless bother you?  At least just a little?

The plaintiff owes some property taxes on his residential property, and (for whatever reason) doesn't pay them.  Fair enough.  The County of Placer will -- and does -- conduct a tax sale, and sell the thing out from under you.  That's the way we enforce your obligation to pay taxes.  Doesn't bother me in the slightest.

But the value of the property is way greater than the value of the taxes.  Which, again, doesn't bother me.  But it does mean that there's a ton of excess money.  The County sells the property for $530,000.  The overdue taxes, including all penalties etc., consists of less than a tenth of that:  approximately $37,000.  Then the County inexplicably keeps another $45,300 that, as the Court of Appeal explains, "went to other charges and expenses which the County did not explain."

And, in the end, after keeping the money for nearly two full years, the County gives the plaintiff the balance of what it thinks it owes him:  $437,096.16.  But doesn't pay a penny of interest on the nearly half a million dollars of plaintiff's money that the County has held on his behalf for the 18+ months in the meantime.  (Parenthetically, the Court of Appeal doesn't mention this, but on the other side, if you are even a single day late in paying your property taxes, the County instantly charges you interest of 10% on the entire balance.  Sounds fair and equitable, right?)

The County held that half million dollars for a ton of time.  It got value for that.  It earned interest, didn't have to float bonds, etc.  It demonstrably got a benefit.  And, reciprocally, the plaintiff incurred financial harm in not getting that money earlier.  Time value of money and all.  A fairly important (and basic) concept.

Why shouldn't the County be forced to pay at least a little bit of interest?  Why, during the time it kept this money, wasn't the County at least a little bit in a fiduciary relationship with the plaintiff?

It's bad enough to take over $45,000 of the plaintiff's money for "charges and expenses which the County did not explain."  It adds insult (and injury) to injury to pile on by not paying even a single penny of interest on the nearly half million dollars of someone else's money you've kept (to your demonstrable benefit) for nearly two years.

Yes, sometimes a "trust" account isn't really indicative of having a "trust"-like relationship with another party.  But sometimes that "trust" account, alongside the facts and equities of the underlying relationship, does impose at least some obligation of trust and fidelity.  Or at least should.

And not paying even a single dollar of interest here would, to me, seem to qualify as an inequitable and unjust result.  For which we could -- but the Court of Appeal does not -- provide a remedy.

My take, anyway.  FWIW.

Denham v. City of Richmond (Cal. Ct. App. - Oct. 25, 2019)

This makes sense to me.  Times two.

The general plan of a City allows future residential development of various hillside locations.  But the residents of that City decide that this would be unattractive.  So they propose and adopt an initiative that (generally speaking) stops residential development in this area, and leaves it agricultural and (in essence) attractive.

So far so good.  The people have that right.  (Assuming it's not a taking, etc.)

Here's the problem:

The initiative's a messy one.  It's not perfectly written.  As one might expect with citizen-initiated proposals, which don't go through the same type of substantive legal review as measures adopted by the City pursuant to its usual (byzantine) planning process.

So while the initiative is clear in a the overwhelming majority of its respects, it accidentally failed to amend various other provisions of the City's general plan in which the hillsides at issue were listed as amendable to residential development.  It just forgot about (or overlooked) these.

Which in turn means that, after the adoption of the initiative, the City's laws were internally inconsistent.  One big chunk of them (added by the initiative) said you can't build houses on the hillside.  But a residual chunk of them -- which predate the initiative, but were unamended by it -- say that you can build houses on the hillside.

So what to do?

The trial court says that the internal inconsistency means that the initiative is void, so it falls.  But the Court of Appeal disagrees.  There's not much precedent precisely on point, since these sorts of things (thankfully) don't happen all the time.  But in a creative and, I think, common sense opinion, Justice Tucher writes an opinion that remands and that directs the City to resolve the inconsistency.  One way or the other.

But how can you do that?  After all, the initiative was adopted by the people.  The municipality can't amend it.  So how can the City even attempt to do what the Court of Appeal has ordered it to do -- or at least do so short of simply capitulating to the initiative and repealing the inconsistent preexisting provisions of the general plan?

Good point.  But the Court of Appeal has an answer.  It says that, if it chooses, the City might elect to submit another proposed initiative to its residents that resolves the existing inconsistency.  And if the residents vote in favor, boom, problem resolved.

Which is true.  Mind you, that sort of gives the opponents of the initiative "two bites at the apple" in opposing the restriction on hillside development; first, when the initiative was initially proposed (and ultimately adopted), and second, when this new City-sponsored initiative comes out.  So that's a little unfair.  But, truthfully, that's the fault of the people who wrote the initiative.  Write a better one next time that doesn't forget to amend other inconsistent parts of the City's plan and you won't have such a problem.  One, essentially, of your own creation.

What the Court of Appeal leaves unstated, of course, is what happens if the City proposes such a "rectifying" initiative and it fails to pass.  But the answer is nonetheless fairly clear.  At that point, the City will pretty much be compelled to repeal the inconsistent provisions of the City's pre-initiative(s) plan.  Essentially letting the initiative prevail over the inconsistency.

Which makes sense.  The people voted.  Sure, the authors of the thing screwed up a bit.  But the intent of the thing was clear.  Unless the people decide something different (by adopting a new initiative), their obvious desire to prevent hillside development should prevail.  And the City should get rid of the inconsistent provisions of its existing Code.

A sensible and equitable result.  Regardless, IMHO, of whether you're for or against the residential development of hillsides.  There's a mode of rational legal analysis that's independent of results.  And it's properly and acutely displayed here.  I suspect the Court of Appeal would have done the exact same thing if the initiative would have inconsistently opened up (rather than closed) the hillside to residential development.

And entirely properly so.

State of California v. Little Sisters of the Poor (9th Cir. - Oct. 22, 2019)

No published opinions from either the Ninth Circuit or the California appellate courts (thus far) today.  So I'll go ahead and mention another case from yesterday.  This one.

You know it's a big ticket appeal when the caption page and list of counsel and amici spans the first thirteen (single-spaced) pages of the opinion.  And big ticket it is.  As the opening paragraph of the majority opinion accurately states the issue:

"The Affordable Care Act (ACA) and the regulations implementing it require group health plans to cover contraceptive care without cost sharing. Federal agencies issued final rules exempting employers with religious and moral objections from this requirement. The district court issued a preliminary injunction barring the enforcement of the rules in several states. We have jurisdiction under 28 U.S.C. § 1292, and we affirm."

Perhaps that's not a surprising result.  Particularly -- according to some -- from the "liberal" Ninth Circuit.

But, in that regard, let me point out that the author of the majority opinion is . . . Judge Wallace.  A jurist who's about as far from a "snowflake liberal" as you can get.

So a long opinion upholding part of the ACA and striking down an attempt to roll it back.  A high-profile opinion with a ton of interest.

People v. R.C. (Cal. Ct. App. - Oct. 22, 2019)

Justice Yegan begins this opinion by saying:

"An attempt to commit armed robbery is extremely dangerous. Appellant is lucky he was not shot to death by the store clerk who resisted his attempt to commit this offense. He would not have been the first attempted robbery culprit to meet this fate."

I'll add that such would have been a particularly tragic result because the appellant (1) is a 14-year old child; (2) who attempted to rob a 7-11 with a BB gun.  Fortunately, all that happened was that appellant was arrested and placed on probation.

It's also a neat little appeal because it's one that's basically based on a law review article:  Northrop & Rosen's piece entitled “Kids Will be Kids: Time for a ‘Reasonable Child’ Standard for the Proof of Objective Mens Rea Elements.” (69 Me. L.Rev. 109 (2017)).  Appellant's counsel takes that academic argument and turns it into a concrete legal one.

But the Court of Appeal says that you can lead an appellate tribunal to water, but you can't make it drink.  The law review article says:  “Based on the goals of the juvenile system, significant advances in adolescent development research and recent Supreme Court holdings on juvenile culpability, we argue here that the juvenile code should be amended to explicitly refer to a reasonable child standard for any mens rea element that relies on a reasonable person as the measure for criminal culpability.” The Court of Appeal responds:  "No, thanks."

So there you have it.

People v. Allen (Cal. Ct. App. - Oct. 22, 2019)

Leona Allen was convicted of welfare fraud in 1993.

Leona Allen was again convicted of welfare fraud in 1997.

Leona Allen was again convicted of welfare fraud in 2000.

Plus felony perjury in 2000.

Her son in serving life in prison (presumably for murder).

She wants her convictions expunged.

She's currently receiving 100% disability benefits from the State.

The trial court is not sympathetic to her plight.  The Court of Appeal gives her only minimal relief.

In re Marriage of Ahadzadah (Cal. Ct. App. - Oct. 15, 2019)

It's sometimes simultaneously easy and hard to resolve appeals by pro se litigants.  

It's hard because their briefs are occasionally rambling, unclear, and (in places) incoherent, so it's difficult to figure out what exactly they're saying.  And you want -- and are required -- to try your best to ascertain and then analyze the legal point they (obtusely and imperfectly) make.

On the other hand, it's easy for precisely the same reason.  Because when you can't understand a brief, even after trying, you can simply affirm.  As Justice Butz does here.  She resolves the present appeal in an opinion that basically consists of only a single double-spaced page, saying:

"Appellant filed an 11-page opening brief that is difficult to understand and a short supplemental opening brief that is similarly flawed. Unfamiliar with the principles of law governing the trial court’s ruling and the limited scope of appellate review, appellant does little more in her briefs than express frustration with the trial court and the judicial process. . . . Appellants must “present their cause systematically and so arranged that those upon whom the duty devolves of ascertaining the rule of law to apply may be advised . . . of the exact question under consideration, instead of being compelled to extricate it from the mass.” [Citation] Appellant’s opening brief, and supplemental opening brief, both fail on all these grounds. Under the circumstances, appellant has forfeited her claims of error. The judgment is affirmed."

Fair enough. 

I mention this opinion not because it establishes great law.  It definitely does not.  (Which is why it's unpublished.)  I mention it, in part, merely as an example of a type of case (and briefing) that's far from unusual in the Court of Appeal.

But, to the honest, the primary reason I mention this opinion is because I wanted to apologize.  Not for anything huge, but to apologize nonetheless.

But I'll begin with a long digression.  That's relevant in ways a reader may or may not immediately perceive, but which I'll explain at the end regardless.

My story begins way back in 1971.  That's the year still-popular President named Richard Nixon appointed a fresh-faced former Dean of Agriculture at Purdue University to be the new Secretary of Agriculture.  The name of that new cabinet member?  Earl Butz.

Now, the Secretary of Agriculture does not typically get much press.  But this guy did some pretty revolutionary stuff, and was also fairly controversial.  He massively favored corporate farms over smaller, traditional family farms.  And in 1972, the Soviet Union had a disastrous harvests, and we gave our Cold War enemy -- under Earl Butz's leadership -- massive grain sales.  Stuff like that made the news.  So you heard the guy's name on things like the evening news or on the radio, which was the media at the time, much more than you might otherwise think for someone in his position.

And then there was his personality.  Which was, let's say, unusual.  The guy could not keep his mouth shut.  And had zero filter.  I mean:  Zero.  To say that he was "inappropriate" at times is a massive understatement.  To take but one example:  at a World Food Conference in 1974, Earl Butz publicly mocked Pope Paul VI's opposition to birth control.  By -- and it still stuns me that he thought this would be just fine -- putting on a mock Italian accent and saying:  "He no playa da game, he no maka da rules."

Yeah.  That kind of guy.  In short, the kind of guy who makes the news.  A lot.

Now, in 1974, I'm an eight-year old kid living in Virginia, alongside my 7-year old brother, my 4-year old brother, and my 3-year old sister.  For a group like that -- or at least for my group of immature kids in particular -- the pantheon of humor in the universe consisted of jokes about farts and the like. So when we'd be driving with our parents in the car and a name like "Earl Butz" was read over the radio, you can imagine the resulting smirks and giggles and childlike laughter in the back seats over the mere mention of the name.  "Butz"  Hilarious!  And, to a degree, even slightly scandalous:  they are saying "Butts" on the radio.  Nothing could possibly be funnier.  Or so our pea-like brains thought at the time.

And I vividly remember those years, and Earl Butz's role in them, to this day. (Plus, his name was "Earl," and as a kid in Virginia, every "Earl" I knew at the time could accurately be characterized as a backward, Confederate-flag-waving, cousin-marrying redneck.)

And Earl Butz made the news a lot.  So lots of giggles for me and my siblings.  I remember even as a kid his ultimate downfall and when he was forced to resign.  Though, given my youth, I didn't at the time knew precisely what it was he said that ultimately forced him out.

(Parenthetically, neither did a lot of other people, including many adults.  The newspapers and radio reported that Butz had said something "patently offensive," and that it involved something about "the Blacks," but most of the media basically left it at that.  They didn't report what exactly he had said that made him resign, saying only that it was profane and racist.  Or they shorthanded it and filled in the actual words he said with other words that were close synonyms.  Several newspapers said they were not reporting the actual words he said but that readers could stop by the newspaper's main office if they wanted to read the actual quote.  In my current town, for example, the San Diego Evening Tribune did just that -- and over 3,000 readers in fact make the trek!

When you read what he actually said, you totally understand why he had to resign.  And, to be honest, it's stunning that anyone, anywhere, at any time would say (or even think) what he said; much less that this would come from someone in the Cabinet of the United States.  So skip to the next paragraph if you don't want to know the exact words of what he said.  Because here they come.  The utterly racist thing he said was . . . 'I'll tell you what the coloreds want.  It's three things: tight pussy, loose shoes, and a warm place to shit.'  Yeah.  Amazing.  And he said this right after he told a dirty joke about a dog having sex with a skunk.  Saying all this on a flight after the 1976 Republican Convention to a group that included Sonny Bono, Pat Boone, and John Dean.  Yeah, that was the mid-70s.  In a nutshell.)

Anyway, the point is, (1) the name "Earl Butz" was repeatedly in the news, and (2) it was a name that sparked much attention when it was uttered during my formative preteen years in Virginia.

Fast forward to 2019.  I've said some occasional nice things about Justice M. Kathleen Butz and her opinions in the past. And earlier this week, I discussed yet another one of her opinions.  But in the midst of that post, I accidentally called her "he".

Sorry about that.  Not a typo.  Just a total temporary brainfart.  One of my readers sent me an e-mail about it, and I (of course) went back and changed the post.  Totally my bad.

But it also made me wonder:  Why'd I make that mistake?  Sometimes things I post are just typos.  Sometimes they're things I just pound out with (in retrospect) insufficient thought.  But one this one, it was a mistake that was a weird one to make.  Because I know who Justice Butz is. And on those rare occasions when I'm talking about a particular justice who I don't know, I routinely look them up.

So why'd I make that mistake.

But then it came to me.  Earl Butz.  I honestly think that my subconscious was the one typing that sentence.  And that, in the inner recesses of my brain, when I was thinking about Justice Butz, the picture that subconsciously came to my mind was not the actual Justice Butz, but rather the Earl Butz of my formative youth.  The latter of whom was definitely a guy.

So the post reads the right way now.  And I'm sure it won't be the last one I ever make; or even the last one about gender.

But sorry about that.  Trust me:  I've thought about it a lot.  As you can probably tell.  And will try my best not to make the same mistake again.

Or at least not make it much.

Starview Property v. Lee (Cal. Ct. App. - Oct. 17, 2019)

It's a lawsuit between neighbors.  So you just know it's going to be overlitigated compared to the economic value of the dispute in question.

Perhaps even more so when, as here, the next door neighbors live in Brentwood.

Hence why Justice Bigelow begins the opinion by saying "In this acrimonious dispute between neighbors . . . ."  Yep.  I would expect nothing else.

The lawsuit also has a meaningful holding.  So it's not just important to the residents of Glenmere Way.

A long time ago, back in 1958, one neighbor gives an easement to another neighbor to use his driveway to access the property.  They agree that if the parties need to fill out any documents to confirm this easement or make it run with the land, everyone will sign them.

Fast forward to 2016.  Someone new buys one of the properties, and wants to remodel it.  He seeks permits from the City to do so.  The City says the owner's get the other neighbor's signature as well since the parking spaces for the property will be accessed via the easement.

But the other neighbor -- probably upset at the new owner's remodel -- decides to hold up the new owner.  He refuses to sign unless the new neighbor gives him indemnity, construction, releases, five thousand dollars, etc.  Nice.

The new neighbor is bummed/upset.  He ends up installing a car lift system on his new home, thus avoiding the need to get the neighbor's signature.

Then he sues the neighbor.

There's a variety of causes of action alleged in the original complaint.  And the thing gets litigated in the manner you'd think.  Massively aggressively.

Then, after over a year of litigation, likely somewhat close to trial, the plaintiff (and, particularly, their lawyer) decide to "clean things up" in the pleadings as well as to include new causes of action that they hadn't thought of (or decided to not yet file) when they filed their original complaint.

That's a somewhat common practice.  Sure, they probably should have filed the new causes of action in the first place.  But, for whatever reason, they didn't.  So they want to file them now.

But here's the problem:  Defendants use the amended complaint as an opportunity to file an anti-SLAPP motion.  Which they do 55 days after the amended complaint is filed.  Thus leading to all the advantages of such a motion:  hearing on the merits, potential fee exposure, automatic appeal and stay even if you lose the motion, etc.

Ultimately resulting in today's published opinion by the Court of Appeal.

The trial court denied the motion as untimely, reasoning that since the new causes of action all arose from the same set of facts alleged in the original complaint, the defendants should have filed the anti-SLAPP motion then (or within 60 days thereof), not a year-plus thereafter.

But the Court of Appeal reverses.

You can see the reasoning behind the trial court's decision.  Let's say you protest at a shopping mall, and the store owners sue you (reasonably or not) for trespass, which caused them damages since they had to shut down the store and lost $5000 in business.  You decide not too file an anti-SLAPP motion to get out of the suit.  Then, before trial, the store's lawyer realizes that plaintiff's conduct probably also counts as wrongful interference with prospective economic advantage, so plaintiff amends its complaint to include that new cause of action -- one that arises on the exact same set of facts that have already been asserted.  And, boom, a year in, suddenly there's an anti-SLAPP motion.  On its face, that seems silly.  It's the same lawsuit.  Just a new additional legal theory.  If you wanted to claim that your conduct was constitutionally protected, and hence that you're being SLAPPed, you should have done so when you were first sued.  A year later is too late.

Makes sense.

But so does the Court of Appeal's rejection of that theory.  Not surprisingly, the Court of Appeal relies a lot on precedent -- or at least upon its particular reading of that (not-perfectly-clear) set of authorities.  But it also relies on its own version of common sense.  Because let's say a plaintiff initially sues you for X set of facts, with Y cause of action, and that cause of action arises out of conduct protected by the anti-SLAPP statute, but you think:  "Well, shucks, I could file an anti-SLAPP motion, but you know what, Y cause of action really is true, so I'd lose."  So you don't file the motion.  But then, a year later, on the same set of facts, plaintiffs add absurd causes of action like Z and Q and EEE.  You can see why you'd now want to file your anti-SLAPP motion.  To get out of those new meritless causes of action.  New (meritless) causes of action that you couldn't have gotten out of at the beginning since, back then, they didn't even exist (i.e., weren't asserted).

Hence the Court of Appeal's rule.  When the amended complaint adds new causes of action, you can file an anti-SLAPP motion to strike those new causes of action (but not the old ones).  Even if a year has passed in the litigation.  And even if the new causes of action arise out of the exact same set of facts previously asserted in the original complaint.

So the neighbors get to go back to the trial court for Round II.  In which the trial court will now resolve the merits of the defendant's new anti-SLAPP motion.

Undoubtedly ultimately leading to Round III, when the losing party on that motion (which I suspect will be the defendants) appeals.  Likely followed thereafter by Round IV, in which the Court of Appeal decides the merits of the appeal and then remands the case for trial on the original causes of action plus whatever remains of the new causes of action  Finally resulting in a trial on the merits in Round V.

Sometime around 2023.

What a joy.

ARCO v. Central Valley Regional Water Quality Control Board (Cal. Ct. App. - Oct. 15, 2019)

Justice Butz begins this published-today opinion by saying:  "The storied history of mining in California has adverse consequences, among them the discharge of toxic residues from mining sites."  And she's not kidding.

We're litigating in this case who's responsible for the adverse environmental consequences of a mine -- at one point, the largest copper mine in California -- that was opened over a century ago, in 1909.  A long time ago.

And those consequences are severe.  "The mine has 13 miles of flooded underground workings, comprising a total void volume estimated at 543 million gallons. The mine openings and tailings on the site discharge soluble copper and acidic mine drainage into surface waters, at times eliminating aquatic life 10 miles downstream from the mine. In 1987, the Water Board installed a concrete plug at a mine opening that was a primary source of mine leakage, which has eliminated most of the direct discharge but is causing a buildup of contaminated water inside the mine that is leaching into groundwater, and the mining waste on the surface also continues to be a source of water pollution."

Yikes.

We don't do as nearly much of this type of mining these days.  Too many regulations (or, if you take a different view, just the right amount, or even too few.)  The downside is that we have less copper, and rely on other countries.  The upside is that you have less sulfuric and other acids in your water, and don't have 13 miles of flooded, empty mine shafts.

A classic policy choice.

People v. Financial Casualty & Surety Co. (Sup. Ct. App. Div. - Oct. 10, 2019)

Judge Ricciardulli gets an A+ for this opinion published today.

If one of my students wrote this in response to a final examination hypothetical, I'd find it to be absolutely perfect.  Exactly what I would be looking for.

First, it's the lock solid right answer.  When a statute says that a judge must enter an order "within 90 days after the date upon which it may first be entered" -- "it" referring a prior court order that itself had to be entered within 180 days of a specified event -- then the 90 days begins running on the next court day that was available for the prior order to be.  Which in turn means that if, as here, the prior 180-day period expired on a Saturday, a date the court was closed, then the 90-day period starts from the following Monday (assuming that Monday isn't a holiday, in which case on Tuesday).

Second, Judge Ricciardulli's opinion sets forth every single one of the relevant statutes and principles that establish that this is the right result; e.g., Section 12 of the CCP, which extends dates that end on holidays; Sections 134 and 135 that establish that courts are closed on holidays and that Saturday is a court holiday, etc.  It shows perfectly why this the right answer.

And, finally, Judge Ricciardulli does so extremely concisely and yet with the perfect amount of explanation.  No flourish.  But definite articulation of the reasons why the result is what it is.  You can do that in six (double-spaced) pages of text.  And Judge Ricciardulli does.

I wish that all my students wrote so cleanly and concisely (and accurately).  Ditto for lawyers.

So great job by the Appellate Division, particularly Judge Ricciardulli.

I was also going to say that I was impressed, albeit for very different reasons, with the counsel for the losing party (Bail Hotline Bail Bonds), John Rorabaugh.  Not because Mr. Rorabaugh won a difficult case (he lost) or wrote an outstanding brief (since I've never read it, so I don't know one way or the other).  Rather, I was impressed that Mr. Rorabaugh could apparently effectively prosecute an appeal over a forfeited bail bond in the whopping amount of . . . $5,000.  There's only $5000 at stake.  How can a lawyer write a brief in both the trial court and in the appellate division, plus oral argument, plus all the other stuff, in a manner that makes it cost effective for the client to prosecute an appeal over such an incredibly small amount (in the scheme of things)?!  For most lawyers, the cost of the briefs alone would easily be over $5,000.  So why throw more good money down the drain (even if you're right) when the bad money you might possibly recover -- and, remember, you're not even assured of prevailing on appeal anyway -- is less than the money you're spending to get it back?

If Mr. Rorabaugh's found a way to prosecute trial and appellate proceedings on a given matter for a total costs and attorney's fees of, say, $2,000, thereby arguably making the dispute (and appeal) worth it, more power to him.  Personally, no way I could write such briefs for only $2,000.  More power to him if Mr. Rorabaugh's somehow able to pound out appellate briefs (that result in published opinions, no less) for only a grand or two.  Well done, I guess.

 (It's probably more accurate to say that I, and others, could write briefs in $5,000 appeals for a grand or two, but we pretty much uniformly refuse to do so.  At least when we're looking to make money.  There are plenty of appellate briefs that I've written for the whopping charge of $0.  But those aren't in cases I'm looking to make money or recoup (in any material way) the value of my time; they're pro bono and other matters where I'm looking to correct injustice or serve a social good.  The case at issue here doesn't seem like one someone would take on pro bono, as I doubt anyone other than the parties really cares whether the $5,000 bond here gets forfeited or goes back to Bail Hotline Bail Bonds.  So, yeah,  Mr. Rorabaugh could easily do the case for a reasonable and efficient fee to the client -- $0 -- but I bet that's not what actually went down.)

People v. Winn (Cal. Ct. App. - Oct. 9, 2019)

At first glance, I thought this opinion highlighted yet another danger of being a landlord:  the risk you're going to get stabbed an killed by your tenant.  After all, the first sentence of the opinion reads:

"A jury found defendant Alexander Winn guilty of first degree murder for the stabbing death of David Derrington after Derrington had Winn and his wife evicted from their home."

Killing your landlord seems an excessive reaction to being evicted.  To say the least.

But once I read more, I discovered that this wasn't just any old landlord that the defendant killed.  The landlord was also his wife's ex-husband.  (The opinion is a little confusing in places because it talks about the defendant having killed "Darrington" -- meaning David Darrington -- even though the defendant's wife was also a Darrington:  Traci Darrington.)

You can understand why you might stab and kill your wife's ex-husband for reasons beyond those that might arise from being evicted.

So maybe the lesson here is:  Be careful if you're trying to evict your ex-wife and her current husband has -- as here -- served five prior prison terms.

Yeah.  That sounds about right.

Brown v. USA Taekwondo (Cal. Ct. App. - Oct. 8, 2019)

Today's decision by the Court of Appeal will massively increase the exposure of National Governing bodies of the USOC (U.S. Olympic Committee) in various sports.

I'm not saying that's bad or good from a normative perspective.  Just that it's the case.

There's USA Swimming for swimming, USA Water Polo for water polo, etc.  National governing bodies that (typically) govern the sport and that establish procedures for how athletes in that sport get selected (nor not selected) to participate in the Olympics as part of the U.S. team.  But more broadly, these national governing bodies typically entire control the club-level in that sport.  If your kid is on a water polo team, for example, he's almost certainly a member of USA Water Polo, because you've got to be (essentially) to participate.

Today's opinion holds that these governing bodies have "special duties" to their members so that when a coach molests a kid, the governing body itself may be liable.  That's a huge increase in liability for the organization.  You'll undoubtedly see it reflected on the bottom line; the cost of membership in these organizations -- a practical necessity for participating the sport -- will assuredly increase.

Now, arguably, so will protections against getting molested, or (potentially) otherwise abused by your coach.  At least that's the hope.

Though I wonder how effective such screening mechanisms etc. would (will) be.  Certainly they'll be at least a TINY bit effective; screening out obvious sexual offenders, heightening concern by parents and participants and increasing awareness of the subject matter, etc.

It's just worth remembering that very few things in life are free.  Including but not limited to here.

Postscript - To nonetheless end on a happy thought, and as a reminder:  Love is always free.  So spread the wealth.

Flynt v. Shimazu (9th Cir. Oct. 7, 2019)

Larry Flynt:  Dead or alive?

Alive.  And litigating this case.  Which a split opinion of the Ninth Circuit revives after being dismissed by the district court on statute of limitations grounds.

Apparently Mr. Flynt likes to purchase "card rooms" -- poker places -- and California law makes it difficult to do so in California if you also own out-of-state casinos and the like.  Mr. Flynt is suing, claiming that's unconstitutional.

I think of Larry Flynt as an old-style pornographer from a bygone era.  I didn't previously know about his shift into (or back into) gambling.

Vices may change over time.  But there's always vice.  And people willing to make money off it.

People v. Vital (Cal. Ct. App. - Oct. 3, 2019)

I get where Justice Dhanidina is coming from.  I really do.  The defendant committed a disgusting act.  He convinced a mother to engage in oral sex with her three year old son.  To say that I'm totally appalled by that is the understatement of the century.  I'd absurdly evil.  Made only worse once you read (as you learn in Justice Dhanidina's dissent) that in one of the videos of the crime, "the child begged his mother, 'Don’t touch it, don’t touch it! Don’t! Don’t touch it,' and told her 'that’s enough. Mommy, that’s enough.' [and] can be heard whimpering."  O.  M.  F.  G.

Everyone agrees that this is a huge crime.  Everyone also agrees that to be guilty of aiding and abetting this offense (oral copulation with a child 10 years old or younger), the perpetrator needs to be over 18 years old.  But the trial court instructed the jury that only the defendant needs to be over 18.  Wrong.  It's the direct perpetrator who needs to be over 18.  In this case, the mother.  So we all agree the conviction can't stand.

But what gets Justice Dhanidina's goat is the fact that the majority enters a judgement of acquittal on these counts.  Even though, to be honest, I'm fairly confident that the mother here was, indeed, over the age of 18.  If the prosecution had known that it needed to prove that the mother was over 18, I'd bet dollars to doughnuts they could easily do so.  So, if a retrial was permitted, they'd almost certainly be able to establish what's required.

But, for better or not, that's not the way things work.  You've got to introduce enough evidence at the first trial to convict.  You don't get a second shot.  That's the whole Double Jeopardy thing.  So if you make a mistake, or forget to introduce evidence, that's on you.  The defendant gets acquitted.  Even if we're pretty much (or entirely) certain, based upon facts outside the trial, that the guy's in fact guilty (e.g., that the mother here is over 18).

That's not a pretty result.  Either in the usual case or here.  And Justice Dhanidina doesn't particularly like that outcome.  (Nor do I.)

But it's the law.  Reasonably so.

To avoid that untoward result, Justice Dhanidina says that while the instructions were wrong -- hence the conviction must be reversed -- but there was sufficient evidence of the mother's age.  She had at least one child, was described by witnesses as an "older" woman who was an "adult," and told the defendant that "18" was the minimum age of anyone she'd have sexual relations with.

I get it.

But the thing is, while I'm looking at the exact same evidence as Justice Dhanidina, and on that basis, am fairly confident that mother is, in fact, over 18, I couldn't say that beyond a reasonable doubt.  We have a video of the incident, but 21 looks a lot like 18 which looks a lot like 17.  Maybe the mother is 17 and maybe she's described as an "older" adult in comparison to the three year old.  We just can't be totally sure.

And that's what's required.  If this was the only evidence adduced at trial -- say, at a retrial -- and the prosecution didn't introduce the mother's driver's license, birth certificate, express testimony as to her age, etc., I'd have zero doubt that it was insufficient.  Even though I'd think, as I do here, that she's indeed probably 18 or more.

You gotta follow the rules.  Even though I'm not happy -- at all -- with the result, I'd be compelled to do the same thing as the majority.  The prosecution thought it had to prove X, but it actually had to prove Y, and even though it probably could have established Y with ease, it didn't do so beyond a reasonable doubt.  Which means the evidence is insufficient and the defendant entitled to an acquittal.

Even for something as disgusting as this.

P.S. - The mother got a long sentence in prison as well.  Just so you know.

People v. Tejeda (Cal. Ct. App. - Oct. 2, 2019)

"I'll confess to the murder, but only if you give me a burger, fries, burrito and a soda."  This, by the way, was better (or at least more favorable to the prosecution) than the defendant's previous offer, which was to confess to various unsolved crimes in return for "a segregated cell with a television, $200 in his inmate trust account, a double bacon cheeseburger, strawberry milkshake, and chili pork burrito, stamped envelopes, legal pads, pencils, media contacts, and an exclusive interview."

What's the deal with the "media contacts" part of that earlier request?  Glad you asked.  You see, Mr. Tejada insists that he's the victim of a horrible mind control experiment.  And it wants the world to know about it.

Indeed, they finally get him to confess by having him write down his confession as part of a "press release."  So no soda.  Mr. Tejada wrote: "It must be understood that I am 100% the subject of a United States government mind control experiment project that is on-going." Which is in turn why he committed the murder.  As Justice Dato explains: "'Suggestional thoughts' were inserted into his brain, hypnotizing him and causing him to pull the trigger."

And don't think this was an isolated, rogue program.  Not at all.  Who's fault was it?  I think you know.

Obama's.

According to Mr. Tejada:  "President Barack Obama was "fully aware" of the project."  And all that Mr. Tejeda wanted was for "Obama to admit to his face, 'Ay bro, you're a project.'"

Seems a reasonable request.  If true.

Mr. Tejada gets declared incompetent several times, but ultimately is declared competent.  So goes to trial.  At which point, against his lawyer's advice (needless to say), he testified that (1) yeah, he was the one who committed the robberies and murder, (2) but that's only because his body had been controlled by "the project,"; and (3) "with the money he stole, he thought he might buy some cigarettes and catch a plane to Langley to 'get to the bottom of this mind control project.'"

Didn't quite work out that way, of course.  He was convicted.  But, perhaps not surprisingly, the Court of Appeal holds that the trial court should have conducted another competency hearing.  Mr. Tejada can be retried if he's currently competent.  But good luck with that.

O.G. v. Superior Court (Cal. Ct. App. - Sept. 30, 2019)

I defy you to find a Court of Appeal opinion that -- as here -- disagrees with the unanimous view of multiple other panels in the Court of Appeal, in a high-profile dispute, in an opinion that itself is only six (double-spaced) pages long.

Wow.  That's short.

Not that Justice Yegan needs to do more.  He doesn't.  There are dissents in those other Court of Appeal decisions.  And he things those dissents are right, for the reasons they express.  It doesn't take a huge number of pages to say so.  No need to gild the lily.

Plus, there's zero doubt that the California Supreme Court is going to take up this case.  Justice Yegan strikes down Senate Bill 1391 (which bars prosecutors from asking to try minors as adults in various criminal cases) as fatally inconsistent with Proposition 57 (which allows minor to be tried as adults in only limited settings).  That's an important and recurring issue, and potentially adds (or subtracts) a ton of time for various criminal defendants.  Given the split in the Court of Appeal, it's pretty much certain that the California Supreme Court will step in.

So why write something incredibly long when, in short order, the only thing that readers are going to care about anyway is the controlling decision from the Supreme Court.

Short opinion.  Super important.  Super temporary.

Salazar v. McDonald's Corp. (9th Cir. - Oct. 1, 2019)

I feel gently compelled to talk about today's opinion from the Ninth Circuit.  Not because it's the most important opinion in the universe (which it isn't).  Nor because it's the first opinion published by the Ninth Circuit in October (which it is).

Rather, I mention it because it's the first opinion published by the Ninth Circuit in a while. No opinions published last Wednesday.  Or last Thursday.  Or Friday.  Or Saturday or Sunday (obviously).  Or Monday.  Today, finally, after a week-long break, we get a single published opinion.

Better than nothing, I guess.

Meanwhile, in the last three business days alone, the Ninth Circuit has issued 108 unpublished opinions.  Which tells you a lot about how the majority of Ninth Circuit appeals get adjudicated.

Today's opinion is at least important for anyone who wore a McDonald's uniform in California in the last several years.  The Ninth Circuit upholds the entry of summary judgment in favor of McDonald's in a wage and hour class action, holding that McDonald's itself (as opposed to the relevant franchise) isn't the "employer" of the employees.  Chief Judge Thomas dissents, but since the majority opinion is by Judge Graber (joined by Judge Kleinfeld), I don't think you're going to get en banc review, nor will the Supreme Court be interested.  So that's the practical end of this case.  Notwithstanding all the amici interest in this case (on both sides).