Friday, August 12, 2022

People v. Gregor (Cal. Ct. App. - Aug. 12, 2022)

This is all a bit harsh, I think, and surprisingly so.

Andrew Gregor is hanging out online in 2011 or so and having a fun, sexy conversation with someone young. You can already tell where this is going, right?

It's actually an internet sting operation, so Mr. Gregor gets busted for contacting a (fake) minor with the intent to commit a sexual offense. He pleads guilty, completes a sexual integrity program (I didn't know those existed), and gets sentenced to three years of informal probation. That (incredibly light) sentence is fairly indicative of how the judge probably viewed the equities of this particular situation.

Mr. Gregor is an American citizen, so he doesn't have to worry about being deported or anything like that. (He also appears to be a veteran, since a comment in the final footnote suggests that he's trying to get to veteran's court in a different proceeding. Irrelevant here, but perhaps that's part of the underlying equities.) Nonetheless, he wasn't always a citizen; he's originally from Australia, and is naturalized. When he signs his plea deal, he initials a box that says: "“If I am not a citizen of the United States, my plea could result in my being deported from, or excluded from admission to the United States, or denied citizenship." But, to reiterate, he's a citizen, so this doesn't apply to him.

Several years later, he applies to bring his non-citizen wife over to the United States. (It's unclear whether he was married during the whole internet sting thing, but he's definitely married now.) Because, well, he'd like to like in the same country as his spouse, please. But -- and this was the part I didn't know before today -- even if you're a citizen, if you're convicted of various offenses against a minor, while you can't be deported, you are barred from sponsoring anyone to come to the U.S.

Which might well make sense for sponsoring, say, a minor to come here. But I'm not exactly sure why we want to stop people from letting their spouses come here. Do we want the people to instead elect to marry someone who's already inside the U.S. who's not their true love? That's the way to stop future sex offenses? Or is our goal to make 'em go to a different country and live there? Countries that might well have less stringent sex offender statutes, or less supervision (e.g., no sex offender registration rules)?

Nonetheless, that's the law.

So Mr. Gregor files a motion to withdraw his plea, pursuant to a new California statute that says you're allowed to do so (under certain circumstances) if you didn't understand the immigration consequences of what you were doing. Which Mr. Gregor says -- quite credibly -- totally applies to him, because no one told him that, even as a citizen, he'd be prevented from sponsoring a spouse once he took the deal.

But the trial court denies relief, and the Court of Appeal affirms. The statute applies to non-citizens whose immigration consequences were potentially getting deported or not being able to come back to the United States, but not to citizens whose immigration consequences were not being able to sponsor a spouse. Sorry about that.

Justice Duarte appears somewhat sympathetic to Mr. Gregor's plight, and drops a footnote at the end of the opinion that says: "We recognize that defendant’s appeal is part of a broader effort to have his plea vacated, his criminal charges reinstated, and his case referred to and resolved in veteran’s court (see § 1170.9), based in large part on his quest to be released from the requirement that he submit to lifetime sex offender registration (see §§ 288.4, subd. (b); 290, subd. (d)(3)(C)(xii)). We observe that our opinion resolves only a narrow issue of statutory interpretation related to immigration and is not intended to opine on any other issue related to defendant’s plea or his status as a registered sex offender, including the questionable wisdom of imposing a lifetime registration requirement on an offender whose adjudication was resolved by his successful completion of probation pursuant to section 1203.4." But, still, no dice.

The opinion comes out of the Third Appellate District, and Shasta County in particular. So I assumed at the outset that Mr. Gregor was hiding out in rural Northern California while this whole thing plays out.

But since he's on a lifetime sex offender list, I was able to look the guy up. Nope. He's in San Diego. He just got busted up in Shasta, where the sting was (he apparently lived in Arizona at the time). Around 10 miles down the street from me. (Though that "street" is Interstate 8.)

P.S. - Oh, I literally forgot one final thing. Mr. Gregor also asks on appeal that the opinion only use his initials, since (not surprisingly) he doesn't exactly want the whole "attempted sex with a minor" thing hanging out in a potentially published opinion, particularly given his new spouse and all. Denied. The panel says he's a criminal defendant, so the usual rule is we use actual names. No dice there, either.

Thursday, August 11, 2022

People v. Morelos (Cal. Supreme Ct. - Aug. 11, 2022)

The California Supreme Court affirms the conviction and death sentence in this case, in which the defendant represented himself (always unwise) and waived the right to a jury trial (almost always unwise in a capital case). Justice Liu dissents, and believes that the defendant was insufficiently informed about the nature of the right that he was giving up -- the right to a jury trial.

The underlying dispute basically involves how much the judge has to say in order to make sure that the waiver of the right to a jury is "knowing and intelligent" and hence valid. Here, the defendant was surely told -- on multiple occasions -- that he'd be giving up the right to a jury. But he wasn't told, for example, that the jury verdict would have to be unanimous or that he could participate in voir dire. Is that enough? It is for the majority, but not for Justice Liu. At least in a case in which the defendant represents himself.

I wonder if the solution here is to have an official "script" for these sort of things -- something like the Court did with Miranda warnings. We have pattern jury instructions, after all. It might be useful for the courts (or the Judicial Council) to actually spend some time and come up with a neat little "cheat sheet" that trial court judges can use for waivers like this. Sure, trial court judges can come up with their own, and undoubtedly some do. But it'd be nice if the warnings were both uniform and approved by the higher-ups. That way we could all know they're good. (Indeed, they could be even more prophylactic than the bare minimum; why not, after all?)

Monday, August 08, 2022

Alfaro v. Waterhouse Mgmt. Co. (Cal. Ct. App. - Aug. 5, 2022)

Residents of Santa Barbara generally have a reputation for being mellow, easy-going folks. But this opinion suggests that this stereotype isn't necessarily accurate, at least as applied the lawyers out there.

The Court of Appeal affirms the award of attorney's fees against a defendant when its counsel filed a frivolous anti-SLAPP motion. Not only is that the result, but the opinion concludes with a section entitled "A Plea For Calm," the text of which states: "At the trial level and here on appeal, the parties’ “scorched earth” postures exude acrimony: There have already been two appeals from anti-SLAPP rulings. We are hopeful that the law and motion wars will cease. The case should be settled or be tried."

That's a fairly damning indictment of the stereotype, no?

I was sufficiently intrigued by that statement to spend part of my weekend going back and reading the briefs in the underlying litigation. Admittedly, I only had access to the stuff on appeal, and wasn't able to read the trial court materials. But I gotta say, the briefs didn't seem that unusual at all, and certainly not so full of animosity and acrimony that I'd have been itching to tell the attorneys to tone it down a ton.

I'll admit that counsel for appellant sometimes puts things in a manner that's fairly . . . strong. But not in a manner that's unprecedented or beyond what I often read in trial or appellate briefs. The only thing that truly leaped out at me is appellant counsel's penchant for employing bold text, as I've gotta be honest that I've rarely (if ever) seen that much bolding in a non-pro se brief, and counsel might well be advised to stop hitting control-b so much. It's distracting. But acrimony? Nah. A little, sure. But not so much.

And appellee? Her brief seemed totally normal. Not acrimonious at all. Just exactly what you'd expect to see -- particularly when (as here) defending the award of attorney's fees for the filing of a frivolous motion below.

There may, of course, be more going on here than I can read in the appellate briefs. Maybe the trial court submissions were super vitriolic. Maybe the oral argument was especially testy. Maybe the Court of Appeal has had some history with this case (and its counsel) -- there was a prior appeal, after all, on a different issue -- and is tired of the same old routine, albeit at a slightly lower volume here.

But the mellow stereotype of the cool and calm resident of San Barbara applies here, if at all, only to the justices on the panel, who basically ask the lawyers to "turn down the volume" and keep things a bit more calm and quiet, at least on appeal.

Because it's Santa Barbara, after all.

Wednesday, August 03, 2022

Montes v. YMCA (Cal. Ct. App. - Aug. 3, 2022)

You can see from the very outset of today's opinion why the Court of Appeal was eager to make sure that the defendant successfully obtained summary judgment in this case:

"Abel Montes, Jr., fell to his death from the steep, sloped roof of a residential building where he lived. The building was owned by Young Men’s Christian Association of Glendale, California (YMCA or defendant). Mr. Montes had been drinking and had eaten a marijuana brownie earlier, was feeling high, and had been acting erratically before the fall. The parties agree there was an 'open and obvious risk' from the roof sloped at a steep angle and covered with brittle, broken, slippery and unstable Spanish tiles. They also agree there was no need for Mr. Montes to be on the roof. Under these circumstances, defendant owed no duty of care to Mr. Montes, and his parents cannot prevail on their wrongful death claims based on premises liability and negligence. We affirm the trial court’s grant of summary judgment for defendant."

Indeed, when you read the additional facts that were set forth later in the opinion, it becomes even more understandable why the panel didn't want to impose liability in settings like this one. Because you can see why someone might think that it was totally Mr. Monte's own fault that he fell off the roof: Since it wasn't just a random encounter on the roof, but basically a New Year's Eve revelry by Mr. Montes that clearly went horribly, horribly wrong:

"Mr. Montes was a 23-year-old resident of defendant’s apartment building in Glendale. He attended a birthday party on New Year’s Eve 2015, where he was seen drinking beer and some champagne. A coworker drove Mr. Montes home from the party, and he arrived in the lobby of the building at about 2:00 a.m. He told the desk clerk, Eric Perrodin, that he had eaten a brownie, was not feeling well, and was “high.” He declined the desk clerk’s offer to call 911 and said he would go to his room.

At about 4:00 a.m., Mr. Montes returned to the lobby and began behaving erratically, getting on his knees to pray, rolling around against the wall, knocking down plants, and falling to the floor, knocking down a window curtain. Then he told Mr. Perrodin that he was going back to his room.

At about 6:00 a.m., Mr. Perrodin looked outside and discovered Mr. Montes lying on the hood of his (Mr. Perrodin’s) car. He was still alive. Mr. Perrodin called 911. At 7:06 a.m., Mr. Montes was pronounced dead."

Yeah. You should not go onto the roof of a building when you're incredibly, incredibly high and rolling on the floor and the like.

That said, I gotta say, I was struck by one critical fact in the opinion. Sure, the roof was slippery and incredibly slanted and didn't have guard rails. Big deal. It's a roof, after all. That doesn't make it (at all) incredibly dangerous to me, or impose a duty.

But the opinion mentions that the stairway in the building went directly to the roof, and -- here's the biggie -- didn't even have a lock on it. So, predictably, people occasionally went up to the roof to party there, and the building owners (essentially) knew full well that they did. Hence the bottles and graffiti and cigarette butts up there, plus the persistent "rumors" that "stuff" went on up there.

I mean, come on. Put a lock on the darn door at least, no? It's a roof, after all. Otherwise -- shocker, I know -- someone might well fall off the roof. (As Mr. Montes indeed did.)

I get it: one could easily come to the conclusion that it's the guy's own fault for going up to the roof, a place that he presumably knew he wasn't supposed to be and that was obviously dangerous.

But the Court of Appeal says that there's categorically no duty whatsoever for a landowner in this setting. Even though I think everyone with common sense would say: "Uh, dude, you really gotta put a lock on that door to the roof, no?)

Apparently not.

Monday, August 01, 2022

County of Butte v. Dep't of Water Resources (Cal. Supreme Court - Aug. 1, 2022)

I return from a (well-earned) vacation in Hawaii with my family to read this opinion from the California Supreme Court. It's about the scope of federal preemption of the California Environmental Quality Act, which -- while important -- is not something that would normally thrill me enough to discuss at length.

But I wanted to talk about the opinion, if only tangentially, because reading it generated a larger idea in my mind that might perhaps have some traction. (Though, perhaps, not.)

What's somewhat unusual about this opinion is that there's a dissent -- the opinion is written by Justice Liu, and the partial concurrence and dissent is written by Chief Justice Cantil-Sakauye (joined by Justice Corrigan).  That by itself is somewhat unusual; and the fact that it's unusual is itself unusual, or at least not typical. We're all used to the United States Supreme Court and its fractured political composition, which in turn generates lots of dissents -- and often somewhat vitriolic ones, at that. The California Supreme Court isn't like that. Lots of its opinions are unanimous. And when, as here, there's a dissent, what you see in today's opinion is what you generally see; a totally nice, polite, incredibly restrained and respectful written difference of opinion.

Which is nice, honestly.

But the thought I had was less about this dynamic -- one of which most court-watchers are generally cognizant -- than about how this might affect retirement rates. Because while I haven't had occasion to mention it, here's what's somewhat surprised me over the past decade or so: We've had what seems to me a lot of California Supreme Court justices voluntarily leave the bench. Most, if not all, of whom were in perfectly good health and could have continued to serve for some time.

You don't see that, by contrast, in the contemporary United States Supreme Court.

This has been an issue on my mind for some time, but it was generated again (obviously) by Chief Justice Cantil-Sakauye's announcement last week that she was leaving next year. She's only 62 years old, and has plenty of gas left in the tank. Last year, Justice Cuellar similarly retired at the spry age of 49. The year before that, Justice Chin retired. And before that, we had retirements by Justices Werdegar, Baxter, Kennard, Moreno and George -- all within the past decade or so, and all of whom (I believe) remain alive and kicking to this very day.

Try to get a similar list of United States Supreme Court justices who've left, particularly in the current political era. Good luck with that.

What occurred to me today is that I wonder if there's a linkage between these two realities. I wonder if justices are more likely to retire while young and in good health when, as today, there's perceptually not much politically at stake. When most (or many) of the decisions are unanimous anyway. When most of the justices -- and their likely replacements -- are of similar political dispositions. When the appointing authority, as in California, is likely to be from the same political party for most of the relevant period of time.

It's not that being a California Supreme Court justice is a crappy job. It's not. At all. So in some ways, even if your vote isn't totally critical, say, to avoid a disastrous 5-4 (or 4-3) result, why not go ahead and stick around. Indeed, arguably, the job's an even better one when you like your colleagues, they tend to see things the same way as you do, no one's a huge jerk, and you're not burdened with having to write dozens of passion-filled dissents every single year.

So why not hang in there?

I think the answer, however, is that to get there -- to become a justice on the California Supreme Court in the first place -- you've essentially got to be an A-type personality in the first place. You wouldn't be on the Court to begin with if you didn't like challenges. High impact, high important stuff. Making a big difference.

There's less of that, I suspect, when -- in most cases -- you're simply the seventh vote in a unanimous opinion; an opinion that would likely have come out the exact same way without you.

That's my theory, anyway. Were I more ambitious, I might do an in-depth empirical study of overall dissent rates and closely-contested decisions as correlated with differential retirement rates in state supreme courts. It might be super interesting.

But it's the summer. I'm just back from vacation. I'm going to instead take the easier route, at least for now. I'll just posit my intuition that the one thing probably has something to do with the other. Since, at a minimum, it makes sense. (At least to me.)

So a partial dissent by the soon-to-be-retired Chief Justice Cantil-Sakauye. Enjoy 'em while you can.

Thursday, July 21, 2022

Lang Van, Inc. v. VNG Corp. (9th Cir. - July 21, 2022)

One of the things you have to deal with sometimes when you're on a Ninth Circuit panel is an opinion written by a different judge that reaches what you believe is the right result but in a manner that's quite a bit different than how you'd go about things were your chambers to have written the opinion. Sometimes, if the differences are substantive, you write a concurrence, and explain your different approach.

But on occasion, the differences aren't substantive. It's simply that the opinion written by the other judge is written in a way that seems . . . clunky. It doesn't really flow. It's not written in the manner that you're used to seeing. It just seems . . . off. (You recognize that others might well use harsher language to describe the opinion, but your reaction is simply that it's not an opinion the type of which you're used to seeing.)

So what do you do?

You could try to totally rewrite the opinion, of course. But that's neither your job nor likely to result in a great reaction from your colleague, who (presumably) thinks that the opinion he's drafted is totally fine. You could write a separate concurrence, but that seems a ton of work, particularly when you don't have a substantive doctrinal problem with how the opinion comes out. You could try to lightly tinker with the thing, but you might well accurately perceive that that won't nearly solve the problem. You could write a one-sentence concurrence that concurs in the result, but that seems overly harsh.

Or you could simply join the thing. It's his opinion. Under his name. It is what it is. Just leave it be.

These thoughts came to mind when reading this morning's opinion. The opinion is written by Judge Bataillon. He's a senior judge sitting by designation from the District of Nebraska. It's about personal jurisdiction, and by background, Judge Bataillon is much more of a criminal-type guy. The other two judges on the panel are Judges Bybee and Bennett.

To me, Judge Bataillon's opinion just reads . . . differently. I see a similar type of style and analytical process on occasion in first-semester civil procedure midterm exam answers when presented with very similar personal jurisdiction issues. It's not that the analysis is necessarily substantively wrong. It's just that there's definitely room for improvement with respect to both style and substance.

As a professor, no problem. You give the answer the grade it deserves and write comments (or talk with the student) to help make things better. As a judge, by contrast, it's a bit tougher. You've only got the choices described above. Plus, it's a visiting judge, so it's not someone you're likely ever going to work with again. So you do whatever you do and move on.

Others might have a different reaction to this particular opinion. But the dynamic definitely exists, and I'm confident that most every judge who's served for any length on the Ninth Circuit has experienced it in some form or another.

No biggie. Just another part of the job.

But an aspect of which I was definitely reminded earlier today.

Monday, July 18, 2022

U.S. v. Dominguez-Caicedo (9th Cir. - July 18, 2022)

I know that the law in this area is very pro-prosecution. But it still always strikes me as unusual when, as here, we're prosecuting drug mules (and sentence them to 20 years in prison) who possess cocaine on tiny little "panga" boats floating off the coast of . . . the Galapogos Islands.

Yeah, yeah, yeah, I know: the extraterritoriality doctrine in this area is super broad. But still. We're talking about islands that are three thousand miles from San Diego. Talk about the "long reach of the law," eh?

But, again, I know the relevant precedents here. That's just fine with the Supreme Court. So much so that it's not even challenged here.

What I hadn't fully realized until today, however, is that after you seize these people so far away, you've got to eventually get them back to the United States. What I had always assumed was that they put 'em on a plane (or helicopter, or whatever) and sent 'em here expeditiously.

Apparently not.

Instead, it's a long and arduous process. Not for the actual workers on the ships, who get their usual meals and bunks and the like. The experience for the detainees, by contrast, is apparently fairly dire:

"Three officers from the Coast Guard then boarded the panga. Dominguez-Caicedo told the officers who boarded the panga that they had been out fishing. . . .  The Coast Guard then detained the three defendants and transferred them to the Stratton. Several days later, on January 2, 2018, they were transferred to the Northland, another Coast Guard vessel, where they were detained until January 3. . . .

On board the Stratton, according to Officer Welzant of the Coast Guard, the standard protocol dictates that [] detainee[s] . . . . are not told where they are headed, they do not get an opportunity to contact their families, and they do not know how long they will be on board. Detainees are chained to a cable that runs the length of the deck inside the helicopter hangar (emptied of helicopters). Each detainee is chained to the cable using an eighteen-inch ankle shackle. The detainees remain chained at all times of the day and night, except for trips to the bathroom and approximately one hour per day of exercise time, during which the detainees are permitted to walk freely on the deck. . . . Welzant testified that detainees are escorted to use the restroom upon request, unless the crew is launching a helicopter or a small boat, which would take approximately ten minutes. However, the Stratton’s detainee logbook showed that the three defendants were rarely taken to the restroom between 6:30 p.m. and 7:00 a.m. the next morning. When the three defendants in this case were detained, there were thirty-seven total detainees on board the Stratton.

Welzant testified that Defendants were provided with mats approximately half an inch thick on which to sleep. The Coast Guard confiscated the clothes that the defendants were wearing and gave them disposable Tyvek painters’ coveralls to wear instead. These coveralls often ripped and exposed detainees. Each person also routinely receives a blanket. Detainees are fed three meals per day, primarily consisting of rice and beans, supplemented with fruit approximately every other day. . . .

On January 3, 2018, the defendants were transferred to another Coast Guard cutter, the Mohawk. . . . On the Mohawk, the detainees were kept on the top deck, exposed to the elements. According to Coast Guard officer Kristopher Meyer, the crew erects a tent on that deck while detainees are on-board to provide some shelter from the elements. The Mohawk crew does not provide any sleeping mats, though they do give each detainee a blanket and a towel.

While the defendants were on the Mohawk, there were numerous rain squalls, which caused the deck to become wet. When it rained during the night, the detainees would either have to stand up or try to sleep while laying on the wet deck. On the Mohawk, detainees were served rice and beans for every meal. The defendants testified that the rice and beans were very undercooked, and that these meals resulted in them suffering gastrointestinal distress. The Mohawk’s detainee log shows that Gaspar Chichande refused five meals in a row, and that Cortez-Quinonez and DominguezCaicedo refused three meals in a row. Cortez-Quinonez testified that he was denied medical care on board the Mohawk, despite complaining of pain. . . .

On January 16, 2018, the defendants were transferred from the Stratton to their final cutter, the Active. The conditions of confinement on the Active were similar to those on the Stratton, except that the area where the defendants were shackled was protected from the elements only by a canvas tarp, and the sleeping mats provided were an inch-and-a-half thick. In addition, the temperature dropped as low as 50 degrees during the time the defendants were onboard the Active."

These are the conditions that prevailed for the nearly full month that it took to move these detainees by slow boat to the United States. As a reminder, all of these individuals were presumed innocent at this point.

The Ninth Circuit concludes that this is just fine. Sure, it's no fun, but oh well. No relief.

(Why can't we treat these people any better, you might ask? "One officer testified that feeding rice and beans [to the detainees] was the only affordable way for the Coast Guard to accomplish its mission. Another testified that the excessive restraint of defendants resulted from too few watchmen and too many detainees. Coast Guard testified that it couldn’t get detainees to shore because its helicopters were old and didn’t have long range. They claimed they couldn’t wait for diplomatic clearance to get people off the cutters because it would upset the ability to patrol the ocean.")

Obviously, life is a series of tradeoffs. After reading this opinion, I'm more fully aware of the various consequences that are engendered by the manner in which we conduct drug interdiction efforts on the high seas thousands of miles away from the United States.

And knowledge is almost always a good thing.

Thursday, July 14, 2022

M&L Financial v. Sotheby's (Cal. Ct. App. - July 14, 2022)

Justice Wiley accepts (as he must) the plaintiff's version of the facts on the Court of Appeal's review of the demurrer. But reading those facts -- which involve the "disappearance" from Sotheby's of $4 million worth of diamonds -- you gotta wonder what the true facts are. Because plaintiff's version seems a bit . . . iffy.

There's an alleged oral explanation of who "really" owns the diamonds at issue that allegedly "enlightens" what's actually written on the piece of paper (i.e., contract) with Sotheby's. The Court of Appeal holds that this alleged oral explanation means that the case can go forward, since the contract is ambiguous.

Okay. I see the argument.

But there are still two owners listed on the document, Sotheby's (allegedly) released the diamonds to one of the two listed owners, and Section 1828 of the Civil Code says you're allowed to do that without any liability attaching. So unless there really was an oral modification that "explains" the "true" ownership, Sotheby's is off the hook.

But that's for summary judgment, or (more likely) trial.

Then we get to figure out the details of what really happened.

Tuesday, July 12, 2022

In re Ernesto J. (Cal. Ct. App. - July 12, 2022)

My sentence-by-sentence reaction to the underlying facts of this opinion:

"After several gang-related shootings in and around Union City, officers from various jurisdictions formed a plan to arrest suspects they believed were using a stolen car."

Great. Let's stop those shootings.

"The night of June 18, 2018, officers located the car and followed it in unmarked cars as it traveled throughout the area."

Sounds good. Like what you see in the movies.

"The car began circling a Union City neighborhood associated with the suspects’ rival gang, and the officers decided to execute a “Vehicle Containment Technique,” in which one police vehicle “stops in front of the suspect vehicle and reverses into the suspect vehicle’s front bumper” while a second police vehicle “simultaneously closes in on the suspect vehicle from behind until the bumpers are locked and the suspect vehicle is securely contained between both officer vehicles.”"

Seems like that's a great plan, and would work well.

"Two Fremont police officers initiated the technique when the suspects’ car was stopped at a stop sign."

Seems like the perfect location. What could go wrong?

"Occupants of the suspects’ car immediately started shooting at the officers."

Oh, yeah. That.

In retrospect, I guess it's not surprising that gang members suspected of various shootings might react negatively to being deliberately boxed in by unknown occupants of other vehicles.

Friday, July 08, 2022

People v. Gerson (Cal. Ct. App. - July 8, 2022)

This seems to me to be a good test case for whether or not you believe in retribution as a justification for criminal punishment.

Hayden Gerson is seemingly an ordinary fellow, with no apparent criminal history, but in 2016 becomes fascinated with -- and starts heavily using -- DMT and psilocybin ("mushrooms"). His ex-business partner said that he "noticed changes in Gerson after Gerson started using drugs, including 'constantly' talking about various conspiracy theories, claiming he was God and that he had special powers," and had "witnessed Gerson 'high' from marijuana hundreds of times but described Gerson on other drugs as 'something totally, totally different.'” 

Gerson's ex-girlfriend, Alisha, said basically the same thing. "During the summer and fall, Gerson began studying Hinduism, started chanting and meditating, used different psychedelic drugs, and started inhaling nitrous oxide. In November, Gerson called Alisha and told her “crazy stuff” such as bringing her deceased sister back. Alisha suspected that Gerson’s drug use caused him to become delusional and not in touch with reality. Gerson later told Alisha that he had been using drugs when he made that telephone call. During this time, Gerson’s social media postings referred to his use of DMT as “life changing” and that mushrooms changed his perspective about death and “now I don’t fear death.”"

All this comes to a head on December 12, when Gerson calls Alisha to his house. When she arrives, "she knew Gerson was intoxicated based on his large eyes, rapid movements, and the tone of his voice. She had never seen Gerson this intoxicated before. Gerson told Alisha that “he was eating mushrooms for breakfast, lunch, and dinner.” Gerson admitted at trial that he was under the influence of psilocybin and nitrous oxide at the time and had also used cannabis that day. Alisha surreptitiously recorded Gerson with her cell phone. Gerson made delusional statements such as causing it to snow in Hawaii and having control because he was Lord Shiva. Gerson then inhaled about 14 canisters of nitrous oxide in front of Alisha. Alisha called the police and told them she had a “5150” with her ex-boyfriend and she needed someone to come over immediately."

The police eventually arrive, and as you might imagine, things do not go well. "San Diego Police Officers John White and Melanie Bognuda arrived at Gerson’s home where Alisha informed Officer Bognuda that Gerson was on drugs and thought he was Lord Shiva. After Gerson refused to comply with Officer White’s command to walk towards him, both officers tried to grab Gerson’s arms to put him in handcuffs while Gerson physically resisted. Officer White deployed his Taser when Gerson ignored his order to get on the ground. The Taser had no effect on Gerson. Gerson then punched Officer Bognuda in the face. Officer White tackled Gerson and both men fell to the ground."

Then Gerson puts White into a chokehold, then Bognuda smacks Gerson on the head (hard) with her baton, and then Gerson retreats to the house and returns with a firearm.

At this point, I gotta give a huge shout out to Officers White and Bognuda. I would 100% have expected them to kill Gerson with a fusillade of bullets. But, to their credit, that doesn't happen. Even though Gerson had previously said (during the struggle) “I’m gonna fucking kill you” and “I will fucking murder you now,” when Gerson retreated to his home, the officers hid behind a parked car, and when Gerson came outside carrying a semiautomatic handgun, they noticed that "[h]e repeatedly racked the gun’s slide," which made "[t]he officers recognize[] that Gerson’s gun was unloaded based on his continual racking of the gun." So they don't shoot, and Gerson then goes back inside his house.

Glad to have officers like that down here in San Diego. No need to unnecessarily kill a guy who's high on drugs and temporarily acting crazy -- albeit incredibly (and dangerously) crazy.

Eventually, the SWAT team arrives, and you can guess what happens then. Gerson's in the house, and the SWAT team hears a shot (Gerson says he fires a warning shot into the air), at which point the SWAT team opens fire with the aforementioned fusillade of bullets, and Gerson fires back. Nobody actually gets hit -- Gerson's sort of hiding in the corner of the room, which means neither side can really hit the other -- and then the SWAT team fires tear gas into the house. Gerson then bolts the house, police hit him with "less-than-lethal" rounds, and sic a K-9 dog on him, which chomps down hard on Gerson and holds. Gerson, no slouch, flips the dog and chokes it unconscious so it releases its grip, but the police then pile on Gerson like there's no tomorrow, and that's the end of that.

So Gerson gets charged with the inevitable flurry of crimes. He's eventually convicted of almost all of them, though on the most serious charges, he's convicted only of attempted voluntary manslaughter, a lesser included offense of attempted murder (Counts 1 and 2). In the meantime, he was released on bail (for $2 million) with the predictable plethora of conditions, including spending some time at Casa Palmera, an in-patient addiction treatment center here in San Diego. He does well there, so eventually gets released to home detention, and does well there too. At first he's only allowed to leave the house for 90 minutes for personal errands, but eventually they allow him to work full-time, which (again) goes well. He even eventually gets to spend three nights a week at his girlfriend's house. It's fairly clear that once he's off drugs, the guy's actually doing quite well, and things seem to be totally working.

But now he's convicted. So what sentence?

At this point, there's not much of an argument for incapacitation, since the guy doesn't seem to be much of a threat when he's off the sauce, and it seems like he's headed in very much the right direction, albeit with supervision. Deterrence -- either special or general -- seems a fairly weak rationale for slamming the guy as well, since people hopped up on DMT and 'shrooms are hardly thinking seriously about the consequences of their conduct nor likely to be affected by a contemporaneous thought about whether they'll be spending 5, 15, 30, or whatever years in prison as a result of their offense.

Retribution seems like the strongest argument for seriously punishing the guy. His crimes were serious. They could have resulted -- though did not -- in serious injury. You obviously can't just let the guy get off scot free. Retribution is a fairly lame rationale for extensive criminal punishment, but surely you've got to punish the guy in some way for the crimes, right? Even if we're fairly confident that he's totally unlikely to commit any similar offense in the future.

So what sentence do you give him?

The trial court gives him 33+ years in prison.

Wednesday, July 06, 2022

Butcher v. Knudsen (9th Cir. - July 6, 2022)

Let's see if you can figure out where the Ninth Circuit comes out in today's sole published opinion.

A state statute says that you've got to register as a political committee if the thing you do involves “a combination of two or more individuals . . . who receive[] a contribution or makes an expenditure” to “support or oppose” a candidate or a ballot issue." Two people -- one a retired state legislator, the other his son -- operate a website that "ranks" state legislators on a scale of "A" through "F" depending on how often they adhere to the particular party line in that state. These two then travel around the state and give presentations to various meetings of members of that party, during which they sometimes recommend (or oppose) particular candidates. Basically, they want people to vote for people who are "loyal" to the party line in the primaries, as opposed to people that "cross the aisle" and occasionally vote for measures that are supported by the other side. The two admit that they spend over $1000 on travel expenses during these efforts, so while the state statute exempts groups that spend a "de minimis" amount of money (defined as less than $250) on such efforts, that exception definitely doesn't apply here.

The two individuals haven't registered as a political committee, someone complains, and the two people sue, claiming that the statute is unconstitutionally vague as applied to them, so they can't be penalized (e.g., fined) for not registering as a committee.

Those are the facts. I've deliberately omitted -- as you've likely noticed -- which political party the two individuals support. But I'll stipulate they're either (1) Republicans, or (2) Democrats. (I also omitted the identity of the state, lest it give you a potential clue one way or the other.)

Three questions:

(1) How do you think the Ninth Circuit comes out? Plaintiffs want you to say: "Hey, we're just doing what everyone does -- express our opinions about candidates -- and, yeah, we spend a little money to do so, but so does everyone, so the statute's unconstitutionally vague, because how were we to know that the typical run-of-the-mill stuff we're doing violated the statute?" Whereas the state wants you to say "Hey, these are political pros, and the text of the statute is clear that when you spend over $250, you've got to register, so it's not vague at all." Which of those arguments do you think the court found most persuasive?

(2) Do you think outcome would vary depending on which political party we're talking about? We all know, of course, that it shouldn't. But do you think it nonetheless does? Do you think that Ninth Circuit judges who are Republican appointees would be more likely to find the statute unconstitutional as applied here if the two individuals were Republicans, and less likely to find it unconstitutional if the individuals were Democrats? Do you think that Democratic appointees might lean to find the statute unconstitutional if the individuals were Democrats, but not if they were Republicans? Or do you think it wouldn't matter; that law is law, and the partisan lean of the participants doesn't matter?

(3) The judges on the panel are Judges Fletcher, Ikuta and Bress. So, respectively, a Clinton, Bush and Trump appointee. How do you think they voted?

Obviously, I can't answer (1) or (2) on your behalf. But I can tell you the answer to (3). The state is Montana. The two individuals were Republicans. The two Republican appointees on the panel voted to find the statute unconstitutionally vague as applied to these two individuals. The Democratic appointee dissented and thought the statute constitutional.


Thursday, June 30, 2022

California Bus. & Indust. Alliance v. Becerra (Cal. Ct. App. - June 30, 2022)

Sometimes the best stuff is in the footnotes. Like in this opinion today by Justice Sanchez:

"We cannot help but note the irony inherent in the procedural posture of this lawsuit. Plaintiff, a private actor, insists that the Legislature has deprived the executive branch, including specifically the Attorney General, of the ability to exercise one of its core constitutional functions, by devolving those functions to private actors. To effectuate its argument, plaintiff sued the Attorney General, who, for his part, has argued vigorously that his powers are not being usurped. While we do not see the Attorney General’s present position as dispositive of the issue, we note at least one court has relied, at least in part, on the Attorney General taking a similar position to resolve a similar separation of powers issue. (National Paint & Coatings Assn. v. State of California (1997) 58 Cal.App.4th 753, 764.)"

P.S. - When I first typed the caption of this case, I automatically typed the respondent as "Bonta" since he's California's Attorney General and it's the CAG who's being sued. I caught myself at the end and replaced it with Becerra since he's the nominal respondent in the caption. It's funny that even after all these years of reading daily appellate opinions, I hadn't noticed (until now) that California doesn't follow the substitution practice of federal courts, which automatically replace any old officeholder with the new one. Of course, it doesn't really matter either way -- the ultimate nature of the lawsuit is the same -- but it's interesting that the type systems apparently diverge on this point. (And that I hadn't noticed.)

Wednesday, June 29, 2022

In re Dezi C. (Cal. Ct. App. - June 29, 2022)

It's always nerve-racking whenever you publish stuff because, inevitably, there will be small (or large) errors that display your ignorance. No one's perfect. Whether it's spelling, grammar, carelessness, etc. Everyone's going to make mistakes. For everyone to see.

Moreover, in the Court of Appeal, since any amendments to a published opinion involve a separate publication, any mistakes are highlighted by the error-correction process. So even someone missed the error the first time, the second time, they get a whole separate document with a laser focus on what was wrong the first time.

This came to mind when Justice Hoffstadt amended this opinion to change two instances of the use of the word "fulsome" in the opinion to "comprehensive". That's something that you see sometimes. Justices on occasion use words that don't necessarily mean what they think they mean.

But here, honestly, I think that Justice Hoffstadt's original use of the word "fulsome" was entirely fine. It's an ICWA case in which the Court of Appeal remands "for the agency to conduct a more fulsome inquiry on this topic." I get the reason for the amendment; the principal definition of "fulsome" is "complimentary or flattering to an excessive degree," and that's definitely not what Justice Hoffstadt means.

But the second definition of "fulsome" -- indeed, the first definition according to a number of sources -- is "characterized by abundance" or "generous in amount or extent." Which is exactly what Justice Hoffstadt means. (That's also typically how I use the term, on those extraordinarily rare occasions on which I do so.)

So I'm just fine, of course, with "comprehensive," which captures Justice Hoffstadt's meaning perfectly and without using a ten-cent word.

But "fulsome" was just fine for me as well. Both when I first read the opinion -- and I vaguely recall remarking to myself on that word choice then -- as well as now.

That's my fulsome assessment for today, anyway.

Monday, June 27, 2022

People v. Pineda (Cal. Supreme Ct. - June 27, 2022)

I know that we're going to (theoretically) execute the defendant, which provides some measure of (theoretical) justice. But are we really so incompetent that we couldn't have stopped the second of these murders?

"The prosecution’s theory of the case was that defendant, accompanied by Tinajero, killed Sanchez in the early morning hours of March 7, 2002, by running him over with a car. Defendant was charged with Sanchez’s murder. Tinajero then testified at defendant’s trial, pursuant to a grant of immunity from prosecution. That trial resulted in a mistrial after defendant’s attorney fell ill. Defendant and Tinajero were both housed at the Men’s Central Jail in Los Angeles as defendant awaited retrial. On April 20, 2004, defendant — who was supposed to be kept away from Tinajero — gained access to Tinajero’s cell and choked him to death."

Not exactly a stunning advertisement for what it's like to be an informant for the Los Angeles Police Department, eh?

Thursday, June 23, 2022

County of Sonoma v. PERB (Cal. Ct. App. - June 23, 2022)

I'm not going to pretend that I fully understand the countervailing considerations in cases like this one. I know (or at least suspect) there are weighty arguments on all sides. But I'm somewhat leaning to one side rather than the other, and wonder if -- reading today's opinion -- precedent doesn't go slightly opposite to the position that I'd intuitively take.

It's basically a union case, but more broadly, a municipality/democracy issue. In tension are two concepts as to which I'm fully and completely on board: (1) that a union (or an individual employee, for that matter) has a right to enter into a contract with an employer and, once entered, that voluntary contract is to be respected by everyone, and (2) that the people (e.g., voters) have a right to enact initiatives and referenda that govern their democracy, and that no one (not even a legislative body) can interfere with that right.

Normally, those two salutary principles aren't in conflict. But what about when they do?

For example, take today's opinion. The people of Sonoma County decided that the oversight of police officers in that county was inadequate, so they passed an initiative that increased the powers of the police review board to investigate officers, review body-worn camera footage, etc. A fairly basic exercise of fundamental democratic principles.

But prior to the passage of that initiative, in an agreement with the union that's both typical as well as protected by labor laws, the County had promised to bargain with the union before doing anything that might affect the terms and conditions of employment for the officers. Fairly clearly, the matters raised by the initiative affects the terms and conditions of employment for the officers.

So which of these two principles gives way to the other?

Is the obligation to bargain supreme, which would mean that the County had to bargain first before it was allowed to put the initiative on the ballot? Or does the right to enact an initiative approved by the voters trump the obligation of the County to bargain?

The trial court thought the former, and on that basis, invalidated the results of the election. It held that because the County didn't bargain first (which it indeed didn't), the measure was invalid, even though it had been approved by the voters.

The Court of Appeal agreed in part, but tried to thread a needle and come to a conclusion that was sort of in the middle of where the parties stood. Today's opinion held that, yep, the County had a duty to bargain, which it violated, but that this didn't necessarily mean that the election was invalid. It instead "remand[s] the matter for PERB to determine whether to declare void the Board’s resolution placing on the ballot the Measure P provisions subject to effects bargaining, or to impose any other remedy such as ordering the County to cease and desist from implementing the Measure P amendments on Association-represented employees until the County fulfills its effects bargaining obligation" -- and also notes that the election might be potentially invalidated in a separate quo warranto proceeding.

So maybe the union wins, maybe it doesn't. And maybe the initiative gets enforced, and maybe not.

But let me ask the more foundational question: Does it really make sense to allow the County to bar (in sum or substance) certain subjects from an initiative?

In one sense, of course it can: We do that all the time. They're called contracts. Municipalities can enter contracts that are binding on everyone, including from abrogation via initiative. For example, if the County enters into a contract with me to employ me for a year at $25/hour, that's the contract even if an initiative subsequently passes that bars the County from paying me for more than six months and/or over $20/hour. Too bad, so sad. Contract rules.

And, the argument goes, what's good for individuals is equally true for groups of individuals; e.g., unions. So, here, if the County wants to agree with the union (as it surely did) that it'll bargain with 'em before changing any terms of employment, then that's what it's gotta do -- and can't get around that (or change those terms) through an initiative. The contract, again, rules.

But that's in tension, I think, with the overall initiative process. Imagine, for example, that the voters believe -- perhaps for darn good reason -- that their elected officials (including the County) are far too soft on police officers, perhaps precisely because the police union is particularly powerful. The County (and union, for that matter) might well perceive this reality and act proactively, and one may they might attempt to ensure that the voters didn't get their way was to enter into precisely the type of contract at issue here -- one that requires the County to negotiate before any changes. So if the County doesn't do what the contract requires (e.g., bargain ) -- and the County might have zero desire to do so -- then the voters can't change things. Contract rules, right?

Or imagine an even stronger contract that says "Here are the conditions for employment, which will last for 50 years and cannot be altered except by the mutual consent of the County and the union." Does this contract really permissibly stop the voters from, for example, putting body camera footage on the web (as in the present case), or doing anything else that would enhance oversight of the police? Wouldn't that be a legislative restriction on the initiative process that's invalid? And if so, doesn't that precise problem exist here? Why can the County's failure to bargain stop, in any way, the voter's ability to enact an initiative?

Except, of course, for the fact that they're both the "people". The "people" that entered into the binding (?) contract at issue.

I imagine that the way precedent plays out -- and, again, I'm no expert in this area, but I know what I've read (or at least vaguely recall it) -- is that a "duty to bargain" wouldn't entirely preclude an initiative since those could be enacted entirely by the voters themselves, whereas the one here was (at least in part) proposed by the County itself. But to some extent, that's somewhat a distinction without (much of) a difference, right? It still begs the question: "Well, what are the legitimate constraints on initiatives set forth by contracts?" If contracts can't bar initiatives, then presumably, at least, they can't bar initiatives at all, including those that start with the County or in which the County admitted has some degree of involvement. Whereas if initiatives can't violate contracts, then it doesn't matter whether the County's involved or not, right? And I strongly doubt that the correct rule is that initiatives can violate contracts when they're voter-initiated, but not when they're County-initiated. That'd be sort of silly, right? Either one of the two principles -- democracy versus contract -- should hold sway in both cases, I'd guess.

Today's opinion doesn't really grapple, at all, with this underlying issue. An issue that I think's a fairly important one. Implicitly, at least, it takes sides with the "contract" position, since it holds that the trial court (on remand) has the power to potentially enjoin the voter-approved initiative.

That's a policy choice, for sure. I just wonder if it's the right one, and whether -- or to what degree -- contract rights can really overcome foundational democratic principles.

Tough issue. Tough calls.

Tuesday, June 21, 2022

In re Marriage of Deal (Cal. Ct. App. - June 21, 2022)

The Court of Appeal correctly views this appeal as frivolous and dismisses it. Totally correct.

But Part I of the opinion seems affirmatively pernicious (and wrong) to me.

Thomas Deal has been (rightly) declared a vexatious litigant and hence can't harass his ex-wife with a legion of lawsuits against her that he files pro per. Great. Couldn't be happier. After entry of the vexatious litigant order, Mr. Deal's got to get permission of the presiding judge to file more lawsuits. Mr. Deal asks to file a variety of new lawsuits, and -- totally predictably -- the presiding judge looks at them and says "No way. Denied." At which point Mr. Deal appeals.

In Part II of the opinion, the Court of Appeal says that Mr. Deal's appeal is totally frivolous, which, yep, it is. So we can -- and do -- dismiss the appeal without even an appearance by the respondent (Mr. Deal's ex-wife). Wonderful. She's been burdened enough. Awesome.

But in Part I of the opinion, the Court of Appeal holds that it's required to dismiss the appeal because it's from a non-appealable order.

Wait. What?

The Court of Appeal thinks the issue in this regard is fairly straightforward. There's a list of appealable orders in the statute, and this isn't one of them. That part's true. Then there's also the common law rule that makes various orders appealable because they effectively dispose of a case. But this order isn't one of those, the Court of Appeal says, because there's no "case" here in the first place, so nothing that the order disposes of. Since the order stopped the case from being filed initially, there's no case, so nothing ended, so there's no right to appeal.

Maybe that's technically right, as far as it goes. But the order still practically disposes of a case, in my view. Stopping someone from filing a case in the first place "disposes" of that case. Practically as well as otherwise. There is, for example, a case number assigned to Mr. Deal's requests -- those were cases that ended as a result of the order. And even if there weren't case numbers, you can't stop someone from filing an appeal, and thereby insulate yourself from being reversed, by the expedient of preventing them from filing litigation in the first place.

We don't generally let a single judge decide things once and for all without any right to review whatsoever. Yet that is precisely what the Court of Appeal's holding does here. A vexatious litigant prefiling order always reposes discretion in the presiding judge as to what future cases may or may not be filed, and the judge reviews those proposed filings and decides whether they should go forward. That decision is not immune from review. If the judge gets it wrong, the error should be corrected. That's the reason for appeals. And it's not a "piecemeal" appeal problem here. There's one order, then the proposed case is over -- it can't be filed and prosecuted as proposed. 

That's an appealable order, in my view.

So go ahead and dismiss this appeal on the merits as frivolous. Which, quite frankly, the Court of Appeal can most likely similarly do with respect to the overwhelming majority of appeals filed by vexatious litigants.

But at least let 'em appeal, rather than making a decision by a single judge the final word forever.

Thursday, June 16, 2022

People v. Richardson (Cal. Ct. App. - June 16, 2022)

Hmmm. Ponder this one, if you will.

It's the only published opinion from the Court of Appeal today. (Thus far, anyway.) It's got a lot of intuitive appeal.

But, upon reflection, I wonder if that intuitive appeal isn't entirely wrong.

The question is whether Ruman Richardson was a "major participant" in a first degree murder. If so, he's ineligible for resentencing, and his sentence of 26 years to life stands.

It was a botched robbery in which Mr. Richardson was the getaway driver. Mr. Richardson stayed in the vehicle and never went into the store; by contrast, after ordering the store owner to get down on the floor, one on his confederates shot and killed the owner.

Normally, if you're merely the getaway driver, precedent's pretty clear that you're not a major participant -- even though you're still guilty of felony murder -- and are hence potentially eligible for resentencing. There's a California Supreme Court case on point in this regard. So Mr. Richardson has at least facially a fairly strong case.

What dooms him in the Court of Appeal, however, is that after the shooting, once his confederates left the store, a bystander saw the participants heading towards the getaway vehicle, at which point Mr. Richardson (who was still in the car) said something like "Shoot him, shoot him." At which point one of the other participants in the crime fired a shot at the bystander, which missed but nonetheless deterred him from further interaction with the criminals, who then fled.

According to the Court of Appeal, the fact that Mr. Richardson said "Shoot him, shoot him" means that, beyond a reasonable doubt, he was a major participant in the murder.

Now, Mr. Richardson's got a decent response, which is that his saying "Shoot him, shoot him" had nothing whatsoever to do with the actual murder, which had already happened by that point. Sure, it'd be great evidence of his active involvement if the bystander had been killed. But he wasn't.

But the Court of Appeal holds that the fact that Mr. Richardson could command his confederates to shoot at the bystander proves that he's a major participant; again, beyond a reasonable doubt. In the words of Justice Ramirez: "[P]etitioner’s statement, “Shoot him,” distinguishes this case from Banks. Up until that point, for all the evidence showed, petitioner was no more than a getaway driver. That statement, however, shows that he was aware that his coparticipants were armed. Even more important, it shows that he took on — or already had — a role in directing the robbery and the conduct of his coparticipants. He had the right to decide to use lethal force and to order his coparticipants to do so."

As I was saying, at first glance, there seems a lot right about that conclusion.

But the more I thought about it, the more I thought that it's wrong. Or, at a minimum, doesn't establish the requisite proof (beyond a reasonable doubt) to a categorical extent.

I get why Justice Ramirez would think that a person who said "Shoot him" was indeed in a leadership position and hence a major participant. Or, as he said, that the command demonstrates that the speaker "had the right to decide to use lethal force and to order his coparticipants to do so."

But, in truth, that you give an order doesn't mean that you necessarily have that role. Maybe you're just yapping. Maybe you're just kibitzing. Maybe you're just excited (and/or excitable). Indeed, we've even invented a term for people who give commands from precisely such a role: we say that they're speaking from the "peanut gallery". It's eminently conceivable that Mr. Richardson, who was (after all) only the getaway driver, was speaking from precisely such a setting. I don't see how one can categorically say, without an evidentiary hearing, that the fact that he said "Shoot him" necessarily means that beyond a reasonable doubt he "had the right to decide to use lethal force and to order his coparticipants to do so."

I've been watching a lot of kids sporting events recently (it being summer and all), so let suggest an analogy that I think demonstrates the point.

Imagine a team in the middle of a closely contested game. A player on the winning team -- let's call him "Richardson" -- mostly sits on the bench, which (coincidentally) is in the shape of a getaway vehicle. In the game, Richardson plays maybe a minute or two, so he's in the game, but he doesn't shoot, doesn't score, and definitely isn't one of the main players in the game. But, at a critical moment in the game, the best player on his team has the ball on offense and is approaching the other team's goal. I'm thinking it's a water polo game, but it could be basketball, soccer, or what have you. In the midst of the best player's attack, from the back row on defense -- or maybe even from the bench -- Richardson screams "Shoot, shoot!" And the best player indeed thereafter shoots and scores, thereby winning the city championship.

At which point Richardson puts on his resume: "Major participant in City Championship game."

I doubt many of us would think that Richardson's appellation in that regard was accurate. Sure, the guy shot. But unless the guy shot because Richardson told him to, I'd hardly call Richardson a major player on the team (or in the game). Ditto for a parent (or fan) in the stands who likewise said he was a "major participant" in the victory because he, too, screamed out "Shoot!" before the guy took the shot.

It's simply not true that just because you tell someone to shoot that means that the speaker had "the right to decide to [shoot] and to order his coparticipants to do so." Maybe you did. But maybe, like the bench player or fan, you were just talking -- potentially, even, out of turn and/or totally irrelevantly.

Indeed, in the present (actual) case, the case for "major participant" is even weaker than in the not-so-hypothetical I just posited. Because, here, the speaker (Mr. Richardson) didn't even suggest the winning shot. He merely suggested a different "losing" and/or irrelevant (to the murder charge, anyway) shot. Mr. Richardson didn't order the shot that killed the owner; instead, he suggested a shot that missed, and didn't give rise one iota to the murder charge. To compare it to my analogy, it's as if the sports-playing Richardson said that he was a "major participant" because Best Player previously scored a goal in a one-goal game and then, later, Richardson told Best Player to "Shoot, shoot!" at which point Best Player did so and missed.

In such a setting, we'd hardly call Richardson a "major contributor" to the victory just because he told someone else to shoot an unsuccessful shot at some point later in the game. So too here.

That you tell someone to shoot doesn't prove that you've got that role. If you're a coach and the guy listens to you and shoots, okay, great, I can see that argument that you're a major contributor.

But Mr. Richardson wasn't the coach. He was the getaway driver. That's not enough, standing alone, to establish major participation beyond a reasonable doubt as a matter of law.

Even if the guy later screams "Shoot."

Tuesday, June 14, 2022

Adame v. City of Surprise (9th Cir. - June 14, 2022)

I don't typically read the syllabus of Ninth Circuit opinions, and prefer to just jump into the opinion itself at the outset. But today, for some reason, my eyes took a glimpse of the first couple of sentences of the syllabus -- which were set off in a separate paragraph -- and it took me for a loop.

"The panel certified to the Supreme Court of Arizona the following questions: 1. Does A.R.S. Section 12-820.05(B) provide immunity from liability? If the latter, the Court need not answer any further questions because our court would lack jurisdiction over this interlocutory appeal. If the former, please answer the following additional questions."

After reading this, my brain thought: "Wait. What?"

So I read it again. And again. Confirming that, yep, there's indeed no "former" or "latter" in that paragraph and hence that it didn't make any sense.

When I read the actual opinion, it wasn't until a dozen or so pages through the thing that I came across the words that the syllabus meant to summarize. Which were:

"Does A.R.S. Section 12-820.05(B) provide immunity from suit or only immunity from liability? If the latter, the Court need not answer any further questions because our court would lack jurisdiction over this interlocutory appeal. If the former, please answer the following additional questions."

Ah. Now I get it.

Those last five words of the first sentence were omitted from the syllabus, but are fairly important. Now it makes sense.

Monday, June 13, 2022

Johnson v. WinCo Foods (9th Cir. - June 13, 2022)

I suspect that this opinion is right, and that certification to the California Supreme Court isn't required because the federal courts can figure out the correct answer themselves. But I also wonder what the relevant line is on the merits.

The Ninth Circuit holds that an employer doesn't have to pay you for the time (or expenses) you expend taking the job's mandatory pre-employment drug test, on the theory that you're not yet an employee. That sounds right. They certainly don't have to pay you for the time you spend in the job interview, or for the gas that you waste getting there. You're not an employee yet; those costs are on you. That's existing law (at least as we perceive it) and common sense. Ditto, the Ninth Circuit says, for a pre-employment drug test. At least when, as here, the employer's crystal clear that you're not yet hired, and that the job offer that they have given you is a conditional one dependent on passing a drug test. The drug test is thus a condition precedent, which means you're not an employee yet, which means you don't get paid.

But how far does this go?

On that same theory, what if I offer you a job as a grocery bagger at my store, but say that the offer is contingent on you proving that you're indeed qualified -- and proof of that is me watching you spend 15 minutes bagging groceries at my store. Do the minimum wage laws etc. still not apply? Do I get to get 15 minutes of free work out of you that way? What if it's an hour, or a week, or a month? Still no pay? (By the way, I suspect this isn't an absurd hypothetical; in lots of job interviews, employers give job applicants "real world" questions and have 'em answer them -- the exact type of work that the applicant will be doing on the job. I could easily see a law firm interviewing a potential lawyer, for example, ask the interviewee about her thoughts on a particular legal matter that's the exact subject of an existing suit and/or upcoming brief.)

Every single argument that the Ninth Circuit makes here applies equally to that hypothetical, so on those same theories, no compensation would be due.

I think the panel anticipates this argument when, at the end of Part I of the opinion, it distinguishes (unnecessarily, I might add) a district court case that held that staffing agencies are required to pay employees they place with third parties. (Last time I checked, cases from the Northern District of California don't bind the Ninth Circuit.) The panel says that that prior case makes sense -- as indeed it does -- because the employees "were doing the employment agency's work" at the time, so I suspect the Ninth Circuit might say it's the same thing with my grocery bagger hypothetical, since that's what they were hired to do.

But then I'll just slightly change the facts; to be a grocery bagger in my store, as a condition precedent, I require you to clean my house and mow my lawn. I want to see if you have the stamina to be a bagger in my store, I say. Just like, in the present case, the employer is looking to see whether the applicant is qualified (i.e., free of drugs) to take the job. Still no requirement that I pay you? (And, to make things even more complicated, what if my pre-employment offer requires you to mow my neighbor's lawn, or pick up trash in on a public highway for 40 hours, instead -- that doesn't even "benefit" me, much less is it your job. Still no entitlement to pay?)

Sometimes, even a facially easy case brings up incredibly tough line-drawing obligations that give one a sense that perhaps our intuitive understanding of what is "obvious" isn't, in fact, so obvious. To me, at least, this is one of those cases. I'm truly unclear where one rightfully draws the line between paid and unpaid work in the job application context.

Thursday, June 09, 2022

In re Marriages (Cal. Ct. App. - June 8-9, 2022)

The Discovery Channel has its well-known "Shark Week." By contrast, in the Court of Appeal, it's starting to look like it's "Bigamy Week."

The first of these cases was yesterday, and involved a procedural morass in family court involving the marriage of Samir Elali and Mayssa Marchoud. There were eight months of hearings about precisely who married whom when -- and to what effect -- but the long and short of it was that Samir married someone in California (whose name was Angeles Elali) but then, while still married, married Mayssa in Lebanon. So when Mayssa goes to family court, the trial court bounces her petition, on the grounds that she's not really married since Samir was already married. Bigamy and all. And the Court of Appeal affirms.

(Why you want to get married to someone else after being married for 35 years -- and not divorcing your first spouse -- is beyond me, but that's neither here nor there.)

Then, today, we see yet another published opinion involving bigamy; this time, between Pedro Aviles and Jessica Vulovic. Here, Jessica's married to Alexander, but wants to get divorced, so files a petition for dissolution. But never actually gets divorced. Then, while still married to Alexander, she marries Pedro.

Now, in this one, Jessica says she thought she was actually divorced, even though she wasn't. So after she get told that she's still married (at a child support hearing, no less), she gets actually divorced, and then a year later marries Pedro again, this time in a Catholic church. But they don't actually marry, at least as far as the state's concerned; they never actually get a marriage certificate. And then, six months later, Jessica marries Pedro for a third time, this time at a winery with 200 guests. This time, do they get a marriage certificate? No. They do not.

You'd think that with all these marriages, it would stick, right? Nope. Seven years later, they separate, and Pedro finds out -- for the first time ever -- that Jessica was still married when he married her. (The first time, which was the only "legal" marriage.) So he asks for an annulment, whereas Jessica asks for spousal support.

But this time, the whole "bigamy" thing turns out to be less dispositive. Because the Court of Appeal holds that, bigamy or no, Jessica was at least a putative spouse since she thought (wrongly) that she was not (still) married when she got married, and regardless of the reasonableness of that belief, she's thus entitled to regular old spousal benefits as a putative spouse.

The first case comes from San Bernardino County. The second one comes from Riverside County.

Who knew that bigamy was such a big thing in the Inland Empire?

Tuesday, June 07, 2022

U.S. v. Mendez (9th Cir. - June 7, 2022)

It's weird sex video week thus far in our particular locale.

Yesterday, it was secret up skirt videos and the like. Today, it's putting secret camera in the bedroom of a fourteen year old girl so you can watch her masturbate. Both are incredibly poor decisions that get you put in prison. Today, in federal prison.

It's also another statutory interpretation case. As usually applied, the statute says it's a (big) federal crime to "employ, [] persuade, induce, entice or coerce" a minor to create kiddie porn. But that didn't happen in the present case, since the minor didn't know she was being filmed.

The word I left out in the brackets, however, is the word "use".

Does that make a difference?

I'm not a certain, to be honest, what it means to "use" a minor "to engage in sexually explicit conduct for the purpose of" producing kiddie porn. It's common sense what it means to "persuade" a minor to do so. But "use"? That's just a weird word to employ in this context.

Given the other words in the relevant list, I would have facially thought that what Congress was getting at is that you can't "cause" the minor -- in one way or another -- to engage in sexual conduct. Which didn't happen here, since she was doing it on her own; she just didn't know she was being taped.

Apparently, at least some of the members of today's panel (Judges McKeown, Christen and Miller) were at least potentially of a similar view. The opinion says, in relevant part -- and I really like the panel's forthrightness here -- that "writing on a clean slate, some of us might interpret § 2251(a) differently by, for example, concluding that the statutory language requires the perpetrator to cause the minor to “to engage in sexually explicit conduct.”

But the panel unanimously agrees that Ninth Circuit precedent says otherwise. (Though they might be interpreting that precedent a bit broadly, TBH.) So the conviction gets affirmed.

By the way, the published opinion doesn't mention it, but Mr. Mendez gets sentenced to 20 years in prison.

Did I mention that the decisions this week have been incredibly poor ones?

Monday, June 06, 2022

Doe v. Lee (Cal. Ct. App. - June 6, 2022)

I wish this opinion had stayed unpublished. Indeed, I might prefer it were the California Supreme Court to revert its status to what it once was.

The opinion doesn't include many facts at all -- indeed, it's almost entirely bereft of them -- but from what you're able to glean from the opinion, it looks like the defendant took secret videos of the female plaintiffs in their homes, including an "upskirt" video of one of them. So they sued, and at a bench trial, recovered compensatory damages that totaled a little over $800,000.

Not surprisingly, given the nature of the torts, there were also punitive damages imposed. For a total of $240,000. An amount that's (1) a fraction of the compensatory damage award (a little under 30%), and (2) the value of an LLC interest that the trial court found the defendant continued to possess in a family business.

Seems reasonable to me, no? You can't invade someone's privacy by secretly taking sex-related (or other) videos. If you do, don't be surprised if you get spanked with some punitive damages.

But the Court of Appeal reverses the punitive damages award entirely.

Two things about that result seem problematic:

(1) I'm not persuaded that a $240,000 award isn't just fine. The Court of Appeal says that that'd be his entire net worth. For purposes of argument, at least, I'll stipulate to that. So what? Sometimes what you do is sufficiently horrible that you justifiably lose all your stuff. Sorry about that, but maybe next time, don't do what you did -- whether it be murder (I'm talking about you, O.J.) or secret videos (here). The various California cases on the issue rightly say that, generally, you shouldn't take away everything from the defendant -- though it bears mention that most of these involve corporations -- but they also say that sometimes, that's just fine. (See, e.g., O.J.). This seems like one of those "just fine" cases. If you only have $240,000, and you commit a tort that imposes (as here) $800,000+ worth of harm on the victims, then, yeah, we're taking all your money. You did it to yourself. Nor am I particularly sad by the fact that, with punitive damages, we're stopping you from getting out repaying by filing bankruptcy, since those types of damages aren't dischargeable. That's a feature, not a bug.

(2) Plus, I'm confused about the last sentences of the opinion, in which it directs the trial court to vacate the punitive damages award and says that a retrial isn't required. But when a punitive damages award is excessive, the usual rule is that we reduce it -- or order its reduction on a retrial -- not eliminate entirely all punitive damages recovery. Yet that's entirely what the opinion appears to do here. Is it really the Court of Appeal's holding that because the defendant is only worth $240,000, there's no amount of punitive damages that can be added to the $800,000 judgment?! If so, that's crazy (to me). It defeats the whole purpose of punitive damages in contexts like this one.

At the very end of the opinion, where you see the Court of Appeal's order that publishes the opinion, you find something that I've rarely (if ever) seen before -- Justice Hoch's one-sentence statement that she wouldn't publish the opinion. I can see why. I'm probably in the same camp. (Though, unlike Justice Hoch, I might not have even joined the result.)

I'm sympathetic to the view that punitive damages shouldn't generally take away every penny from a defendant. But sometimes the compensatory damages do that anyway, and I'm fine with that. And in some circumstances, like this one, the fact that the harm you (deliberately) incurred exceeds the amount of money that you currently have on hand shouldn't deprive the plaintiff of the right to spank you with an additional award of punitive damages.

Yet that's precisely what the Court of Appeal seems to hold.

Thursday, June 02, 2022

In re Marriage of Hsu (Cal. Ct. App. - June 2, 2022)

There are advantages to being rich. Obviously.

But there are downsides as well. Two of which are (1) your kids often fight over your money after you die, and (2) your spouse sometimes fight over your money after you break up.

Facts evident, in spades, in this afternoon's opinion.

You see this all the time, unfortunately. It's a skewed sample, of course, since these opinion all result from lawsuits, so necessarily, relationships went awry.

Still. If the relevant individuals knew it'd end up that way, you wonder whether they'd have tried as hard as they did to make all that money.

Tuesday, May 31, 2022

Almond Alliance v. Fish & Game Commission (Cal. Ct. App. - May 31, 2022)

I think you'll like this one.

We all know about endangered species, right? We want to protect them. We don't want to make lots of animals extinct. That's a given.

You're probably generally familiar with the federal Endangered Species Act. That federal law allows the federal government to declare a species as endangered, which entitle that species to various protections. Which endangered species can the federal government protect? Basically, any of them. The federal law (smartly) says that the species that can potentially be listed are "any member of the animal kingdom, including, without limitation any . . . arthropod or other invertebrate."

The California Endangered Species has a similar focus, but is much less well-known. It operates the same way: California can declare certain species endangered, and then they obtain various protections.

But unlike the federal law, the potential coverage of the California statute is -- probably accidentally -- not essentially unlimited. It doesn't cover "any member of the animal kingdom" like the federal law. Rather, it lists the various categories. Super broadly, mind you. But there's nonetheless a list. The California statute says that the state is allowed to list as endangered any "native species or subspecies of a bird, mammal, fish, amphibian, reptile, or plant."


So that brings us to the present dispute.

Can bumble bees be listed as endangered in California?

Let's go through the list. Bees aren't birds; those are different. Bees for sure aren't mammals. Bees certainly aren't fish. Bees are obviously not amphibians or reptiles. And bees definitely aren't plants.

So they can't be listed as endangered, right? Because there's a list, and bees don't fall under any of the items in the list.

That's what the trial court held.

You may be saying to yourself: "Well, the Court of Appeal probably just held that the list set forth various examples and was non-exclusive." Nope. That's not what it found.

Rather, the Court of Appeal said that bumble bees were on the list. That they were inside one of the groups on the list.

Which one do you think the Court of Appeal held encompassed bumble bees? As a reminder, here are your choices:

A. Birds.
B. Mammals.
C. Fish.
D. Amphibians.
E. Reptiles.
F. Plants.

Pick one. Which one do you think the Court of Appeal thought included bees?

Let's even make it more fun. Rank 'em in order. Which is the most likely to include bees, in your view, and which is the least likely, and which ones (in order) are in the middle?

With this hint: I'm going to spot you "Plants." Obviously bees aren't plants. So if you had to choose which one bees fall into, which one would you choose, and then rank the other ones from the most plausible to the absolutely least plausible. Got it?

Okay. Done yet?

Don't cheat. Okay, let's see where the Court of Appeal's ultimate holding comes out on your list.

The Court of Appeal held that bumble bees, under this list, are . . .





Where was that one on your list?

Now, mind you, there's a definition of "fish" in a different statutory section. And that definition says "'[f]ish’ means a wild fish, mollusk, crustacean, invertebrate, amphibian, or part, spawn, or ovum of any of those animals." And the "invertebrate and amphibian" part of that definition was added in 1969 fairly clearly because California wanted to be able to cover "starfish, sea urchins, sponges and worms," which might not technically be a "fish, mollusk, [or] crustacean," so we added those things.

But you'll notice the basic point here, right? All these things are in the water. Because, after all, we're defining the term "fish". 

So if you're asking me whether, for example, jellyfish are covered as "fish" under the statute, I'd have to say "Yes," even though they're technically not fish, since they're aquatic invertebrates, and invertebrates are now covered under the statute.

Justice Robie essentially uses the same argument to conclude that bees are fish as well. Because bees have exoskeletons. Which means they don't have a spinal column. Which means they're invertebrates. And since the definition of fish includes invertebrates . . . .

Bees are fish.

I've shortened and simplified the Court of Appeal's analysis, but that's essentially where and why the opinion comes out the way it does. There's a lot of discussion of legislative history and the like, as well as talk about the various amendments, but needless to say, there's not a lot of express discussion by the Legislature about whether bees are fish.

I've written at various points about the upsides and downsides of textualism, and how one (in my view) properly interprets statutes.

Add this one to the list of facially bizarre results.

So whatchathink? Convinced that bees are indeed fish?

(By the way, I'd have facially thought that -- if I had to choose -- "bird" would have been the closest one to bees. So I looked up the definition of "bird" in the relevant statute, which super helpfully defines  the word "bird" as "a wild bird or part of a wild bird." You get my sarcasm there, right? But apparently the common definition of bird, according to most sources, is a warm-blooded feathered vertebrate. Bees, by contrast, are invertebrates (as mentioned) and are also cold-blooded. So "bird" doesn't work. That's why "fish" gets the nod.)

Friday, May 27, 2022

Martin v. Pierce County (9th Cir. - May 27, 2022)

It goes without saying that COVID has changed a ton of things for the worse. Not the least of which being the million-plus individuals in the United States who have died as a result of the pandemic.

But there are also some much less important, albeit extant, upsides. The option of working remotely or at home, for example, has never been more salient.

Similar trends exist on the legal education front. For example, where I teach, all classes are now routinely videotaped and available to students online. So now, students who are sick -- or who are simply not able to make it to class -- aren't merely limited to getting notes from a fellow student. They can actually watch the lecture. As a bonus, when studying for exams, students can go back and rewatch a lecture on any topic on which they might have been confused. That's a huge upside. It helps a ton. (Or at least is if the underlying lectures are good ones.)

I mention all this because, after reading this opinion from the Ninth Circuit today, my overall reaction was:

The Ninth Circuit might want to boot up a lecture about Shady Grove from a first-year Civil Procedure class and give it a watch. Because, uh, there are some fairly big analytical holes here.

I was initially attracted to the opinion by the caption. Plaintiff's last name is "Martin" (no relation). And the plaintiff's lawyer's name is "Martin" (again, no relation). Finally, the syllabus of the opinion lists the topic of the opinion as "Federal Rules of Procedure." All of that's right up my alley.

The opinion is all about the Erie doctrine. Now, for some of you, that'll mean you'll stop reading pretty much immediately, lest one risk a recurrence of PTSD on this topic from first-year Civil Procedure. But fear not. I can make it easy. (Okay, maybe not "easy", but at least followable. I hope, anyway.)

Washington state court has a rule that says that when you file a medical malpractice lawsuit, you have to file a declaration alongside the complaint that says that plaintiff was presented with the option to file arbitration but declined to do so. Needless to say, the Federal Rules of Civil Procedure contain no such express requirement.

Does the federal court have to follow the state rule? 

That's a classic Erie question.

There are, as you might perhaps recall, a number of different Supreme Court opinions on the topic, the most famous of which are Swift v. Tyson (the old days) and Erie itself. Now, depending on how old you are, you may or may not have been taught the Supreme Court's most recent opinion on the subject -- its 2010 decision in Shady Grove.

Regardless, the basics of the Erie doctrine are well-established, and the opinion by Judge Selna here (sitting by designation from the Central District of California) recounts the first-level analytical process fairly accurately. First, you see if there's a Federal Rule of Civil Procedure that's broad enough to cover the issue; i.e., to answer the question. Here, Judge Selna concludes that both Rule 8 (the basic pleading rule) and Rule 3 (the commencement rule) are indeed broad enough to provide an answer -- that both of 'em require only the filing of a lawsuit, not a declaration. In this regard, I think he's right about Rule 8, but wrong about Rule 3 -- and I'm fairly surprised by the failure of the opinion to discuss (or even cite) Walker v. Armco, which is a Supreme Court Erie opinion precisely about Rule 3 on this score.

But whatever. Since he's right about Rule 8 (even if he's wrong about Rule 3), there's a federal rule that tells you what to do, so the "new" Erie test applies -- which says to apply the federal rule, and hence to ignore the state rule, so long as the federal rule is permissible under the Rules Enabling Act as well as the Constitution. So that's the prong where Judge Selna (correctly) ends up, albeit for arguably only half the right reasons.

That's where Shady Grove comes in. Judge Selna cites and relies upon Shady Grove throughout the opinion, and it's indeed the Supreme Court's last word on the relevant subject. But what today's Ninth Circuit opinion doesn't mention -- indeed, obscures -- is that Shady Grove doesn't contain a majority opinion; instead, it's a 4-1-4 decision, with only a plurality on the topside.

Which, obviously, makes deciphering the opinion (and ultimate holding) not as easy as some other cases.

So what caught my eye at the very outset was that today's Ninth Circuit opinion starts out by quoting Justice Stevens for the relevant test -- the "1" in the 4-1-4 opinion. Which, among other things, is a bit surprising since not a single other justice agrees with Justice Stevens that his is the right test. 

It's also surprising since, later in the opinion, Judge Selna cites Justice Scalia's opinion when holding that the federal rules survives the relevant test, saying:  "As there are valid, on-point Federal Rules of Civil Procedure, we need not “wade into Erie’s murky waters.” Shady Grove, 559 U.S. at 398 (Scalia, J.)." The problem is that Justices Scalia and Stevens could not agree less on this point; indeed, that's the whole point of the competing opinions -- Justice Scalia says (at length) that Justice Steven's test is not the right one, and Justice Stevens says the same about Justice Scalia's. So Judge Selna is mixing and matching two things that, fairly self-evidently, do not mix and match.

Wholly apart from the fact that neither of these opinions commands a majority of the Court. If only because the four dissenters express no opinion about either of these competing tests (since they think there's no conflict and hence you don't have to reach that point).

Not to get too deep into Erie, but the fight between Justices Scalia and Stevens is whether federal rules that are "procedural" can nonetheless be invalid under the Rules Enabling Act as ones that abridge or modify state substantive rights. Justice Stevens think they can be -- hence his (more restrictive) test. Justice Scalia thinks they can't be -- hence his contrary test.

Judge Selna cites Justice Steven's test as the relevant one, but then holds that the rules here are valid under Justice Scalia's less rigorous test. You can't do that. Wholly apart, mind you, from the fact that neither of these tests in Shady Grove commands a majority of the Court.

Plus, even if Justice Scalia's test was the correct one, today's opinion doesn't actually even apply it under its own terms. Part A of Judge Selna's opinion says that Rules 3 and 8 cover the matter. Great. So now we're in the second part of the test -- are those rules valid. Judge Selna concludes they are. But he does so simply by saying that no federal rule of civil procedure has ever been struck down as invalid, and hence -- since there's a valid rule -- you don't have to get any deeper.

Which is literally assuming away the entire second part of the test.

Yes, it's true, no federal rule has ever been struck down as invalid under Erie. But that doesn't mean they couldn't be, or that there's no test, or that the rule here is satisfied. You actually have to apply the test. Yes, we've got a keen sense, based on history, that the relevant test will likely be satisfied, since at least in the Supreme Court, that's always been the way the cases have ended up. But that's not the test. The test is not "since no rule has ever been declared invalid before, the present rule is valid." There's literally no one on the Supreme Court who's ever said that's the rule; indeed, that's why there's an active fight about what the actual rule is -- a rule that, yeah, has historically always been satisfied, but that's the rule regardless.

So that's a gaping hole in the opinion.

(If you think I might perhaps be mischaracterizing or less charitable about what today's Ninth Circuit opinion says, here's the entirety of Section B of the opinion, alongside the last sentence of Section A for context:) 

"As RCW 7.70A.020 answers the “same question” as Rule 3, they directly conflict. 

B. Rules 3 and 8 are Valid and Displace Washington’s Declaration Requirement 

In conclusion, RCW 7.70A.020 is inconsistent with Rules 3 and 8 of the Federal Rules of Civil Procedure. Rules 3 and 8(a) are both within Congress’s constitutional rulemaking power and the statutory authorization provided by the Rules Enabling Act. Shady Grove, 559 U.S. at 398–99; see Gallivan, 943 F.3d at 294 (“The Supreme Court has rejected every challenge to the Federal Rules that it has considered under the Rules Enabling Act.”) (quoting Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328, 1336 (D.C. Cir. 2015)). Like the other courts to consider this issue, “we have no reason to doubt the validity of the Federal Rules at issue here.” Id.; see also Pledger, 5 F.4th at 521 (same); Albright, 24 F.4th at 1048 (same). 

Thus, Washington’s arbitration declaration requirement is displaced by those rules in federal court. As there are valid, on-point Federal Rules of Civil Procedure, we need not “wade into Erie’s murky waters.” Shady Grove, 559 U.S. at 398 (Scalia, J.). We hold that Washington’s arbitration declaration requirement does not apply in the federal courts. The district court should have applied the Federal Rules, not RCW 7.70A.020 in this case."

You see why that's not enough, right?

To be clear, in the end, I think that the result that Judge Selna reaches is the correct one. Under Justice Scalia's test, Rule 8 is arguably a procedural one, so it's valid, and displaces the state rule. And even if you apply Justice Steven's more restrictive test, Rule 8 isn't one of those rare instances of rules that are procedural and yet invade an area bound up in a state's substantive right, because while I can see a non-frivolous claim to the contrary, I don't think the state arbitration-declaration provision here really is so bound up in the substantive malpractice remedy. So regardless of which test you apply, the federal rule here (Rule 8, not Rule 3, but whatever) applies, and federal courts ignore the contrary state rule.

But you gotta get there in a different way than today's opinion does.

Or at least that's most definitely what I'd want my first year law students to do on any exam I gave 'em with this "hypothetical."

Put another way, if this was their draft answer on a practice exam, I'd tell 'em to go back and rewatch our class lecture on Shady Grove and give it another shot.

Wednesday, May 25, 2022

Allen v. Kijakazi (9th Cir. - May 24, 2022)

Want to see the problem with textualism? Here you go.

The case comes out the way most people would expect. Plaintiff says he's entitled to Social Security disability benefits. But he was convicted of rape, imprisoned, and then when he was about to get out, was detained as a sexually violent predator and held in a state hospital. So this whole time, he's been in state facilities at the state's expense. So the SSA thinks -- entirely understandably -- that he's not entitled to disability benefits.

And that's, indeed, what the Ninth Circuit holds. No benefits.

Now, getting committed as a sexually violent predator is a two-step process. First, the state files a petition to commit you, and ultimately, there's a trial. Both of those happened here, and, in the end, Mr. Allen was indeed found to be a SVP.

But Mr. Allen says that he's entitled to disability benefits from the date he was "released" from prison to the date he lost the trial and was ultimately committed as an SVP -- in other words, during the interim period during which he'd been charged as an SVP but not yet held to be one. The SSA responds that during this whole period, however, Mr. Allen was being held in a state facility, so he's not entitled to benefits.

Which makes total sense.

The only problem being: That's not what the statute says.

The Social Security statute, in relevant part, says that no benefits shall be paid to people confined and maintained at public expense who “immediately upon completion of confinement” for a criminal sexual offense “is confined by court order in an institution at public expense pursuant to a finding that the individual is a sexually dangerous person or a sexual predator or a similar finding.” 42 U.S.C. § 402(x)(1)(A)(iii). So if, like Mr. Allen, you're in prison for rape and then "immediately upon completion" of that sentenced, you're confined in a hospital "pursuant to a finding" that you're indeed an SVP, then you get no benefits.

So, sure, after Mr. Allen lost at trial, and was declared an SVP, he's not entitled to benefits. But what about before the trial? When he was temporarily detained based upon an allegation that he was an SVP? What about benefits then?

On that front, Mr. Allen has a super good argument. Because there wasn't a "finding" that he was an SVP at that point. There was just a petition.

The most natural, straightforward reading of the statute is that the exception doesn't apply, because the filing of a petition isn't a finding that the individual is an SVP. Which is, after all, why we have a trial; because, sometimes, people are sought to be committed as SVPs who are not, in fact, SVPs.

Now, if you're a structuralist, or care about the purposes of the statute, this isn't necessarily dispositive. Because, obviously, the whole point of the exception is to not give benefits to people who are currently in a state-run and state-maintained facility that already provides 100% of the individual's care. So if you look to things like the goals of the statute and legislative intent, it's fairly easy to come to a conclusion that, no, Mr. Allen is not entitled to benefits.

But textualists assert that it's the text of the statute that matters. Just call balls and strikes. Just follow the words.

But the words here mean that Mr. Allen gets benefits during that interim period.

But, obviously, textualists aren't happy with that result.

So they find a way around it. Like here.

The Ninth Circuit holds that the text of the exception applies to Mr. Allen because the trial court found that there was probable cause to hold him as an SVP during that interim period. Hence, according to Judge Ikuta, there was a judicial "finding" and thus the exception applies.

Which is fine, except for the tiny little problem that a finding that there's probable cause to believe that someone's an SVP is not a finding that the person is, in fact, an SVP. Which is what the actual text of the statute requires.

There's probable cause to believe lots of things that aren't, in fact, true. That's, again, why we have a trial. The statute says that there has to be a "finding that the individual is a sexually dangerous person," not that he "might be" or "potentially is" such a person.

Those words matter. If only because there's a big, big difference between being accused of something and actually having done it on the other.

Imagine, for example, a statute that says that you don't get benefits if someone "is guilty of theft." Take a person who's charged with theft but not yet convicted. Surely the fact that they've been charged does not mean they're ineligible for benefits, right? Even if there's a probable cause finding. Ditto for anyone who's been sued civilly for theft -- even if the case has gotten past the pleading stage or even past summary judgment. That it's reached that point, even if there's a "finding" that liability is possible, does not mean that the person has actually done it, or -- in the present case -- is an actual predator. Likely or possible does not mean actually is.

So if a statute takes away benefits only if there's a finding that a person actually is a predator, then the fact that (as with Mr. Allen) there's a finding that he might be a predator doesn't satisfy the statute. So he gets benefits.

But no one likes that result. So we says that "is" means something different. That a probable cause finding means that he "is" a predator. 

Even though that's totally not true.

The value -- the promise -- of textualism is that it purportedly gives words meaning and doesn't allow unelected judges to incorporate their own values or policy beliefs into statutes. And if you're a truly and honestly committed textualist, and really do just seek to call balls and strikes based upon the meaning of the actual words used, then, yeah, those values do indeed get advanced. (There are other downsides that accompany those upsides, but at least you get the upsides.)

But that's not how, in my experience, textualism generally works in practice. Instead, you have opinions like this one, that define and interpret words not in the manner they actually mean, but instead with the objective of obtaining a certain desired result.

Which is fine. Except that you're doing it while pretending that you're doing the exact opposite. Which, in my view, is not an acceptable way to do these things. At a minimum, we should be honest about what we're doing. And pretending that we're just following the common meaning of words -- and slamming others for incorporating their own policy preferences -- when the reality is otherwise just seems flatly wrong.

It'd have been one thing if Judge Ikuta had said "You know, it's a stupid result, and I'm confident it's not what Congress actually intended, but 'is' means 'is', and those are the words that Congress used, so Mr. Allen gets his benefits, and if Congress wants to change the statute, go right ahead." That'd be one way to go, and I'd be fine with that. I'd also be fine with an opinion that said "Yeah, I can see the argument that 'is' means is, but I think it's pretty darn clear from the purposes of the statute that that's not what Congress wanted, so Mr. Allen gets no benefits." Cool with me as well.

But coming up with a theory of probable cause that treats "is" as meaning something other than what it actually means just seems profoundly problematic.

And you'd think that, given history, conservatives might be particularly worried about manipulating the definition of the word "is" -- particularly in the context of sexual predators. No?