Coito v. Superior Court (Cal. Supreme Ct. - June 25, 2012)

I'd write about this opinion even if I completely agreed with it.  Because it's important.  Almost all of us have obtained (or have thought about obtaining) witness statements.  Those of us in the civil arena have similarly almost invariably propounded and/or responded to form interrogatories.

We now know -- or at least have a more informed view -- of whether such statements are protected work product, and whether (or when) you have to answer Form Interrogatory 12.3.

So take a look.

The short answer is that witness statements are often work product -- indeed, often absolute work product -- according to today's unanimous California Supreme Court opinion.  Which means you'll obtain (and not turn over) witness statements a lot more.

Far be it from me to critique such a unanimous opinion.  But I'm going to do so anyway.

I think it's a major omission that nowhere in the Court's opinion does it mention, discuss or even cite Federal Rule of Civil Procedure 26(b)(3)(C).  It's almost as if the Court doesn't even know that this provision exists.  The Court holds that you've got to protect witness statements as work product or else the other side will freeride, attorneys will be deterred from getting statements, mental impressions will be disclosed, etc.  In other words, disaster.  And yet Rule 26(b)(3)(C) was enacted in 1970 in order to expressly provide that witnesses can obtain their statements without any showing whatsoever, much less the type of showing the California Supreme Court now requires in order to override work product protection.  And yet, somehow, the federal system soldiers on.

This matters.  If a person can obtain his own statement -- whether a party or not -- that creates all the perverse incentives that the California Supreme Court identifies.  After all, in the federal system, if you want to "discover" the "mental impressions" of the other side's lawyer, all you have to do is ask the person to request her statement -- s/he can even do it outside discovery -- and the opposing party has to provide it.  Parties.  Witnesses.  Doesn't matter.  Boom.  You've got the statement.  The exact statment that the California Supreme Court says must be difficult or impossible to obtain.  So you get to invade the mental impressions of the lawyer, freeride of her work, etc.  So the federal system takes the expresss view that these aren't very big (or realistic) downsides, and that the upsides -- settlement, disclosure, truthseeking, etc. -- are worth it.

Seems to me you'd want to at least mention (and hopefully evaluate) that opposing view, as well as the quality of justice that has resulted therefrom during the past four decades, when deciding that this is not a tenable (or preferable) system.

It also seems to me that lots of what the California Supreme Court says about the policy implications of its position are also questionable.  For example, the Court finds really troubling the concept that we would ever allow disclosure of what a witness said because that'd invade the mental impressions of the laywer (e.g., what questions she asked, etc.).  Okay.  I get that.  At least in theory.

But if that's true, why do we allow -- as we clearly do -- the witness to be asked in a deposition what questions he was asked (and how the witness answered)?  That "invades" the former attorney's mind and obtains her "mental impressions" too, right?  That "freerides" off the former attorney's work, too.  But it's entirely fine.  Why the discrepancy?

The only benefit of not turning over the notes is when the witness (or party) doesn't remember what questions or answers were provided.  Only then do any benefits arise from the Court's holding today.  But situations involving faded memories are precisely when you want discovery; when obtaining such information gets at the truth.

It's even more bizarre when you realize that the "witness statement" at issue may even be of a party or party-affilliated witness.  The other side has a "work product" protection in a recorded statement that your client gave them?  You have to give a "special reason" in order to obtain the statement that your client made?  Seriously?  I mean, yeah, you can just ask your client.  But why should you even have to?  Why can't you just get the statement -- as you can in federal court -- by simply asking for it?  And why do we protect the opposing party's "mental impressions" (e.g., their questions) only when the interviewee has forgotten the questions?  Weird.

We're not talking about the attorney's notes here.  Those are protected; everyone agrees.  We're instead talking about actual evidence -- stuff that can be produced at deposition, at trial, etc.  Stuff that, unlike notes, was never secret.  If you've disclosed that stuff already (by getting it signed, by having outsiders there, etc.), I don't see why we need to make that work product.  Moreover, I see downsides to doing so.  Very real ones.

So I'd have liked to see the California Supreme Court engage on this issue a bit more.  Because what they've said here doesn't especially persuade me.  There seem a ton of counterarguments -- including many that arise from the federal approach -- that deserve consideration (or at least mention).

U.S. v. Rivera (9th Cir. - June 22, 2012)

I'm of two minds on this one.

On the one hand, I entirely agree with the sentiment behind Judge Berzon's opinion.  It's good that a criminal defendant be allowed to have his family show up at his sentencing.  It shows the judge that there's a real person at issue, with a real family.  It may make things more concrete.  Defendant should have the ability to present that reality to a judge.  I agree.  Which means that district judges can't order a courtroom closed just to exclude family members from showing up.  Sure.  Seems right.

On the other hand, I'm not really sure that's what Judge Wright did here.  Sure, he sort of did that.  But what he really did was just to tell the defendant's lawyer -- forthrightly -- his preferences.  For his own personal reasons, Judge Wright doesn't like family members showing up.  He thinks it's lame.  It gives him bad vibes.  He thinks it's silly and hypocritical:  the defendant trying to look like a "family man" when the evidence reflects that, in the outside world, he's ignoring his family and spending all the time on criminal (or at least other antisocial) acts.  At least as applied to family members of Mongols (and, presumably, a wide variety of other criminal defendants as well).  Judge Wright just doesn't like the feel of it.  It doesn't "work" on him the way it might for other judges.

Judge Wright expressly told the lawyer here that he had hoped that it would "get around the Bar" that he didn't like family members showing up and that lawyers don't do their clients any favors by having them present at sentencing.  Defendant's lawyer apologized and said he hadn't heard that, and certainly didn't want to bum the judge out (not surprisingly).  So they rescheduled the hearing for the next week, at which time the family members -- surprise, surprise -- weren't present.

There's a fine line between "ordering" the courtroom closed and expressing a "preference" for who shows up.  Judge Wright unambiguously did the latter.  I'm not sure that he really did the former.

Nor, given the latter, did he need to.  Sure, in the future, Judge Wright now knows that he can't do anything formal like closing the courtroom.  Or something ambiguous that might look like that.

But nothing stops him from doing precisely what he referred to here:  trying to have it "get out" that Judge Wright doesn't like family members being present.  That it puts him in a bad mood.  Which is not something you want when you're in front of a judge who has wide latitude in how much of the rest of your life you're going to spend in prison.  Expressing that preference alone gets you what you want, which is a courtroom with no family members.  And if you bring 'em, well, that's fine, you're allowed to do that (thank you, Ninth Circuit).  Just remember that when you see the scowl on Judge Wright's face during sentencing and wonder why he decided, in his discretion, to sentence you to some portion of the guidelines range that's not at the lower end.  Enjoy the extra time in prison.  Oh, and good luck trying to get a reversal on that basis on appeal.  There's nothing at all on the record.  And your family members were indeed there.  Big win for you, eh?  Thirty more minutes together in a courtroom versus two more years apart while the defendant's still in prison.  I know which one I'd choose.

So I don't know.  I think that Judge Wright was expressing a preference.  A preference that admittedly maybe he shouldn't have, but that he nonetheless retains (and, I'm certain, will retain regardless of how the Ninth Circuit views the law).  Given that we can't do anything about his preferences, and that his ability to express those preferences effectively clears the courtroom, I'm not sure what we gain when we take an ambiguous expression of his preferences to be an "order" and reverse on that basis.  Either in a particular case -- though admittedly we can give the defendant here a new sentencing proceeding in front of a different judge (though I wonder if the sentence will really be different) -- or in general.

As to the latter, I'm sure that Judge Wright, now chastened by the Ninth Circuit for his on-the-record comments, will no longer tell uninformed counsel that he doesn't like children present.  Which means they'll be there.

Maybe that will help defendants.  Maybe it'll do the exact opposite.

Johnson v. Uribe (9th Cir. - June 22, 2012)

Yet again I'm more conservative than Judge Kleinfeld and Judge Milan Smith.

The district court made a factual finding on habeas that the defendant would have accepted a deal that would have conditionally sentenced him to the maximum appropriate sentence even if his lawyer had been competent.  It accordingly granted habeas relief but the remedy it imposed -- which is subject to review for abuse of discretion -- was to simply resentence the defendant to the maximum.

The Ninth Circuit affirms the grant of habeas relief but reverses the remedy, holding that the defendant is entitled to entirely withdraw his guilty plea.

Personally, I don't have a definite, firm conviction that the district court was wrong here.  I'm pretty confident that defendant would have accepted the deal -- indeed, virtually any deal -- in order to get out of jail in order to witness the birth of his child.  He accepted a really long sentence.  He would have accepted a shorter one.  And the government knew it had the defendant by the short hairs.

So I'm not certain that the district court erred.  So I'd have to affirm.

Save the Peaks Coalition v. USFS (9th Cir. - June 21, 2012)

This seems equitable.

Did plaintiffs engage in sanctionable conduct?  Yes.  Definitely.  So sanctions are proper.

Who was responsible?  Primarily, the attorney, Howard Shanker.  He was representing the clients -- who filed an environmental lawsuit to stop a ski resort -- pro bono.  Are the clients legally responsible for their attorney's conduct?  Sure.  So we could sanction them.

But the Ninth Circuit doesn't.  It holds that the clients were misled by their lawyer.  And I can definitely see how that might well happen.  You're putting your name on a caption alongside many other people in order to create standing, and have little (if anything) to gain personally from the lawsuit.  What you know about the lawsuit comes almost exclusively from your lawyer, who's not billing you (so you have very little reason to actively supervise him).  It's very plausible that if your attorney deceived you or engaged in sanctionable conduct, you'd never know about it.

So I like what the Ninth Circuit does here.  Sanction the lawyer.  Leave the individual clients alone.

In Re Blixseth (9th Cir. - June 21, 2012)

The Great Recession hit most everyone.  Even the good folks in Montana.  Some were even forced to file bankruptcy.

Including at least one Montanan who had tens of millions of dollars.  (If not hundreds of millions.)

Mind you, she was married to this guy.  Who allegedly once owed $1.3 billion.  Check out the sections entitled "Divorce" and "Litigation, Bankruptcies and Defaults." 

Everything's bigger in Montana.

Sharp v. Superior Court (Cal. Supreme Ct. - May 31, 2012)

Who says the California Supreme Court can't be short and to the point?  Here's proof that it can.  Resolving a case in a single-digit number of single-spaced pages.

Of course, it's a case in which the Court accepted review of an unpublished decision of the Court of Appeal that's obviously right, and which the Court affirms.  So how hard's that?

Still.  Baby steps.

San Diego Municipal Employees Ass'n v. Superior Court (Cal. Ct. App. - June 19, 2012)

I'm not entirely sure what causes it.  But I've kept an informal running tally of the number of cases the City of San Diego has lost in the Court of Appeal.  My sense is that the City's ratios of wins to losses in the Court of Appeals is roughly the same as the Padres' on the baseball diamond.

Which is not good.  At all.

Add this one to the list of the City's defeats.

This seems a systemic problem.  It's not the fault of the current City Attorney:  my sense is that San Diego has had a substantially below-average win rate for around a decade.  And I'm not talking about low-level criminal cases (e.g., misdemeanors prosecuted by the City Attorney's Office):  rather, we're talking about big-ticket civil litigations.  Like this one.

The City of San Diego loses again in the Court of Appeal.  Hardly a "man-bites-dog" headline.

Garimendi v. Hennin (9th Cir. - June 19, 2011)

When I teach Rule 60 to my first-year Civil Procedure students, I tell them that Rule 60(a) is mainly designed to permit a court to correct clerical errors in the judgment; for example, a judgment that says that a plaintiff is entitled to "$10,000" when the jury's verdict was actually for "$100,000."  Things like transcription mistakes.

Like many things, the complete truth is a little more complicated.  As today's opinion from the Ninth Circuit decmonstrates.

You can in fact make lots of amendments to a judgment under Rule 60(a), including changes that arise from circumstances that are quite dissimilar to transcription errors.

It's a good opinion to read to complete your knowledge of the Federal Rules of Civil Procedure.  Which is an important life objective for everyone, I'm sure.

Nickell v. Matlock (Cal. Ct. App. - June 4, 2011)

Matlock represents himself in the Court of Appeal.  And wins!

Mind you, this Matlock wouldn't have had to appeal in the first place, as he -- unlike the present Matlocks --likely would not have had terminating sanctions imposed against him.  Moreover, the Matlocks at issue are almost certain to lose on remand.

Still.  A victory for Matlock.

Chalk another one up.

People v. Little (Cal. Ct. App. - June 15, 2012)

Everything about this opinion seems copasetic.  But the defendant gets sentenced to over two decades in prison in a non-three-strikes case for secretly taking some credit cards and a Nordstroms gift card from a purse during an open house?  Really?  Does that seem . . . I don't know . . . a little harsh?

Especially for a guy (like here) in his 50's.  It's essentially a death sentence, no?

Yeah, I know, it's technically burglary.  Yes, apparently, there's an enhancement if your burglary is in a house in which someone else (a non-accomplice) is present.

Still.  Knowing nothing more than what I read in the opinion, I was a bit surprised by the sentence.

Perhaps I shouldn't have been.  But I was.

People v. Souza (Cal. Supreme Ct. - May 31, 2012)

Matthew Souza gets some good news and some bad news from the California Supreme Court.

The bad news is that he's going to spend the rest of his brief life in prison before we kill him.

The good news is that we're cutting the $24,000 restitution order entered against him in half.

So he's got that going for him.  Which is nice meaningless.

Daniell v. Riverside Partners I LLP (Cal. Ct. App. - June 14, 2012)

Philosophers aren't the only ones who struggle with profound issues of personal identity.

The SLAPP statute says a person can move to dismiss a lawsuit against that person based upon conduct performed by that person in furtherance of that person's First Amendment rights.  Plaintiff files a malicious prosecution lawsuit against Defendant X based upon a lawsuit filed and dismissed not by X, but by Y, and asserts that X is Y's successor in interest.  X files an anti-SLAPP motion, but Plaintiff opposes the motion on the ground that X isn't being sued by First Amendment rights performed by X, so an anti-SLAPP motion is improper.  Which, at least foundationally, is right.  Y didn't do anything at all, much less exercise any rights.  So how can he file an anti-SLAPP motion under the statute?

The trial court rejected this argument as "too cute by half," and the Court of Appeal essentially agrees.  The latter holds that because corporations are fictional entities, they change forms all the time, and Corporation X effectively is Corporation Y, and hence can file an anti-SLAPP motion.  But the Court of Appeal expressly notes that its holding is limited to fictional entities like corporations, and expresses no view (one way or the other) as to anti-SLAPP motions filed by individuals.

The Court of Appeal gets the result right, and I agree with its assessment of the policy implications of its holding.  But I think it can reach this outcome more easily, and in a way that avoids the unnecessary limitation of its arguments to fictional entities.

When X is sued as a successor-in-interest to Y, it's being sued "in Y's shoes."  We do this all the time.  When you are sued in Y's shoes, you generally get to assert any defenses to the lawsuit that Y could assert.  I see no reason not to hold that those include anti-SLAPP motions.  It's just applying the usual rule.

Importantly, such a straightforward application of doctrine wouldn't rely upon the existence of the defendant as a fictional entity.  Nor would it be limited to situations that involve (as here) successors in interest.  Many parties -- both fictional and otherwise -- are sued in similar capacities.  Successors.  Executors.  Trustees.  Vicariously liable defendants.  Under my rule, we'd allow all of these parties to file anti-SLAPP motions not because they're fictional and have "shape-shifted" to a different entity, but rather because they're being sued in essentially a representative capacity.

Let me give you an example.  One which actually comes up all the time.  Imagine that Employee exercises his First Amendment right, Plaintiff sues both Employee and Employer (which is alleged to be vicariously liable for Employee's tort), and Employee and Employer both file anti-SLAPP motions.  The former is surely being sued based on the exercise of rights by "that person," but the Employer isn't -- the Employer hasn't really done anything.  (Ditto, by the way, if you replace "Employee" and "Employer" with "Minor" and "Parent".)  We'd have no problem -- indeed, have no problem -- with routinely letting Employer file an anti-SLAPP motion.  Not because Employer is a fictional entity whose identity is synonymous with Employee -- they're undoubtedly different entities.  But rather because Employer stands in Employee's shoes for purposes of liability just as it stands in his shoes for purposes of the anti-SLAPP motion.  And that rule makes sense.

So I like the outcome here.  It's just and makes sense.  But I'd get there in a different, and much broader, way.

P.S. - A random note.  In analyzing the case, the opinion mentions that even fictional entities have First Amendment rights.  That's unquestionably true.  There are literally thousands of cases that so hold, and in which expressive activity almost identical to the type at issue here was involved.  But rather than cite those cases, the Court of Appeal cites Citizens United.  Admittedly, that case did indeed so hold, and I surely understand that this might be the first case that springs to mind.  But it's a little bit like citing Dred Scott for the proposition that federal diversity jurisdiction only exists between citizens.  Sure, the case did indeed so hold.  But it might be preferable to cite an opinion less controversial, less likely to be overturned, or (at a minimum) more on point.

Harris v. Rand (9th Cir. - June 13, 2012)

Were I grading these performances in my Civil Procedure classes, I'd give just about everyone except the Ninth Circuit a "D".

Plaintiffs file a lawsuit in which they initially allege that federal diversity jurisdiction exists under Section 1332(a)(2), which provides jurisdiction over actions by U.S. citizens against citizens of a foreign state.  Strike one.  Defendants include a U.S. citizen, so the correct section is (a)(3).

Plaintiffs then amend the complaint to assert jurisdiction under the correct section, but the district court thinks (probably correctly) that the jurisdictional allegations are "patently insufficient" because they don't identify where the defendants are citizens.  So it (properly) issues an OSC that essentially orders plaintiffs to alleged where the defendants are located, and the order cites Hertz -- the recent opinion that held that a corporation is deemed a citizen of its state of incorporation and the state of its "nerve center" (generally, the state of in which its headquarters is located) to help out.  That order seems reasonable and fairly easily followed.

So a couple of weeks later plaintiffs respond to the OSC and identify where the defendants are indeed located -- Louisiana and Hungary -- and further states that diversity thus exists because "while plaintiffs come from several states and Australia, none are residents or citizens of Louisiana."  Strike two.  You can't just say you're "not" from a particular place to properly allege diversity.  You actually have to allege where you are a citizen.  That's crystal clear.  So the allegations are still deficient, if only for this reason (and potentially others).

But the plaintiffs at least conclude their response to the OSC by saying that if what they've said is still deficient -- which it is -- they should be given an opportunity to amend their complaint to rectify the problem.  Fair enough.  The district court responds by granting leave to amend, and the plaintiffs do so, and allege therein where each of the defendants resides and has its "nerve center" (and is thus a citizen).  Good.

Then the district court whiffs for strike three, and dismisses the complaint for lack of subject matter jurisdiction, holding that the plaintiffs failed to prove where the defendants had their nerve center, relying on the heightened pleading standard of Twombly and Iqbal.

The Ninth Circuit properly reverses.  You can make the plaintiffs properly plead their jurisdictional allegations.  You can even require the defendants to prove these allegations as a factual matter.  But the rules don't require the plaintiffs to provide facts that support their jurisdictional allegations.  Even a cursory view of the forms attached to the Federal Rules of Civil Procedure makes that clear.

There might -- and I'll emphasize, might -- perhaps be situations in which the jurisdictional allegations are so implausible that Twombly and Iqbal might potentially come into play.  Perhaps if you allege, for example, that President Obama is a citizen of Alabama.  Or Kenya.  Maybe then we can say that your allegations are so implausible that they don't survive a motion to dismiss.  But that's nowhere near the case here.

So the Ninth Circuit gets a passing grade, but neither the district judge nor the plaintiffs' lawyer come out smelling like a rose.

Rijal v. USCIS (9th Cir. - June 13, 2012)

We don't need oral argument.  We don't even need to write an opinion.

All we need is nine days after the oral argument would otherwise have been scheduled to tell you that we're adopting in full the district court's opinion as our own.

Brannan v. Lathrop Construction Assocs. (Cal. Ct. App. - June 12, 2012)

Sometimes it rains.  Sometimes you slip in the rain.  That doesn't create liability.  Even if someone at work is empowered to call off work if the rain makes it unsafe.

Avina v. United States (9th Cir. - June 12, 2012)

It's not okay to point a gun at a child while s/he's handcuffed and on the ground.

Even if you're the United States.

U.S. v. Grant (9th Cir. - June 11, 2012)

The Leon exception has always been somewhat perplexing to me.  At least its application.  I understand the underlying rationale:  that we rely upon the magistrate to sort out the good warrants from the bad, so if it's a close call, we're not going to suppress the evidence.  Fair enough.  You can agree or disagree with this rule as a policy matter, but I get from whence it's coming.

The harder part for me is deciding when the exception applies on a particular set of facts.  Maybe that's because I have a particular view of police work, at least insofar as warrants are concerned.  When a police officer wants one, she wants one.  She cares very little (if at all) about the particular intricacies of the Fourth Amendment.  She just wants to uncover evidence of a crime.  So she dumps whatever information she has into an affidavit and gives it a shot.  Or at least that's my theory.

She may admittedly have a sense of how likely she is to successfully obtain the warrant.  A theory that may perhaps be based -- incredibly loosely -- on whatever she's been taught (or learned) about the application of the Fourth Amendment.  There may be some occasions where she (or her superior) says:  "This isn't even worth the effort.  No way I'm going to get a warrant."  But on those occasions she's not likely to seek one.  There may be other occasions where she (or her supervisor) says:  "This seems like a stretch.  But it's worth a shot.  Maybe I'll get lucky."  Those are the ones that may raise the Leon rule, at least for those occasions in which she in fact succeeds.

Leon says that if it's clear, then there's suppression.  But, again, I think it's incredibly rare for officers to seek warrants when it's totally clear.  (Put to one side cases of perjury in the affidavit etc.)  Sure, they may seek a warrant in circumstances in which they're not positive, or think there's only a twenty percent chance that one will issue.  But that's why we have judicial officers:  to decide these things.  The policy behind the good faith exception seems to apply in such cases.

So what to make of the exception?  It seems like it almost necessarily swallows the rule.  If they bothered to apply for the warrant, it was probably at least somewhat unclear, so no suppression.  And if they didn't think it worth the effort to apply because it was so clear, then there's no warrant, so no suppression exists there either.  It seems like virtually every case in which a warrant is issued it'll be sufficiently unclear such that the exception will apply.

Those were my thoughts when I read this opinion.

Everyone -- or at least, every Article III judge to consider the issue -- agrees that the warrant here wasn't sufficient.  As indeed it wasn't.  It was a whole lot of information that loosely tied the participants to evil events (that they were bad dudes pervades the affidavit), but no probable cause to tie them to a particular crime that a search would help prosecute.  But the magistrate thought otherwise, so a warrant issued, and evidence (albeit of a different crime) was found, so now we've got to decide whether to suppress.

The district court thinks the good faith exception applies.  The Ninth Circuit doesn't.  The latter thinks it's pretty darn clear.

I don't know.  My view on the issue is undoubtedly muddled by (1) my respect for the relevant district court judge -- Judge Wu -- who's an extremely bright (and conscientious) guy, and (2) my fuzzy doctrinal thoughts about the Leon exception itself, as revealed above.  Both of these things make me think:  "Really?  Would a reasonable police officer really know that this warrant was wrongfully obtained?  As opposed to merely thinking that it's unclear and hence worth a shot?"

Read the opinion and see if your thoughts on the issue reach a clearer conclusion than mine.  I usually have a pretty good sense about whether an opinion's right or wrong.  Especially when it's unanimous.

But not here.

POSTSCRIPT - An alert reader also noticed that the opinion says that the search warrant here was signed by "a judge on the California Court of Appeal."  This is apparently authorized, but it still seems unusual -- I don't recall seeing a similar appellate-signed warrant in the past.  So I did some digging.  The Culver City Police Department apparently got the warrant -- actually, more than one -- from Justice Paul Turner in 2009.  Justice Turner also gave 'em authority to serve it at night.  Justice Turner is the presiding judge in Division Five of the Second District.  He also lives in Culver City.  I can't tell why he's regularly issuing search warrants (as opposed to the hundreds of other lower-level judicial officers in Los Angeles), but presume there's a reason.  As a policy matter, I'm not sure I really want my appellate judges deciding whether to issue search warrants.  I'm sure they have the expertise -- after all, most of 'em (like Justice Turner) were lower-level judges previously.  But unless there's some special reason to get them involved, I would generally prefer that judges on the appellate courts stick to deciding cases rather than getting personally involved in advancing a criminal prosecution.

(Judge Berzon's reference to a "judge" on the California Court of Appeal is technically accurate, though the preferred term is "justice".  Just like you could call Justice Scalia a "judge" (since he is one), but might want to use the term "justice" instead.  At least that's better than the United States' brief in a related case.  Which referred to Justice Turner as sitting on the California Court of Appeals.)

Beeman v. Anthem Prescription Management (9th Cir. - June 6, 2012)

I don't recall seeing a Ninth Circuit case previously in which it has granted en banc review for the sole purpose of certifying the case to a state court.  But that's what the Ninth Circuit does here.

It also makes sense to me.  I agree that forum-shopping and comity concerns seem to militate strongly in favor of certification here.  So I wouldn't dissent from this unanimous decision of the en banc court.

Mind you, that's not what the panel did.  It decided the merits.  But neither Judge Reinhardt or Betty Fletcher was on the en banc draw.  And while Judge Wardlaw was, she dissented on the panel, so she's pretty happy with the decision.

I think this is a good call.

Magness v. Superior Court (Cal. Supreme Ct. - June 7, 2012)

The California Supreme Court is very bright.  Though it might want to brush up a little bit on physics.

It holds today that in order to count as "burglary" some part of your body or tool or something from the outside has to actually enter the building.  We'll call that the "air space" test (for lack of a better term).  It's not enough that you "break" (e.g., open a door) a residence.  You've also got to "enter."  The classic definition of "breaking and entering."  Your entry doesn't have to be much.  Just the tiniest little bit counts.  Either of a part of you or of something else.  Something from the "outside" of the building.  But when nothing from the outside comes in, you haven't entered, so it's not burglary.

I agree.

That's admittedly a somewhat artificial test.  It means, for example, that when you open a door that opens out you haven't committed burglary (because your hand never entered) but when you open a door that opens in you have.  But I agree with Justice Liu when he says -- responding to a different hypothetical -- that just because lines may be somewhat arbitrary doesn't mean they're wrong.  We have lines because they roughly approximate our values and diminish uncertainty and transaction costs.  That they're only approximate doesn't negate their validity.

So I agree with the test the California Supreme Court adopts.  As do all the justices.  The opinion is unanimous.

But I nonetheless must take issue with two components of the opinion.

First, Justice Liu discusses a couple of cases in which someone broke down a door with their foot and was convicted of burglary and says that those opinions are correct because it's reasonable to conclude that if you do so some portion of your foot entered the building on the follow-through.  That may well be wrong, for two reasons, one of which is doctrinal and the other of which is factual.

Doctrinally, the opinions in those underlying cases affirmed the conviction even though the prosecutor argued (and the court agreed) that even if the foot didn't enter the building it was still burglary because the door did.  Justice Liu rightly holds that the latter theory doesn't work, but that the former does, and says that since the former works, the conviction stands.  But if there are two theories presented at trial and allowed to go to the jury, and one is legally insufficient, that makes the conviction improper -- not proper -- since you can't tell which one the jury bought.  So those cases should come out the other way as a matter of law.

Moreover, factually, it's simply untrue that when you kick in a door -- or use another object to bust it open -- your foot enters at least a portion of the residence on the follow-through.  Not if you do it the right, and most effective, way.  Physics teaches us that you get more power off of recoil than you do with follow-through.  That's why solar sails, for example, are reflective.  And why tanks are covered with collapsing material and cars have crumple zones.  The right way to bust down a door is not to go hog wild with the follow through but to have your foot (or battering ram) bounce off the door, thereby maximizing force.  So you don't enter the residence at all.  You hit it, bounce off, and stay outside the residence at all times.  (Sure, there's necessarily a nanometer or whatever of compression, but that's no more "entering" than is a polite knock on the door:  compression remains on the "outside.")  So it's not like you can say that kicking a door down necessarily (or even generally) enters.  You've got to have some evidence that there was actually entry.  Not mere speculation that the defendant probably did it the wrong way.

So that's my first physics lesson for the day.  From a guy who last took it twenty five years ago.

My second piece of physics advice relates to the application of the Court's principle to the case at hand.  The defendant here was charged with burglary when he used a remote control to open the garage door of the residence (but was run off by the homeowner before he physically entered).  The Court holds that on no version of the facts did anything from the outside actually enter any portion of the residence -- even though a body part or tool or anything else from the outside would count -- and so the defendant categorically can't be charged with burglary.

Even though I agree with the test, I'm not so sure that's right.

The Court's right that the guy himself didn't enter, nor did a lockpick or anything else.  But I'm pretty certain that one thing from the outside did enter the garage, and directly resulted in the opening of the door:  the radio or surface acoustic wave from the remote control.

Virtually all garage door remote receivers are located inside the garage; i.e., inside the residence.  The defendant deliberately used the remote to transmit an electronic wave inside the residence in order to affect his break.  The wave entered.  The wave resulted in the break.  Isn't that just as much of an entry as a lockpick or the sole of a shoe?  Why isn't that sufficient?

You might perhaps articulate a theory that electronic entries are categorically different.  But I'm not sure such a position would be tenable.  And at the very least, you'd have to articulate the theory.  Not merely assume without deciding that it's true, which is what the California Supreme Court does here.

any set of facts that might suffice, the indictment stands, right?  The facts here might indeed be sufficient.

And even if I'm wrong, isn't the California Supreme Court simply wrong to say -- as it expressly does -- that "[o]n these facts, defendant may be charged with attempted burglary, but he cannot be charged with a completed burglary."  Seems to me the most it can say is that the can't be charged with a completed burglary unless the electronic entry was sufficient, in which case he can.  So you'd either have to (1) decide the issue, or -- more likely -- remand to the lower court for a determination.  Rather than do what the Court here does and dismiss the indictment entirely.

So I like what the Court does here.  It's smart.

But I think it could be smarter.

Sourcecorp v. Shill (Cal. Ct. App. - June 6, 2012)

Steven Shill is a debtor against whom a multi-million dollar judgment for fraud has been entered and who's trying to shield his assets from collection.

Nice last name.