Thursday, March 31, 2005

Michaelis, Montanari & Johnson v. Superior Court (Cal. Ct. App. - March 29, 2005)

This case pits Justice Mosk, who dissents, against Justice Armstrong, who wrote the majority opinion. The USC Law graduate wins the vote. But the Harvard Law graduate gets it right.

The issue is whether a law firm was allowed under the California Public Records Act to obtain copies of proposals for the lease of a hangar facility at the Van Nuys airport after the deadline for submission had expired but before the City selected the successful bidder. The trial court held that the City of Los Angeles could delay disclosure of these competing proposals until after negotiations with the successful bidder had concluded. Justice Armstrong reversed. His basic argument was that there was no compelling interest in keeping these proposals secret because the proposals couldn't be changed after they were submitted, and that, in any event, disclosure would only help the City's bargaining position by revealing to the successful bidder "that there are competitive proposals waiting in the wings."

But Justice Mosk is entirely correct that the fact that there indisputably are post-submission negotiations proves that the proposals can -- and routinely are -- changed after the proposal submission date, presumably as the City negotiates with the sucessful bidder to clarify the bid and obtain an even better proposal. Contrary to Justice Armstrong's assumption, disclosure of the competing bids might well reveal that there aren't any competitive proposals waiting in the wings, thereby encouraging the successful bidder to refuse to budge during negotiations with the City. So there is indeed a substantial reason to withhold this information.

Sure, the records should be disclosed. The City should be permitted to negotiate with the successful bidder and, promptly after these negotiations have concluded, the records should be made public. That way the second-place (or any other frustrated) bidder can have all the information necessary to challenge the award and, if possible, demonstrate favoritism in the selection of the winner. But there's no good reason to harm the negotiating process by earlier disclosure. Which is why I'd have voted with Justice Mosk rather than Justice Armstrong. Unlike Justice Turner, a UCLA Law graduate who sides with his cross-town colleague from USC. And, in doing so, lets the panel reach an erroneous result.

Wednesday, March 30, 2005

Consumer Cause v. Mrs. Gooch's Natural Food Markets (Cal. Ct. App. - March 30, 2005)

It's rare that you find an opinion that was fine when initially published but subsequently "corrected" in a way that is just plain wrong. This case, however, is apparently the exception that proves the rule.

Justice Perluss initially writes a good opinion that rightly holds that an objector who convinces a court not to certify a class can't obtain fees (since, at least in a case like the one here, there's no one from whom to obtain such fees). There are some higher level arguments that might suggest that a fee award might be proper, but these arguments apparently aren't made, so Justice Perluss reaches the right result.

But then the objector moves for a rehearing, which -- as usual -- is promptly denied. But the Court of Appeal, as it sometimes does, responds to the request by making a minor change in the opinion in order to respond to a particular argument made in the motion; here, by adding a single footnote. Usually that's just fine. But the problem here is that this footnote is not only wrong, but affirmatively embarrassing, since it clearly misreads the holding of a seminal Supreme Court case (here, Phillips Petroleum v. Shutts).

The added footnote contends that the objector didn't add anything of value by decertifying the class since the class members would not have been bound anyway since there was only minimal notice to the class, and cites (and quotes at length) from Shutts as the exclusive basis for such a holding. But we read Shutts every year in my Civil Procedure class, and the error made by Justice Perluss is one that even my first-year students rarely make. First, Shutts doesn't apply because -- as Justice Perluss' own quotation reveals -- the due process limits articulated therein expressly only apply "to claims for money damages or similar relief at law," whereas in the present case the predominant (indeed, virtually exclusive) claim was for injunctive relief. This is a critical distinction, as footnote 3 of the opinion in Shutts expressly reaffirms. Second, as nearly all of my first-year students would be able to tell you, Shutts also may not apply because the Supreme Court expressly limits the constitutional holding therein to "absent" plaintiffs. Justice Perluss appears to believe that by "absent" the Court is merely referring to "unnamed" plaintiffs, but since Shutts is all about the ability to bind nonresident unnamed plaintiffs without minimium contacts with the forum state, the better view is that this holding only applies to such plaintiffs, and hence would be inapplicable to the present case (which involved a California class under California law).

In short, Justice Perluss misreads Shutts. Which is somewhat surprising, since he's definitely a smart guy. Regardless, the opinion was better without the footnote than with it.

Solis-Espinoza v. Gonzales (9th Cir. - March 23, 2004)

An excellent opinion written by Judge Clifton.

Solis-Espinoza was raised in the United States by his biological father (a Mexican citizen and lawful permanent resident of the U.S.) and his wife (a U.S. citizen). His biological mother was a Mexican citizen, who abandoned him as a child. The husband and wife raised Solis-Espinoza as their own notwithstanding the fact that he was conceived through an extramarital dalliance involving the husband; indeed, the wife is listed as his mother on his birth certificate.

The INS tries to deport Solis-Espinoza after he's convicted of possession of methamphetamine for sale. Judge Clifton rightfully holds that they can't do so because he's a citizen. His opinion is cogent, analytical, equitable, and well-reasoned. It's an opinion we'd all be proud to pen. Good job.

Tuesday, March 29, 2005

Taylor v. Westley (9th Cir. - March 29, 2005)

Judge Kleinfeld authors a fairly stinging -- and accurate -- indictment of California's unclaimed property laws in this case. On the merits, Judge Kleinfeld (rightfully) holds that the Eleventh Amendment does not bar most of the claims of this ostensible class action, which alleges that California incompetently and unconstitutionally escheats "unclaimed" property even when the owners of that property are easily located. They just want their own property back, which California is supposed to be holding in trust (at least for a while). Getting your own stuff back isn't a claim for damages barred by the Eleventh Amendment. Plus they're asking for prospective relief as well.

Coincidentally, this case came down a couple of days after I did my biannual "search for unclaimed property that belongs to your friends." I heartily recommend the practice. There were several thousands of dollars out there that belonged my colleagues on the USD faculty, plus many thousands more that belonged to friends. A charitable way to spend an afternoon. Here's the link to California's site.

SEC v. Yuen (9th Cir. - March 22, 2005)

You've got to hate it when your colleagues take your case en banc and then outvote you 10-1. Sort of a slap in the face. Which is what happens to Judge Bea here.

The appeal involves $37 million in payments that Gemstar made to some of its insiders during a period in which Gemstar was being investigated by the SEC. The SEC got those payments placed into a 45-day escrow pursuant to Sarbanes-Oxley because they were "extraordinary payments" and the insiders objected. Judge Bea -- alongside Judge Rawlinson -- held that they probably weren't extraordinary, over Judge Trott's dissent.
Then the case gets taken en banc. And the only one who votes in favor of Judge Bea's opinion is Judge Bea himself (Judge Rawlinson having been spared from the indignity of being crushed by the majority by fortuitously not having been selected for the en banc panel). Everyone else -- from all corners of the political and ideological spectrum -- rejects Judge Bea's conclusion and votes to affirm the district court.

That's gotta hurt.

P.S. - This is hardly the first time that you've seen Judge Bea outvoted. But never this badly.

Monday, March 28, 2005

Darulis v. Garate (9th Cir. - March 22, 2003)

It's pretty darn rare to see Judges Wallace and Bybee join an opinion that finds in favor of a pro se litigant, and rarer still to see Judge Wallace write such an opinion. Just for fun, I did a Westlaw search to see how many I could find. I found tons where Judge Wallace wrote a majority opinion against a pro se litigant. And I found several where Judge Wallace dissented when the majority found in favor of the pro se litigant. But I coudn't find a single one where he found in favor of the pro se. I'm sure they're out there. Somewhere. I just couldn't find them. Even after reading lots and lots of cases.

Which suggests, inter alia, that this is not exactly the panel you'd want if you're representing yourself on appeal. That said, Judge Wallace does indeed find in favor of the pro se litigant here. Sure, Judge Wallace dismisses his lawsuit on the merits. But he simultaneously finds that the district court should nonetheless have awarded Darilus $90 in costs since the defendants refused to waive service of process under Rule 4(d).

So a stunning win for Darilus.

Judge Wallace is, of course, correct with respect to the $90. Plaintiffs are still entitled to their costs under Rule 4(d) if defendants refuse to waive service of process, even if the plaintiff ends up losing the lawsuit. Rule 4 imposes a duty on defendants to minimize expense and waive formal service if a proper request is made, as was done here. Even in a lawsuit without merit. When you don't comply with that obligation, you must pay. As Judge Wallace rightly finds here.

Friday, March 25, 2005

Stuard v. Stewart (9th Cir. - March 22, 2005)

Judge Kleinfeld writes an excellent opinion in this case. The opinion is extremely well-written. It is fairly short, erudite, persuasive, and -- at times -- even a bit witty. And it reaches the right result: that Stuard was not entitled to habeas merely because he insisted on going to trial early -- within a period in which he had a right to have his trial commenced pursuant to Arizona law -- even though this meant his attorney would be less prepared. If state law gives you the right to go to trial early, you can choose to exercise that right if you want, but alongside that choice comes the risk that your attorney might be marginally less prepared as a result. It might be different if state law required the defendant to go to trial early; e.g., three days after the indictment was issued. But that wasn't the case here; rather, it was entirely up to Stuard.

So rightfully no habeas.

Thursday, March 24, 2005

People v. Hagedorn (Cal. Ct. App. - March 17, 2005)

Okay, Justice Ardaiz. I guess you've convinced me. It appears that California really does -- albeit inartfully -- call what David Hagedorn did in this case a crime. So I guess that I (somewhat reluctantly) agree with your holding.

But am I the only one who senses a bit of injustice here? Here's what Hagedorn did. Hagedorn did some work under a different name (Arthur Pettet) and got paid by check. The check was made out to "Arthur Pettet," of course, since that was the name that Hagedorn used when he did the work. Hagedorn cashes the check at a check-cashing store using Pettet's identification (without his consent). That's it. It's not that Hagedorn is stealing money from anyone. He's just getting paid for the work he did.

Assume that's nonetheless a crime. What's the appropriate sentence? Probation? Maybe a tiny bit of time in jail?

Try three years of prison. At least according to Judge Westra (up in Placer County), who not only refuses to let the offenses be misdemeanors, but who sentences Hagedorn to the upper term for the felony.

That seems overly harsh. Plus, what the heck is the order of restitution doing in here? Who exactly did he steal money from or harm? It was a valid check, so the check-cashing store gets paid. Hagedorn did the work, so it's not like Pettet had money stolen from him or his credit ruined. Who exactly is the victim who's harmed who's entitled to restitution here? I'm a bit baffled.

Taghadomi v. United States (9th Cir. - March 22, 2005)

I've heard some bad honeymoon stories in my time. But this one takes the cake.

A couple rents a kayak for their honeymoon in Maui. The winds pick up and the wife is thrown overboard and eaten by a shark, while the husband gets marooned on an island for three days until he's finally rescued.

I'm not going to talk about the opinion, which is about whether the resulting lawsuit against the United States (for their allegedly crappy rescue efforts) are governed by the Suits in Admiralty Act, the Public Vessels Act, or the Federal Torts Claim Act. I just want to mention to underlying debacle of a honeymooon.

P.S. - The one thing I can't figure out is where the husband was allegedly marooned. Judge O'Scannlain's opinion just says that the husband "washed up on an island and was stranded for three days before he was rescued." I don't know of -- and can't find -- any tiny islands off Maui. What island are we talking about here? Gilligan's Island?

UPDATE FROM THE MASSES: Someone (not for attribution) e-mailed me that the island in question is Kahoolawe. Not exactly tiny. But not exactly a vacation paradise either, since it's described as "badly contaminated" and full of "dangerous unexploed ordinance." I'll be sure to visit when I'm in Kuaui in May. Definitely.

Wednesday, March 23, 2005

People v. Wheeler (Cal. Ct. App. - March 22, 2005)

Richard Wheeler is badly addicted to Vicodin, and forges a prescription to obtain it. He's (easily) caught. He wants diversion pursuant to Proposition 36. The trial court refuses, and in this opinion, Justice Nicholson affirms.

Wheeler's basically being convicted for illegally possessing Vicodin. I'm fairly confident that the drafters of Proposition 36 would have wanted him to be eligible for diversion. Nonetheless, I agree with Justice Nicholson that, as written, the statute doesn't cover him. He's charged with writing a forged prescription. That's not simple possession, and there are separate reasons why we might want to ensure the integrity of the prescription distribution chain. The statute could have been written to cover Wheeler. But it wasn't. So he's not entitled to diversion.

Parenthetically, Justice Nicholson doesn't note -- but it's worth mention -- that some people charged with Wheeler's offense may well be entitled to diversion, even if he's not. Section 11368 of the Health and Safety Code is applicable not only to "[e]very person who forges or alters a prescription," but also to anyone who "obtains any narcotic drug by any forged, fictitious, or altered prescription" or who "has in possession any narcotic drug secured by a forged, fictitious, or altered prescription." Those last two categories would indeed be eligible for diversion under Proposition 36. But Wheeler wasn't charged with those (since, inter alia, the pharmacist gave him calcium pills rather than Vicodin), so Proposition 36 doesn't apply to him. But the same might not be true for other Section 11368 convictions, to which Proposition 36 would indeed apply. (There's a separate point about whether it's rational to leave Proposition 36 eligibility to the unfettered charging discretion of the prosecutor in the typical Section 11368 case, in which multiple sections of this same statute are applicable, but I'll leave that topic for another time.)

Arias v. Katella Townhouse Homeowners Ass'n (Cal. Ct. App. - March 21, 2005)

Here's a case where Justice Fybel clearly gets it right. The essential holding is that voluntary payments made by the defendant after a Section 998 offer expires are considered part of the plaintiff's judgment. For example, you can't make a $50,000 998 offer, make a voluntary payment of $30,000 60 days later, and then obtain your post-offer costs if the plaintiff obtains $25,000 at trial. Sure, $25,000 is less than $50,000. But it's not less than $55,000 (i.e., $25,000 plus the prior $30,000 payment).

Which similarly means you can't make a $100,000 payment the day before trial in order to make sure that your prior $50,000 998 offer is going to be higher than plaintiff's eventual judgment. Of course that's the rule. It's silly to argue otherwise (as counsel for defendants, Arthur Travieso and James Nguyen of Lewis Brisbois vainly did here). Not worth the ink that was spilled, much less the legal fees attendant thereto.

Tuesday, March 22, 2005

People v. Jungers (Cal. Ct. App. - March 17, 2005)

Domestic violence is an obvious -- and pervasive -- problem. But courts can't respond to it by ordering a husband not to have a relationship with his spouse. Particularly when, as here, the spouse declares that she doesn't fear her husband and wants to have a martial relationship with him. That wouldn't be right. And it wouldn't be constitutional.

But try telling that to Justice Irion, who holds to the contrary in this case.

Robert Jungers committed domestic violence against Cary Martinez, who was the mother of their child. The court orders probation, which includes a prohibition against Jungers contacting Martinez. She can contact him, but he can't contact her. No problem. That's reasonable. Fine so far.

But then Jungers and Martinez marry. In light of the marriage, Jungers wants to modify the condition of his probation so that he can contact his wife. He's willing to leave a prohibition that precludes him from annoying or harassing her. But he wants a real martial relationship. Martinez supports the motion, and declares that she's not afraid of her husband and wants a relationship with him. But the court refuses: Jungers can't ever initiate contact with his wife and can't ever visit her home.

That's just wrong. Justice Irion concludes that it's a reasonable condition of probation because it's designed to avoid further domestic violence. That's its purpose, all right. And I'm sure that it accomplishs it. But that fact does not make it a reasonable condition of probation. Nor one that's constitutionally permissible. People are entiled to a martial relationship. That includes telling your spouse that you love her even if she doesn't tell (or ask) you first. It includes calling your spouse when your child is sick or injured even if she has not initiated the contact. It includes making love to your spouse in your marital home. But Jungers can't do any of these things. Which is why the restriction is impermissible.

Sure, the probation condition cuts down on the risk of domestic violence. So would an order precluding Jungers from getting married in the first place or an order that compelled him to leave the country. Those orders are impermissible because they're not narrowly tailored. So's this one. It violates the rights of both husband and wife.

I respect the members of this panel. But they got this one wrong.

Monday, March 21, 2005

Robbins v. Regents (Cal. Ct. App. - March 16, 2005)

A bad decision, both on the procedural issues as well as on (at least part of ) the merits.

Some adult leaders and a couple members of a youth 4-H club make a film and submit it to the San Fernando Valley Fair for judging. The film is no "Reservoir Dogs" (or even "Pulp Fiction"), but it is a little bit messy, and includes a depiction of some tormented students killing their tormentors with machetes. The 4-H is irate, so they suspend the youths involved (as well as the responsible adults) from further participation in the 4-H club for around a month. Allegedly because they're concerned that this adult-sponsored film demonstrates a substantial risk that these kids will commit an actual Columbine-type massacre. Since the 4-H is a state actor (controlled by the Regents of the University of California), the plaintiffs sue for damages and injunctive relief. Justice Mosk not only affirms the dismissal of the suit on qualified immunity grounds, but also affirms the award of attorney's fees to the defendant, holding that the suit was objectively frivolous.

First, the procedural mistake. The relevant defendant moves for summary judgment on the basis of an affidavit she submits alongside the motion in which she describes her alleged conduct and motivation in suspending the students. Plaintiffs notice her deposition, but she refuses to show up. Plaintiffs don't promptly move to compel -- a mistake, for sure -- but instead claim in their opposition to her motion for summary judgment that her affidavit should be ignored because she's refused to be deposed, and that they need the deposition to obtain evidence that disproves her affidavit. The trial court rejects plaintiffs' claims and, based on defendant's affidavit, grants the motion for summary judgment.

Section 437c(h) would normally require a continuance of the summary judgment motion in such settings. One could make a plausible argument that plaintiffs didn't make the required showing that the requested deposition was necessary to obtain sufficient evidence to refute the summary judgment motion. One could make an even more plausible argument that, on the facts of this case, plaintiffs were insufficiently diligent in attempting to obtain the deposition. But Justice Mosk doesn't make any of those plausible arguments. Rather, he holds that plaintiffs waived this issue because they never formally moved to either compel or to continue the motion. But that's a clear misreading of the law. The courts have constantly viewed it as sufficient to make a Section 437c(h) request in your opposition to the motion for summary judgment rather than filing a formal separate motion. Indeed, in practice, that's precisely what most attorneys do. And that's exactly -- although inartfully -- what plaintiffs did here. They said that the motion shouldn't be granted without the deposition. That's enough to avoid waiver. You might perhaps have second-level arguments about plaintiffs needing affidavits or something like that, but not only does Justice Mosk not make any such claim, but plaintiffs may well have submitted the necessary paperwork anyway (one can't tell from the opinion). So Justice Mosk just gets this part wrong. And makes the law a little worse in doing so.

Second mistake. On the merits, Justice Mosk awards defendant her attorneys' fees because the lawsuit was frivolous. I couldn't more strongly disagree. Maybe defendant is right that her actions were reasonable, or at the least that she was entitled to qualified immunity. Though, given the facts, I could see a strong argument to the contrary. Remember: we're talking about suspending kids for a month for creating a movie -- under clear adult supervision -- that's not substantially different than those you see on television. I see a strong, strong argument that such conduct is protected by the First Amendment. But even if you think it's not, such a claim is hardly frivolous. Not in the slightest.

What's even more bizarre is that Justice Mosk holds that this lawsuit is frivolous almost exclusively on the basis of LaVine, a Ninth Circuit case that held that a troubled loner who wrote a violent poem about killing his classmates could permissibly be suspended from school. That case is distinguishable. It's one thing to hold that a disturbed student can be suspended when he, for no apparent reason, pens a disturbing personal missive that's facially about his own life and murders he might commit. This conduct is hardly comparable to the creation of a movie by a 4-H club under adult supervision for submission to a county fair. It's apples and oranges. Even if the content of the speech is slightly similar, the circumstances are worlds apart.

Regardless, even if you don't believe in the distinction, remember that the merits of LaVine itself garnered the dissents of both left- and right-wing members of the Ninth Circuit, including probably the brightest stars on both sides of the political spectrum! Judges Reinhardt, Kozinski, and Kleinfeld dissented from the denial of rehearing en banc in LaVine, arguing that even the bizarre student speech in that case was protected by the First Amendment. There's no doubt whatsoever how these jurists would vote in Robbins' case. So since the holdings of the Ninth Circuit are not binding in California state courts, what Justice Mosk is essentially contending is that the holdings of these jurists are objectively frivolous: that no reasonable mind could possibly hold such a view of the First Amendment. Which is absurd.

I generally like Justice Mosk's opinions. I also think that he's a bright guy. But he gets this one horribly wrong.

Thursday, March 17, 2005

Allied Fire Protection v. Diede Const. Co. (Cal. Ct. App. - February 24, 2005)

This case is admittedly not one that most people would be interested in reading. But I wanted to mention it nonetheless because I'm profoundly conflicted about whether the Court of Appeals reaches the right result.

At issue is basically the manner in which res judicata -- in particular, claim preclusion -- properly applies to supplemental complaints (or, more accurately, the failure to assert such claims). Justice Morrison holds that claim preclusion doesn't apply essentially because courts can never be sure whether the party would have been permitted to amend the complaint to include the supplemental allegations, and hence that the proper bright-line rule is to apply claim preclusion only to claims that existed at the time of initial filing. There is a minor problem with this justification, as parties in federal court generally have an absolute right to amend under Rule 15(a) for 20 days. Nonetheless, overall, I mostly agree with Justice Morrison that, as a general rule, claim preclusion shouldn't apply to supplemental (i.e., post-filing 15(d)) causes of action.

(Parenthetically, I was perplexed to find counsel for Allied arguing that California law applies to determine the res judicata effect of a federal judgment and Justice Morrison repeatedly citing to California cases for the proper resolution of this issue. Federal -- not California -- law clearly applies here. Cut that California stuff out.)

So I largely agree with Justice Morrison's overall aproach. The part of the case as to which I'm somewhat conflicted, however, is whether this principle properly applies to the present dispute. The omitted claim here is not your classic supplemental cause of action; in particular, it is not one that arises out of "transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented" under Rule 15(d). Rather, the cause of action here relates to fraud that indisputably occurred prior to the filing of the original complaint, but that was only discovered thereafter.

Justice Morrison holds that the general "no preclusion" rule applies in such a setting because a cause of action for fraud doesn't accrue until the fraud is (or reasonably should be) discovered. But that accrual rule only concerns the proper limitations period, and doesn't at all reflect when the fraud claim actually arises -- which exists upon the commission of the fraud and occurrence of damage. The fraud claim exists -- and is perfectly valid -- even if the damaged party doesn't know about it. So Justice Morrison's argument in this regard simply doesn't work.

Plus, it seems to me that in some settings, Justice Morrison's rule is clearly wrong. Imagine that a plaintiff sues defendant for straightforward breach of contract. Sixty days later, in discovery, plaintiff learns that the defendant never intended to complete the contract, and hence was also guilty of fraud. Justice Morrison's rule would suggest that plaintiff could effectively get two bites at the apple by refusing to amend to add the fraud claim, as claim preclusion wouldn't apply since the fraud claim didn't accrue until after the initial complaint. But the efficiency and fairness rationales of claim preclusion seem to clearly suggest that such a result would be wrong. And yet it follows directly from Justice Morrison's holding.

None of these issues are addressed by the Court of Appeals. And they've got me concerned. I feel like the overall approach articulated by Justice Morrison is right, but am quite concerned about both the somewhat misguided nature of his analysis as well as the application of the general rule to this particular case. I initially thought that Justice Morrison got it right. Now I'm very much not so sure he did.

Wednesday, March 16, 2005

Mondero v. Salt River Project (9th Cir. - March 15, 2005)

I don't really understand why this opinion was published. It's an entirely fact-specific analysis of a particular Title VII case and why the specific evidence presented by plaintiff didn't raise a genuine issue of material fact sufficient to survive summary judgment The case raises utterly no new legal issues. The opinion contains no new legal analysis. It's the classic case of an opinion that is typically resolved in a memorandum disposition.

Not that I'm outraged or anything. I understand there's an argument that every single appellate case, no matter how minor, should be published. But I don't think that's Judge Alarcon's policy. Or, at a minimum, it certainly wasn't his policy when I interviewed to be one of his law clerks, oh so many years ago. And I doubt it's changed.

Maybe the law clerk for extern responsible for the opinion wanted to see it in print. Who knows.

Tuesday, March 15, 2005

In Re Elijah V. (Cal. Ct. App. - March 15, 2005)

I was happy to see that Justice Huffman (belatedly) decided to published this opinion. It addresses important issues regarding the ability of biological fathers to gain custody children born as a result of an adulterous tryst with a married woman. Justice Huffman carefully analyzes the issue and comes to what I believe is the legally correct result: that the biological father here was not entitled to custody, even after the child was taken from his mother. It isn't a results-oriented decision. There are equities on both sides. But Judge Huffman resolves the resulting dispute in a neutral and dispassionate manner that's consistent with existing law. Good job.

One other reaction. The husband here married his wife in September 2001. A short two months later, on November 12, 2001, the husband has sex with his wife and -- that same day -- the Navy ships him out on deployment. One week later, the wife has sex with another person and (most likely) conceives a child with him. Remember: She's been married for a whole two months now, September 11 has just transpired, and the husband just shipped out to defend our country. And the wife can restrain herself from committing adultery and conceiving a child with another person in such settings for only a week.

Now, I'm no prude. But that ain't right.

Thomas v. Fry's Electronics (9th Cir. - March 15, 2005)

Come on, guys. You have to do a little more work than this.

Judge Whalen held below that California's anti-SLAPP provisions don't apply in federal court because they are inconsistent with federal notice pleading standards and hence invalid under the Supreme Court's (relatively recent) opinion in Swierkiewicz. The panel here -- Nelson, Silverman, and Tallman -- responds with a perfunctory three-paragraph per curiam opinion which, in essence, simply states: "No, they're not."

It's not that I disagree with the result reached by the panel. I don't. I think they got it right. And it's also not that I dislike short opinions. Far from it. But Jude Whalen is not some insane district court judge flying off the deep end and doing something obviously wrong. If that's were case, then by all means, I'd see why the panel would want to give him a perfunctory spanking and simply say "Reversed." But that's just not true here. Judge Whalen is smart and hardworking. Moreover, it's a complicated issue, and there are real arguments on both sides. For the panel to issue a published opinion whose analysis is contained entirely in two sentences is, in my view, inappropriate. Particularly given both the importance of the issue and the fact that it is one on which reasonable minds might -- indeed, do -- disagree.

Adding insult to injury, the panel not only issues a perfunctory per curiam, but does so a mere seven days after the case was submitted. And also decided the case entirely without oral argument.

Just getting the right result isn't always enough. The issue -- and the parties -- deserved more respect than was displayed by the panel.

Monday, March 14, 2005

People v. Panah (Cal. Supreme Court - March 14, 2005)

Here's another decision where the California Supreme Court again unanimously upholds the imposition of the death penalty against the defendant. In a 133 page opinion. It's a whopper.

For what it's worth, I agreed with the result, and didn't find any prejudicial error. There are assuredly parts of the opinion that are fairly weak; for example, I disagreed with some of the discussion of exigent circumstances that begins on page 82, and the claim (on page 96) that the "best evidence" objection was incompletely made is utterly lame. That said, whatever errors were made were harmless, so the result was legally correct.

You again get a sense from the overall opinion that it exemplifies yet another results-oriented approach by the California Supreme Court to these types of cases. Even if the result is correct (as I believe it to be here), it's still depressing.

One other thought. The murder here is senseless and horrible (of a child). But I also leave the opinion with a keen sense of the arbitrary nature of who gets sentenced to death. The defendant here is basically a nut job; he's not legally insane, but he's still utterly irrational. The evidence against him is crystal clear, the jury and community can't help but want him to die, and the prosecution continues to offer him a plea that would avoid the death penalty, but defendant's simply too nutty to accept it. That's his right, of course. But it's frustrating that the dispositive factor controlling who dies and who lives is often -- as here -- how irrational the defendant behaves after committing the offense. It makes me a bit uneasy.

Sunday, March 13, 2005

Recinos de Leon v. Gonzales (9th Cir. - March 11, 2005)

The panel in this case was tough but fair. The petitioner filed his brief in this immigration case in May 2003. The INS first asked for (and received) an extension to file its responsive brief. Then asked for (and received) a temporary stay. Then asked for another extension -- which it received, but with an admonition that further extensions would be disfavored. Then -- unfazed -- asked for another extension. Which was granted. And, now emboldened, filed its responsive brief over three months after the court's last deadline had expired.

The INS filed a motion, alongside its belated brief, to accept the tardy submission. Even though the motion was unopposed, the panel denied the motion and struck the brief.

Notwithstanding its penalty, the panel's order was more than kind. It expressly noted, for example, that it was "not unsympathetic to the workload pressures" that confront counsel for the INS. But it also noted that the same attorney who represented the INS here had also filed several other late briefs with the Ninth Circuit. And also noted that, in any event, "at some point, scarcity of personnel and resources is no more a reason for the government than for other parties for filing legal papers many months late." So the panel struck the brief. But simultaneously ended the opinion by noting that no sanctions against the individual INS attorney would be appropriate. As a final act of generosity, the panel also never mentions counsel's name. Indeed, unlike almost every Ninth Circuit case, in which the published opinion lists all counsel of record, this one completely omits any such reference. (This presumably was intentional, since the same panel's published opinion on the merits includes these omitted details.)

Which was incredibly nice of the panel. For naught. Even a cursory review of the prior cases cited by the panel confirms that the INS lawyer's name is William C. Erb, Jr., who's at the DOJ. Sorry about that, Bill.

Friday, March 11, 2005

People v. Navarro (Cal. Ct. App. - February 25, 2005)

I didn't like the overall tone of this case, which I thought was fairly relentlessly results-oriented. I'll nonetheless only mention one substantive point about the Court of Appeal's holding.

Justice Ardaiz (properly) reverses defendant's conviction for attempted kidnapping during the commission of a carjacking because the text of Section 209.5(a) of the Penal Code requires an actual carjacking (not merely an attempt), and there was no actual carjacking here. So far, that's fine (and the Legislature can, and probably should, amend the statute to cover attempts). But then Justice Ardaiz decides that he'll replace this reversal of Count Six (the Section 209.5 conviction) by entering -- on appeal -- a new conviction not only to one lesser-included offense, but to two such offenses. In other words, the price that defendant pays for his appeal is that he obtains a reversal of one felony conviction at the cost of the appellate court sentencing him to two felony offenses.

That ain't right. I don't have a real problem with an appellate court replacing one defective conviction with one lesser-included offense. But you can't replace one conviction with two. It's just wrong, and I don't know of any other case that's ever allowed it. Plus, even beyond its propriety, I think there are serious due process and double jeopardy problems that attend such a result. This is especially true in California, since under the Three Strikes law, the Court of Appeals' entry of two "replacement" convictions means that Navarro now has two strikes instead of one. Justice Ardaiz holds that this appellate-imposed sentence doesn't violate double jeopardy because as long as Navarro never commits another crime, he'll still serve less time, and so it doesn't "currently" violate double jeopardy. But you don't wait to decide whether there's a double jeopardy problem. The sentence is either permissible or impermissible, and its validity doesn't vary depending upon what in fact happens in the future. A sentence on appeal that says "We'll reverse your 5-year conviction and sentence you to 4 years and 364 days, plus 50 years if you ever commit another crime" is impermissible now, not just if and when the defendant reoffends.

Plus, wholly apart from the consitutional problems, there's no principled end to the "multiple sentences on appeal" approach adopted by Justice Ardaiz. Why just two lesser included offense? Why not three? Or six? Or fifty? There are almost always a plethora of lesser-included offenses, and there's no principled basis for deciding how many replacement sentences should be imposed. By contrast, the time-honored principle of one-for-one both makes sense and is eminently fair. There's simply no substantial justification for the novel approach to appellate resentencing articulated and adopted by Justice Ardaiz here. It's wrong.

Thursday, March 10, 2005

Hayes v. Brown (9th Cir. - March 7, 2005)

The California Supreme Court issues a unanimous opinion upholding the death penalty for Hayes in 1990. One of the claims that the Court squarely rejects -- even after a writ of habeas corpus directly raises the issue -- is that the state engaged in misconduct when it allowed (indeed, affirmatively conspired to ensure that) a central witness would falsely testify that he hadn't received a deal for his testimony.

But the Ninth Circuit in this case unanimously holds that the prosecutor did indeed commit such misconduct. With the agreement of such classic liberals like Kleinfeld, Gould, Tallman, and Bybee. (I hope that you sense my dripping sarcasm. Of course, as you might expect, these four want to find that the error is harmless, and hence ensure that Hayes still gets killed. But they're outvoted. Since it's not.)

At a minimum, the case demonstrates the value of federal habeas. Even after what I'm sure was a quality, non-results-oriented review of the case by the California Supreme Court. These things sometimes drag on for a reason. Here, it was because the prosecution was being as sleazy as in any case I can recall for a while. (Here's a snippet from the notes of the counsel for the witness that allegedly had no deal: "D.A. rec O.R. on this. Van Oss [the lead prosecutor] is guy to see. . . . THIS IS SECRET INFO!! Don't tell the client, or let the word out, or this guy's a goner.")

A telling case. Here's another tidbit (not mentioned in the case): the prosecutor, Terrence Van Oss, is now a judge in Stockton. Glad to hear it. That's the kind of quality ethics I want to see on the bench.

Garimendi v. Golden Eagle Ins. Co. (Cal. Ct. App. - March 9, 2005)

Make a list of all the "pollutants" you can possibly imagine. Keep going until you've listed 1000 of them. Finished? I'll bet dollars to donuts that "silica" isn't on the list. I'll also bet that the average person wouldn't think that when someone's sandblasting something, the stuff that spews out of the sandblaster -- or off the thing being sandblasted -- is really a "pollutant." Maybe it's "sand." Maybe it's "dust." But not what we'd typically call a "pollutant."

Justice Pollack nonetheless holds in this case that every reasonable insured would, as a matter of law, consider this stuff to be a "pollutant." A court's supposed to interpret insurance policies to protect reasonable coverage expectations. I can't fathom that someone who's in the sandblasting business would think -- even for a second -- that what they're doing is spewing out "pollutants" and that any injury resulting therefrom is accordingly excluded from coverage by an "Absoute Pollution Exclusion" contained in their insurance policy.

This is a holding with which I gotta disagree.

Wednesday, March 09, 2005

Riggs v. Fairman (9th Cir. - March 7, 2005)

It's rare that I can't figure out which side I agree with. But that's in fact the case with this opinion.

Michael Riggs is hungry and homeless when he's charged with petty theft for shoplifting a bottle of vitamins. The prosecutor offers him a five-year deal, but Riggs' attorney thinks they can do a lot better at trial, so Riggs rejects the deal. But Riggs' counsel offers this advice without knowing Riggs' prior history and without telling Riggs -- because she didn't know it herself -- that because Riggs has a record, he's subject to a mandatory term of 25 to life if convicted. Which he totally will be, since the evidence against him is overwhelming.

Everyone on the panel agrees that Riggs obtained ineffective assistance of counsel. The only question is the remedy. California refuses to offer the original deal; at this point, they've decided to stick it to Riggs. Judge Rawlinson (alongside Judge Trott) concludes that the district court could permissibly merely let Riggs go to trial again, at which point he'll clearly be convicted and sentenced to 25 to life. Some victory. Judge Bea dissents and argues that since it's totally clear (which it is) that Riggs would have accepted the offer if he had competent counsel, the district court should have ordered the prosecution to offer the original deal. Which we sometimes do.

The reason that I think I can't decide which side I'm on is partially due to the sharply divergent factual claims that surround the original plea agreement. Judge Rawlinson claims that the only reason the prosecutor made the original plea offer is because she (like defense counsel) also didn't know that Riggs could be charged under the Three Strikes law. If that's the case, I somewhat sympathize with the district court's view that Riggs should not get the benefit of the prosecutor's error. Sure, if he'd have had competent counsel, he would have gotten this benefit. And, sure, only the defendant (not the state) has a constitutional right to competent counsel. But it still seems a bit unfair, and on the remedy side, I just don't know if Riggs is really constitutionally entitled to such a benefit.

By contrast, Judge Bea makes a darn good case that Judge Rawlinson's interpretation of the facts is inaccurate -- that the prosecutor wasn't mistaken about the law and that the only reason the state refuses to offer Riggs the original deal is because Riggs had the temerity (based upon the flawed advice of his counsel) to reject the initial offer. If that's the case, I have no problem with compelling the prosecution to reoffer the deal.

So the question really boils down, in my mind, to which side you believe is more faithful to the facts: Judges Rawlinson and Trott or Judge Bea. Without reading the record, I just can't be sure. I was on board for Judge Rawlinson's view before I read Judge Bea's dissent. It seemed like an easy case. Now I'm much less confident that Judge Rawlinson gets it right.

A toughie.

Tuesday, March 08, 2005

Moreno v. Baca (9th Cir. - March 7, 2005)

I don't know that anyone's entirely in the right on this case. The opinion in which probably ain't long for this world in any event. Which in turn is probably a good thing.

The underlying dispute surrounds whether individuals on probation or parole with a search condition can be stopped and searched without reasonable suspicion. Judges Tashima and Pregerson hold that they can't be, and on that basis they uphold the denial of qualified immunity in a Section 1983 suit by a parolee who was searched without reasonable suspicion. Judge Clifton dissents.

Judge Clifton gets a couple things right, at least in my mind. First, the majority does seem to somewhat reach out to resolve this issue, in a case in which it's arguably unnecessary to do so. Which -- given the history here -- is not really all that surprising, even if it's a bit sleazy. Judge Tashima (who authored the present opinion) was on a panel (in Crawford) in 2003 that held precisely the same thing that Judge Tashima holds here (that parolees can't be searched without reasonable suspicion), over the dissent of Judge Trott. The Ninth Circuit then took the case en banc and did something different, to which both Judges Tashima and Pregerson -- the majority here -- dissented. So you've basically got a panel that dissented in an en banc decision doing what they wanted to do in the en banc. Which doesn't sound so good. Plus, since this is a qualified immunity case, they've got to do so by saying that this right was "clearly established" at the time. So not only that their dissent was the right rule, but also that it was clear. Doesn't sound very credible, does it? It's not.

Which is why I don't think this panel opinion is long for this world. Mind you, although I agree with most of what Judge Clifton says in his concurrence, he's a bit sleazy as well. He concludes his concurrence with a paragraph that argues that future panels shouldn't follow the majority opinion because it's dicta. Which it ain't. Take the opinion en banc if you don't like it. But don't feel free to ignore it just because you don't like it and can (laughably) claim it's dicta.

So the sleaze brush tars pretty much the entire panel here. Which is why I won't cry once it gets taken en banc and the case resolved on a narrow ground. Which is what's going to happen. Just watch.

Robbins v. Alibrandi (Cal. Ct. App. - March 7, 2005)

Justice Stein writes a somewhat compelling opinion in this case, which holds that a court must review the fee component of a class action settlement agreement to determine if the agreed-upon amount is fair. That seems right. Just because the parties agree upon the amount doesn't make it right. Similarly, that the parties allege that they negotiated the substantive terms of the agreement before agreeing upon fees does not immunize the agreement (and fee award) from review.

There was one portion of the opinion, however, that I didn't particularly appreciate. Justice Stein suggests that the lodestar multiplier applied by the trial court -- which was (a fairly high) rate of 2.5 to 3.0 -- was likely inappropriate. Perhaps that's true. But Justice Stein founds this conclusion in part on the argument that the contingent nature and risk of the litigation didn't justify any multiplier. Which seems flatly untrue.

Justice Stein argues that the contingent risk exists only because the case was weak. But at least as articulated by Justice Stein, such a position is both tautological and meaningless. Contingent risk obviously only exists when the likelihood of success is less than 100 percent. (As, of course, it almost always is. Few, if any, cases have an 100 percent chance of success.) Whenever the risk of recovery is less than 100 percent, every case is somewhat "weak". But that doesn't mean that a multiplier based upon contingency is inappropriate. The point of a multiplier is to compensate for the risk of nonpayment. That risk exists for both strong and weak cases, and in order to create appropriate incentives, the awarded compensation must adjust for that risk. Regardless of whether the case is weak or strong, and regardless of the reason for the alleged "weakness".

Viewed (extremely) charitably, perhaps what Justice Stein is saying is that you shouldn't get a big multiplier just because your case is weak. If that's what he's saying, I agree. But I don't find it plausible that Lerach Coughlin is saying that they deserve a multiplier of 3.0 because the likelihood of success is .33 since the case is so weak (i.e., that the multiplier times the probability of success must equal 1 in order to create the appropriate economic incentives). And that doesn't appear to be the position that Justice Stein is rejecting either. Rather, he appears to be holding that because the probability of success is low (e.g., less than .25), no contingency multiplier is appropriate, since the risk of nonpayment exists merely because case is weak. But that's just wrong. The risk of nonpayment results from the contingency and uncertain success alone, and it's those two facts that justify the multiplier. True, a .25 probability of success doesn't mean that a multiplier of 4.0 is automatically appropriate. But a multiplier of, say, 2.0 would still be entirely appropriate -- the same multiplier that would be applied to an "uncertain" case that had an even chance of success. Both strong and weak lawsuits generate a risk of nonpayment. In both lawsuits, that risk must be compensated. Which is why a contingency multiplier would be appropriate. (At least generally. At some point, no contingency multiplier would be proper; e.g., at the probability level of .99).

So although I agree with much of what Justice Stein says, there's a bit in this opinion that seems misguided. So I give the case a somewhat mixed review. Good substantive standard. Good overall approach. But a little off on some of the supporting reasoning and applicable law.

Monday, March 07, 2005

Roy v. Superior Court (Cal. App. Ct. - March 3, 2005)

What I absolutely love about this opinion is that Justice McKinster can't seem to fathom why any judicial system would possibly adopt the position that a defendant should be allowed to answer a complaint and simultaneously preserve the defense of personal jurisdiction. Of course, both the federal system and the majority of "enlightened" states have indeed adopted precisely such a view. Even though I think the prevailing approach is far superior to California's, I won't defend it here. I'll just note that I found it amusing that Justice McKinster -- after a fair consideration of the issue -- couldn't possibly imagine why the federal system might be superior, and that his only attempt (in footnote 4) to explain why the federal system might choose to operate how it does is way off base.

On the merits, Justice McKinster gets it right. The (very sloppy) California Legislature did not intend to -- and did not -- change California's prevailing practice, which still requires a special appearance and doesn't adopt the federal approach. But I bet you'll see a change in 30 years. Once we catch up to the rest of the world.

Saturday, March 05, 2005

Obrey v. Johnson (9th Cir. - March 4, 2005)

There are a couple of things about Judge Bybee's opinion in this case that I marginally dislike, including the fact that he seems to stretch out to resolve an intracircuit conflict. (He claims that he's required to resolve the relevant standard because this is a uniquely close case, but from the tone and content of the opinion, I'm just not sure that I really think he's of that view.)

On the merits, my biggest disagreement -- though (again) I didn't feel massively strongly in this regard -- was with his discussion of the admissiblity of statistical evidence. Judge Bybee holds that the district court erroneously excluded plaintiff's statistical evidence (in this "pattern and practice" discrimination suit) because flaws in this evidence generally go only to weight, not admissibility. But he recognizes that errors may indeed be so troubling to justify exclusion of the evidence entirely -- at a minimum, they often may make the evidence more prejudicial than probative. And my sense was that the district court may well have made the right call here, for precisely that reason. The evidence that was excluded didn't at all attempt to control for the qualifications of the applicants; plus, the expert's conclusion was that there was "no statistical evidence . . . that the selection process [] were unbiased" -- in other words, that the statistics did not prove a lack of bias -- rather than that the statistics actually proved bias. That's the kind of conclusion that might well confuse a jury, and particularly given the alleged methodological flaws, I'm not sure Judge Bybee gets it right.

Remember, after all, that we're talking about whether the exclusion of this evidence was an abuse of discretion. Judge Bybee articulates this standard, but you don't hear much about it in the opinion, nor is there a lot of reflection on this point evident in Judge Bybee's analysis. I might (or might not) have made a different call as the district court judge. But it's hard to find that the evidentiary call made here was an abuse of discretion, and the deference given to district courts under Rules 402, 403, and 702 doesn't find much expression in this opinion. Which may make for both bad law and bad discrit court adjudications.

Friday, March 04, 2005

Reyes v. Brown (9th Cir. - March 4, 2005)

What's the appropriate and constitutional penalty for Santos Reyes in this case? He goes to the DMV and fills out a driver's license application for his cousin, who can't read and hence won't be able to pass the written test. Reyes pretends to be his cousin, takes the test, and is caught. Because the application Reyes filled out was technically under penalty of perjury, he's convicted of perjury, a felony. (Signing someone else's name on a driver's license application is a misdemenor, but he's charged with the felony perjury count instead.)

Probation? A year in prison? The prosecution offers him a plea of four years in jail. He refuses, goes to trial, is convicted, and gets sentenced under the Three Strikes law. To 26 years to life.

Reyes contends that this sentence violates the Eighth Amendment. He loses in the California courts and brings a federal habeas petition. Judges Pregerson and Fisher find the claim plausible and vote to remand the petition for further review of the factual circumstances of Reyes' prior offenses. Judge Tallman finds the petition utterly meritless and "DISSENT[s] from this futile remand."

Whatever one thinks about the Three Strikes laws, it's got to be troubling to sentence a man to life in prison for trying to get his cousin a driver's license. And the fact that they offered Reyes a four year deal, and yet he ends up serving 26 to life, is also troubling. The offer strongly suggests to me that Reyes doesn't deserve to die in prison; that even the prosecutor thought that a lesser sentence was enough. You hate to see a man's life be decided by the determinate spinning of a heartless, mechanistic roulette wheel.

Thursday, March 03, 2005

Garceau v. Woodford (9th Cir. - March 3, 2005)

So much work went into getting Frederick Garceau killed, just to have him die in prison.

Garceau "allegedly" kills several people in 1984, and has been on death row ever since. His death sentence was affirmed by the California Supreme Court in 1994 (and the Supreme Court denied certiorari), he got a panel of the Ninth Circuit to reverse the denial of his federal habeas petition in 2001, saw that decision reversed by the Supreme Court in a 6-3 decision, then briefed and argued the remanded habeas petition before the Ninth Circuit in early 2004. Then, over nine months after oral argument before the Ninth Circuit, and while the relevant clerk presumably plods away on a new decision rejecting his habeas petition, Garceau dies in prison. What bad form.

So, two months later, the Ninth Circuit issues a two-paragraph opinion that dismisses the petition based upon his death. All that work for naught.

Parenthetically, I say that he "allegedly" killed several people because it's unclear what precisely happens to his conviction upon his death. I think -- but am just going off memory here -- that California is still one of the relatively few states that voids convictions ab initio if the defendant dies before they've exhausted their right to appeal. It's unclear whether that same rule should apply when the defendant dies with a pending habeas petition. Usually, I'd imagine that it shouldn't. But in a death penalty case, the habeas petition does seem like a fairly integral part of the process. Plus, what if the defendant died after a habeas petition had been granted but before the decision was final (e.g., it was still subject to appeal by the State)? Seems like the rationale for the ab initio doctrine applies there too. Anyway, I don't know the answer to any of these questions, but did ponder them for a half second. And didn't want to get sued (or have to prove that Garceau was in fact guilty) in case his conviction was void. So I said "allegedly". And then rambled on a tangent about the ab initio doctrine. Sorry about that.

Wednesday, March 02, 2005

McDonald v. Gonzales (9th Cir. - March 2, 2005)

Another good Ninth Circuit case here. Not only do I agree with Judge Hawkins and his decision to reverse the deportation order, but I can't fathom why the INS heartlessly sought to deport McDonald in the first place.

You'll have to read the first couple of pages of the opinion to fully understand the equities. Briefly put, the INS tried to deport McDonald because she volunteered (!) to the INS that she voted in the 1996 election. The factual circumstances of her voting are incredibly unique; apparently, she thought she was entitled to vote because she (1) was married to a U.S. citizen (and hence "automatically a citizen"), (2) registered to vote on a motor voter form, rethought that decision and sent in a follow-up form that said that she wasn't a citizen, and then thereafter received a Notice of Registration that she thought meant that the government had determined (notwithstanding her follow-up letter) that she was entitled to vote. This explanation seemed quite credible to me; after all, it's hardly like she'd expect her one vote to change the way Hawaii voted in the 1996 election (or any other election, for that matter). And, remember, she volunteered all this information to the INS.

But for mistakenly doing something that she thought was her civic duty -- and on that basis alone -- the INS moves to deport her. Oh yeah. Talk about an undesireable. Get her out of here. Right now.

Judge Hawkins rightly holds that the INS hasn't proven with "clear, unequivocal, and convincing evidence" that McDonald knowingly voted illegally. And rejects the (lame) argument of the INS that all they had to show was that McDonald "knowingly" voted, rather than that she knowingly committed a crime. Which she didn't.

Shame on the IRS for bringing this case and, thereafter, for continuing to argue it on appeal.

U.S. v. Younger (9th Circuit - March 1, 2005)

I wish all Ninth Circuit opinions were like this one. Judge Jones -- a senior district judge in Oregon sitting by designation -- upholds a criminal conviction here notwithstanding some misconduct by the prosecutor and an ambiguous request for counsel by the defendant. The opinion is balanced, written carefully, and reaches (in my mind) the right result, and does so in a fair and dispassionate manner. Moreover, from everything in the opinion, it appears that the district judge -- Judge Chesney -- resolved the case below in the same professional manner.

Mandatory reading for all Ninth Circuit judges-to-be.

Tuesday, March 01, 2005

Abbott v. IRS (9th Cir. - March 1, 2005)

I've taught Professional Responsibility at USD for the past decade. On my midterm and final examinations, I often ask my students a question about what it means for parties to be "directly adverse" pursuant to ABA Model Rule of Professional Conduct 1.7 (A). If Judge Noonan were to take my exam, he'd clearly get the answer wrong. As he manifestly does in this case.

Here, an attorney (Dennis Harkavy) is representing a client (Peterson) in a dispute with the IRS, while at the same time Harkavy is working on an unrelated matter for the IRS. Peterson claims that this violates Rule 1.7(a), which states that a lawyer "shall not represent a client if the representation of that client will be directly adverse to another client unless . . . each client consents after consultation." Peterson didn't consent, so the only question is whether the IRS and Peterson were directly adverse parties. Remember: One was suing the other. Sounds like they're directly adverse parties, eh?

Judge Noonan states: "Rule 1.7(a) has no application here. Representation [by Harkavy] of the IRS in the McGuire Partners case was not 'directly adverse' to the representation of the estate. The cases were entirely unrelated." This is the kind of answer I'd only expect from a subpar -- very subpar -- student in my class, since it entirely ignores Comment 6 to Rule 1.7, which both defines what it means to be directly adverse (and makes clear that only the parties -- not the cases -- need be directly adverse), and also expressly states: "[A]bsent consent, a lawyer may not act as an advocate in one matter against a person the lawyer represents in some other matter, even when the matters are wholly unrelated." Judge Noonan's interpretation of Rule 1.7(a) is simply flatly wrong.

Plus, Comment 6 even gives a reason for this rule: that even if the matters are unrelated, the simultaneous representation of both X and Y (in a situation in which X and Y are in litigation against each other) may well make a client feel betrayed, and "the resulting damage to the client-lawyer relationship is likely to impair the lawyer's ability to represent the client effectively." Comment 6 goes on: "In addition, the client on whose behalf the adverse representation is undertaken reasonably may fear that the lawyer will pursue that client's case less effectively out of deference to the other client, i.e., the the representation may be materially limited by the lawyer's interest in retaining the current client." That's why we have a bright-line, prophylactic rule against simultaneously representing both X and Y -- even in unrelated cases -- when X and Y are litigating against each other.

There were plenty of other ways for Judge Noonan to resolve this case without butchering Rule 1.7(a). I can't fathom how he could get wrong a very basic component of Rule 1.7(a) -- sometime that the vast, vast majority of law students are able to get right. Especially since Judge Noonan is the author of a textbook on professional responsibility. Yikes.

You gotta pay more attention in P.R., John.

P.S. - Random reference. A google search of counsel for Peterson, Robert Sticht, reveals the following description of Sticht in another case: "With flowing shoulder-length hair, Sticht appeared as if he had just returned from Woodstock. Perhaps intentionally causing everyone to doze off, he droned on with interminable pseudo-intellectual dissertation." Ouch. That said, consider the source of this critique, which is contained exclusively in the Jubilee Newspaper, the self-proclaimed "Newspaper of Record for the American Christian Patriot". There's where I get all my reliable news reports. Oh yeah.