People v. Purcelle (Cal. Ct. App. - January 31, 2005)

Okay, this one has nothing whatsoever to do with the law. Let me just ask a couple of questions instead.

When a person you've never seen before comes into your store and attempts to buy 30 cartons of cigarettes -- at a cost of $1044 -- with a credit card, what are the odds that the card is stolen? Pretty good, right? What if the card also doesn't swipe correctly, so you have to enter the numbers manually? Then you'd think the card might also be a forgery, right? What if the same person came back six days later and tried to buy 60 cartons of cigarettes -- for $2,088 -- with a different credit card? Obvious fraud, right? What about if he comes back two days later to buy yet another 60 cartons?! How crystal clear can it be that the dude is scamming you?

Apparently, not very, at least to the employees of Discount Cigarettes in San Jose, who accept Purcelle's fraudulent credit cards every one of these times. Indeed, they only wise up when Purcelle returns yet again, seven days later, and tries to buy yet another $2000+ worth of cigarettes -- this time with a VISA card that has been cut in half . The employees finally figure out what's going on and call the police. They try to stall him, but Purcelle leaves before the police can arrive. But fear not. He comes back an hour later to try to buy the same cigarettes with the same cut-in-half card. And this time the police arrive promptly and bust him.

P.S. - Proving that his brilliance knows no bounds, Purcelle represents himself for most of the proceedings, and after he finally asks for and gets counsel (on the eve of trial), he tries to fire her and represent himself halfway through the proceedings. Yeah, I'm sure you'll do a lot better than she will, dude. You've done so swimmingly in your criminal career, I'm sure you'll be an equally stellar advocate. Great call.

Here's the case that sent Purcelle to the pokey for 13 years. Just to prove I'm not making any of this up.

Cook v. City of Buena Park (Cal. Ct. App. - January 28, 2005)

This opinon is simultaneously disturbing and refreshing. First, it's distressing to learn that a City would not only write and pass a statute that requires landlords to evict any tenant who has previously engaged in drug use on the premises (and also his fellow tenants, even if innocent!), but would draft it so crappily that it fails even the most basic requirements of procedural due process. Parenthetically, although it wasn't at issue in this case, I'm also not psyched about a somewhat similar statute passed by the Legislature that is currently being tested in parts of San Diego, Los Angeles, and Alameda counties. Scary. (The Court of Appeals doesn't mention it, but the state statute was recently saved from its scheduled sunset on January 1, 2005.)

On the upside, I was glad that Justice Aronson got it right and struck down the City of Buena Park's ordinance, albeit on limited procedural due process grounds. I was even happier to see Justice Bedsworth speak up in his concurrence and mention -- albeit briefly -- some of the (many) other problems with such statutes. Suffice it to say that I'm very much not a fan of these enactments.

Hudis v. Crawford (Cal. Ct. App. - January 27, 2005)

I've often thought that the "favorable termination" prong in malicious prosecution actions is a fairly strange duck. And this case reinforces that view. It's holding is exactly what you would expect: Justice Mihara finds that a lawsuit that's dismissed based upon plaintiff's lack of standing doesn't satisfy the favorable termination requirement since the basis for the dismissal was on procedural, rather than substantive, grounds.

That's indeed consistent with my understanding of California law on this issue, so I guess I shouldn't complain. But the various limitations that the California courts have grafted on to the favaorable termination prong -- including this one -- still strike me as odd. So when I maliciously file a lawsuit against President Clinton claiming that he groped Paula Jones, and Clinton (rightfully) gets my lawsuit dismissed on standing grounds because I'm not Paula (and, indeed, have nothing to do with her), why should I (and my lawyer) be immune from a malicious prosecution claim? We filed the suit just to harm him, and it clearly lacked merit. Why does the favorable termination requirement protect me? And should Clinton be forced to spend the time and effort to defend and win the suit on the merits if he wants to set up a malicious prosecution claim; why not just let him get it dismissed the easy way and still be able to sue? Many of these limitations just don't make much doctrinal sense to me.

People v. Minor (Cal. Ct. App. - January 27, 2005)

Here's a hypothetical. Imagine that you drive drunk, killing one person and seriously injuring two others. You convince the judge to suspend most of your sentence, and you're put on 5 years of probation, with one of the conditions being that you abstain from alcohol. You're doing swimmingly for four and a half years. What do you do during the final months of your five year probation?

(A) Keep clean. You're almost a free man!
(B) Get drunk in public, and get arrested.
(C) Get drunk in public again, and get arrested again.
(D) Get drunk again, drive your car, make sure to speed, and get arrested for drunk driving.
(E) Run a red light, get stopped by the cops, and then speed away while dragging a police officer halfway down the street.
(F) Each of (B) through (E) above, seriatim.

The correct answer, of course, is (F). At least if your name is Jeffrey Minor, in this case. Bright, eh?

Here's some extra credit: When you're looking at over 10 years in the clink for (B) through (F), where do you flee? (A) Some country without an extradition treaty with the US. (B) In a sufficiently obvious place in Italy that it will take the authorities less than four weeks to find you. (B) it is. Great job, Jeff.

P.S. - On the merits, by the way, I think Justice O'Leary gets it right. Italy refuses to extradite Minor for the parole violation because Italy doesn't like parole not counting as "time served," but nonetheless sends him back for the other offenses. Which get doubled at sentencing due to the prior strike (the DUI in which Minor killed someone). Minor claims this violates the extradition order, which didn't allow him to be punished for the parole violation. But Justice O'Leary holds that the doubling is just an enhancement, and doesn't violate the order, which was largely concerned about Minor not getting dinged for the parole violation. Which is the way I read the order too.

American Cas. Co. v. General Star Indem. Co. (Cal. Ct. App. - January 27, 2005)

Here's a case about the horrible accident that occurred during the filming of The Crow. Talk about excitement!

What's that, you ask? No, it's not about the death of Brandon Lee. It's about the injury to James Martishius instead. Well, at least the case is all about "The Curse of 'The Crow,'" right? Or at least how much money Martishius gets for being horribly burned?

Nah; instead, it's a fight between primary and excess insurance carriers over the meaning of the term "additional insured".

Oh. Right. I'll get back to that one. Definitely. On the "must read" list for sure.

Parker v. McCaw (Cal. Ct. App. - January 29, 2004)

As I read this case, I was hoping that the lesson would be: "Dude, don't sleep with your clients." But the actual lesson is: "Dude, sleep with your clients!"

Okay, so it's actually a little more complicated than that. But not much! Gregory Parker is an attorney with a small firm in Santa Barbara (now called Seed Mackall) when he meets Wendy McCaw -- who's in the midst of divorcing Craig McCaw, of McCaw Cellular -- as she's buying a beachfront home in Santa Barbara. Wendy gets $500 million in the divorce, and Greg and Wendy, uh, "expand their relationship. " McCaw hires her stud not only as her attorney, but also as the COO of her various businesses. Then, a couple years later, Wendy makes Greg the President of the company, paying him $700,000 a year plus a boatload of option. Not bad for a small-firm Santa Barbara lawyer, eh?

About the same time that Greg inks the deal with Wendy for the options, Greg and Wendy split up. The value of Greg's options skyrocket, and eight months later, Wendy ain't so sure that her studboy's really worth all that moohlah. So she cans him. He asks for his severance pay under the agreement ($1.4 million) and his options, but Wendy says no. So he sues. And wins an arbitration award for $11.25 million. Not bad. Not bad at all.

Okay, Justice Gilbert vacates the award, so Greg doesn't actually get his payday -- at least yet, anyway. That's because Greg's lawyers, in my opinion, got bamboozled. One of the agreements that he's suing under says that disputes are to be decided by one arbitrator, whereas the other says that disputes are to be decided by three. The cases get consolidated, Wendy's lawyers ask for a three-arbitrator panel, but the trial court orders that they be conducted before only one. Greg lets it go -- and Wendy has preserved her objection by asking for a three-judge panel in the first place -- and the Court of Appeal holds that it should have been three rather than one. So the arbitration award in Greg's favor gets vacated.

Still, don't worry about Greg. Even if the Cal Supremes don't step in -- and I doubt they will -- Greg will still get another chance before a three-arbitrator panel. Given what the first arbitrator said about Wendy (let's just say: "not nice things"), that's presumably worth a fair bundle -- at least a hefty portion of the original $11.25 million award. Plus, if things go south, my sense is that Greg's may well have a pretty good malpractice claim against his first set of lawyers for messing up on the one/three arbitrator thing. (No idea if Greg's lawyers on appeal were associated with the arbitration, but they are Peter Bezek and Herb Fox.) So Greg's still sitting fairly pretty.

Speaking of pretty, if you want to know what it takes to get a $500 million babe in SB, take a look at Greg's picture, here. You be the judge. (Or perhaps, appropriately enough, assemble a three-judge panel.)

P.S. - What's with all these extensions -- even after "No further extension!" orders -- to Greg's appellate lawyers, including their withdrawal of the brief they initially filed (after all those extensions!)? Yikes.

Two Section 2800.2 Cases

I have to depart from my usual title format to get both of these in, since I thought they were worthy of at least brief mention -- especially since it's fairly uncommon to have two cases in two days on the same statute.

Both cases concern Section 2800.2 of the Vehicle Code, which deals with evading a police officer while driving. I'm of the strong belief that we need to punish such offenses fairly severely. Nonetheless, I agreed with the result in both cases, which I thought articulated sensible limits on the statute.

On Wednesday, in People v. Diaz, the California Court of Appeal very marginally limited the statute by holding that you can't establish a violation of Section 2800.2(b) -- which states that evading a police officer evinces a "wilful and wanton disregard for safety" if there are three moving violations -- by having one of the three violation being failure to yield to the police (a violation of Section 21806), since that would double-count the violation (since evading the police always entails a failure to yield). And on Thursday, in People v. Howard, the California Supreme Court held that a violation of Section 2800.2 wasn't a felony "inherently dangerous to human life" for purposes of the felony murder rule.

Ironically enough, a decent (though by no means perfect) example of a violation of Section 2800.2 that wasn't inherently dangerous to human life was Diaz, which had been decided the previous day. Obviously, the majority in Howard didn't cite it. But I'd have been cool if they had. It is the "information age," after all.

People v. Thoma (Cal. App. - January 26, 2005)

Here's an obviously results-oriented decision, and I applaud Justice Gilbert's integrity for dissenting. Yes, I am darn confident Thoma's prior conviction (when he struck a pedestrian with his motorcycle) counts as a strike because it indeed caused the victim great bodily injury. But the record has to prove that fact, with admissible evidence. And there simply isn't any such evidence here.

As the majority (through Justice Yegan) admits, the only "evidence" that there was great bodily injury in the prior case is the fact that the trial judge said at the plea hearing in that case that the victim had lots of broken bones. But this is classic inadmissible hearsay, right? Not according to Justice Yegan. It's admissible because the defendant didn't respond to this statement, so defendant's silence is admissible to prove that it's true.

Two problems. First, as Justice Gilbert points out in his defense, there are lots of reasons to be silent, not the least of which is that attorneys repeatedly tell their clients to remain silent, even if a statement is untrue. Plus, even if he hadn't been told to shut up, why would defendant bother to correct to the judge's statement anyway -- or potentially hack the judge off by arguing the point -- since the judge's statement was connected only to a restition order that compelled the defendant to pay a whopping $5.20 a month to the victim? That's hardly something worth arguing much about. Plus, to top it all off, the silence that we're talking about is actually the silence of defendant's counsel. It's counsel who was silent in response to the judge's statement, and it's counsel's silence that we're making admissible against the defendant. This is yet another novel stretch of the hearsay exceptions by the majority. So I think Judge Gilbert gets this one right.

The second problem is one that Judge Gilbert doesn't discuss, but it's a biggie. In my view, there's a serious Fifth Amendment problem here. The court is clearly using Thoma's silence to incriminate him -- a classic Fifth Amendment no-no, especially when the silence is in response to an official (here, state judicial) inquiry. The majority's only response to this problem is to assert that the Fifth Amendment only applies when "there is evidence that, by remaining mute, the defendant was exercising his constitutional right to remain silent," and there's no such evidence here.

Are we reading the same Fifth Amendment? So when the police bust me for drug smuggling, and I refuse to respond to their questions because I was sleepy or thought they smelled or just didn't feel like responding, the police suddently get to use my silence against me? I think not. Regardless of whether you are "deliberately" invoking the Fifth Amendment, your silence in response to official inquiry simply can't be used against you -- indeed, it can't be used against you even if you didn't know that the Fifth Amendment existed! You have the right to remain silent; by remaining silent, you invoke that right. It's that simple. If Thoma's silence was deliberate, it was protected. Plus, don't forget, it's inadmissible hearsay anyway.

Yeah, I know that means that Thoma isn't subject to the three strikes statute even though we're all pretty darn sure that he indeed has a prior strike. For this reason, I understand why the majority is willing to distort the Evidence Code. But that still doesn't make it right.

P.S. - I can see from this dissent why Justice Gilbert has repeatedly won various "Appellate Justice of the Year" awards. Keep up the good work, Arthur!

Hoveida v. Scripps Health (Cal. App. - January 26, 2005)

Justice McConnell holds here that parties cannot create an appealable judgment by stipulating to dismiss the remaining claims without prejudice, even if the parties simultaneously agree that the dismissal will be with prejudice if the appeal is unsuccessful. (The classic situation in which such stipulations are employed is when the trial court grants a dispositive motion on a major portion of the case, leaving only a tiny part of the suit for trial).

This ruling is not at all surpising. Facially, it's exactly what you'd think the right result should be. But I think that if you consider the issue more deeply, a contrary holding would be preferable.

First, the practical effect of this rule either grants an unjust windfall to the appellee or results in inefficient and potentially unnecessary adjudication. Imagine that the trial court just gutted your case by dismissing a major component, leaving only a tiny part left for trial. How do you respond? Obviously, one choice is to settle the tiny part and then appeal. But what if the other side won't agree to settle (or the opposing parties can't agree on a proper valuation)?

Under Justice McConnell's rule, you have two choices. You can choose to dismiss the remaining part with prejudice and then appeal, but this will result in an unjust windfall to the appellee (and undercompensates your client) if the appellate court reverses the dimissal, since now a part of your case -- potentially an entirely legitimate part -- is permanently gone even though the trial court was wrong. Or you can instead choose to take the tiny case to trial and then appeal. But the transaction costs of a trial on the tiny part alone may make such a choice irrational, and hence again undercompensate your client and underdeter the appellee and others like it. Alternately, you might decide to take the tiny part to trial. But this choice both may be socially deleterious (becuase the benefits of adjudication of this tiny part alone aren't worth the attendant costs) and also result in potentially unnecessary adjudication, because you might have been willing to drop the tiny part if the dismissal of the large part is upheld. But under Justice McConnell's rule, you can't enter into such an agreement and still have a permissible appeal, thereby forcing you to litigate the tiny part even though you might have been willing to abandon it. Hence unnecessary adjudication.

Those are fairly big downsides of the rule. The other problem with the rule is that the line between legitimate and illegitimate stipulations is both unclear and problematic. For example, what if the parties stipulate to dimiss the tiny part with prejudice, but simultaneously agree -- perhaps in a separate document -- that in any future suit involving the tiny part, the defendant agrees not to interpose the defense of res judicata (after all, res judicata is an affirmative defense, and waived if not asserted). Are courts really going to start interposing such waived defenses sua sponte? And what about stipulations that settle the tiny part for $X if the appeal is successful and $Y (or $0) if it is unnsuccessful? Do those also preclude appeal? What if the valuation of X is based upon subsequent arbitration? Or is based upon the "degree" of success in the appeal? Or is based upon a number to be "determined in good faith by the parties" -- with the potential that a subsequent dispute over the proper "good faith" number would be resolved in court? Would these settlements also preclude an appeal? The line between legitimate and illegitimate settlements seems both a fairly arbitrary one and one that may be readily manipulated by the parties.

By contrast, I don't see a huge problem at all with letting parties dismiss part of their case and taking the rest on appeal. Especially if -- as here -- the dismissed part goes away forever if the appeal is unsuccessful. This seems the more efficient and equitable rule, rather than forcing a party either to drop the remaining causes of action entirely or try them even though the party doesn't want to.

So I'm not at all surprised by this result, but I think it's a bad policy choice.

Brekke v. Wills (Cal. Ct. App. - January 25, 2005)

There are some cases that an attorney just shouldn't take on appeal. This is one of them.

A 15-year old boy is going out with a 16-year old girl, and the mother of the girl -- for good reason, in my view -- very much doesn't like the boy. So the mother tries to get her daughter to stop seeing the boy. In response, the boy writes some disturbing letters to the girl that are designed to be read by the mother, who's apparently routinely searching her daughter's room. The mother finds the letters, reads them, and then goes to court to seek a restraining order to stop the boy from having any contact with the girl. 'Cause the letters are allegedly violent and harassing -- and are indisputably far from polite.

Now, I don't have a real problem with counsel (retained by the boy's parents) representing the boy at trial and trying to avoid a restraining order. The boy's parents (who, parenthetically, I think Justice Scotland's opinion unduly harshes on) think that entering a restraining order will just fuel their son's irrationality -- in a "Romeo and Juliet" sort of way -- and ask the mother to drop the suit so the parents can work it out themselves. But the mother doesn't agree. Fair enough. I could see an attorney agreeing with the boy's parents and trying to avoid the issuance of a restraining order. But the attorney -- Freda Pechner -- is unsuccessful, and the court indeed issues a restraining order.

That's when, in my view, the attorney should bow out. Not that it's unethical or anything; after all, everyone is entitled to an advocate. But that advocate doesn't have to be me -- or any other particular attorney, for that matter. Instead, Pechner continues the case and files an appeal that (in my view) only makes matters worse by lengthening the conflict and by trying to turn it into a grand constitutional dispute about the boy's free speech right to harass the mother. Which it ain't. It's an immature child throwing a temper tantrum with adult consequences. Let it go. If the child wants to continue to throw his tantrum, he can brief the case himself.

Buckley v. Terhune (9th Cir. - January 25, 2005)

Judge Bea writes a very interesting dissent here, in which he applies regular California contract principles to a criminal plea agreement, contending that even if Buckley subjectively understood that he would be sentenced from 15 years to life, he was still entitled to a maximum sentence of 15 years since the written agreement itself stated that the maximum sentence he'd receive would be 15 years (not 15 to life) -- since, after all, the plain meaning of a written instrument is dispositive, ambiguities are interpreted against the drafter, etc. etc. Whereas Judges Trott and Rawlinson hold that the defendant knew what he was doing and hence was not entitled to habeas. Shockingly.

As an aside, I wonder if my reaction to this case is totally idiosyncratic. Even though all three of the judges thought that Buckley subjectively knew that he was pleading from 15 years to life, I had precisely the opposite reaction. In the written plea agreement, the relevant portion -- which Buckley initials -- says that he understands that he "could be sentenced to the state prison for a maximum possible term of 15 years" (not 15-to-life). Then at the plea hearing, here's the relevant exchange: "Q [Prosecutor]: Do you understand that for second degree murder you could be sentenced to state prison for a maximum possible term of 15 years. A [Buckley]: Yes." Plus Buckely's got an attorney testifying that the prosecutor told him that Buckley's plea would result in a 15-year sentence (not 15-to-life), and his mother testifying that the prosecutor told her that Buckley would be sentenced to 15 years and hence probably out (with good time credits) in 7 and a half. And even if you're like me and don't entirely trust this kind of testimony, given what the what's in the written plea agreement as well as the relevant exchange at the plea hearing, this particular testimony seems fairly plausible.

Admittedly, it's perhaps possible that notwithstanding these statements, Buckley knew that it was really a 15-to-life deal (although I actually think that -- properly intepreted -- the record is almost entirely devoid of any evidence that supports such a belief). Regardless, after the AEDPA, it's hard to displace state factual findings on habeas. So maybe the majority indeed gets it right. (Though Judge Bea's dissent makes some very good points, to which the majority essentially doesn't respond at all.)

That said, I was more interested to learn that I was apparently the only person in the universe who thought that Buckley really didn't know that he was pleading to the 15-to-life sentence to which the majority binds him. Which just proves how out of it I am. Which, again, is hardly shocking.

MHC Financing v. City of Santee (Cal. Ct. App. - January 25, 2005)

This case is a toughie. To make matters worse, Justice Aaron's opinion is hardly a model of clarity. (And I say that with a great deal of respect; I think that Cynthia is extremely bright). Regardless, the underlying action is certainly an interesting -- and multifaceted -- dispute.

The actual facts of the case are somewhat convoluted, so I'll (over-)simplify them. Some citizens want to pass an initiative that would alter mobile home rent control in Santee. So they submit a proposed initiative -- we'll call it "Ordinance 381" -- to the City Attorney, and then go out to obtain the necessary signatures. Meanwhile, they discover that they've made some mistakes on their proposed initiative, so they edit the proposal and obtain signatures on the edited proposal -- we'll call it "Ordinance 412" -- rather than on the proposal reviewed and summarized by the City Attorney.

Once they've obtained the necessary signatures, the City of Santee is basically obligated to either (1) submit the initiative to the voters, or (2) pass the initiative itself. The City chooses (2). However, the City mistakenly passes Ordinance 381, rather than Ordinance 412, a fact that no one notices until many months after passage. Eventually, two years later, the City "corrects" Ordinance 381 by enacting Ordinance 412, states that Ordinance 412 is intended to merely correct the inadvertent text of Ordinance 381, and accordingly indicates that Ordinance 412 is retroactive to the date that Ordinance 381 was passed. At which point plaintiff sues.

Plaintiff makes a wide variety of interesting -- and facially plausible -- claims about the invalidity of one or both of the ordinances. But the claim that strikes me as the most persuasive is the assertion that Ordinance 412 can't be retroactive and that seeks damages from the City for the losses incurred during the two years between the passage of 381 and the passage of 412 (e.g., damages resulting from the retroactivity of 412).

Justice Aaron holds that Ordinance 412 can indeed be retroactive because the City made a mistake, and the proponents of the initiative -- who did nothing wrong (although, in truth, they actually did a fair amount of things wrong, but that's another story) -- should not suffer from that mistake, and hence were entitled to passage of the correct initiative. But the proponents weren't, in fact, entitled to passage; rather, they were merely entitled to either passage or presentation before the voters, and what the voters would have done at the polls is unclear. Further, I'm fairly unpersuaded by the proposition that when the only statute that the City evaluates and agrees to pass in 1999 is Ordinance 381, the court can permissibly hold that this passage is functionally equivalent to the passage of Ordinance 412, which is a different statute -- and one that they didn't evaluate, assess, or vote on until two years later.

So Justice Aaron seems wrong on the retroactivity point. But it gets even more confusing, because even though she holds that the statute is permissibly retroactive, Section III indicates that plaintiffs might be entitled to damages based upon the differences between the two ordinances during the relevant two-year period. But if the statute is properly retroactive, why are plaintiffs entitled to damages? If Ordinance 412 properly relates back to Ordinance 381, there shouldn't be any interim damages, right? After all, that's one of the major functions of the relation back doctrine.

In any event, this case is interesting on several different levels. It's definitely worth a read.

People v. Gonzalez (Cal. Supreme Court - January 24, 2005)

With all due deference to the unanimous decision of the California Supreme Court in this case, there's a fair bit of difference between a suspect saying "Maybe I want a lawyer" (and even "I think I want a lawyer"), on the one hand, and saying "If, for anything, you guys are going to charge me, I want to talk to a public defender too, for any little thing."

The Supreme Court in Davis v. United States held that the former didn't invoke the right to counsel because it was ambiguous and equivocal. Fair enough. However, that's quite a bit different than the "I want to talk to a public defender [], for any little thing" at issue in Gonzalez. Gonzalez wanted a lawyer. Not just "maybe". He didn't just "think" about wanting one; rather, he "wanted" one ("for any little thing," even). It's fairly clear what the guy wanted once the police told him that he was being booked for murder. This case simply isn't Davis.

Maybe the holding here is influenced heavily by the fact that Gonzalez blew away a police officer in cold blood (for utterly no reason, at that). But bad cases make bad law. The case is hardly as simple as the court makes it out to be.

In Re Dannenberg (Cal. Supreme Ct. - January 24, 2005)

Look, I'm no softie when it comes to parole, particularly for individuals convicted of murder (or rape, for that matter). I visibly cringe every time I read an opinion in which, during the course of discussing the defendant's criminal history, the court notes that he had previously been convicted of X, was released, and then promptly again committed X. It's always distressing, and I read that sort of stuff not infrequently.

But that doesn't mean that California should ditch the concept of parole, either de jure or de facto. And if you read the various California opinons about parole as they come up, you can't help but come to the conclusion that, in practice, that's precisely what the Board of Prison Terms has done. The stark reality is that, nowadays, it is virtually impossible to get parole if you've been convicted of murder. No matter how much time you've served or how rehabilitated you've become or how idiosyncratic your prior offense, the Governor (and the members of the BPT) just ain't gonna risk flack by letting you out.

You can wade through the 43-page opinion (and 15-page dissent) in this case to get a feel for the tenor of the contemporary approach to parole in California, and the case itself essentially holds (in a 4-3 decision) that the BPT can deny parole -- even though the underlying statute says that parole should normally be granted -- basically because the defendant committed the offense for which he was convicted. Which, of course, is always the case. Or you can look at the statistics; for example, that parole is granted in less than one percent of parole hearings.

Or you can simply look at the facts of this particular case, where Dannenberg is convicted of second-degree murder of his wife (in very ambiguous circumstances, and I say that having read hundreds of these kinds of opinions) and is denied parole after 18 years in prison -- with no real likelihood of getting parole any time in the future, either -- notwithstanding the fact that he had no prior criminal history, has been a model prisoner, and is not at all the type of person you'd think would reoffend. This is a guy who has already served 18 years in the clink. He presents, in my mind, about the best case for parole that you're ever going to could find in a murder case.

But the BPT says no way. You hit your wife on the head with a pipe, so we aren't taking the risk of letting you outside a cage. Only your friends and family will complain if we let you rot in prison. Whereas everyone in the state will go ballistic if we release you and you reoffend. So we ain't taking the chance. Eliminate the BPT's gussied-up language and that's basically the motivation behind their decision, both here and in other cases.

Look, I have no problem if people want to abolish parole. I think that'd be a very bad move, and would result in a much worse prison system -- and much worse offenders (and offenses) -- upon release. But at least such an approach would be forthright and legitimate. The system that we have right now, by contrast, seems to me precisely the opposite. Which is why, I think, that a near-majority of the California Supreme Court -- hardly a cauldron of left-wing softies -- recognizes the prevasive illegitimacy of the existing regime.

So it's a long opinion to wade through, and maybe it helps if have to have more context (e.g., have read the legions of other parole cases that have come down the pike over the past six years or so). But it's an important topic, and worth the read.

Moran v. Ashcroft (9th Cir. - January 20, 2005)

Talk about harsh. Martin Moran lives in the United States since 1989 and eventually gets busted by the INS for being in the country illegally. Since he's been here for ten years and of good moral character, he's eligible for relief from deportation.

Except for one problem. Martin admits that in 1993, he paid someone to help smuggle his wife and kid into the country, and the statute says that you're generally not of "good moral character" (and hence eligible for relief from deportation) if you help someone else enter the US illegally. That said, the statute simultaneously recognizes that smuggling in your family so that you can be with them is hardly the kind of evil character that should categorically disqualify you from relief. So there's an exception in the statute: you can still try to demonstrate good moral character so long as the only people you helped enter the country are your family; i.e., your parents, spouse, or children.

So Moran's okay, right? Nope. Because when he helped his wife out, he wasn't yet married to her -- rather, they were married three years after she joined him in the U.S. For this reason, Judge Betty Fletcher holds here that Martin is ineligible for relief.

Okay, I agree with Judge Fletcher that that's what the statute indeed says. And I can also see why the statute might be written that way: why we generally want to provide relief only if you smuggle in someone who's your wife at the time, lest we encourage people to getting married merely to avoid deportation.

But he was smuggling in his bride-to-be and their child, for Christ's sake. It's not like he just met this person on the street corner and married her to stick it to the INS. He's been here since 1989, his family is here, and he's apparently never done anything wrong in his life -- except, of course, to help his child and future wife join him in the U.S. rather than go it alone in Mexico. For this act he's categorically not of "good moral character"?!

That just doesn't seem right to me. So I agree with Judge Fletcher, who concurrence to her own opinion ends with: "That the denial of Moran's petition is required by the law does not make this result -- or this law -- just."

Exactly right. And shame on Rymer and Paez, by the way, for not joining this concurrence.

In Re: Demetra Pasyanos (Cal. Bar Ct. - January 13, 2005)

Generally, I only read (and comment here on) the published opinions of the California Supreme Court, the California Court of Appeals, the United States Supreme Court, the Ninth Circuit, and an occasional district court in California -- basically, all the opinions published in the Daily Appellate Report. But here's an opinion from the Review Department of the State Bar Court, and since it too is of potential interest to Californians -- particularly young California lawyers -- I thought I'd mention it as well.

The opinion involves a situation that I'm sure has been confronted in the past by some of my students, who often come to me (since I teach legal ethics) about their various brushes with the law as they prepare to file their Application for Determination of Moral Character. Here, Demetra Pasyanos -- a recent graduate of Loyola Law School -- files her moral character application with the State Bar and makes various disclosures. Before the State Bar approves her application, however, she's charged with a crime; in particular, violating a restraining order and misdemeanor battery on a cohabitant (which she eventually bargains down to a plea of nolo contendre to misdemeanor "challenging another person to fight in a public place"). She never updates her application to disclose the criminal charges, however, and when the Bar finds out (after they admit her), they move to cancel her license.

The Review Department concludes that Pasyanos' failure to disclose the post-application criminal charges was simply an oversight, rather than an intentional concealment, and this finding is fairly well-supported, especially given the many disclosures that she did make in her application regarding prior incidents with the victim of her alleged assault (with whom she had a longstanding and very troubled relationship). On this basis, the court refuses to cancel her Bar license, and instead simply issues a public reproval, to which she doesn't object. That result seems entirely fair to me. Pasyanos didn't deliberately conceal the charges. Let's not be too harsh on her for a simple mistake.

The case is nonetheless still a reminder that you've got to update your moral character application if anything happens before it's approved. It's also a concrete example of what can happen if you don't; after all, Pasyanos had to deal with two-plus-years of the Bar attempting to cancel her license, which would have been avoided if she'd have properly supplemented her application. Plus, the only reason that she wasn't essentially disbarred is that the court found that her mistake was entirely accidental. There's every reason to believe that the court might well come to a contrary conclusion in the typical "Oops, did I really forget to list that charge?" type of case.

So make your disclosures, and make (and keep) 'em complete. It's the right -- and smart -- thing to do.

United States v. Bichel (9th Cir. - January 14, 2005)

Someone please explain this one to me. I just don't get it. And I don't mean the holding, which seems entirely reasonable. Rather, I can't fathom why the case is on appeal in the first place.

Father William Bichsel is a 75-year old Jesuit priest who chained himself to the doors of the United States courthouse in Tacoma, Washington in order to protest the war in Iraq. A federal marshal asks Father Bichsel to unchain himself and he refuses to do so. The marshal gets some bolt cutters and asks him again, Father Bichsel again refuses, so the marshal cuts the chains and arrests him for disobeying the lawful order of a federal police officer. Father Bichsel gets convicted at trial and sentenced to five days in jail.

All this makes sense to me. What I don't fathom is why Father Bichsel files an appeal instead of simply serving his five days -- an appeal that has nothing whatsoever to do with the war in Iraq or the necessity defense or anything like that, but is instead some hypertechnical argument about why he should get off because during his 6:30 a.m. protest, the federal regulations that governed the courthouse were only posted inside (rather than also outside) the courthouse doors. This is why we conduct civil disobedience? To make a statement about the precise definition of "conspicuous posting" pursuant to 41 C.F.R. sect. 102-74.365?

You break the law and you serve your time with pride. Okay, maybe sometimes you also try to get off by rallying the jury behind the importance and validity of your cause. But, in my mind, what you don't do is waste everyone's time by having a public defender paid for by the state raise hypertechnical defenses that have nothing whatsoever to do with the reasons for why you did what you did.

To me, an appeal like this merely trivializes the importance of the cause, which was the whole reason for the decision to conduct civil disobedience in the first place.

United States v. Mayo (9th Cir. - January 14, 2005)

Especially in light of the contours of existing precedent (particularly Belton), I don't have a problem with the principal issue in this case, which holds that police officers can search the hatchback area of an automobile during a search incident to arrest.

What was a bit more troubling to me was the court's subsidiary holding that Terry stops -- which are made without probable cause and which are traditionally thought of as consisting of a pat-down alongside a minute or two of questioning -- can permissibly take (as in this case) forty minutes. I'd have much preferred that the court simply hold -- as it easily could have -- that the length of the Terry stop here was irrelevant since the police obtained probable cause to arrest the defendant for a felony (placing a stolen registration sticker on his car) within a couple of minutes after stopping him.

Maybe a brief stop-and-frisk is indeed the price we have to pay to live in a safer society. But letting the police forcibly detain someone for nearly an hour without probable cause seems a bit excessive. That's surely the way I'd feel if I were the one detained, anyway.

United States v. Alvarez-Gutierrez (9th Cir. - January 14, 2005)

Now for some shameless promotion of the judge for whom I formerly clerked. Lest one think that he's uniformly results-oriented, Judge Reinhardt here joins Judge Thompson's opinion rather than Judge Berzon's dissent, notwithstanding the fact that -- as he explains in his concurrence -- Judge Reinhardt thinks that the result that the majority reaches is both bizarre and unwarranted. But, as he explains, that result is compelled by circuit precedent; hence, so be it.

That's simultaneously a compliment to Judge Reinhardt and a (tiny) backhanded slam on Judge Berzon. I mean, when you can't even get Judge Reinhardt to buy into your argument on behalf of an illegal alien in a criminal case, you gotta be doing something wrong.

Riddle v. Riddle (Cal. App. - January 14, 2005)

Here's a divorce case from Orange County which essentially revolves around the correct way a court should evaluate a million-dollar payment that the husband received from his current employer in order to lure him to leave his former employer when it's setting child and spousal support payments.

What is it with all these cases from rich people in Orange County? Is it something in the water? Or has that O.C. television show encouraged all of the litigiously wealthy to flock to that newly-cool county?

People v. Martinez (Cal. App. - January 14, 2005)

The victim here endures days of torture and rape by her boyfriend. That she (entirely unbelievably) recants her story at trial and attempts to get back together with the boyfriend who tortured her is depressing beyond belief, and speaks volumes about a plethora of issues too dispiriting to discuss.

Schauer v. Mandarin Gems (Cal. App. - January 12, 2005)

Anyone who's ever bought or received a diamond engagement ring -- and I definitely include myself in this category -- should find interesting this opinion by Justice Ikola, which holds that, even after a divorce, the spouse who received the diamond ring may indeed have standing to sue as a third party beneficiary to the contract if the ring is not of the quality that the seller has claimed.

The facts of the opinion -- as well as the caveats in the underlying bill of sale (which I imagine are fairly typical) -- definitely make me wonder whether those all-important diamond quality ratings aren't a total crock. But at least it's neat to know that, apparently, both the recipient as well as the buyer may potentially have standing to sue. Even though Justice Ikola bounces most of the plaintiff's claims for lack of standing, the third party beneficiary contract claim stands. At least for now; who knows who'll prevail on remand.

The rock in this case was a three carat giant purchased for $43,000 in 1999. No small chunk of change. Justice Ikola reversed the granting of a demurrer by Judge Dunning of -- where else? -- the Orange County Superior Court. Here's where the ring apparently came from: Black, Starr & Frost, which is in the South Coast Plaza in Costa Mesa. I'm pretty sure I won't be plunking down $50K for a ring there anytime soon.

People v. Morgan (Cal. App. - January 12, 2005)

A police officer executes a search warrant and, while searching the home of a suspected drug dealer, the phone rings. The officer picks up the phone and the unidentified person says that he is "bogeying" (which means "in need of drugs, bad" -- sort of like "jonesing," but with methamphetamine rather than heroin, I take it), wants drugs, and wants to know if the recipient of the call "has any." Is this statement by the unidentified called inadmissible hearsay?

I was impressed by Justice Morrison's discussion of this issue here, notwithstanding the fact that I'm not sure that I agree with his conclusion. (He holds that it's hearsay, but admissible.) I'm sure that part of the reason I liked the opinion is that it's written in a scholarly manner -- not too surprising, since he was on the faculty at McGeorge for six years -- and articulates and appreciates the arguments on both sides of the issue.

On the merits, the only point on which I think Fred might miss the boat a bit (and perhaps this is the reason I might tend to disagree with him) is that he believes that the statement falls more on the side of conduct than on the side of an assertion, arguing that "The caller was not intending to assert that [the defendants] were selling methamphetamine; rather, he was attempting to purchase methamphetamine." But that conclusion seems to me to beg the question. Maybe they were attempting to buy, of course. But maybe they were making a crank call, or maybe they were neighbors who hated the defendants and -- seeing the police -- made a call to help ensure that the police arrested them. That's why we need to cross-examine them; to see if they had any motive to fabricate their statement.

So I'm not entirely sure that the statement "I'm bogeying; do you have any drugs?" by an unidentified caller is really all that different than the statement "Peter and Dave sell drugs" -- which everyone concedes would be inadmissible heresay. Both are over the same phone line by the same caller. Both essentially say the same thing.

That said, a very nice opinon, even if I may perhaps disagree with the result.

PETA v. California Milk Producers Advisory Board (Cal. App. - January 11, 2005)

Okay, so apparently a public entity isn't a "person" that can be sued under Section 17200, at least according to Justice Ruvolo here. So PETA loses. I can see that. (Especially since Nace is a USD law grad!)

Still, on the merits, doesn't PETA make a fairly good case the CMAB's "Happy Cows" campaign -- you know, the one that runs all the ads showing a couple of beautiful cows grazing in spacious grassy fields, with the tag line "Great Cheese comes from Happy Cows. Happy Cows come from California" -- fairly misleading. After all, when you think about it, are California cows really all that happy? I certainly know they don't usually frolic around in vast grassy fields with ne'er another cow in sight. Plus, would you really be all that happy if you spent most of your life being milked in a dry grassless lot and having your kids turned into veal? Doesn't seem all that fun to me. On the upside, at least you get slaughtered once your milk production diminishes. So you got that going for you. Which is nice.

So I guess PETA has a point. Except that cheeseburgers are darn tasty. Damn it.

United States v. Combs (9th Cir. - January 11, 2005)

It seems reasonable to me that you don't always have to actually knock on a door in order to give proper knock notice. So when, as here, the police sit in your front yard with their lights flashing, screaming over their car's public address system "Anchorage Police with a warrant for 1502 West 32nd Avenue," for thirty seconds to a minute, that may consistute proper notice in some cases. So Judge Wardlaw seems right that the search here may well have been proper.

Still, would it have hurt to knock? I mean, they banged on the door with a battering ram for 10-12 seconds before they finally smashed it down. How about taking a couple of seconds before smashing the door down -- say, during the minute or so you're screaming at them over your P.A. -- and knock, or ring the doorbell, or even just say something like "Hey, dude, how about letting us in?" Maybe it's not constitutionally required in all cases, but I think it'd be a darn nice thing to do before smashing in someone's door. I'm sure the Founding Fathers would have wanted the British to do it.

United States v. Asberry (9th Cir. - January 11, 2005)

Look, I'm hardly going to defend statutory rape. It's properly a crime. So's child molestation, while we're at it. So's a lot of other stuff. You get my point.

That said, I find it difficult to believe that when an 18-year old has consensual intercourse with a 15-year old, that offense should really be considered a "crime of violence" under the Sentencing Guidelines. Even though that is what Judge Gould (alongisde Judge Wallace) holds here. It seems even less credible to argue, as they do, that this offense is a crime of violence because it "by its very nature present[s] a serious potential risk of physical injury to another." Consensual sex between an 18-year old and 15-year old? Really?

I think that Judge Bea's concurrence has the slightly better of the argument. He forthrightly admits that this offense is indeed a crime of violence under circuit precedent, and hence joins the result, but argues that this precedent is wrongly decided. That seems right to me. Now, I admit that the Sentencing Guidelines can define "crime of violence" any way they want; e.g., if they want to define littering as a crime of violence, that's okay, and I guess we just go along with it. And I also admit that, here, it's a 21-year old and a 15-year old, which in my (perhaps prudish) mind is slightly different than 18/15 (though, for legal purposes, it doesn't matter, since it's solely definition of the offense that defines the crime -- here, a 3-year gap in the age of the participants).

But I still have a hard time believing Judge Gould's argument that a 3-year gap by its very nature presents a serious potential risk of physical injury. That argument just doesn't ring true to me.

Ford Motor Co. v. Todecheene (9th Cir. - January 11, 2005)

I'm very conflicted about tribal jurisdiction. Part of me very much wants to respect the inherent sovereignty of Indian tribes and invest the kind of faith in tribal adjudication that is required to foster the development of respected modes of tribal adjudication. Simultaneously, however, part of me is not very confident in the contemporary willingness of such tribunals to fairly adjudicate disputes, particularly those that involve members agaisnt nonmembers.

This case is a good example. An onduty police officer employed by the Navajo Department of Public Safety dies when her Ford Explorer rolls over on a dirt road within the Navajo Nation. The family of the decedent sues in Navajo tribal court, arguing that the Explorer was defective. Ford, by contrast, asserts that the car was not defective and that the decedent was not wearing a seat belt, and also files a federal lawsuit seeking to enjoin the tribal proceeding, claiming that the tribal court had no jurisdiction over the dispute.

On the merits, both sides have good arguments. The relevant precedent (which I have litigated myself in the past) is far from clear, and consists of fairly malleable and fact-intensive considerations. I'd have liked to see Judge Rawlinson (who, alongside Judge Silverman, affirmed, holding that the tribal court has no jurisdiction) and Judge Willie Fletcher (who dissented) discuss precedent a little less and policy a little more. Now, I know, that's not really their role. But I find the discussion of both the majority and dissent fairly dry and unhelpful. There are reasons behind the underlying cases. Let's hear about 'em, and see how those reasons apply -- or don't apply -- to the present case. Maybe even talk about the incentive effects generated by a ruling one way or the other. Will upholding jurisdiction potentially result in a refusal by nonmembers to deal with tribes and/or members of tribes? Will denying jurisdiction prevent the tribe from ensuring its own safety? I'd have liked to have seen a little more discussion of the global issues rather than a mere recitation of precedent.

That said, it's still a case worth thinking about.

United States v. Wells (9th Cir. - January 11, 2005)

The facts of this case are worth reading, both because the lawyer for the defendant said some interesting things to his client (e.g., that he "didn't represent snitches" -- not exactly the kind of friendly advice that you'd like to hear if you were looking for guidance from your counsel about all of your various options) and because it involved a rare business that simultaneously mined for gold and cooked methamamphetamine. I guess the business synergy there is that the former is traditional gold and the latter the modern-day version.

The issue in this case was whether the defendant was entitled to a new trial because his attorney had a conflict of interest arising out of the fact that his lawyer was being paid by a co-defendant. Judge Berzon joined with Judge Hamilton (who was sitting by designation from the Fourth Circuit) to outvote Judge Betty Fletcher. If you can't guess which side was which, you need to do some homework on your Ninth Circuit judges. Not that political beliefs at all affect judicial decisions. No, not at all.

Here's a hint: Remember that Judge Hamilton is from the Fourth Circuit. Not that the Fourth Circuit is the most conservative circuit in the nation. No, not at all. Bonus hint: When Judge Hamilton was nominated, the first person who spoke in his favor was Strom Thermond, who had known Judge Hamilton his entire life. Now that's a judge you want on your panel if you're a criminal defendant, eh?

Goldberg v. Warner/Chappell Music (Cal. App. - January 7, 2005)

The California Rules of Professional Conduct establish the most idiosyncratic legal ethics rules in the nation. So I'm hardly going to complain when the California judiciary interprets those provisions in a manner that makes them more consistent with the prevailing regime outside of our Great State. Besides, it makes my job easier -- that way when I teach my Professional Responsibility class (which I've taught for the past decade) I'm required to spend less time explaining the myriad of differences between the Model Rules of Professional Conduct and the ethical rules that apply here.

So it is not like I'm going to complain bitterly that the California Court of Appeal interpreted Rule 3-310(E) here to essentially to mean the same thing as Model Rule 1.10(b), notwithstanding the fact that those two provisions -- as well as the cases that have been decided thereunder -- are fairly divergent. But I would appreciate it if Justice Curry would at least expressly recognize that what he's doing is a fair piece different than what's been done before.

He holds in this case -- entirely plausibly -- that Mitchell Silberberg & Kupp isn't disqualified from representing defendant even though a former attorney at MS&K had an attorney-client relationship (albeit a very informal one) with the plaintiff, holding that disqualification isn't required because the relevant partner had left MS&K years ago and no one remaining at the firm knew anything about the prior representation. It's reasonable, and consistent with Rule 1.10(b), to adopt such an approach. Fair enough.

But two things. First, don't try to make it look like you're not doing anything fairly new. There's a fair bit of difference between this case and Adams v. Aerojet, in which the Court of Appeals held that disqualification might not be imputed to the departing lawyer based upon the activities of others at his former firm. We are now talking about eliminating the disqualification of the law firm; i.e., the entity that actually had the prior attorney-client relationship with -- and is now directly opposing -- the plaintiff. That's different.

Second, don't justify the rule based upon the view of attorneys as "free agents" who need mobility to freely move from firm to firm. That's a justification for cases like Adams, which narrowed the imputed disqualification of the departing attorney, but not a reason for limiting diqualification of the law firm itself. Indeed, if anything, the rule articulated by Justice Curry may actually give an incentive for law firms to fire particular attorneys if doing so will thereby terminate a conflict and permit them to take on a particular client. (This is analogous to the "Drop The Client Like a Hot Potato" problem we discuss in my class about the potential ability of law firms to avoid disqualification by firing a client and thereby turning a concurrent conflict into a much more limited successive conflict.)

So for those of us interested in legal ethics, it's an interesting case. Justice Curry may well reach the correct result, but perhaps could have done so a little bit more carefully, a bit more forthrightly, and with a bit more precise recognition of the proper basis for his approach.

P.S. -- For those less interested in legal ethics and more interested in salacious gossip, the plaintiff in this case -- Ilene Goldberg -- is herself a California attorney, and asserts lots of dirt in her Complaint. So the case (and especially her brief) offers a little something for everyone.

Smith v. Hemet (9th Cir. - January 10, 2005)

Judge Reinhardt gets it right in this one, and Judge Silberman gets it wrong. You can still sue for excessive force even if you were validly convicted of disobeying a police officer (here, for, inter alia, refusing to take your hands out of your pajama pockets). You can still be convicted of this offense even if the police subsequently wail on you; similarly, an initial refusal to obey doesn't give the police carte blanche to go medieval.

I say that not because I (long-ago) clerked for Judge Reinhardt. I'm more than happy to speak out -- as I often did when I was clerking (and thereafter) -- when I think he's missing the boat. But here, he happens to be right. There's a reason it's an 8-3.

United States v. Tirouda (9th Cir. - January 10, 2005)

The Ninth Circuit here upholds former Ninth Circuit Jury Insruction No. 4.11 -- currently replaced by No. 4.9, which says essentially the same thing -- which advises the jury that it should consider the testimony of defendat's alleged accomplice on his behalf "with greater caution than that of other witnesses." Judge Wardlaw holds that the instruction is proper because the accomplice might well be committing perjury in order to exonerate his accomplice (and, by extension, himself).

On this same theory, shouldn't we also give an instruction that the jury should view defendant's own testimony with similarly "greater caution," since he's got an equal -- indeed, greater -- incentive to lie? We don't do so, and I think a lot of people would find such an instruction to be constitutionally infirm. But it's hard to distinguish the two directives.

Judge Wardlaw's opinion isn't surprising, and it's consistent with the holdings of the Fifth and Seventh Circuits. But it's still a little bit troubling.

Watts v. McKinney (9th Cir. - January 10, 2005)

There's zealous advocacy, and then there's claiming -- as the lawyer for McKinney did here -- that your client is entitled to qualified immunity because a reasonable person wouldn't necessarily know that it's illegal to deliberately stomp on a prisoner's testicles while he's handcuffed. "Oh, you mean I can't do that?" Uh, yeah, you can't.

Judge Noonan's response is entirely correct: "To suppose that a reasonable person, let alone a trained prison officer, would not know that kicking a helpless prisoner's genitals was cruel and unusual conduct is beyond belief. The Supreme Court did not need to create a catalogue of all the acts by which cruel and sadistic purpose to harm another would be manifest; but if it had, such [an] act would be near the top of the list."

The lawyer for McKinney was Gregory Walston, a fairly recent graduate of U.C. Davis law school (like Stanford, they train 'em well!). Walson was a Deputy A.G. at the time, and recently joined an eight-attorney firm in San Franciso. Though, from the address he has listed with the State Bar, it looks like he lasted there less than nine months. Cheer up, Greg. Any publicity is good publicity, right?

People v. Hinkel (Cal. App. - January 11, 2005)

Proposition 36 entitles a defendant to expunge his conviction for a nonviolent drug offense if he complies with the terms of his probation and successfully completes a drug treatment program. The latter phrase is defined by Section 1210(c) as having "completed the prescribed course of drug treatment and, as a result, there is reasonable cause to believe that the defendant will not abuse controlled substances in the future."

Justice Hull in Hinkel holds that even if a defendant successfully completes both probation and his treatment program, Proposition 36 still doesn't apply if the judge finds that the defendant isn't actually rehabilitated; i.e., that he's still likely to abuse drugs. This is a facially plausible interpretation of the statute, the strongest argument in favor of which is that a contrary interpretation would make the second clause of Section 1210(c) redundant: that it would rewrite the statute so that a defendant need only "complete[] the prescribed course of drug treatment" in order to obtain an expungement, thereby making the remainder of paragraph (c) irrelevant.

True enough. But I'm not sure that Justice Hull's reading is any better. Does he really mean (for example) that a defendant who has an epiphany prior to entering treatment that convinces him to never again use drugs isn't covered by Proposition 36 either -- even after he completes probation and treatment -- since he did not decide to quit drugs "as a result" of the treatment program, but rather as a result of his pre-treatment epiphany? Such a result would make no sense.

Some statutes simply do contain redundant passages. Indeed, this may especially be the case with initiatives, which (1) are more likely than legislative statutes to be written by lay or less-expert sponsors, and (2) may be drafted with a particular eye towards the reaction of the voting public.

It seems quite plausible that Proposition 36 might properly be read to mean that once a defendant has indeed "completed the prescribed course of drug treatment," there is -- "as a result" -- automatically (as a result of the treatment) at least "reasonable cause" to believe that he will not abuse drugs in the future. After all, that's the whole point of the program; surely completing the program gives one at least some basis for believing that the defendant may in fact go straight.

That the drafters of Proposition 36 might attempt to persuade voters to vote for the initiative by indicating in its text that completing a treatment program gives a reasonable basis for believing that the defendant will stop using drugs seems quite plausible. So I'm not entirely sure that Hinkle gets Proposition 36 right. (Mind you, I might well prefer an initiative that grants an expungement only if the judge believes that the defendant will in fact go straight, but I can easily see the counterargument that those who voted for Proposition 36 might have intended: that the defendant should be given a second chance, without the burden of a criminal record, so long as he gets treatment and completes probation, regardless of what a particular judge -- perhaps erroneously -- thinks about the defendant's chance of future success.)

Burris v. Superior Court (Cal. Sup. Ct. - January 10, 2005)

Here's a decision of the California Supreme Court that I very much like, notwithstanding the fact that I have no particularly strong feelings at all about the result (which involves a difficult issue of statutory interpretation of Section 1387(a) of the Penal Code).

What I like about Justice Werdegar's analysis here is that she's not bound herself to the type of mechanistic statutory analysis that's increasingly -- and, in my mind, distressingly -- in vogue. She recognizes that the statute in question is truly ambiguous: that we're not entirely sure to what the term "it" in the statute is meant to refer (i.e., whether that word refers to the previously dismissed charge or to the new charge). Rather than deciding the case by applying the type of hypertechnical grammatical analysis that only an elementary school teacher from hell would enjoy, she quotes and decides the case in a manner consistent with Justice Breyer's dissent in J.E.M. AG Supply, in which he noted that the rules of grammar and canons of construction are only tools -- that "[t]hose who write statutes seek to solve human problems [and] [f]idelity to their aims requires us to approach an interpretive problem not as if it were a purely logical game, like a Rubik's Cube, but as an effort to devine the human intent that underlies the statute."

Now, I haven't read the briefs or anything. Maybe Justice Werdeger got it wrong -- although the result she reaches seems entirely plausible to me. Regardless, I very much appreciated the manner in which she goes about resolving the case, which demonstrated (to me) both an appreciation for our common law tradition as well as a commonsense approach to statutory interpretation. Hurrah.

Conservatorship of McDowell (Cal. App. - January 6, 2005)

Before reading this opinion, I honestly didn't know -- but was happy to learn -- that California has a fairly well-developed statutory scheme designed to limit testamentary bequests to caregivers. I would imagine that it is fairly common for people to leave their caregivers something in their will, and certainly recognize the potential for abuse in such settings.

Even after reading the opinion in this case, I'm uncertain whether I believe that the relevant California statute properly governs only professional caregivers, or instead also includes volunteers. Both positions have something going for them. But that just means that it's a hard case; Justice Rushing does a very good job of supporting his conclusion, even if I still am uncertain whether or not he's right.

Tangentially, I noticed that the caregiver here had to bring the elderly decedent to three different attorneys before she was able to find one willing to write the will. Thomas Bouman and James Arnold apparently refused to prepare legal documents due to concerns about the decedent's mental competence. I have a generally more favorable reaction to those counsel than I do towards the third attorney -- Meyer Sher -- who went ahead and prepared the will. Especially since (1) the decedent was diagnosed with advanced dementia four short months after the will was prepared, suggesting that the first two lawyers may well have been right about her competence, and (2) the third lawyer -- who had only been a member of the Bar for two years -- was apparently completely unaware of the California statutory limitations on testamentary gifts to caregivers when he prepared the will.

Of course, I was equally ignorant of the limitations before reading the opinion. But then again, I don't write wills for a living. (Neither, apparently, does Sher anymore; it looks like he currently works for the California Public Utilities Commission. Good move, I think.)

Harron v. Bonilla (Cal. App. - January 7, 2005)

I care a fair amount about the anti-SLAPP provisions of California law, though am hardly a zealot for either side of the debate that surrounds these provisions. That said, this case seems fairly clearly wrongly decided.

The incoming members of the Otay Water District fire the District's general counsel (Harron) in a closed session. Harron claims that these officials fired him on account of his race, as well as personal animosity towards him, and the Union-Tribune does a story. Two of the members of the District talk to the reporter for the U-T: Bonilla is reported as saying that Harron wasn't necessarily fired for cause, but because the Board didn't trust him; Inocentes allegedly says that he felt that Harron had a conflict of interest. Harron sues both for slander, and they bring motion to strike.

Now, I have no firm idea about who's right on the merits -- it may perhaps be that Harron can demonstrate a probability of prevailing and hence the suit should continue. The only thing about which I'm confident is that the speech at issue was indeed about a matter "in connection with an issue of public interest" and hence properly subject to a motion to strike under Section 425.16(a)(3) and (4).

Judge McConnell disagrees, but her reasoning seems flawed. As to Bonilla, she holds that his speech is not governed by the anti-SLAPP provisions because he violated the Brown Act by disclosing information he obtained in closed session. But that fact (even if true) properly goes to the merits of the suit, not the applicability of the anti-SLAPP provisions. Just because your conduct is potentially illegal doesn't mean it isn't still in connection with an issue of public interest. Weren't Ellsberg and the New York Times engaging in free speech when they published the Pentagon Papers, even if these documents were indeed illegally stolen from the Pentagon? The illegality of the defendant's conduct does not obviate the anti-SLAPP provisions; indeed, if it did, a court would have to hold that even your run-of-the-mill defamation defendant can't file an anti-SLAPP motion if his words were in fact defamatory, since it's equally illegal to defame someone as it is to reveal official confidences. So the basis for Judy's holding as to Bonilla seems to miss the boat and improperly conflate the merits with the appropriate procedure.

Her holding with respect to Inocentes is even more troubling. She says that his speech didn't concern a matter of public interest because Harron had already been fired (i.e., a "fait accompli"), and hence did not concern "an ongoing public debate." What? So if I start complaining that the Bush administration corruptly gave Halliburton contracts in Iraq and Halliburton sues me for defamation, I can't file an anti-SLAPP motion either, since those contracts are already a done deal? Nonsense. Plus, does Judge McConnell really think that it's not a continuing matter of public interest that our elected officials -- who are still in office -- allegedly fired someone on account of their race the previous day? And do we really think that the U-T routinely sends out its reporters to write up stories on matters that aren't part of "an ongoing public debate"?

Whether defamatory or not, the comments at issue clearly concerned a matter of public interest and hence properly subject to a motion to strike. Judge McConnell, and the rest of the panel, gets this one wrong.

Full disclosure (and interesting aside): Two of the three lawyers who represented Bonilla on appeal were University of San Diego law graduates -- Wendy Tucker ('94) and Sahyeh Fattahi ('02) -- as were two of the five attorneys who represented Inocentes (J. Allen Warfield '96 and Kelly Wood '00). As far as I can recall, I did not have any of these individuals as students (though my memory is becoming shoddier and shoddier as I age); regardless, I haven't talked to any of them about the matter, and my reaction to this case is based solely upon the holding. Though I wish them luck!

United States v. Washington (9th Cir. - January 6, 2005)

Here's another close (and split) case about arcane procedural issues that's decided by the Bea/Paez/Tashima panel that heard cases in Seattle during May. As in Knievel v. ESPN, Judge Bea is a 2-1 loser.

This time the procedural dispute is about whether a pretty unique event -- post-judgment federal recognition of a particular tribe -- qualifies as an "extraordinary circumstance" that justifies a Rule 60(b)(6) motion in this particular case. Both Tashima and Bea make good points, though I'm inclined to think that Tashima may have the very, very slight better of the argument.

Regardless of the outcome, the parties certainly have had an opportunity to be heard regarding the extent of the rights of Indian tribes to fish at their "usual and accustomed grounds" in Washington under the Treaty of Point Elliott of 1855: the docket sheet in the district court has over 17,500 entries. Yikes.

Bobus v. DMV (Cal. App. - January 6, 2005)

Bad cases make bad law. Or, as here, terrible law.

Karli Bobus is 16 years old and blows a .02 -- about one beer -- when she's stopped by the cops. (The officer testifies that she reeks of alcohol and is slurring her words -- hardly consistent with blowing a .02 -- but that's another story.) That's below the usual .08 limit, but Karli's under 21 (and hence the limit is .01), so they pull her license. Karli challenges the suspension, and at the hearing, she admits that her friends were drinking but denies that she drank anything. She nonetheless admits that she had a cold and had taken a capful of cough syrup.

I have no problem with the first two operative paragraphs of the opinion, which upholds the suspension on the ground the trial court could reasonably have disbelieved Karli and concluded that she had indeed been drinking with her friends. Done. But the opinion goes on and holds that, even if she hadn't been drinking, she's still guilty, because a capful of cough syrup is still an "alcoholic beverage" since, after all, it's a beverage that contains alcohol. So there.

Of course, if cough syrup is indeed an alcoholic beverage, this means that you violate the open container law if you have an open bottle of cough syrup in your car; indeed, anyone under 21 is guilty even if the cough syrup is closed and factory sealed! Justice Jones responds only that Karli wasn't charged with this offense, and that she'll "leave for another day the question of whether transportation of cough syrup might support the specific offenses Bobus has identified." But it's the same definition of "alcoholic beverage" for all of these statutory offenses; if cough syrup is an "alcoholic beverage" for one, it's also an "alcoholic beverage" for the others!

Don't think it's just cough syrup, either. Tons of stuff has alcohol in it. Think of that next time you're driving down the road with your Strawberry Bananna Smoothie, which -- like so many other things -- is typically made with vanilla extract, which contains alcohol.

A bad, bad case.

Gray v. Superior Court (Cal. App. - January 5, 2005)

There are a thousand different ways of properly suspending a medical license. The California Court of Appeal in this case got it right that an improper way of suspending such a license is to demand that a pretrial detainee give it up as a condition of granting bail.

Justice Parrilli rightly held that the bail condition here was a violation of the defendant's right to procedural due process. To me, such a condition is also deeply troubling under the Eighth Amendment (though no such claim was raised in this case). Suspending the (innocent-until-proven-guilty) defendant's medical license has nothing to do with ensuring that he will appear at trial, which is the principal function of bail.

There may be limited exceptions where particular bail conditions are necessary for public safety, but -- especially given the historical underpinnings of the Eighth Amendment -- those properly involve a very narrow set of cases inapplicable to this run-of-the-mill case.

Knievel v. ESPN (9th Cir. - January 4, 2005)

Here's an opinion that's interesting on several different levels.

First, on the merits, it's somewhat of a toughie. ESPN puts a picture of Evel Knievel on the "extreme sports" portion of its web site in which Evel is hanging out at the 2001 ESPN Action Sports and Music Awards with his right arm around his wife and his left arm around another young woman. ESPN's caption to the photo reads: "Evel Knievel proves that you're never too old to be a pimp." Evel sues for defamation, and ESPN files a 12(b)(6) motion to dismiss.

Now, I'm 100% certain what ESPN meant -- and what virtually everyone who read the photograph would understand ESPN to mean -- by the caption. So, if I were on the jury, I'd clearly rule in favor of ESPN at trial. The harder part is whether ESPN is entitled to prevail on a motion to dismiss. The majority (Tashima and Paez) hold that it is; the dissent (Bea) disagrees. Tough call, at least according to traditional doctrine.

I wonder, however, if the proper result revolves around whether a minority can essentially remove certain contemporary language from public spaces. Assume, for example, that I say on a website (as I hereby do) that "Bruce Springsteen kicks ass." Virtually everyone in the modern era would understand my statement as designed to suggest that Bruce Springsteen's music is very good. But someone unfamilar with contemporary lingo might read the phrase literally and interpret my statement as suggesting that Bruce is guilty of assault. Does the fact that a single person who lives in a cave might read my statement and take it literally mean that I can't make such a public proclamation (or that I risk a trial everytime I do)? This seems antithetical to free speech. But if one person isn't enough, what percentage is? Surely I can be sued if 40% of the public would read the statement in a literal fashion. Where do we draw the appropriate line, and at what stage of the case? So it's a tough (and interesting) case even beyond the factual dispute between the majority and dissent.

Second, civil procedure scholars should find Section III(B)(1) of the opinion interesting for its broad (and, in my view, correct) application of the "incorporation by reference" doctrine as applied to websites. No one else will find that portion of the opinion interesting, of course. But it's worth a mention.

Third, you gotta love the hero worship in the second and third paragraphs of the opinion. Does Judge Tashima moonlinght as Evel's publicist?

Finally, since when does calling someone a "hottie" mean that they're a slut? Both the majority and dissent say so -- the majority once and the dissent twice -- but that's not at all how I've ever interpreted that term. Who's right here; my oh-so-hip self or the panel, the youngest member of which is 70? Please, God, let it be me.

Lacy Street Hospitality Services v. City of Los Angeles (Cal. App. - December 30, 2004)

We don't ask for much from our public servants, and courts generally ask even less. But this seems an eminently sensible opinion holding them to at least a tiny standard of care.

Lacy Street Hospitality Services wanted to modify some of its land use restrictions, and the Los Angeles Zoning Administrator recommended that the city grant its application. But neighbors were opposed, and the matter eventually reached the city council.

When Lacy starts presenting its request at this hearing (which was videotaped), the majority of the council members were either absent, out of their seats, or obviously paying no attention to the hearing. Several were having private conversations with each other. Some were eating or viewing unrelated paperwork. One was even chatting on his cell phone.

It gets so bad that, three minutes into the presentation, Lacy's representative says "it doesn't appear that too many people are paying attention." Which doesn't help any; the council continues not paying any attention, the member who was chatting on his cell phone makes another call, and another member walks clear across the council chamber to have some more private conversations. At the end of the hearing, adding injury to insult, the council denies Lacy's request.

Justice Rubin clearly gets it right, in my view, by granting Lacy's administrative writ of mandate and remanding the matter back for another hearing. Not that the council is likely to make a different decision, mind you. But Lacy is surely entitled to make its case before a decisonmaker who is at least marginally paying attention.

Indeed, my only objection is that the Court of Appeal made the parties bear their own costs. Lacy wasted all this time at the hearing and then is forced to spend all this money on an appeal it should never have had to file but for the council's incompetence. Throw 'em a bone, Larry. Give Lacy its couple of hundred bucks in costs.

P.S. - Not that it matters much to the holding, but Lacy Street is a strip club whose request, inter alia, was that it be allowed to push back its opening hours to 11:00 a.m., "[c]laiming it needed longer operating hours in order to make a profit." I admit that I don't know much about the industry, but is the "I-am-desperate-to-see-a-naked-woman-before-lunchtime" crowd really the make-or-break clientele here?

United States v. Gordon (9th Cir. - December 30, 2004)

They train 'em well at Stanford Law School. Here's the "disappointing story of a promising federal appellate law clerk gone bad." How bad, you ask? How about five and a half years "in a federal pound you in the ass prison" (language by Michael Bolton in "Office Space," not me) plus a restitution order of over $27 million. Pretty bad.

On the upside, you've generally got to have had $27 million before you're ordered to give it back. And he did. Plus he got to clerk for the Seventh Circuit, which obviously taught him some valuable lessons. So did being the managing editor of the Stanford Law Review. That's precisely the kind of judgment by the members of that august journal that led them to publish Shaun P. Martin, Intracorporate Conspiracies, 50 Stan. L. Rev. 399 (1998).

Anyway, Gordon made boatloads while an investment banker for Goldman and First Boston (for more quality stories about the latter entity, read Frank Partnoy's book) and then at Cisco during the go-go days in Silicon Valley between 1995 and 2001. But wanted more, more, more. So why not steal it? Which he did. But got caught. Hence the prison time. Moral to the story (as we used to say at Dartmouth): "Don't steal. Don't get caught stealing."

P.S. - No idea if this is the same guy, but there's a "Robert S. Gordon" who graduated from Stanford Law School who's still a member (albeit inactive) of the State Bar of California. Includes his address if you want to write.

In Re: Vickie Lynn Marshall (9th Cir. - December 30, 2004)

Hat's off to Judge Beezer. His opinion in this case is all about arcane issues regarding the proper scope of the probate exception to federal subject matter jurisdiction. Unless you cared deeply about procedure (which, of course, I do) you'd entirely snooze through this opinion, and even that's in the unlikely event you bothered to read it. The only thing in his opinion that might make you pause is why this arcane appeal involved, as Judge Beezer noted, "440 pages of appellate briefs . . . [and] one of the most extensive records ever produced in the Central District of California."

This assumes, of course, you've been living in a cave for the last three years, and don't know the alias of "Vickie Lynn Marshall." Congrats to Judge Beezer for simply doing his job rather than including any references -- which were all in the brief -- to Anna Nicole Smith, stripping, relentless adultery, peeing in the bed, reality television, and the like.

It's all about the probate exception, baby.

Arnold v. California Exposition and State Fair (Cal. App. - December 29, 2004)

Sometimes judicial opinions can be very funny. Other times the court is trying way too hard. Here's an example of the latter. Since it's a case involving a former harness operator who's trying to get a contract to operate a racing facility, Justice Davis works mightily to insert lines claiming that the plaintiff "seeks another spin around the track" and is "chomping at the bit" to prevail. Let it go, Rod.

United States v. Bad Marriage (9th Cir. - December 30, 2004)

Here's a depressing example of the consequences of alcoholism, particularly for some Native Americans.

First, the offense that gave rise to the appeal. The defendant in this 9th Circuit case was Vernon Lee Bad Marriage, Jr. (not a great start to a first date: "Q. What's your name? A. Vernon. Q. Whats your last name? A. Bad Marriage. Q. Oh. Bye."). He's released from tribal jail on January 20, 2003, to attend an Alcoholics Anonymous meeting. Does he attend? Nah. Why go to some boring meeting when this is your alternative:

"Instead, he went to the home of Leeta Old Chief, his girlfriend. After having consensual sex, the couple drove to visit friends. At Bad Marriage's sister's house, an argument ensued between Bad Marriage and Old Chief, and he began hitting her. The two [then] went to the old rodeo grounds behind his sister's home . . . . [where he] kicked and beat Old Chief in the thighs and pelvis . . . . [and] had anal sex. Old Chief [] gave conflicting accounts of whether the [anal] sex was consensual or forced."

Ugly. So he's charged and pleads guilty to assault resulting in serious bodily injury. The trial judge departs upward based upon his prior criminal history, and Bad Marriage gets sentenced to 41 months.

Why depart upwards? Maybe it has something to do with Bad Marriage's 95 prior criminal convictions, 35 of which were in state court (in Washington and Montana) and 60 of which were in the Blackfeet Tribal Court.

An obvious case for upward departure, right? Depends. Most of his tribal convictions are for disorderly conduct or public intoxication (and some for escape from tribal jail and assault). His state court convictions are for things like theft (15+ -- "the most expensive item that Bad Marriage is described as having stolen is a few cases of beer"), trespass (10), assault (4), DUI, obstructing a policy officer, and disorderly conduct. See any pattern? The guy is a posterchild for alcoholism.

So the factual history of the case is both depressing and instructive. The Ninth Circuit's response is also very interesting. The panel is Ferguson, Pregerson, and Callahan. Not exactly a tough call to figure out how that panel is going to split in a case like this.

Ferguson and Pregerson reverse the upward departure, while Callahan would affirm. Judge Ferguson begins the majority opinion: "This case is a powerful indictment of the criminal justice system. Our social and penal policies are failing to alleviate alcohol abuse on Indian reservations and the crime to which it arises. These problems cry out for treatment, not simply more prison time." When it starts like that, you know where it's ending up. Judge Callahan is hardly the most hard core right-wing conservative on the Ninth Circuit, but she's also far from having the same kind of soft spot at Ferguson and Pregerson. So her reaction is also pretty much what you'd expect: paeons to the problem but insisting that the solution does not lie with the judiciary. "Alcohol abuse is a devastating problem on Indian reservations. It is a problem, however, that the majority opinion does nothing to alleviate."

An interesting case all around.