This is an otherwise unremarkable opinion. But it -- like the other Ninth Circuit opinion this morning -- contains a new "Summary" section that looks very much like the "Syllabus" in opinions of the United States Suprme Court. So this may perhaps be a continuing feature.
I initially intended to make no comments about the new section. Personally, I don't ever read syllabi in Supreme Court opinions -- I find them generally unhelpful and duplicative -- so my sense what that these sections aren't really for people like me who actually read the opinions. At the same time, I understand that people don't always get to read an entire opinion, so sometimes summaries are helpful. That's a tiny part of what this blog does, after all. So I certainly understand the sentiment behind including a section that purports to summarize the opinion.
I'll just make two comments. First, if the Ninth Circuit is going to do something like this -- and I have a vague recollection of something like this being a part of slip opinions when I was clerking -- then it should probably include a footnote of the sort that the Supreme Court drops that makes clear that the sumamry isn't part of the opinion and can't be relied upon or cited. I've seen briefs and student papers that cite West headnotes (sadly). This looks even more official. Shouldn't be cited or relied upon, and no harm in reminding everyone of that.
Second, the person(s) responsible need to do their absolute best in the summaries. Most of the time the summary is essentially lifting sentences from the opinion, which is fine (though, again, the value of doing so does not seem especially high to me). But other times portions of the summaries just seem weird. To take but one example, this one ends by saying "The judgment of the district court had to be affirmed." That's just a weird way of saying it. Plus, it's not even really what the opinion said. Judge Callahan just said she was affirming. Not that she "had" to affirm, or did so reluctantly. Just affirmed.
Ditto for some of the "headnote" markings that are part of the summary. For example: "[3] Several cases indicate that a party may not proceed as an aggrieved party under the statute until a final decision has been issued following a due process hearing. [4] The Supreme Court has also used language that suggests that a party in an IDEA case must wait for the final decision following the due process hearing before filing suit in district court." These don't seem like separate headnotes to me; the court's just citing and discussing cases for an underlying proposition. Looks weird.
Admittedly, lots of this might best be viewed as a matter of personal style and taste. Which is why I initially thought I'd refrain from saying anything. Plus, I'm extremely confident that the people who are doing this are doing their absolute best. (Though that rarely stops me from making constructive, or sometimes even not so constructive, critiques.)
But if I'm going to have to jump over a dozen or so pages of Ninth Circuit opinions every day from now on, I figured I should at least say a brief word about the appearance of the summaries on the web versions of the opinions. Then I can be silent for the duration.
Which is my plan.
Wednesday, June 06, 2012
Tuesday, June 05, 2012
People v. Mason (Cal. Ct. App. - June 5, 2012)
I appreciate the fact that appointed counsel have to raise on appeal (and the Court of Appeal has to decide) any nonfrivolous argument in favor of the criminal defendant. It's a worthwhile rule.
But this opinion begins: "Defendant Jeffrey Allen Mason was convicted of residential burglary and sentenced to life in prison. On appeal he challenges a $129.75 '[c]riminal justice fee' the court ordered him to pay to the City of Sunnyvale pursuant to Government Code section 29550.1."
Which makes me think: "Seriously?! Life in prison and the only thing we're briefing is a $130 fee he's never going to pay anyway?" A fee that's also totally swamped by the cost of briefing and deciding the issue.
Were one designing a criminal justice system from scratch, it seems to me one might want to create some sort of exception for issues like this. Ones that might well not be worth the transaction cost to litigate.
But this opinion begins: "Defendant Jeffrey Allen Mason was convicted of residential burglary and sentenced to life in prison. On appeal he challenges a $129.75 '[c]riminal justice fee' the court ordered him to pay to the City of Sunnyvale pursuant to Government Code section 29550.1."
Which makes me think: "Seriously?! Life in prison and the only thing we're briefing is a $130 fee he's never going to pay anyway?" A fee that's also totally swamped by the cost of briefing and deciding the issue.
Were one designing a criminal justice system from scratch, it seems to me one might want to create some sort of exception for issues like this. Ones that might well not be worth the transaction cost to litigate.
Perry v. Brown (9th Cir. - June 5, 2012)
It says a fair piece when the dissent from the denial of the petition for rehearing en banc of one of the most high-profile opinions of the Ninth Circuit in the last decade (1) contains only three paragraphs, and (2) has only three judges sign onto it.
Monday, June 04, 2012
Suever v. Connell (9th Cir. - June 4, 2012)
Recusal's a funny thing. Judges are generally really, really careful about making sure that there's no actual or perceived impropriety resulting from their participation in a case. Especially federal judges. Judges usually go out of their way to make sure that their financial self-interest doesn't even arguably affect the outcome of a case.
This is often a huge pain. Witness recusals in the Supreme Court. Own one share of stock in a publicly-traded company that's a litigant? Recused. Participate minimally (or merely formally, like having your name on a brief) in defending a statute when you were a federal official before you were confirmed? Recused. Recusals like these sometimes mean that decisions are 4-4 and have to be reheard again, years later, with the resulting cost in the meantime. Moreover, these recusals are generally for things that no one in their right mind would think would actually change a judge's vote. Is X really going to decide Y because s/he owns some stock and might potentially see an insubstantial upswing in a stock price? No. Not on the level we're typically talking about (e.g., pennies). This recusal practice also imposes costs. Money gets put in a blind trust in order to avoid recusal even though the individual prefers to actively manage it. Spouses have to be told where they can or can't put their money, or when they have to dump it. That's a pain.
That's not to say there aren't some cases where recusal for financial self-interest isn't warranted. There surely are. We're rightly worried about judges taking bribes. Either under the table or (via self-interest) over it. As a result, it doesn't especially bother me when judges are overly recusal-oriented (as I think they are). Often, it's a nice thing to see. I think of it as a sort of tip-of-the-hat to the importance of impartiality. The recusal itself is meaningless, because no one would actually think that staying on the case would matter. But taking one's self off the case is a way of saying: "We care about these things. So I'm going to take myself off just to reaffirm that message." Most every recusal is thus effectively just wearing a yellow ribbon that says that the judge appreciates the importance of not selling a judicial vote.
That overly long prologue may help explain how I viewed Judge Dorothy Nelson's published order earlier today.
Judge Nelson got assigned to a panel in a case involving a putative class action about unclaimed property held by California. She (or more likely, someone in her chambers) discovered that she, in fact, had some unclaimed property. Probably by checking this site. Which you should too.
As a result, she's part of the potential class. So if she permits the class action to go forward, she might potentially get some money. She accordingly has to decide whether to recuse herself.
This is a perfect example of what I'm talking about. As I read her order, I said out loud: "I bet she's got like $25 in there." So I checked it out. Bingo. California's holding $25.56 in dividends from Southern California Edison that never made it to her. (I'm omitting the link because it shows Judge Nelson's home address.)
The class action likely doesn't involve the actual $25 -- which Judge Nelson can get just by submitting a form -- but rather something like interest on this money or reinvestment or something like that. So what's really at stake for Judge Nelson is probably something more like 75 cents or so. I guess that in theory that might be enough to convince her to decide a case more favorably to the plaintiffs. But come on. She could get more money by simply looking through the cushions of her couch. A lot more easily, I might add.
Judge Nelson presumably realizes all this, but she nonetheless remains financially self-interested in the outcome. Which generally means recusing yourself. Though that's a huge pain. Especially when you realize that you're recused only after you've been assigned to the panel, drafted a disposition, prepared for the oral argument, etc. Recusing yourself at that point requires a duplication of effort as someone else takes your place. All over a paltry amount that won't actually matter. It's silly.
So Judge Nelson doesn't recuse herself. She instead publishes an order that says that she'll refuse to accept any benefits from the class action. Thereby avoiding any self-interest.
Problem solved.
As I said, in my mind, there's in fact no actual problem to solve. Nonetheless, for symbolic as well as bright-line rule reasons, I get (and appreciate) what Judge Nelson does. It makes sense to me. Fine. Appropriate. Good job.
But if the truth be told, I don't think she had to do this. And if she did have to do it, I'm not sure that what she does actually solves the problem.
Sure, giving up the benefits of a litigation effectively negates the monetary self-interest. But you're still nominally a party since you're a member of the putative class. Parties aren't supposed to be judges too, right? So if we're talking about the need to enforce a bright-line rule, repudiating the proceeds doesn't solve the problem. Just like it wouldn't solve the problem if Justice Breyer said "Yes, I own stock in X, but I agree to donate any appreciation in X's stock price on the day my decision about X is rendered to charity." He'd still own stock and be formally recused notwithstanding that decision.
Similarly, even if financial self-interest wasn't at stake, you've still in part of the underlying transaction. We can say (with confidence) that 75 cents won't swing your vote one way or another, and yet we still recuse. I think there may be a similar -- or even greater -- problem with the fact that even if you don't have money at stake (any longer), you still had the events that are at issue in the lawsuit happen to you. Once conduct that was directed at you is at issue, you're not longer merely a judge deciding a hypothetical case that involves a plethora of people you've never met and don't especially care about. You're adjudicating a dispute that is in some ways personal. The state took Judge Nelson's money. The state didn't pay Judge Nelson interest (or whatever). The state ripped her off. You might well understand the recusal rules to say that it doesn't matter that you decline to accept the benefits of the lawsuit. You nonetheless retain a stake in the litigation -- albeit a less concrete one -- because the lawsuit's about something that involved you personally. Even if it involved thousands of other people as well.
You could see how this might matter, at least potentially. The sting of having money "taken" from you might make you more pro-plaintiff. You'll feel the loss greater. "How dare they take money from me!" "I can feel the plaintiff's pain; I didn't get the interest either." A different judge might have the opposite reaction. "This lawsuit is trivial. It's 75 cents. Not even worth getting, which I'll prove by giving up my stake. It's just about lawyers getting money." "This is bogus. I never expected any interest, nor do I feel entitled to it. I never even thought about this stuff." The fact that a judge might have a personal reaction would persist even if the judge gave up the actual financial benefits.
This is theft, after all. At least allegedly. So maybe a judge would have a personal reaction. Change the facts slightly and make the class action one about trespass. X hacked into the e-mails of millions of people, including federal judges, and a class action is filed. Y secretly deposited toxic chemicals on the lawns of everyone in Southern California, including federal judges, and another class action is filed. We'd expect that a judge would recuse herself from both of these class actions even if she entered a published order that said she'd waive any financial benefits from the litigation. We wouldn't want the fact that the judge was involved personally in the underlying events to potentially cloud things. Ditto for a judge who had been mugged who is assigned to a panel reviewing the restitution order entered against the mugger. That the judge agrees not to take a dime doesn't obviate the problem. She's still involved in the underlying transaction.
Again, I don't think that any of this means that Judge Nelson should have recused herself. Nor does it mean that what she did was wrong. It may reaffirm that what she did was in fact unnecessary. But we do lots of things that are unnecessary but nonetheless worth doing. Holding doors open for other people springs to mind. Gestures. Like this one. That are good.
But we shouldn't lose sight of what the rule should be in cases like this. And, to me, the right rule relates to de minimus benefits or involvement. Getting 75 cents is de minimus. Ditto for $25. Owning one (or even a thousand) shares of stock that might potentially benefit is generally de minimus. Participating marginally in a formal capacity is de minimus. Having your spouse be a conservative activist who's publicly against X is de minimus.
You can recuse yourself if you'd like. It might even be a nice gesture. But it's unnecessary, and especially when recusal imposes substantial costs, you might not want to do it.
I'll trust Judge Nelson to adjudicate this case fairly regardless of whether she'll pocket 75 cents either way. So should everyone else.
This is often a huge pain. Witness recusals in the Supreme Court. Own one share of stock in a publicly-traded company that's a litigant? Recused. Participate minimally (or merely formally, like having your name on a brief) in defending a statute when you were a federal official before you were confirmed? Recused. Recusals like these sometimes mean that decisions are 4-4 and have to be reheard again, years later, with the resulting cost in the meantime. Moreover, these recusals are generally for things that no one in their right mind would think would actually change a judge's vote. Is X really going to decide Y because s/he owns some stock and might potentially see an insubstantial upswing in a stock price? No. Not on the level we're typically talking about (e.g., pennies). This recusal practice also imposes costs. Money gets put in a blind trust in order to avoid recusal even though the individual prefers to actively manage it. Spouses have to be told where they can or can't put their money, or when they have to dump it. That's a pain.
That's not to say there aren't some cases where recusal for financial self-interest isn't warranted. There surely are. We're rightly worried about judges taking bribes. Either under the table or (via self-interest) over it. As a result, it doesn't especially bother me when judges are overly recusal-oriented (as I think they are). Often, it's a nice thing to see. I think of it as a sort of tip-of-the-hat to the importance of impartiality. The recusal itself is meaningless, because no one would actually think that staying on the case would matter. But taking one's self off the case is a way of saying: "We care about these things. So I'm going to take myself off just to reaffirm that message." Most every recusal is thus effectively just wearing a yellow ribbon that says that the judge appreciates the importance of not selling a judicial vote.
That overly long prologue may help explain how I viewed Judge Dorothy Nelson's published order earlier today.
Judge Nelson got assigned to a panel in a case involving a putative class action about unclaimed property held by California. She (or more likely, someone in her chambers) discovered that she, in fact, had some unclaimed property. Probably by checking this site. Which you should too.
As a result, she's part of the potential class. So if she permits the class action to go forward, she might potentially get some money. She accordingly has to decide whether to recuse herself.
This is a perfect example of what I'm talking about. As I read her order, I said out loud: "I bet she's got like $25 in there." So I checked it out. Bingo. California's holding $25.56 in dividends from Southern California Edison that never made it to her. (I'm omitting the link because it shows Judge Nelson's home address.)
The class action likely doesn't involve the actual $25 -- which Judge Nelson can get just by submitting a form -- but rather something like interest on this money or reinvestment or something like that. So what's really at stake for Judge Nelson is probably something more like 75 cents or so. I guess that in theory that might be enough to convince her to decide a case more favorably to the plaintiffs. But come on. She could get more money by simply looking through the cushions of her couch. A lot more easily, I might add.
Judge Nelson presumably realizes all this, but she nonetheless remains financially self-interested in the outcome. Which generally means recusing yourself. Though that's a huge pain. Especially when you realize that you're recused only after you've been assigned to the panel, drafted a disposition, prepared for the oral argument, etc. Recusing yourself at that point requires a duplication of effort as someone else takes your place. All over a paltry amount that won't actually matter. It's silly.
So Judge Nelson doesn't recuse herself. She instead publishes an order that says that she'll refuse to accept any benefits from the class action. Thereby avoiding any self-interest.
Problem solved.
As I said, in my mind, there's in fact no actual problem to solve. Nonetheless, for symbolic as well as bright-line rule reasons, I get (and appreciate) what Judge Nelson does. It makes sense to me. Fine. Appropriate. Good job.
But if the truth be told, I don't think she had to do this. And if she did have to do it, I'm not sure that what she does actually solves the problem.
Sure, giving up the benefits of a litigation effectively negates the monetary self-interest. But you're still nominally a party since you're a member of the putative class. Parties aren't supposed to be judges too, right? So if we're talking about the need to enforce a bright-line rule, repudiating the proceeds doesn't solve the problem. Just like it wouldn't solve the problem if Justice Breyer said "Yes, I own stock in X, but I agree to donate any appreciation in X's stock price on the day my decision about X is rendered to charity." He'd still own stock and be formally recused notwithstanding that decision.
Similarly, even if financial self-interest wasn't at stake, you've still in part of the underlying transaction. We can say (with confidence) that 75 cents won't swing your vote one way or another, and yet we still recuse. I think there may be a similar -- or even greater -- problem with the fact that even if you don't have money at stake (any longer), you still had the events that are at issue in the lawsuit happen to you. Once conduct that was directed at you is at issue, you're not longer merely a judge deciding a hypothetical case that involves a plethora of people you've never met and don't especially care about. You're adjudicating a dispute that is in some ways personal. The state took Judge Nelson's money. The state didn't pay Judge Nelson interest (or whatever). The state ripped her off. You might well understand the recusal rules to say that it doesn't matter that you decline to accept the benefits of the lawsuit. You nonetheless retain a stake in the litigation -- albeit a less concrete one -- because the lawsuit's about something that involved you personally. Even if it involved thousands of other people as well.
You could see how this might matter, at least potentially. The sting of having money "taken" from you might make you more pro-plaintiff. You'll feel the loss greater. "How dare they take money from me!" "I can feel the plaintiff's pain; I didn't get the interest either." A different judge might have the opposite reaction. "This lawsuit is trivial. It's 75 cents. Not even worth getting, which I'll prove by giving up my stake. It's just about lawyers getting money." "This is bogus. I never expected any interest, nor do I feel entitled to it. I never even thought about this stuff." The fact that a judge might have a personal reaction would persist even if the judge gave up the actual financial benefits.
This is theft, after all. At least allegedly. So maybe a judge would have a personal reaction. Change the facts slightly and make the class action one about trespass. X hacked into the e-mails of millions of people, including federal judges, and a class action is filed. Y secretly deposited toxic chemicals on the lawns of everyone in Southern California, including federal judges, and another class action is filed. We'd expect that a judge would recuse herself from both of these class actions even if she entered a published order that said she'd waive any financial benefits from the litigation. We wouldn't want the fact that the judge was involved personally in the underlying events to potentially cloud things. Ditto for a judge who had been mugged who is assigned to a panel reviewing the restitution order entered against the mugger. That the judge agrees not to take a dime doesn't obviate the problem. She's still involved in the underlying transaction.
Again, I don't think that any of this means that Judge Nelson should have recused herself. Nor does it mean that what she did was wrong. It may reaffirm that what she did was in fact unnecessary. But we do lots of things that are unnecessary but nonetheless worth doing. Holding doors open for other people springs to mind. Gestures. Like this one. That are good.
But we shouldn't lose sight of what the rule should be in cases like this. And, to me, the right rule relates to de minimus benefits or involvement. Getting 75 cents is de minimus. Ditto for $25. Owning one (or even a thousand) shares of stock that might potentially benefit is generally de minimus. Participating marginally in a formal capacity is de minimus. Having your spouse be a conservative activist who's publicly against X is de minimus.
You can recuse yourself if you'd like. It might even be a nice gesture. But it's unnecessary, and especially when recusal imposes substantial costs, you might not want to do it.
I'll trust Judge Nelson to adjudicate this case fairly regardless of whether she'll pocket 75 cents either way. So should everyone else.
Juror No. One vs. Superior Court (Cal. Ct. App. - May 31, 2012)
This sophisticated discussion (and accompanying litigation) would all be unnecessary if Juror Number One had followed the judge's instructions and refrained from posting comments about the pending trial on Facebook.
Remember that the next time you're on a jury.
Remember that the next time you're on a jury.
Friday, June 01, 2012
Nordyke v. King (9th Cir. - June 1, 2012)
Sometimes cases end not with a bang, but with a whimper. Even if they've lasted over a decade and have been repeatedly taken en banc.
Sometimes oral argument matters. Especially when attorneys make concessions at oral argument.
This case exemplifies both of these propositions.
It's the Nordyke case, which involves gun shows at the government-owned Alameda County Fairground. The case lawsuit was filed in the twentieth century. It's been before the Ninth Circuit a plethora of times. The Second Amendment -- or at least its interpretation in the federal courts -- has repeatedly changed during this period. Time and time again the case gets decided, appealed, remanded, decided again, appealed again, remanded, etc.
But now it ends.
But it ends very simply. Plaintiffs say that the relevant county ordinance prohibits gun shows. But counsel for Alameda County says at oral argument before the en banc court that, no, our definitive interpretation of the statute now says that an (otherwise somewhat unclear) exception applies, which allows guns to be at the show as long as they're secured to a table.
I watched the entirety of the hour-long oral argument. It was clear from that argument that this concession radically changed the case. Before it was a straightforward (though tough) Second Amendment case about whether the government could ban gun sales on its property. After the concession, it's about a much, much easier issue: Whether it's a reasonable restriction to require that the guns be secured to a table or the like (by a cable) when they're not in the hands of a participant. That issue, as opposed to the ban, is not very hard to decide; indeed, the en banc court resolves it (as well as ancillary issues) unanimously, at least with respect to the ultimate outcome.
No settlement, despite an order by the Ninth Circuit to go to mediation. No attorney's fees, because the federal courts don't allow a catalyst theory. (Though I wouldn't be surprised to see plaintiffs file a motion given their partial practical victory, it'll be denied.) No grand Second Amendment holding. Just a decision that, yeah, what the County now says seems reasonable.
There you have it. Twelve-plus years. Only to end a case with a partial concession.
Too bad it couldn't have come earlier, eh?
Sometimes oral argument matters. Especially when attorneys make concessions at oral argument.
This case exemplifies both of these propositions.
It's the Nordyke case, which involves gun shows at the government-owned Alameda County Fairground. The case lawsuit was filed in the twentieth century. It's been before the Ninth Circuit a plethora of times. The Second Amendment -- or at least its interpretation in the federal courts -- has repeatedly changed during this period. Time and time again the case gets decided, appealed, remanded, decided again, appealed again, remanded, etc.
But now it ends.
But it ends very simply. Plaintiffs say that the relevant county ordinance prohibits gun shows. But counsel for Alameda County says at oral argument before the en banc court that, no, our definitive interpretation of the statute now says that an (otherwise somewhat unclear) exception applies, which allows guns to be at the show as long as they're secured to a table.
I watched the entirety of the hour-long oral argument. It was clear from that argument that this concession radically changed the case. Before it was a straightforward (though tough) Second Amendment case about whether the government could ban gun sales on its property. After the concession, it's about a much, much easier issue: Whether it's a reasonable restriction to require that the guns be secured to a table or the like (by a cable) when they're not in the hands of a participant. That issue, as opposed to the ban, is not very hard to decide; indeed, the en banc court resolves it (as well as ancillary issues) unanimously, at least with respect to the ultimate outcome.
No settlement, despite an order by the Ninth Circuit to go to mediation. No attorney's fees, because the federal courts don't allow a catalyst theory. (Though I wouldn't be surprised to see plaintiffs file a motion given their partial practical victory, it'll be denied.) No grand Second Amendment holding. Just a decision that, yeah, what the County now says seems reasonable.
There you have it. Twelve-plus years. Only to end a case with a partial concession.
Too bad it couldn't have come earlier, eh?
Thursday, May 31, 2012
Sefton v. Sefton (Cal. Ct. App. - May 31, 2012)
It's neat to see a case that involves a family bank that was opened way back in 1889 and involves a fight about who currently gets to have control of the bank pursuant to a series of wills from people with the last name of Sefton. It's even cooler when the bank in question is in your home town: here, the San Diego Trust & Savings Bank.
It's undisputed that the Seftons get the bank, but the question is which Seftons and how much. It's a big ticket dispute: the shares that Grandpa Sefton owned are currently worth hundreds of millions of dollars.
Read the opinion to find out which Sefton prevails in the Court of Appeal.
It's undisputed that the Seftons get the bank, but the question is which Seftons and how much. It's a big ticket dispute: the shares that Grandpa Sefton owned are currently worth hundreds of millions of dollars.
Read the opinion to find out which Sefton prevails in the Court of Appeal.
Carijano v. Occidental Petroleum Corp. (9th Cir. - May 31, 2012)
This is a great way to end the month.
Chief Judge Kozinski writes a dissent from the denial of a petition for rehearing en banc (i.e., for him, a "dissental") that's classic Alex. Strongly worded. Powerful. Relatively persuasive.
But Judge Wardlaw -- joined by the rest of the panel that issued the underlying opinion -- writes a fairly responsive concurrence in the denial. She even adopts Judge Kozinski's informal tone.
Check out how her concurrence begins:
"Whoa!!! The Chief has put the proverbial cart before the horse. The district court did not touch upon the merits of the claims alleged in the complaint in any manner whatsoever, and neither did our panel’s disposition. Nor did we or the district court invoke the doctrine of 'hypothetical jurisdiction' in an effort to reach the merits, quite contrary to the dissent’s assertion. Rather, based on the record before the district court, the panel concluded only that the district court abused its discretion when it dismissed this action under the forum non conveniens doctrine. This was, by definition, 'a non-merits ground for dismissal.'"
Referring to him as "The Chief." Using phrases like "cart before the horse." Exclamation points (two, even!!). Contractions. All she'd have to do to make you think that Judge Kozinski himself wrote the thing is to number the sections.
It's a neat little debate. If you're a huge procedure/appeals/standing nerd, anyway. Judge Kozinski says you have to resolve standing first unless you're affirming a dismissal on forum non conveniens grounds. But Judge Wardlaw says that it's not a one-way ratchet: that just like you're not required to reach standing first before affirming a forum non conveniens dismissal you're not required to reach it first before reversing a dismissal on those grounds either. Especially when the district court hasn't yet reached that issue.
Both sides have arguments. For me, I'd have been interested to have Judge Kozinski tell me if there's a similar one-way ratchet in any other area of appellate review. Are there any other issues that a Court of Appeals is required to reach only if they reverse a dismissal, but may ignore if they affirm?
Maybe there are. Qualified immunity, perhaps? (Though even there, if the district court dismissed the complaint only on the "not a violation" prong, you could surely affirm on that basis alone, but I'm not sure the Court of Appeals would be obligated to reach the "clearly established" part if it reversed. I'm not sure about this, though: I'd have to think about it more.) It's surely not the case with "regular" standing or subject matter jurisdiction issues: Those you've got to reach regardless of whether you're affirming or reversing. Does standing fall somewhere in the middle? I'd like to hear a reason why: Why you have to reach it as an appellate tribunal only in cases in which you're reversing.
But the substance -- while fascinating -- takes a back seat to style in this one. To see who can out-Kozinski Alex.
Chief Judge Kozinski writes a dissent from the denial of a petition for rehearing en banc (i.e., for him, a "dissental") that's classic Alex. Strongly worded. Powerful. Relatively persuasive.
But Judge Wardlaw -- joined by the rest of the panel that issued the underlying opinion -- writes a fairly responsive concurrence in the denial. She even adopts Judge Kozinski's informal tone.
Check out how her concurrence begins:
"Whoa!!! The Chief has put the proverbial cart before the horse. The district court did not touch upon the merits of the claims alleged in the complaint in any manner whatsoever, and neither did our panel’s disposition. Nor did we or the district court invoke the doctrine of 'hypothetical jurisdiction' in an effort to reach the merits, quite contrary to the dissent’s assertion. Rather, based on the record before the district court, the panel concluded only that the district court abused its discretion when it dismissed this action under the forum non conveniens doctrine. This was, by definition, 'a non-merits ground for dismissal.'"
Referring to him as "The Chief." Using phrases like "cart before the horse." Exclamation points (two, even!!). Contractions. All she'd have to do to make you think that Judge Kozinski himself wrote the thing is to number the sections.
It's a neat little debate. If you're a huge procedure/appeals/standing nerd, anyway. Judge Kozinski says you have to resolve standing first unless you're affirming a dismissal on forum non conveniens grounds. But Judge Wardlaw says that it's not a one-way ratchet: that just like you're not required to reach standing first before affirming a forum non conveniens dismissal you're not required to reach it first before reversing a dismissal on those grounds either. Especially when the district court hasn't yet reached that issue.
Both sides have arguments. For me, I'd have been interested to have Judge Kozinski tell me if there's a similar one-way ratchet in any other area of appellate review. Are there any other issues that a Court of Appeals is required to reach only if they reverse a dismissal, but may ignore if they affirm?
Maybe there are. Qualified immunity, perhaps? (Though even there, if the district court dismissed the complaint only on the "not a violation" prong, you could surely affirm on that basis alone, but I'm not sure the Court of Appeals would be obligated to reach the "clearly established" part if it reversed. I'm not sure about this, though: I'd have to think about it more.) It's surely not the case with "regular" standing or subject matter jurisdiction issues: Those you've got to reach regardless of whether you're affirming or reversing. Does standing fall somewhere in the middle? I'd like to hear a reason why: Why you have to reach it as an appellate tribunal only in cases in which you're reversing.
But the substance -- while fascinating -- takes a back seat to style in this one. To see who can out-Kozinski Alex.
Wednesday, May 30, 2012
Bowers v. Raymond Lucia Cos. (Cal. Ct. App. - May 30, 2012)
This opinion is absolutely right.
The parties were represented by sophisticated lawyers. They reached a settlement agreement that they put on the record. Justice McConnell quotes the transcript and analyzes the record, and she's exactly right. The settlement's binding and unambiguous.
It's true that the parties agreed to a somewhat unusual -- but hardly unprecedented -- arrangement to settle the remaining portions of the case. The arbitrator called it "med/arb baseball high/low," which accurately describes the deal. They agreed to mediate. If, at the end of the day, the parties failed to agree, they'd each make their final offer, and the mediator would choose between one of these two figures, and that'd be entered as the final judgment. That's the deal they struck. The record's crystal clear. Both to me and the Court of Appeal.
What the defendant -- the Raymond Lucia Companies (you've probably heard their advertisements, and maybe listened to the radio show -- apparently doesn't like is how the process eventually turned out. The agreed-upon baseball range was $10,000 to $5 million. Plaintiff took an aggressive position and made a final offer of $5 million. Defendant took an equally aggressive position and made a final offer of $10,000. That's fine. Pick the extreme ranges. But one of you is going to lose really big. Here, that was the defendant. You makes your picks and you takes your chances. You lost.
Defendant gets new lawyers and argues on appeal that they didn't really agree to that process and that the agreement was invalid anyway. Wrong. The trial court rejected this position, and so does the Court of Appeal. Rightly so.
Be careful what you wish for. 'Cause sometimes you'll get it.
The parties were represented by sophisticated lawyers. They reached a settlement agreement that they put on the record. Justice McConnell quotes the transcript and analyzes the record, and she's exactly right. The settlement's binding and unambiguous.
It's true that the parties agreed to a somewhat unusual -- but hardly unprecedented -- arrangement to settle the remaining portions of the case. The arbitrator called it "med/arb baseball high/low," which accurately describes the deal. They agreed to mediate. If, at the end of the day, the parties failed to agree, they'd each make their final offer, and the mediator would choose between one of these two figures, and that'd be entered as the final judgment. That's the deal they struck. The record's crystal clear. Both to me and the Court of Appeal.
What the defendant -- the Raymond Lucia Companies (you've probably heard their advertisements, and maybe listened to the radio show -- apparently doesn't like is how the process eventually turned out. The agreed-upon baseball range was $10,000 to $5 million. Plaintiff took an aggressive position and made a final offer of $5 million. Defendant took an equally aggressive position and made a final offer of $10,000. That's fine. Pick the extreme ranges. But one of you is going to lose really big. Here, that was the defendant. You makes your picks and you takes your chances. You lost.
Defendant gets new lawyers and argues on appeal that they didn't really agree to that process and that the agreement was invalid anyway. Wrong. The trial court rejected this position, and so does the Court of Appeal. Rightly so.
Be careful what you wish for. 'Cause sometimes you'll get it.
Tuesday, May 29, 2012
Thomas v. Stenberg (Cal. Ct. App. - May 29, 2012)
Here's an appeal involving a motorcyclist who was hit by a cow on a private road and sued. In which county do you think the accident transpired?
You're amazing if you guessed "Marin." Because I certainly didn't. It's not an area that immediately comes to mind when I think of wandering bovines. Cougars, maybe. But not cows.
Justice Dondero's opinion contains a wealth of information, including which cows are more docile than others. Beef cattle more aggressive than dairy cattle. Herefords more docile than Angus. (And the Red Angus more docile than the Black.) Don't mess with Brahman cattle. Lots of good stuff.
Since the opinion involves a cow who attacked a human (rather than simply being run into), it seems appropriate after our long Memorial Day weekend. If only because most of us likely feasted at least a little upon roasted cattle.
A good reminder that they're capable of evening things up a bit if they're given a chance.
You're amazing if you guessed "Marin." Because I certainly didn't. It's not an area that immediately comes to mind when I think of wandering bovines. Cougars, maybe. But not cows.
Justice Dondero's opinion contains a wealth of information, including which cows are more docile than others. Beef cattle more aggressive than dairy cattle. Herefords more docile than Angus. (And the Red Angus more docile than the Black.) Don't mess with Brahman cattle. Lots of good stuff.
Since the opinion involves a cow who attacked a human (rather than simply being run into), it seems appropriate after our long Memorial Day weekend. If only because most of us likely feasted at least a little upon roasted cattle.
A good reminder that they're capable of evening things up a bit if they're given a chance.
Thursday, May 24, 2012
Landeros v. Torres (Cal. Ct. App. - My 24, 2012)
I'm not saying that this opinion is wrong. Indeed, it probably seems right to me. At least pursuant to existing law.
But if it's right -- and, again, I think it is -- this seems a fairly easy way around Proposition 213. One that, in this case alone, is worth $22 million. Plus additional millions for other unlicensed drivers as well.
It doesn't matter if the driver doesn't even have a license. Just have someone buy the car for him/her -- like the father did here -- and keep it in his name. Boom. You're effectively insured as a "permissive" driver of the vehicle. So when you're hit, the fact that you don't have insurance -- indeed, are not even permitted to buy insurance (since you don't have a license) -- is irrelevant. Your damages aren't capped under Proposition 213. Collect everything to which you'd normally be entitled.
P.S. - Want to see lawyers who hate each other? Who amply reveal that fact to the jury, as well as make repeated personal attacks on each other during closing argument? Check out the last dozen pages of the opinion. Wow. I can't believe the trial court permitted things to get this out of control.
But if it's right -- and, again, I think it is -- this seems a fairly easy way around Proposition 213. One that, in this case alone, is worth $22 million. Plus additional millions for other unlicensed drivers as well.
It doesn't matter if the driver doesn't even have a license. Just have someone buy the car for him/her -- like the father did here -- and keep it in his name. Boom. You're effectively insured as a "permissive" driver of the vehicle. So when you're hit, the fact that you don't have insurance -- indeed, are not even permitted to buy insurance (since you don't have a license) -- is irrelevant. Your damages aren't capped under Proposition 213. Collect everything to which you'd normally be entitled.
P.S. - Want to see lawyers who hate each other? Who amply reveal that fact to the jury, as well as make repeated personal attacks on each other during closing argument? Check out the last dozen pages of the opinion. Wow. I can't believe the trial court permitted things to get this out of control.
Nitschke & Fenenbock v. Their Wardens (9th Cir. - May 24, 2012)
There are only two published opinions from the Ninth Circuit this morning. Both involve federal habeas petitions, one from a guy named Nitcheke and the other from a guy named Fenenbock.
Both involve someone convicted of killing someone else. Both involve claims that the trial court (and the state appellate courts) erred. Both panels consist of a majority of judges appointed by presidents who were Democrats.
The Ninth Circuit affirms the dismissal of both habeas claims. Unanimously.
Those crazy liberals on the Ninth Circuit.
Both involve someone convicted of killing someone else. Both involve claims that the trial court (and the state appellate courts) erred. Both panels consist of a majority of judges appointed by presidents who were Democrats.
The Ninth Circuit affirms the dismissal of both habeas claims. Unanimously.
Those crazy liberals on the Ninth Circuit.
Wednesday, May 23, 2012
City of Palmdale v. State Bd. of Equalization (Cal. Ct. App. - May 23, 2012)
One the one hand, I get it, and understand why Justice Mallano does what he does here. It's one thing to settle a case, and this sounds like a good case to settle. But it's another thing to condition the settlement on the Court of Appeal's willingness to vacate the trial court's judgment. Parties can't necessarily toy with a judgment for their own benefit, even if they both agree. There's a decision here. The State Board of Equalization was rightly slammed in that decision for doing stuff it shouldn't have done (and not doing stuff it should have done). Why not let it stand? Why let the parties vacate it?
On the other hand, the Court of Appeal's holding that it's "contrary to the public interest" to vacate the lower court's judgment seems a bit silly. Justice Mallano says that to do so "would not only imply the agency acted properly, it would also undermine the effectiveness of the judgment in exposing the agency‘s deficiencies in handling the administrative appeal." Not really true. As to the first point, a decision to vacate a judgment in light of a settlement doesn't at all imply that the lower court's view was wrong. It expresses no view whatsoever on the merits. The only thing it really implies is that the parties settled their dispute. End of story.
As to the second point, it's really hard to argue that vacating an unpublished decision of a trial court would "undermine the effectiveness of the judgment in exposing the agency‘s deficiencies in handling the administrative appeal." No one reads those decisions. And even if they did, that "exposure" still exists even after the decision is vacated. The trial court still said it. The Court of Appeal didn't review or reverse it on the merits. It is what it is.
I'm just not sure that it makes sense to disapprove a valuable settlement "as a reminder to the agency that it must comply with the laws that restrict its decisionmaking authority." That reminder exists by virtue of the trial court's expression of its opinion. Moreover, that reminder is presumably reflected in a very concrete sense in the terms of the settlement. That's actually meaningful. Whether an opinion of a trial court that no one reads is vacated pursuant to a settlement, by contrast, seems largely a mere formality.
Justice Mallano's view that there's something like a "permanent record" for state agencies out there reminds me a little bit of parties who insist that settlement agreements include a provision that says that by settling, no party admits or denies liability. Uh, duh. No joke. There's no reason to include such a provision. There's no "record" out there. A settlement agreement merely means that you've settled. Nothing more, nothing less. So too here.
The best that can be said for the Court of Appeal's decision-- and I think it might make sense on this level -- is to say something slightly different: to merely say "You haven't shown why you need the lower court's decision to be vacated, since all it did was to remand, so I'm not going to comply with your request to vacate a decision based solely on what looks like vanity." If there's no reason shown to vacate a decision, okay, why not let it stand?
That said, I'm not sure that's really the standard, and in going beyond this, I'm not sure the Court of Appeal's really right that the "public interest" cares one iota about whether the trial court's "rebuke" formally persists. Plus, if it really is important to the parties to vacate this decision, I'd hate to tube a completely valuable settlement -- which, again, this one appears to be -- because of some amorphous "public interest" that nowhere near justifies the expenditure of hundreds of thousands of dollars in taxes going to lawyers so that various counties can fight over their respective shares to a pot of money only slightly larger than their fees. Just let 'em split it up how they want. Not worth the money (at least collectively) to fight about it.
Hopefully it'll all work out fine, and the parties will simply delete that provision of the agreement and settle anyway. Let's hope. For everyone's sake.
On the other hand, the Court of Appeal's holding that it's "contrary to the public interest" to vacate the lower court's judgment seems a bit silly. Justice Mallano says that to do so "would not only imply the agency acted properly, it would also undermine the effectiveness of the judgment in exposing the agency‘s deficiencies in handling the administrative appeal." Not really true. As to the first point, a decision to vacate a judgment in light of a settlement doesn't at all imply that the lower court's view was wrong. It expresses no view whatsoever on the merits. The only thing it really implies is that the parties settled their dispute. End of story.
As to the second point, it's really hard to argue that vacating an unpublished decision of a trial court would "undermine the effectiveness of the judgment in exposing the agency‘s deficiencies in handling the administrative appeal." No one reads those decisions. And even if they did, that "exposure" still exists even after the decision is vacated. The trial court still said it. The Court of Appeal didn't review or reverse it on the merits. It is what it is.
I'm just not sure that it makes sense to disapprove a valuable settlement "as a reminder to the agency that it must comply with the laws that restrict its decisionmaking authority." That reminder exists by virtue of the trial court's expression of its opinion. Moreover, that reminder is presumably reflected in a very concrete sense in the terms of the settlement. That's actually meaningful. Whether an opinion of a trial court that no one reads is vacated pursuant to a settlement, by contrast, seems largely a mere formality.
Justice Mallano's view that there's something like a "permanent record" for state agencies out there reminds me a little bit of parties who insist that settlement agreements include a provision that says that by settling, no party admits or denies liability. Uh, duh. No joke. There's no reason to include such a provision. There's no "record" out there. A settlement agreement merely means that you've settled. Nothing more, nothing less. So too here.
The best that can be said for the Court of Appeal's decision-- and I think it might make sense on this level -- is to say something slightly different: to merely say "You haven't shown why you need the lower court's decision to be vacated, since all it did was to remand, so I'm not going to comply with your request to vacate a decision based solely on what looks like vanity." If there's no reason shown to vacate a decision, okay, why not let it stand?
That said, I'm not sure that's really the standard, and in going beyond this, I'm not sure the Court of Appeal's really right that the "public interest" cares one iota about whether the trial court's "rebuke" formally persists. Plus, if it really is important to the parties to vacate this decision, I'd hate to tube a completely valuable settlement -- which, again, this one appears to be -- because of some amorphous "public interest" that nowhere near justifies the expenditure of hundreds of thousands of dollars in taxes going to lawyers so that various counties can fight over their respective shares to a pot of money only slightly larger than their fees. Just let 'em split it up how they want. Not worth the money (at least collectively) to fight about it.
Hopefully it'll all work out fine, and the parties will simply delete that provision of the agreement and settle anyway. Let's hope. For everyone's sake.
Gillis v. Dental Board (Cal. Ct. App. - May 23, 2012)
I know it sounds like a bad joke, but yes, you can get a root canal at Sears (Dental), and yes, this is what can happen.
Golinski v. OPM (9th Cir. - May 22, 2012)
Chief Judge Kozinski said "Jump" in early 2009 in an internal (Ninth Circuit) same-sex partner benefits case. Rather than say "How high?" the Office of Personnel Management said "No thanks. We don't feel like it." Leading Judge Kozinski to say later that year: "No. I'm serious. Jump."
Fast forward three years, and there's still a dispute about jumping. Here's the latest installment. OPM still doesn't feel like jumping, and filed an appeal of Judge Kozinski's order. After briefing (and intervention by a component of the House of Representatives), there was a request to take the case en banc even before a panel heard it.
No dice. Not a single judge agreed. Which is not surprising at all.
So the case will get argued in the usual schedule; here, in San Francisco in September. Lovely time and place for it, I might add.
Fast forward three years, and there's still a dispute about jumping. Here's the latest installment. OPM still doesn't feel like jumping, and filed an appeal of Judge Kozinski's order. After briefing (and intervention by a component of the House of Representatives), there was a request to take the case en banc even before a panel heard it.
No dice. Not a single judge agreed. Which is not surprising at all.
So the case will get argued in the usual schedule; here, in San Francisco in September. Lovely time and place for it, I might add.
Tuesday, May 22, 2012
Kerner v. Superior Ct. (Cal. Ct. App. - May 22, 2012)
You think you have problems? Check this out.
Imagine you're a partner in a big law firm in Los Angeles. A name partner, even. Big office on Wilshire. Offices in LA, SF, SD, OC, Sacramento, Fresno, lots of others. You're making tons of money. You've got respect. You like your colleagues and work. You even marry one of them. Things are going peachy. You're wife's even a Vice President of the Firm.
(This is no hypothetical. I've just described the life of Richard M. Widom.)
So then:
"Widom was a member of the Stockwell firm for many years. [Lisa] Kerner also worked as an attorney for the firm. Widom and Kerner married in 2005 and separated in March 2009 after a physical altercation between them. Kerner filed a petition for marital dissolution in March 2009 and obtained a temporary restraining order against Widom based on allegations of domestic violence.
The Stockwell firm notified Widom on April 22, 2009, that his employment was terminated effective that day based on Kerner's claims against him and other claims of misconduct. . . .
The Stockwell firm filed a cross-complaint against Widom and Law Offices of Richard M. Widom, LLP, in January 2010. It filed a second amended cross-complaint against those same cross-defendants in October 2010 alleging that Widom had diverted the firm's money for his own purposes, induced the firm's attorneys to work for his competing law firm and solicited clients away while he was still a shareholder and director of the Stockwell firm, and had exposed the Stockwell firm to liability 'by assaulting and battering Lisa Kerner' and by mistreating another employee. . . .
Kerner filed a complaint against Widom on September 14, 2009 and filed a first amended complaint on September 30, 2009, alleging counts for assault and battery and intentional infliction of emotional distress and seeking money damages. Kerner alleged that Widom had threatened and attacked her during their marriage, culminating in a physical attack on March 1, 2009.
The Los Angeles City Attorney filed a criminal complaint against Widom in November 2009."
Oh my. Things are going wrong. Very, very wrong.
You might well think: "Awesome. Couldn't happen to a more deserving person. Couldn't ever be me, that's for sure. I couldn't empathize less." I'd certainly understand that.
See if any of this affects your calculus:
"On February 3, 2010, a jury found him not guilty of spousal abuse, spousal battery, simple assault and simple battery. On Widom's motion, the trial court determined that he was factually innocent of the charges and entered an order declaring him factually innocent on March 18, 2010.
The trial court in the family law proceeding conducted a hearing over several days on Kerner's application for a permanent restraining order against Widom. The court stated in its oral ruling on January 26, 2010, that Kerner need only prove by a preponderance of the evidence that a single act of domestic violence had occurred. The court stated that Kerner's testimony about the events of March 1, 2009, lacked credibility and that her actions on that date and thereafter were inconsistent with her claim that she feared for her safety. The court also stated that Kerner's description of the events had changed over time and seemed exaggerated. The court found that Kerner had suffered injuries in the course of her altercation with Widom on March 1, 2009, but noted that she had admitted slapping him and previously had described the altercation as a pushing match.
The trial court in the family law proceeding concluded:
'My own finding is that Ms. Kerner is not a credible witness and that her testimony as to these events is not believed by the court. I choose to believe Mr. Widom's version of the facts, which is not to say that there is foolproof evidence that the events occurred in the fashion that he says, but on balance, I find his testimony to be more credible.
In fact, some of Ms. Kerner's testimony is among the most incredible testimony I have heard in a very brief period on the bench, but in 40-plus years as a trial lawyer, including most specifically her testimony about why she returned to the home because of concern over her cats and stayed there for four days in the face of what she thought was her imminent demise at the hands of Mr. Widom.'"
I'll not regale you further with additional details of this sad case. Read the opinion for the plethora of complex privilege, issue preclusion, and other sophisticated legal principles that get thrown into the mix in a case like this litigated by self-interested heavy legal hitters on all sides.
In short: A nightmare.
Imagine you're a partner in a big law firm in Los Angeles. A name partner, even. Big office on Wilshire. Offices in LA, SF, SD, OC, Sacramento, Fresno, lots of others. You're making tons of money. You've got respect. You like your colleagues and work. You even marry one of them. Things are going peachy. You're wife's even a Vice President of the Firm.
(This is no hypothetical. I've just described the life of Richard M. Widom.)
So then:
"Widom was a member of the Stockwell firm for many years. [Lisa] Kerner also worked as an attorney for the firm. Widom and Kerner married in 2005 and separated in March 2009 after a physical altercation between them. Kerner filed a petition for marital dissolution in March 2009 and obtained a temporary restraining order against Widom based on allegations of domestic violence.
The Stockwell firm notified Widom on April 22, 2009, that his employment was terminated effective that day based on Kerner's claims against him and other claims of misconduct. . . .
The Stockwell firm filed a cross-complaint against Widom and Law Offices of Richard M. Widom, LLP, in January 2010. It filed a second amended cross-complaint against those same cross-defendants in October 2010 alleging that Widom had diverted the firm's money for his own purposes, induced the firm's attorneys to work for his competing law firm and solicited clients away while he was still a shareholder and director of the Stockwell firm, and had exposed the Stockwell firm to liability 'by assaulting and battering Lisa Kerner' and by mistreating another employee. . . .
Kerner filed a complaint against Widom on September 14, 2009 and filed a first amended complaint on September 30, 2009, alleging counts for assault and battery and intentional infliction of emotional distress and seeking money damages. Kerner alleged that Widom had threatened and attacked her during their marriage, culminating in a physical attack on March 1, 2009.
The Los Angeles City Attorney filed a criminal complaint against Widom in November 2009."
Oh my. Things are going wrong. Very, very wrong.
You might well think: "Awesome. Couldn't happen to a more deserving person. Couldn't ever be me, that's for sure. I couldn't empathize less." I'd certainly understand that.
See if any of this affects your calculus:
"On February 3, 2010, a jury found him not guilty of spousal abuse, spousal battery, simple assault and simple battery. On Widom's motion, the trial court determined that he was factually innocent of the charges and entered an order declaring him factually innocent on March 18, 2010.
The trial court in the family law proceeding conducted a hearing over several days on Kerner's application for a permanent restraining order against Widom. The court stated in its oral ruling on January 26, 2010, that Kerner need only prove by a preponderance of the evidence that a single act of domestic violence had occurred. The court stated that Kerner's testimony about the events of March 1, 2009, lacked credibility and that her actions on that date and thereafter were inconsistent with her claim that she feared for her safety. The court also stated that Kerner's description of the events had changed over time and seemed exaggerated. The court found that Kerner had suffered injuries in the course of her altercation with Widom on March 1, 2009, but noted that she had admitted slapping him and previously had described the altercation as a pushing match.
The trial court in the family law proceeding concluded:
'My own finding is that Ms. Kerner is not a credible witness and that her testimony as to these events is not believed by the court. I choose to believe Mr. Widom's version of the facts, which is not to say that there is foolproof evidence that the events occurred in the fashion that he says, but on balance, I find his testimony to be more credible.
In fact, some of Ms. Kerner's testimony is among the most incredible testimony I have heard in a very brief period on the bench, but in 40-plus years as a trial lawyer, including most specifically her testimony about why she returned to the home because of concern over her cats and stayed there for four days in the face of what she thought was her imminent demise at the hands of Mr. Widom.'"
I'll not regale you further with additional details of this sad case. Read the opinion for the plethora of complex privilege, issue preclusion, and other sophisticated legal principles that get thrown into the mix in a case like this litigated by self-interested heavy legal hitters on all sides.
In short: A nightmare.
U.S. v. Carpenter (9th Cir. - May 22, 2012)
If I were Judge Kozinski, I wouldn't admit to authoring this opinion either. I wouldn't even join it.
It's a child pornography case where the defendant's frustrated at his lawyer and wants to represent himself. I completely agree with the per curiam opinion that the request for self-representation was untimely since it came at the end of two days of trial and after the prosecution has rested. That's all that need be said on the matter. Affirmed.
But the opinion goes on and says that the request for self-representation was independently flawed because it was equivocal and unclear. Here's a complete statement of what what said by the defendant's lawyer on this issue:
"Your Honor, Mr. Carpenter [the defendant] tells me he wants to represent himself."
What the flock is equivocal about that?! There's no "maybe" or "perhaps" or "is thinking about it" or anything like that. It's as crystal clear as it gets. The opinion says it's equivocal because the lawyer said it rather than the client. So what? That's the way trials work -- indeed, how they're supposed to work. You get a lawyer so he'll do the talking for you. That's the whole point. Indeed, when represented defendants speak without being asked a question, they are out of order and routinely told to shut up. Rightly so. The words of your attorney come from you. His questions. Her answers. His statements. Her objections. What the lawyer says is what you say. It matters not in the slightest that the defendant here followed procedure and had his lawyer do the talking. There's absolutely nothing equivocal about that statement. The claim that a statement is uncertain because it comes from a lawyer doesn't pass a smell test.
Now, sometimes, when a lawyer says something that we think's especially important, we bother to ask the client directly whether s/he agrees. So, for example, when a judge asks "How does the defendant plead?" and the lawyer answers "Guilty," we go ahead and ask the defendant to confirm that fact. Not because it is unclear what "Guilty" means or that statement's equivocal. Rather, we simply want to make sure that that's what the defendant really wants. So we ask him. And then he responds.
But that didn't happen here because the district court didn't even think it worth inquiring whether defendant really meant what his lawyer crystal clearly said. Again, in this particular case, I'm okay with that, because the request was untimely. But the holding here means that this statement would be "equivocal" and unworthy of credence even if made in a timely fashion well before trial. That's just wrong.
I get that the panel thinks that Mr. Carpenter's decision arose from frustration and that his lawyer wasn't psyched about it. (And what lawyer is?) But that a statement arises from frustration doesn't mean that it's equivocal. Even if Mr. Carpenter's decision was rash -- imagine that he had instead interrupted the proceedings and said "I want to represent myself!" -- that's not equivocal. It may be unwise. It may be a decision worthy of inquiry. It may be a decision that, after some discussion, the defendant is willing to change.
But it's not equivocal. And the fact that this statement came from a lawyer, as it's supposed to, doesn't make it equivocal either. (Similarly, the fact that Carpenter didn't reraise this issue later in the proceedings, after the judge had refused to do anything about the request, is irrelevant. You're not supposed to reraise issues that you already raised before. Moreover, the fact that, later in the proceedings, Carpenter may perhaps have cooled down doesn't mean that the trial judge was right to ignore the earlier request for self-representation: statements don't become "equivocal" retroactively.)
There's no reason to put in this unnecessary alternative holding given that Carpenter's request was untimely. And there's ample reason to omit it, because it's wrong both descriptively (as no case so holds) as well as normatively (because it'd be a terrible rule).
Sometimes when you pound out a per curiam opinion without oral argument and days after submission it's not your best work. This is one of those times.
It's a child pornography case where the defendant's frustrated at his lawyer and wants to represent himself. I completely agree with the per curiam opinion that the request for self-representation was untimely since it came at the end of two days of trial and after the prosecution has rested. That's all that need be said on the matter. Affirmed.
But the opinion goes on and says that the request for self-representation was independently flawed because it was equivocal and unclear. Here's a complete statement of what what said by the defendant's lawyer on this issue:
"Your Honor, Mr. Carpenter [the defendant] tells me he wants to represent himself."
What the flock is equivocal about that?! There's no "maybe" or "perhaps" or "is thinking about it" or anything like that. It's as crystal clear as it gets. The opinion says it's equivocal because the lawyer said it rather than the client. So what? That's the way trials work -- indeed, how they're supposed to work. You get a lawyer so he'll do the talking for you. That's the whole point. Indeed, when represented defendants speak without being asked a question, they are out of order and routinely told to shut up. Rightly so. The words of your attorney come from you. His questions. Her answers. His statements. Her objections. What the lawyer says is what you say. It matters not in the slightest that the defendant here followed procedure and had his lawyer do the talking. There's absolutely nothing equivocal about that statement. The claim that a statement is uncertain because it comes from a lawyer doesn't pass a smell test.
Now, sometimes, when a lawyer says something that we think's especially important, we bother to ask the client directly whether s/he agrees. So, for example, when a judge asks "How does the defendant plead?" and the lawyer answers "Guilty," we go ahead and ask the defendant to confirm that fact. Not because it is unclear what "Guilty" means or that statement's equivocal. Rather, we simply want to make sure that that's what the defendant really wants. So we ask him. And then he responds.
But that didn't happen here because the district court didn't even think it worth inquiring whether defendant really meant what his lawyer crystal clearly said. Again, in this particular case, I'm okay with that, because the request was untimely. But the holding here means that this statement would be "equivocal" and unworthy of credence even if made in a timely fashion well before trial. That's just wrong.
I get that the panel thinks that Mr. Carpenter's decision arose from frustration and that his lawyer wasn't psyched about it. (And what lawyer is?) But that a statement arises from frustration doesn't mean that it's equivocal. Even if Mr. Carpenter's decision was rash -- imagine that he had instead interrupted the proceedings and said "I want to represent myself!" -- that's not equivocal. It may be unwise. It may be a decision worthy of inquiry. It may be a decision that, after some discussion, the defendant is willing to change.
But it's not equivocal. And the fact that this statement came from a lawyer, as it's supposed to, doesn't make it equivocal either. (Similarly, the fact that Carpenter didn't reraise this issue later in the proceedings, after the judge had refused to do anything about the request, is irrelevant. You're not supposed to reraise issues that you already raised before. Moreover, the fact that, later in the proceedings, Carpenter may perhaps have cooled down doesn't mean that the trial judge was right to ignore the earlier request for self-representation: statements don't become "equivocal" retroactively.)
There's no reason to put in this unnecessary alternative holding given that Carpenter's request was untimely. And there's ample reason to omit it, because it's wrong both descriptively (as no case so holds) as well as normatively (because it'd be a terrible rule).
Sometimes when you pound out a per curiam opinion without oral argument and days after submission it's not your best work. This is one of those times.
Monday, May 21, 2012
Campbell v. Ford Motor Co. (Cal. Ct. App. - May 21, 2012)
I'm not a torts professor. So I know only a little bit about duty. Though I understand the basics.
I also understand the problems with imposing unlimited duties. You want to confine torts to some degree. I get it.
But I think a visionary might decide this case a different way. Maybe even if you had only a little bit of vision. Or, perhaps, an admittedly clouded one (like mine).
The Court of Appeal holds that Ford Motor Company can't be sued for giving Mary Campbell mesothelioma because she never visited or worked in Ford's plant. So no duty.
I get it. You can see where the Court of Appeal is coming from.
But I think this is the perfect case to make a contrary holding. At least on these types of facts:
(1) There's virtually no doubt what caused Ms. Campbell's illness (and ultimate death). None. She contracted mesothelioma, which you pretty much only get from asbestos exposure. How'd she get exposed if she never worked in the plant herself? From when she was a little girl, she did the laundry for her family. Her father worked as . . . as asbestos insulator. Her brother worked as . . . as asbestos insultator. It's crystal clear to be that she inhaled tons of asbestos when she flapped off the dust from her family's clothing -- remember, this is back in the 1940s, so it's not like you just throw everything into the washer/dryer -- and hence got mesothelioma. That's what the jury found, and it was right.
(2) So asbestos caused her death. Causation's clear. Nor is this a case of an out-of-control verdict. The jury only found Ford five percent liable. Which means Ms. Campell gets an award of $40,000. That's relative chump change. We're not talking about a jury that went crazy.
So the question is simply: Should a business that indisputably caused someone's death by having toxic materials present, knowing that they are toxic, be liable for that death? Don't forget that what's true for a five percent liable entity is equally true for an entity that's one hundred percent liable. Does an entity that kills someone get off scot free if the person killed has never walked on their property?
If this were a criminal case, the answer would be clear. We order restitution for damages in cases far more attenuated than this one.
If this were a different types of torts case, we'd again say that a "duty" (or at least damages -- which are practically the same thing) exists. Imagine that Ms. Campbell's father was killed in front of her. Boom. Damages for Ms. Campbell. Emotional distress. A duty. Loss of consortium. Ditto.
We thus impose liability in all sorts of settings in which there's an intervening actor. Ford (as well as others) put the asbestos on the clothes that Ms. Campbell washed. It doesn't seem to me too far to say that they should be liable for doing so. At least if they knew, which the jury found they did.
Might I impose a higher standard of proof in cases like these? Maybe. I could definitely be persuaded to do so. Maybe in such situations you've got to prove damages by clear and convincing evidence. (A pretty easy showing here). Maybe I'll also limit liability to grossly negligent -- or reckless -- activities in which the defendant knows that what it's doing might cause damage. But, again, that won't negate Ford's liability here.
By contrast, it seems to me that saying categorically that there's no duty whatsoever -- none -- isn't the right (or necessary) way to go. When someone shoots a gun at X and hits Y, there's liability. When an entity dumps chemicals on X and hits Y, it seems to me that there can be liability there as well.
I think that thirty years ago, this case would have been decided a different way. For the better, I think.
I also understand the problems with imposing unlimited duties. You want to confine torts to some degree. I get it.
But I think a visionary might decide this case a different way. Maybe even if you had only a little bit of vision. Or, perhaps, an admittedly clouded one (like mine).
The Court of Appeal holds that Ford Motor Company can't be sued for giving Mary Campbell mesothelioma because she never visited or worked in Ford's plant. So no duty.
I get it. You can see where the Court of Appeal is coming from.
But I think this is the perfect case to make a contrary holding. At least on these types of facts:
(1) There's virtually no doubt what caused Ms. Campbell's illness (and ultimate death). None. She contracted mesothelioma, which you pretty much only get from asbestos exposure. How'd she get exposed if she never worked in the plant herself? From when she was a little girl, she did the laundry for her family. Her father worked as . . . as asbestos insulator. Her brother worked as . . . as asbestos insultator. It's crystal clear to be that she inhaled tons of asbestos when she flapped off the dust from her family's clothing -- remember, this is back in the 1940s, so it's not like you just throw everything into the washer/dryer -- and hence got mesothelioma. That's what the jury found, and it was right.
(2) So asbestos caused her death. Causation's clear. Nor is this a case of an out-of-control verdict. The jury only found Ford five percent liable. Which means Ms. Campell gets an award of $40,000. That's relative chump change. We're not talking about a jury that went crazy.
So the question is simply: Should a business that indisputably caused someone's death by having toxic materials present, knowing that they are toxic, be liable for that death? Don't forget that what's true for a five percent liable entity is equally true for an entity that's one hundred percent liable. Does an entity that kills someone get off scot free if the person killed has never walked on their property?
If this were a criminal case, the answer would be clear. We order restitution for damages in cases far more attenuated than this one.
If this were a different types of torts case, we'd again say that a "duty" (or at least damages -- which are practically the same thing) exists. Imagine that Ms. Campbell's father was killed in front of her. Boom. Damages for Ms. Campbell. Emotional distress. A duty. Loss of consortium. Ditto.
We thus impose liability in all sorts of settings in which there's an intervening actor. Ford (as well as others) put the asbestos on the clothes that Ms. Campbell washed. It doesn't seem to me too far to say that they should be liable for doing so. At least if they knew, which the jury found they did.
Might I impose a higher standard of proof in cases like these? Maybe. I could definitely be persuaded to do so. Maybe in such situations you've got to prove damages by clear and convincing evidence. (A pretty easy showing here). Maybe I'll also limit liability to grossly negligent -- or reckless -- activities in which the defendant knows that what it's doing might cause damage. But, again, that won't negate Ford's liability here.
By contrast, it seems to me that saying categorically that there's no duty whatsoever -- none -- isn't the right (or necessary) way to go. When someone shoots a gun at X and hits Y, there's liability. When an entity dumps chemicals on X and hits Y, it seems to me that there can be liability there as well.
I think that thirty years ago, this case would have been decided a different way. For the better, I think.
Friday, May 18, 2012
Lopez v. Brewer (9th Cir. - May 18, 2012)
The Ninth Circuit denies a stay of execution. I'm going to quote large portions of what Judge Kozinski has to say about the matter:
"There is profound irony in Lopez’s insistence that his death be painless. This is a description of his crimes, as related by the Arizona Supreme Court:
'Overturned and broken furnishings in the blood-splattered apartment indicated that a tremendous struggle took place prior to the murder. A scarf had been stuffed into the victim’s mouth, and she had been blindfolded with her pajama pants. An autopsy revealed that her throat had been slashed, and she had been stabbed twenty-three times in her left breast and upper chest and three times in her abdomen. Seminal fluid was found in both her vagina and anus.
When the officers arrived at the victim’s residence, the apartment’s condition evinced that a bloody battle had raged throughout every room in the apartment. Blood was splattered throughout the apartment and there were blood drops on the bathroom and kitchen floors. A concentration of blood drops in the kitchen, as well as the stream of dried blood down the victim’s body and onto her bloodstained feet, indicated the victim stood for some time while being stabbed. The victim had three lacerations on her scalp and a stab wound to the left cheek. These injuries, although not fatal, caused a considerable amount of bleeding. The victim had lacerations on her right arm and bruises and cuts on her left hand, all of which were characteristic of defensive wounds.' . . . .
The panel delicately omits these facts, as did our previous opinion, which merely referred to the crime as “brutal,” Lopez v. Ryan, 630 F.3d 1198, 1201 n.1 (9th Cir. 2011), but common decency surely calls on us to acknowledge that Lopez is not the victim here, and whatever pain he may suffer incident to his execution pales in comparison to the agony and terror he inflicted on a defenseless woman whose body he used to sate his lust. Judge Berzon’s dissent and Judges Pregerson’s and Reinhardt’s dissentals obsess about the discomfort Lopez might suffer during his execution, but say not a word about the incomparable suffering the victim endured during the last desperate minutes of her life. . . .
Towery’s discomfort, even if it were replicated in Lopez’s case, comes nowhere near true suffering, such as that endured by Estafana Holmes, who died more than a quarter-century ago after twenty-six knife wounds and multiple lacerations; being beaten, raped, sodomized and degraded; and shedding liters of blood as she struggled in vain to save her life. See Lopez, 857 P.2d at 1265. Estafana had no chance to call her lawyer; there were no witnesses to her agony; she did not get to say farewell to her loved ones; she was allowed no last meal or final statement; no Article III judges agonized over her ordeal. “The death-by-injection which [my colleagues] describe[] looks pretty desirable next to that.” Callins v. Collins, 510 U.S. 1141, 1142 (1994) (Scalia, J., wisely concurring in the denial of certiorari). . . .
Lopez has presented no evidence that his execution will involve 'an objectively intolerable risk of serious harm.' Id. (internal quotation marks omitted). Absent such evidence, I don’t see where he has raised a viable Eighth Amendment claim or any basis for enjoining his long delayed and richly deserved execution."
This is characteristically powerful (and flowing) stuff from Judge Kozinski. So I'll only briefly comment on his characterization of Lopez using Holmes' body to "sate his lust," reminding everyone that rape -- especially, rape and murder -- isn't about lust at all, but is instead about power.
Beyond that, I just wanted to mention two overall reactions to what Judge Kozinski says. First: Wow. Very powerful stuff. Well done. Second: To me, there's a huge element of bloodlust here. Something you don't usually see in judicial opinions. Or at least not to this degree. Sure, there's an element of retribution involved in imposing the death penalty (rightly or wrongly). So I have no doubt that one can perhaps be glad that a sentence is finally imposed, which might lead one to end a concurrence by describing someone's death (as Judge Kozinski does) as "richly deserved."
There's another way one could write an opinion. One that describes the death of any human as unfortunate, even if necessary. But Judge Kozinski doesn't take that route.
I'm reminded of different ways one characterizes wars. These events also involve the death (and killing) of humans. They may also be necessary. And we can also describe (often accurately) killing individual soldiers as justified; think, for example, the killing of Germans in World War II.
One could describe wars like these -- as we often did (and do) -- as glorious events that we should celebrate with flowery prose. Or one could describe them as terrible things that we nonetheless do because they are right and just.
I got the feeling from Judge Kozinski's opinion that, at the moment he wrote it, he was in the former frame of mind. I think it's generally better to be in the latter.
Death is bad. Even in the service of good. We shouldn't celebrate it. Even as we hasten its arrival.
People v. Fulton (Cal. Ct. App. - May 18, 2012)
You've got to read this one.
Here's the teaser: It's about whether the police can swab your penis without a warrant.
Get your attention?
Read both the majority opinion as well as the dissent, and see which you think has the better of the argument. (I'll forwarn you that they agree on the merits but disagree as to the application of the rule here.) To me, when I read the case, I thought the DNA evidence was pretty damning. But the majority has a point as well. See which one you find more persuasive.
I'm generally not into people touching my junk. Swab or no swab. That said, I did just get on a plane earlier this week, and so the inevitable happened during my pat-down. So maybe I should just get used to it.
Here's the teaser: It's about whether the police can swab your penis without a warrant.
Get your attention?
Read both the majority opinion as well as the dissent, and see which you think has the better of the argument. (I'll forwarn you that they agree on the merits but disagree as to the application of the rule here.) To me, when I read the case, I thought the DNA evidence was pretty damning. But the majority has a point as well. See which one you find more persuasive.
I'm generally not into people touching my junk. Swab or no swab. That said, I did just get on a plane earlier this week, and so the inevitable happened during my pat-down. So maybe I should just get used to it.
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