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

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

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

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

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

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

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

A knee-slapper, to be sure.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

And this ain't going to cut it:

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

Drugs more important than children, apparently.

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

I'll just tell the story on this one:

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

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

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

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

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

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

Words escape me.

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

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

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

But use the right one. And be careful.

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

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

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

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

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

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

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

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

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

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

So here goes:

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

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

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

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

Unfortunately, sausage sometimes looks good by comparison.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Here you go.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

And you thought your neighbors were bad news.

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

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

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

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

Oh. Never mind.

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

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

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

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

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

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

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

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

No $450 million judgment for you.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Here's another.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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