Tuesday, January 31, 2006

Kumar v. Gonzales (9th Cir. - Jan. 23, 2006)

This one is hilarious. You only have to read Judge Kozinski's dissent. You can figure out what the majority opinion says both by the content of the dissent as well as by the identity of the author.

Remember that Kozinski's (fairly scathing) dissent is to an opinion written by his buddy, Judge Reinhardt. Notice also that Judge Reinhardt -- who's far from a wilting flower himself -- doesn't write a single word in direct response to his friend.

I'm quite positive that I know exactly what Judge Reinhardt is thinking. And fairly sure that Kozinski knows it as well. The words are unspoken. But the message couldn't be clearer.

Maybe you have to know a bit about the respective authors, as well as their attitude towards both each other as well as the underlying topic (immigration appeals). But if you do, the dynamic expressed in these opinions is utterly hilarious.

Sadoski v. Mosley (9th Cir. - Jan. 24, 2006)

One of my first-year students in Civil Procedure raised his hand on Friday and, in connection with one of the cases we had read, asked me whether the plaintiff could sue the judge. I said "No", and promptly went off on a long tangent about just how hard it is to sue judges, and why. (Parenthetically, my students could not have been more psyched about the tangent, and asked several follow-up questions on the issue. Their approach, I think, was that anything was more interesting than Civ Pro. I could have been talking about the size and shape of my fingernails and they'd have probably similarly asked half a dozen follow-up queries regarding how hard they were, how often I cut them, etc. Anything -- anything -- other than Civ Pro.)

What I should have said is simply: "It's incredibly hard. You basically can't do it. Read this opinion by Judge Gould. Then read this post. Now, back to cross claims . . . ." That would have done the trick.

You can't sue judges. Really. You basically just can't.

Monday, January 30, 2006

Young v. Runnels (9th Cir. - Jan. 23, 2006)

You've got to check out Judge Noonan's concurrence in this one. Funny, short, and insightful.

This habeas case concerns a defendant (Darris Young) who unknowingly retained a whack job of a lawyer -- Kathryn Dixon (currently disbarred) -- to defend him in a three strikes case. Not only is Dixon a terrible lawyer (check out the majority opinion for a brief description of her repeated incompetence), but she also has various significant delusions. Including being convinced that several public officials -- including but not limited to the Alameda District Attorney -- were members of a pedophile ring that kidnnapped children. Not exactly the lawyer who you want trying to negotiate a plea on your behalf with -- you guess it - the Alameda D.A.! (She's sufficiently convinced of the whole pedophile thing, by the way, that she filed a lawsuit against the Alameda D.A. and others to prove it. Oh boy.)

Anyway, this is the attorney who represents Young. The question is whether his representation by Dixon provided him with the constitutionally required effective assistance of counsel. Here's the last paragraph of Judge Noonan's concurrence:

"It is conceded by all that if Darris Young had been represented by a college student or a cobbler or counsel not admitted to the California bar he would have been denied his Sixth Amendment right to counsel. But his case is different because he was represented by a fully licensed member of the California bar whom the courts of California took nearly two years to remove from a position where she could harm the public, the courts, and her clients! A fully licensed lawyer with her head full of fantasies and “with complete lack of insight into the wrongfulness of her actions” was counsel enough to satisfy the Sixth Amendment! As Judge Ferguson’s opinion indicates, precedent apparently requires this bizarre conclusion. Only the Supreme Court of the United States can eliminate this cruel parody of the right to counsel."

Interesting, eh? Check out the complete opinion for more exciting details.

Sunday, January 29, 2006

City of Stockton v. WCAB (Cal. Ct. App. - Jan. 27, 2006)

Sometimes to merely ask a question is to answer it. So it is here.

This is the first sentence of Justice Scotland's opinion: "This case poses the question whether a police officer
who injured his leg while off duty, playing in a pickup game of basketball at a private facility, is entitled to workers’ compensation benefits."

As far as I'm concerned, Justice Scotland need say no more. I'm with you. I agree. The only shocking thing is that, in denying worker's comp benefits, Justice Scotland is forced to reverse the decisions of both the WCJ and the WCAB. Wow. Seems a pretty big no-brainer the other way. At least to me. And, apparently, Justice Scotland. As they say, "Great minds . . . ."

Friday, January 27, 2006

Pizarro v. Lamb's Players Theatre (Cal. Ct. App. - Jan. 24, 2006)

This is the kind of superficial, results-oriented opinion that I don't like.

California's Unruh Civil Rights Act prohibits discrimination based upon sex, race, religion -- all the usual stuff -- as well as any other arbitrary basis. Lamb's Players Theatre (a local San Diego theater company) puts on a show and discriminates on the basis of age by offering a "[Baby] Boomer Night" promotion that gives a 50% discount on admission to only those people born between 1946 and 1964. So a couple of people who weren't able to obtain this discount -- even though they asked for it -- sue, alleging unlawful discrimination on the basis of age.

In a brief, eight-page (double-spaced) opinion, Justice McDonald holds that this discrimination isn't illegal because lots of statutes discriminate on the basis of age (Medicare, Social Security, etc.) in favor of elderly citizens, and that what Lamb's Players Theatre did was no different. And cites the California Supreme Court's opinion in Koire, which held that stores can permissibly charge lower prices to senior citizens, as well as other cases from lower courts that held that stores could rationally favor children (lower children's prices, etc.) or discriminate against them (e.g., not renting to drivers under 25).

Okay. But where's the case that says that you can charge older people -- your favored class -- higher prices? Remember, the 50% discount is only for baby boomers. So if you're born before 1946 (i.e., if, at the time of the show, you were over 58 years old), you're required to pay more than, say, a 45 year old. Where's the precedent -- or justice -- in favor of that type of discrimination. Justice McDonald says that it's fair to favor baby boomers because they're the ones likely to have kids and so a business can try to bring 'em in. Which is exactly the type of stereotyping and express discrimination that, in my view, the Unruh Civil Rights Act was designed to prohibit. On this view, why can't Dennys (or whatever) equally say "Well, we give a 50% discount to young people, but charge old people double our listed menu prices, because we want to bring young people in more often, whereas old people come here anyway." You can make similar hypotheticals regarding gender and race and any other category. California wanted to do away with precisely that kind of discrimination. The fact that you can come up with an argument that you want to "favor" a certain class doesn't make the practice of discrimination legal.

This is a bad case making bad law.

P.S. - It's also a little bit insulting. Justice McDonald says that the discount for baby boomers merely "acts to honor a generation of citizens who [] have contributed to the economy and participated in and contributed to meaningful civic, cultural, educational, business, and recreational activities." Oh, really? The baby boomers did that, but not the others, eh? I guess the 60 year old who raised five kids and now helps with the grandkids contributed less to the economy and society than the 40 year old with five kids, huh? That's why it's okay to distinguish between 40 and 60 year olds; to recognize that the former contributed and contributes a lot more than the latter? Ditto for the difference between a 40 year old with five kids and a 35 year old with 5 kids. The former contributed more than the latter merely because he's older, huh? Right. That make sense. That's what we like to hear from our judiciary. Thanks for the kind words.

P.P.S. - I'd also expect more from Justice McDonald. You'll notice that I've agreed (here and here) with each of the other opinions of his which I discussed. This one, however, is of an entirely different quality. Plus, even as a personal matter, I don't see how Justice McDonald can really believe the stuff that he's saying. After all, he was born in 1936, and is almost 70 years old at this point. Would he really agree that his colleagues on the Court of Appeal who were born between 10 and 38 years are in a special category worthy of tribute because they have contributed more to the economy and justice and the like than his generation has? I'd be surprised if anyone held that view, much less Justice McDonald.

Thursday, January 26, 2006

People v. Evans (Cal. Ct. App. - Jan. 24, 2006)

Here's a case that probably won't (and shouldn't) be around for long. The central issue is whether a criminal defendant has the right to allocution -- to speak to the court -- before it pronounces sentence. Those of you into legal history know that this is an incredibly longstanding right, and was an important component of early Anglo-American jurisprudence.

The Supreme Court of the United States has held that the Federal Rules grant defendants the right to allocute, the Ninth Circuit has held that defendants have a federal constitutional right to allocute, and the California Court of Appeal (in a case called Shannon B.) held that Section 1200 of the Penal Code -- which states that at sentencing the defendant "must be asked whether he has any legal cause to show why judgment should not be pronounced against him" -- grants a statutory right to allocute.

But Justice Stein disagrees with the holding of his colleages on the First Appellate District in Shannon B., and also disagrees with Judge Trott's holding on the federal constitutional issue in Boardman, and holds that there is no statutory or constitutional right to allocute. So defendants aren't entitled to speak as to the validity or propriety of their sentence, or to give reasons before sentencing why they should or should not be punished severely, or even to request leniency by the court.

I disagree. And think that many other people would as well. The analysis in Boardman and Shannon B. is, in my mine, a fair bit more persuasive than Justice Stein's. Especially with respect to the (fairly unsupported) harmless error analysis at the very end of this opinion, which says "Oh, you can't prove that anything you said would have made a difference anyway, so be quiet." A theory that sharply conflicts with the purpose of allocution to begin with, as well as with the human -- and necessarily indeterminate -- nature of mercy and justice and a slew of other concepts that are an inherent part of our judicial system.

Under normal circumstances, particularly given the importance of the issue and the precedential conflict generated by the opinion, I would anticipate that the California Supreme Court would take this case up. It might well. However, the facts of this case are a little sloppy, and it could be much clearer than it is that the defendant really wanted to speak prior to -- as opposed to in the midst of -- sentencing.

For this reason, were I on the California Supreme Court, I might prefer to depublish, rather than review, this one. And think that others might as well. That's not usually my preferred approach -- I generally think that depublication is merely the lazy way out -- but here, it might well be appropriate.

Anyway, I disagree with this one. And it's important.

People v. Quintero (Cal. Ct. App. - Jan. 24, 2006)

You occasionally read in the press or in the California Reporter three strikes cases in which the defendant is sentenced to life in prison for fairly minor crimes and think -- or at least I do -- "Wow, that just seems totally unjust."

This case is not one of those. Honestly, I'm pretty freaking glad that this guy is going away. He's already been in prison three times before, he has six different no probation priors, and his current conviction -- committed while he was on parole, no less -- was for totally (and very uglily) slicing up a guy's face and hands with a razor blade in the Albertson's parking lot in Carlsbad. On Christmas.

So he's convicted of mayhem (which essentially requires permanent disfigurement and intent) as well as torture (which requires a lot less proof than you might think) and sentenced to life in prison. Not a guy I'm going to miss being on the street.

Wednesday, January 25, 2006

People v. Najera (Cal. Ct. App. - Jan. 24, 2006)

Somebody doesn't like me. Yeah, yeah, I know: Many people probably don't like me. And the number likely increases daily.

Still, I think someone up there may not like me. This case is about a guy who was arrested and convicted for vechicle theft in San Diego by using a shaved key. The same day this case came down, someone broke into my car in San Diego, cracked open the steering block, and tried to steal it by using a shaved key. Totally screwing up the car (which now doesn't work), and not even successfully stealing the piece of junk. Damn you!

Kelly v. Stamps.com, Inc. (Cal. Ct. App. - Jan. 23, 2006)

Here's a great example of how important it is to have friends. Particularly in an employment discrimation lawsuit, and most especially when you're trying to either obtain or defend against the inevitable motion for summary judgment.

Nothing -- and I mean, nothing -- is more important than having someone who's willing to lie -- or tell the truth, depending on the case -- for you. Not the facts, not the truth, not the written record: Nothing. One disgrunted employee -- or a smart and unethical plaintiff, or friend of the plaintiff -- can prevent the employer from obtaining summary judgment that an omnipotent observer would grant. By contrast, if the remaining employees are behind the employer, and willing to lie (or cover up) the true facts, the defendant can often obtain summary judgment even though the discharge was indeed discriminatory.

Too bad lying can make so much of a difference at the summary judgment stage. Not that anyone necessarily lied here; what do I know? But it's still a great example of how important it is to have someone on your side.

Tuesday, January 24, 2006

Kenna v. USDC (9th Cir. - Jan. 20, 2006)

Okay, Kozinski. You're used to getting your posterior somewhat routinely kissed in this forum (as here and here). For good reason, of course. Always.

Regardless. Alex should read no further if he's not also willing to take his lumps when they're justly due. And everyone else should keep reading to see what happens, even to bright people, when they're both rushed and somewhat looking to stand on a white horse.

Here's the deal. Two dudes -- Moshe and Zvi Leichner, who are father and son -- con a variety of people out of a total of almost $100 million. Impressive. (Not too impressive, of course, since they eventually get caught.) They each plead guilty to various counts. So they're going to do some time. Indeed, a lot of it. I hope you two are as good at sweet talking 250 pound prisoners as you are with investors. You're probably going to need to.

Here's the rub. Moshe gets sentenced first. The Crime Victims' Rights Act gives crime victims the right to be heard at their perpetrator's sentencing. So a plethora of defrauded people submit victim impact statements, and several also personally appear and speak their mind. And Moshe gets sentenced to 20 years. Ouch.

Three months later, it's now time for Zvi to be sentenced. But the same judge has already heard all the victims at the first sentencing. So he tells them: Look, I already heard everyone the first time. There's nothing else that anyone can say that will matter at this point. So let's not waste time; I'm just going to put the guy in jail. Which he does, for over 11 years.

So one of the victims who was refused the right to speak at the second sentencing files a petition for writ of mandamus. The Crime Victims' Rights Act says that the victims have the right "to be reasonably heard" at, among other things, sentencing proceedings. So what does "heard" mean? Do they just have a right to submit statements? Or do they have a right to actually speak?

Judge Kozinski pens the answer, and concludes that it's the latter rather than the former. The opinion is good on several different levels.

First, the analysis is generally (but see infra) smart and well-written. Not surprising, given the author.

Second, it's a good example of how textualists who ostensibly don't like to use legislative history can (and do) use it when it's favorable to them. Kozinski argues that the term "heard" is ambiguous. Maybe. Could be. But given analogous statutes, I think a strong argument could be made the other way. And I wonder if Alex would be so keen on finding ambiguity if the legislative history supported the side that he wasn't backing. Mind you, I'm not saying that he might not get the right result in the end. But the content of the legislative history here, which is fairly persuasive (at least as Juge Kozinski artfully -- and I mean that as a tiny bit of a slam -- describes and articulates it), may be a good example of why a finding of alleged "ambiguity" shouldn't necessarily be required before you go looking at what the sponsors of the legislation and others said about it as they were adopting it.

Third, it's an important opinion because Section 2 contains what I honestly think is the most absurd and utterly unpersuasive analysis that Judge Kozinski has ever penned. And that's a lot of ink. I mean, this part of the opinion simply bites. Really, really, really bites.

Sure, Judge Kozinski may well be right that the statute should be read his way. That's plausible. But he also has to justify granting relief, since it's mandamus case. So how does he do so? That's what Section 2 (at 12-13) is all about. And, boy, what a stinker.

Alex first argues that even the normal -- incredibly strict -- requirements for mandamus are met here because "the district court clearly erred in its interpretation" of the statute. What?! You really think that this is a case of clear error?! Wow. I definitely want some of what you've been smoking. The text of the statute, especially alongside precedent, provides a totally, totally, totally plausible argument that the right to be "heard" means only the right to be "heard" in the manner we almost uniformly talk about in statutes; e.g., to submit papers or the like. The district court's interpretation was entirely plausible and credible. There's also no precedent at all to the contrary. If Judge Walter's ruling constitutes "clear" error, than every error so qualifies. Come on.

Perhaps understanding the lame (and utterly unsupported) nature of his first argument, Alex then argues that the normal rules don't apply anyway, because the statute contains a lot of special provisions -- like expedited review, single judge relief, required written decisions, etc. -- that suggest that Congress has a special desire for these issues to be fully examined by the judiciary. I totally agree. And I'd totally find that these things lessen the burden confronted by petitioners who seek the (ordinarily) "extraordinary" remedy of mandamus.

But Alex ain't content to merely so hold. Rather, he concludes that these provisions establish that the Court of Appeals "must" issue mandamus relief "whenever we find that the district court's order reflects . . . legal error." What?! Oh, my. Give me another hit of that stuff. Because it's got to be good. If the Court of Appeals is really compelled to grant relief whenever the district court commits a "legal error", we have a name for that. It's called an appeal, not mandamus. If Congress wanted the standard to be the one articulated by Judge Kozinski, they wouldn't have provided for potential mandamus -- which is discretionary -- relief, but rather would have allowed an immediate (and expedited) appeal. Congress knows how to do that. They've done it before. They didn't do it here. But Alex decides to do it for them anyway. Yikes.

Plus, how lame is it for Judge Kozinski to end Section 2 by stating -- and I laugh every time I reread this part -- that "The Second Circuit has come to the same conclusion." Dude. Read the quote that you cite. The Second Circuit merely held -- entirely correctly -- that the normal hurdles for mandamus relief are somewhat lower in these types of cases. They didn't do what you did: Entirely eliminate both these hurdles and discretion. To say that they already did what you did is, well, uh, not right. Way.

Fourth, especially if you're a textualist, follow the rules. Especially when, as here, they couldn't be clearer. The statute requires the Court of Appeals to decide the writ "within 72 hours after the petition had been filed." But Judge Kozinski doesn't issue his opinion until even 9 days after the case was argued. The opinion coyly insinuates that this was a bureaucratic problem, and is being fixed. But if the case was argued on January 11 -- and, since the term "Argued and Submitted" is shorthand, I looked it up, and yep, the case actually had oral argument on that day -- then the failure to render a decision by January 14th wasn't the fault of bureaucrats. It was the fault of the judges. Including -- and perhaps mostly -- Judge Kozinski. Don't blame others. Take it on the chin when you have to. Not your best day.

Finally, don't forget to read Judge Friedman's "dubitante". I always like those "dubitante" things, and I've seen several of them over the years. It's only three paragraphs, but I think that Judge Friedman may say more smart things in those three paragraphs -- and definitely says a lot fewer stupid things -- than Judge Kozinski does in his 13-page opinion for the majority. Great job, Judge Friedman. You senior judges from the Federal Circuit still got it!

So that's my stream of consciousness on this opinion. It's a very short one, and definitely worth the read. Unless you're looking for the traditionally good opinion by Judge Kozinski. In which case, oh my goodness, skip -- indeed, shred -- this one. This case was so, so, so not his best couple of weeks.

Monday, January 23, 2006

Ray v. Gonzales (9th Cir. - Jan. 20, 2006)

Yuck. How depressing is it when you learn just how terrible and sleazy some lawyers are? Especially when it is in an area, like asylum, where -- no exaggeration -- a client's life may potentially be at stake, and in which their continuing financial and physical welfare indisputably is.

Like here. Jaib Ray seeks asylum in the United States because he's part of a Sikh separatist group that seeks an independent state and hence allegedly fears persecution by authorities in India. He hires an attorney -- Jang Im, from the Law Offices of Maden Ahluwalia (note the repeated ethical misconduct described at the bottom of this page) -- and applies, and Ray testifies at his hearing in Punjabi. Thereafter, when Ray files his Notice of Appeal (and supporting materials), he does so allegedly pro se, though these documents are suspiciously both in English and reflect legal expertise. No small task for the "pro se" Ray, who doesn't even speak the language.

Then the real fun begins. Normally, I'd describe the various levels of misconduct at length, in my own (often misspelled) words. Fortunately, however, Judge Betty Fletcher does a great job of at least summarizing what then transpires. So I'll use her words instead. Here's what she says:

"Like a set of nested Russian dolls, the case reveals one layer of allegedly incompetent representation after another. Ray asserts that his first attorney, Jang Im, denied him due process by failing to file his brief on appeal. Ray asserts that his second attorney, Anthony Egbase, denied him due process by failing to file his first motion to reopen in a timely fashion. Ray asserts that his third attorney, Martin Guajardo [be sure to note the long rap sheet at the end of his disciplinary record], denied him due process by failing to contest the BIA’s decision to deny his first motion to reopen (or, for that matter, to do anything else).

We find that Ray has been denied due process because of the failure of his last two attorneys, Mr. Egbase and Mr. Guajardo, to litigate his case in a timely fashion. There is no question that these two attorneys have provided assistance so poor that Ray has been 'prevented from reasonably presenting his case.' Lopez, 775 F.2d at 1017. The former dallied for several months before missing filing deadlines, neglecting filing requirements, and ultimately costing Ray the opportunity to have his first motion to reopen heard on the merits. [Also take a look at Footnote 1 of the opinion, from which does not take a very positive feeling about Egbase's credibility and veracity.] The latter, according to the record, took from Ray $10,000 in fees and — despite ethically dubious promises that he 'knew judges' [Guajardo allegedly convinced Ray to retain him because he 'knew judges who would grant his motion' and told Ray 'not to worry'] — provided no substantive legal assistance whatsoever; in doing nothing, he condemned to failure Ray’s second motion to reopen. Indeed, these attorneys have prevented Ray not only from 'reasonably presenting his case,' but from presenting his case at all. Their performance unquestionably constitutes ineffective assistance."

So that's the "help" that Ray received -- and paid handsomely for -- in connection with his asylum application. Impressive, eh? Makes me definitely want to be an incompetent lawyer ripping off would-be immigrants who are desperate to avoid torture in their home countries. Oh yeah. That's the life for me.

P.S. - I randomly noticed that the attorney who represented the INS was Kristin Cabral, whom I believe was a contemporary (and classmate) of mine at HLS. So a shout out to Kristin. Though I wish she had been on the other side in this one!

Friday, January 20, 2006

Christie v. City of El Centro (Cal. Ct. App. - Jan. 13, 2006)

What the heck is going on out there in El Centro?!

It's the day before Thanksgiving, and a busy day in the parking lot at the Costco in El Centro. So Stephanie Hernandez decides -- somewhat rudely, in my view -- that she's just going to sit in her car in the middle of traffic in the closest row of the Costco parking lot until someone pulls out. She waits for a full 20 minutes (blocking traffic the whole time) until she finally gets a spot. Meantime, to pass her, cars have to swerve around her vehicle to get by, and several do. Including Ben Christie. Unfortunately, Ben accidentally hits Stephanie's bumper while doing so. Mind you, there's not even a scratch on the bumper; indeed, when the police later inspect Stephanie's bumper, all they can find is a place where dust has been disturbed.

But Stephanie will have none of it. She's the wife of an El Centro police officer. So she immediately gets on her cell phone and calls the El Centro Police Department, uses a secret code to indicate that she's the spouse of an officer, and has the police come out. Meanwhile, Ben has finally found a parking space and gone into Costco. Stephanie tells her police officer buddies that Ben had "rammed" her car three times "with increasing force" -- so much so that the car rocked back and forth -- and that she feared for her life and the lives of her children in the car. Remember, there's not even a scratch. But the cops go into Costco and grab Ben, telling him that he's busted. And they subsequently charge him with -- get this -- felony assault with a deadly weapon, as well as assault and reckless driving. Dude. And they promptly strip search the guy and throw him into prison for six days -- again, during the Thanksgiving holiday -- before he finally is arraigned (and released) on Monday.

At trial, they offer Ben a plea to midemeanor disturbing the peace. But Ben tells 'em to stuff it. At the close of the trial, the jury deliberates for a whole hour before acquitting Ben of all charges.

So Ben -- hacked off, no doubt -- promptly sues for false arrest, false imprisonment, malicious prosecution, and a variety of other torts. The first judge assigned to the suit is Judge Jones, whom Ben promptly strikes. The action is promptly reassigned to Judge Foerster, who conducts a trial in March 2004 and eventually grants a nonsuit in favor of the City of El Centro. Ben moves for a new trial, and at the hearing on this motion (which is before Judge Foerster), Ben's attorney says that he's pretty sure that Judge Foerster talked about the decision to nonsuit the case with the previously disqualified judge, Judge Jones. Suspiciously, Judge Foerster doesn't immediately respond to this allegation, but thereafter, issues a well-crafted disclosure that says, oh, yeah, I did talk to Judge Jones about this case, but only about various "laws and procedures". Indeed, eventually, Judge Foerster owns up to a second conversation with Judge Jones as well, this time in connection with the new trial motion.

Ben's not psyched about this, and moves for a new trial and to disqualify Judge Foerster. Judge Warner, from San Bernadino, is assigned the disqualification motion, and finds that Judge Foerster acted improperly, noting that "[t]he appearance of impropriety is patent. A judge simply should not speak with another judge about a case in which the latter has been disqualified." Duh.

So the case then gets assigned to Judge Donnelly for a hearing on Ben's motion for a new trial, who concludes that Ben is indeed entitled to a new trial because the motion for nonsuit was granted by Judge Foerster, who was disqualified due to his prior ex parte contacts with the previously-disqualified Judge Jones. The City of El Centro then appeals. But Justice Nares -- properly -- disagrees with the City. Affirmed.

Crazy stuff going down in El Centro. You guys out there have got to get your act together. This was not the finest hour for justice in your fine City. In the future, please do not strip search a dude and throw him in jail for six days during the Turkey Holidays simply for touching the bumper of a cop's wife in the Costco parking lot. And do not have your judges talk to other disqualified judges. You just don't do that stuff. It ain't right.

Thursday, January 19, 2006

Doe v. Rumsfeld (9th Cir. - Jan. 12, 2006)

A dude ("John Doe") enlists in the National Guard under its "Try One" program, in which the Guard says that you can sign up for a year and, if you don't like it, get out. But the fine print of the enlistment contract says that a declaration of national emergency could, if issued, potentially extend the term of enlistment. This is very fine print, mind you, and utterly contradicts the central "Try One" theme to which Doe thought he was signing up.

So Doe's fine with Trying One, but -- as you might expect -- is not too psyched when he's told that he's being shipped off to Iraq. So he says: "Thanks for the Try. I'm out of here." No you're not, responds the Guard. We're increasing your enlistment for another 11 months. "What about 'Try One'?", Doe asks? "Well, in your case, 'One' is 'Two'. Enjoy Iraq."

I previously commented on this policy when the Ninth Circuit issued Santiago -- which upheld this program against contract claims -- back in May 2005. Now, in this opinion, Judge Trott upholds this policy of -- well, just to get people riled up, let's call it "involuntary servitude" -- against various statutory and constitutional claims as well. (The panel was Judges Trott, Wallace, and Rymer. Just think how depressed Doe was when he learned the composition of the panel the week before oral argument. Amazing that counsel even bothered to show up.)

What's particularly interesting about this one is when you recognize that Doe signed up for the Guard in May 2003; e.g., well after September 11. In other words, the Guard was actively promoting its "Try One" program even after Bush declared a national emergency (on September 14,2001) and enacted the "Stop Loss" program in November 2002 that involuntarily extended everyone committment. To put it another way, the whole time that the Guard was promoting the "Try One" program, they knew that the "One" was really "Forever". Which doesn't seem very cool, does it? I guess they thought that the more accurate title -- "Join the Guard for a Year. Did I say a Year? Well, I actually mean whenever we feel like letting you go. Or when you die in Iraq. Whichever comes first." -- wasn't exactly the message, albeit accurate, that was likely to get many people to sign up. So let's go with the deceptive one instead.

I'm sure that stuff like this definitely makes people trust military recruiters and, for this reason, is in the long term best interest of the military.

Wednesday, January 18, 2006

Tuazon v. R.J. Reynolds Tobacco Co. (9th Cir. - Jan. 11, 2006)

Thank you, Margaret. Sincerely.

Every year, during their first semester of law school, to introduce my civil procedure students to the concept of general personal jurisdiction, I assign them the two leading Supreme Court opinions on the topic: Perkins (which found that general jurisdiction existed) and Helicopteros (which found that it didn't). And that's about it. Because, quite frankly, as far as the Supreme Court goes, that's indeed about it. These "bookends" are pretty much the only real insight the Supreme Court has rendered on the subject.

For this reason, every single year, my students invariably say: "Well, okay, we know one case where general jurisdiction exists, and one case where it doesn't, but what about cases in the middle?" And I tell them: "Well, honestly, you just do what lower courts -- and lawyers -- do all the time. Compare the cases, argue about the differences and the principles behind them, and come to a conclusion." And they respond: "That's all you got for me? For this they pay you a salary?!" To which I say: "My only defense is that it ain't that much."

Okay, in truth, I tell them that they could read 100 general jurisdiction cases and not get much more from it than what I tell them: that you compare cases and come to a reasoned conclusion. General jurisdiction exists if there are a lot more contacts than in Helicopteros. How much more? No one knows, exactly. They'd have a better sense -- but hate me even more than they do -- if I assigned 100 lower court general jurisdiction cases, but not much of a better sense. There's no test. The doctrine is what it is. You've got Cases A through ZZZ and try to figure out where yours stands compared to the others.

But along comes Judge McKeown. And writes a great opinion: one that is clear, reasonably concise, and informative. So now I can tell my students: "Don't take my word for it. Here's a judge who's doing exactly what I'm telling you one has to do with these types of cases. Plus, she writes an opinion which would clearly get an A+ if it were an answer to a law school hypothetical. Great analysis, great reasoning. Do what she does and you'll be a star."

Anyway, Judge McKeown holds that R.J. Reynolds is properly subject to general personal jurisdiction in Washington for a smoking-related that transpired pretty much exclusively in the Phillipines. The fact that I happen agree with the result that she reaches is largely irrelevant; the opinion would be excellent even if it came out the other way. I also happen to agree with her on the forum non conveniens issue (she holds that the lawsuit shouldn't be dismissed); though, honestly, I probably think that's a lot closer issue than she seems to perceive it to be.

An excellent exemplar of (and opinion relevant to) any case that raises an issue of general jurisdiction.

Tuesday, January 17, 2006

U.S. v. Alferahin (9th Cir. - Jan. 11, 2006)

Just a quick question about this one. Judge (Betty) Fletcher holds that when a person is prosecuted for allegedly illegally procuring his naturalization (e.g., by filing an application that contains false information), the government must prove that the withheld information was material. She further concludes that the failure to give such a materiality instruction was prejudicial -- moreover, that the absence was also plain error -- here because the government did not introduce any evidence of materiality. ("The government did not make, much less attempt, such a specific showing here. . . . It is this higher standard that the government has failed to prove beyond a reasonable doubt.")

But here's the (somewhat) weird thing: She remands for a new trial. Why not instead enter a judgment of acquittal under Jackson, since Judge Fletcher admits that the evidence was insufficient? Presumably because such an argument wasn't made, I guess. (Though I haven't checked the briefs.) But if it wasn't, why wasn't it, especially since such an assertion would have been an obvious accessory to the central argument of the appeal. (Appellate counsel for the defendant was Lee Tucker of Tucson, Arizona.) Plus, wouldn't such an insufficiency claim be cognizable on habeas anyway; moreover, the failure to raise it earlier be ineffective assistance of counsel, particularly since the error was (as the court held) "plain"?

I'm basically just a bit confused as to why Alferahin has to potentially endure a second trial given that the court found that the evidence against him was insufficient as a matter of law. That just doesn't seem right to me.

Yahoo! v. La Ligue Contre Le Racisme Et L'Antisemitisme (9th Cir. - Jan. 12, 2006)

I love America. God, I love America.

This is an en banc opinion in a high-profile case. It's an exceptionally long, and important, opinion. But I'm just going to make the briefest of comments.

The court votes 8-3 that there's personal jurisdiction over the defendant. The court votes 5-3 that the case is ripe for adjudication.

So, given these holdings, what does the en banc court do? Reverses the district court and remands with instructions to dismiss the case. Get it?

Check out the entire set of opinions -- or, at a minimum, the one-paragraph per curiam -- for a look at how the court reaches such a seemingly anomolous result. (103 pages of single-spaced text for the whole thing!)

God, I love America.

Monday, January 16, 2006

Pony v. County of Los Angeles (9th Cir. - Jan. 11, 2006)

Sometimes I don't know if I'm (1) smart, or (2) dumb. I'm pretty sure it's one or the other. I'm just not entirely confident which one it is.

I say that because I definitely had that reaction as I was reading this opinion. This is the latest installment in attorney Michael Mitchell's continuing attempts to get around the Supreme Court's holding in Evans v. Jeff D., which held -- in a substantial (but doctrinally understandable) blow to civil rights cases -- that clients have the right to waive their entitlement to attorneys' fees in Section 1983 suits and that defendants may properly make a settlement offer conditioned upon such a waiver.

After Evans, everyone knows how the game is played, at least in civil rights cases in which important liberties -- but not a lot of monetary damages -- are at stake. Plaintiff is invariably poor and can't afford an hourly fee, so the civil rights attorney takes the case and hopes to make his rent money by getting a fee award if he wins. The defendant defends the lawsuit, but if it looks bad -- if it looks like plaintiff might in fact win -- it will make a settlement offer. But the offer will be expressly conditioned upon a waiver of statutory fees. So, for example, here, L.A. County offers the plaintiff $30,000, but only if plaintiff waives his right to the $50,000+ fee award to which he'd likely be entitled as a prevailing party. Plaintiff takes the offer, of course, because the $50K that he's waiving would go to the lawyer, whereas the $30K that he's accepting goes to him.

The net results are twofold. First, defendants do this all the time. It's good for the plaintiff, it's good for the defendant, and the only one it's bad for is the attorney. L.A. County denies that it has a "policy" of only making fee-waiver settlements in such cases, and, yeah, I'm sure that one in a hundred settlements are an exception, but that's in fact the way the game is played, and everybody knows it. Second, this practice results in fewer attorneys being willing to take on such cases, because the net result of this game is that they don't get paid, and you can't feed your kids or pay your rent with love. (Not legally, anyway.)

Anyway, Michael Mitchell has tried to get around Evans -- and hence get paid -- in a plethora of different cases in the Ninth Circuit; in footnote 1 of his opinion, Judge Bybee cites six Ninth Circuit cases involving Mitchell in which he's desperately tried to obtain fees notwithstanding a fee waiver and Evans. This one is Mitchell's latest shot. This time, he's signed a fee agreement with the client that says that the client hereby assigns to Mitchell the right to statutory fees. Hence, Mitchell argues, the client couldn't waive this right as part of a settlement, since it already belonged to Mitchell as part of the fee agreement.

But Judge Bybee -- like the district court -- disagrees. It doesn't work, you can't assign your rights, it conflicts with Evans, and hence Mitchell still doesn't get paid. Affirmed.

Here's the part I don't understand. What's to stop Mitchell -- a fellow Harvard Law graduate, by the way -- from writing his fee agreement a different way that's entirely effective? Why not just say that the client agrees that (as usual) any fee award will go to the attorney; however, in the event that the client waives a fee award as part of a settlement, the client will owe the attorney his regular hourly rate; say, $500/hour? Surely that's an acceptable fee agreement; basically, to say to the client that you agree to pay me my hourly rate (and, even then, only if we win); however, if we get a fee award -- and you don't do anything to stop me from getting it -- I'll agree to take that lesser amount instead. That's got to be a permissible agreement, right? And one that totally works, too, since there's no way that, given that agreement, clients like the one here would agree to a $30,000 settlement and fee waiver if they'll then owe the attorney the entire $30,000 plus $20,000.

Sure, you could say that my proposed fee arrangement is impermissible since it discourages settlements, but I can't fathom that such an argument would prevail. All the attorney is doing is essentially charging the client a contingent hourly rate, and there's no way that such an (incredibly common and well-accepted) fee structure is impermissible.

So what I don't get is why Mitchell doesn't do this instead of the plethora of other fancy-pants fee structures he's tried in the past. Keep it simple. A contingent hourly rate. Works for me. Don't see why it can't work for you -- and other civil rights lawyers -- just as well.

But, again, maybe I'm just a moron.

Friday, January 13, 2006

Stanley v. Trustees of the California State University (9th Cir. - Jan. 11, 2006)

Just to be clear: When I ask you to help me play my guitar, I really want you to play my guitar, and don't want you to instead "play my guitar."

This is apparently (or at least allegedly) something that Richard Savino didn't entirely understand. Savino is a Professor of Music at CSU Sacramento. Trista Stanley was a student of his at CSUS. Stanley alleges that Savino -- her classical guitar professor and faculty advisor -- sexually harassed her during various semesters, and he allegedly made unwanted advances, undesired physical conduct, and sexually-charged comments towards her. So Stanley complained and, ultimately, sued.

Judge Wallace mentions in his opinion that the University found that Savino "violated University policy" and would be subjected to some sort of discipline. Though apparently not too severely, since various web pages reflect that, to this day, Sevino is still a Professor of Music at CSUS. Judge Wallace's opinion also does not mention that it is undisputed that Stanley and Sevino at one point had a consensual sexual relationship, a fact that is, of course, irrelevant to her post-relationship-termination harassment claims, but is interesting nonetheless (and perhaps at least partially explains why Sevino is still at CSUS).

Anyway, Judge Wallace ultimately concludes that Stanley's only cognizable harassment claims (i.e., the ones to which the State isn't immune) are time-barred, and I have to agree. You have to file within the relevant time period, and Stanley didn't. Which is too bad for Stanley; indeed, it's possible that she has a malpractice claim against her attorney in this regard, though I express no substantive opinion on the point.

On a totally unrelated note, take a gander at Sevino's picture. Particularly how he's holding his guitar and his "come-hither" look attendant thereto. Yikes! (Here's a less interesting picture of Trista, who a little research reveals continues to give guitar lessons at the Learning Exchange in Sacramento. She's also a contributor to various music-related online sites, though I wish her input was a bit more sophisticated. Still, music is music. You like what you like.)

POSTSCRIPT - Some time after I wrote this post, I received a very intelligent -- and polite -- phone call from an attorney who represented Richard Savino in his disciplinary proceedings at CSUS. Savino's counsel was very, very good, at least in our phone call; he pushed all the right buttons (at least for me), and made all of the most persuasive claims and none of the absurd ones. He was polite and articulate, and argued (among other things) that Savino had been punished enough, and didn't need to have a post like this which could be googled or seen by outsiders who (like me) might not understand the whole context. In the end, I decided to follow what my uniform policy has been -- not to delete anything, regardless of content -- but to add this postscript instead. Obviously Savino has his own point of view (as, for that matter, does Trista, I'm sure), and my comments are clearly merely my own, necessarily incomplete, take on the subject. As with any human drama, there is always much more to it than even a lengthy judicial opinion -- or a post about that opinion -- can reveal. Worth remembering.

Thursday, January 12, 2006

U.S. v. Weaver (9th Cir. - Jan. 10, 2006)

Before the holidays, my four-year old daughter, Sierra, went with her mother and her preschool class to the Old Globe's production of "How The Grinch Stole Christmas". Ever since then, pretty much daily, she sings -- often at the top of her lungs -- the first two lines of a song that (as far as I can tell) the Old Globe made up for that musical, entitled "Who Likes Christmas?" (For a video snippet of their performance of that song, feel free to click here. Or, for more complete recitation, simply call my home; I'll be happy to put Sierra on the line.)

The first two lines of that song -- which, as you might imagine, have now been permanently seared into my memory as a result of their repeated recitation by my daughter -- are as follows: "Who likes Christmas? We like Christmas!" That's about all of the song I can recall. At that point, my memory -- like my daughter's -- pretty much fades out.

I thought of that line when reading this opinion. Which, if made into a musical -- and, yes, I know that's fairly unlikely -- should probably begin with a song entitled: "Who likes Belton? We hate Belton!" Since it's the Ninth Circuit's latest slam on the Supreme Court's 1981 opinion in Belton v. New York and its stubborn adherence to this precedent in Thornton v. United States in 2004.

The issue is about whether the police automatically get to search your car when they arrest you while you're driving it. Belton (and its predecessors) said that they do, on the theory that there's a legitimate basis for the search because it's designed to make sure there's not a gun in the car that you could grab or evidence therein that you could reach in and destroy. Fair enough.

But what if you're already handcuffed and sitting in the back of the police cruiser? Do they still have the right to search your car, just in case you have the unlikely combination of "the skill of Houdini and the strength of Hercules" (thanks, Justice Goldberg) and hence can slip out of your handcuffs and fight your way back to the car? Crazily, the Supreme Court in Thornton said, "Yep," relying on Belton. Which caused a wide variety of Justices -- as diverse as Scalia and Ginsberg and Stevens -- to say: "Oh, come on now. Get real." (Admittedly, their views on this subject were a bit more intellectually articulated. But I think I've accurately expressed the basic concept there.)

Since then, the Ninth Circuit has repeatedly followed Belton -- as it is required to do, of course. But this has not stopped the court from taking swipes at it. Which is also entirely appropriate. And which is what Judge Pregerson does here. He follows Belton and upholds the search, even though the dude is handcuffed in the back seat of the cruiser. But -- citing Judge Trott and Justices Brennan, O'Connor, and Scalia -- he urges the Supreme Court to revisit and overrule this (absurd) principle.

What Judge Pregerson doesn't mention in his opinion is that Judge O'Scannlain previously did the same thing, back in February 2005, in a case called United States v. Osife. Faithful readers will note that I commented on that earlier Ninth Circuit opinion as well; indeed, I proclaimed that it was the "best one that Judge O'Scannlain has written in a long while," and called it, inter alia, "scholarly," "incisive," and "masterful."

Of course, there's perhaps a reason why Judge Pregerson doesn't mention Judge O'Scannlain's prior missive on the subject. Probably because Judge O'Scannlain would clearly prefer to overruled Belton and adopt the view articulated in Justice Scalia's concurrence in Thornton -- which would automatically allow these searches as a means of obtaining evidence -- whereas Judge Pregerson would likely prefer to follow Justice Steven's dissent, which would preclude such searches when it's clearly not possible for the arrestee to obtain access to the car; e.g., when he's handcuffed in the back of a cruiser.

Regardless, each opinion follows Supreme Court precedent and yet simultaneously insults it. And I liked both opinions. Especially since they're both fairly short. Good job, Harry and Diarmuid.

Wednesday, January 11, 2006

Beal Bank v. Arter & Hadden PLUS Barak v. The Quisenberry Firm (Cal. Ct. App. - Jan. 10, 2006)

Two cases for the price of one today, both worthy of brief mention. The underlying unifying theme for today is "Lawsuits Against Lawyers".

In Beal Bank, Arter & Hadden gets sued for malpractice by a former client. There are two individual lawyer defendants as well. One is Eric Dean, who Justice Doi Todd claims is a partner at Arter & Hadden; however, it looks like he's actually a former partner at this point. Regardless, Dean was the attorney who was primarily responsible for handling the matter. The second defendant is Steven Gubner, who was an associate at Arter & Hadden and who subsequently left the firm. (Gubner is now with Ezra Brutzkus & Gubner. Here's a somewhat funny-looking picture of Steven, who may want to try a slightly different pose next time.)

Anyway, Beal Bank allegedly gets poor representation, so sues. Gubner (and his subsequent law firms) settle, but Arter & Hadden and Dean claim that the suit against them is barred by the statute of limitations. They win a demurrer on that ground, Beal Bank appeals, and Justice Doi Todd reverses. The Court of Appeals holds that there was tolling pursuant to CCP 340.6 during the period in which Gubner -- after leaving Arter & Hadden -- continued to represent Beal Bank. Justice Doi Todd's opinion in this regard is cogent and well-reasoned, but there are definitely arguments to the contrary, particularly given the facial unfairness of tolling a limitations period against X based upon representation by Y even though Y is no longer with X. Plus, on this issue there's a conflict in the Courts of Appeal, since Justice Doi Todd's opinion conflicts with Crouse v. Brobeck.

My take is that Justice Doi Todd may well be right on the merits. Nonetheless, it's a case -- and split -- that's sufficiently important that the California Supreme Court should take it up. Anyway, Arter & Hadden loses, and -- for now, at least -- is going to have to defend the case on the merits.

By contrast, in Barak, the Quisenberry Law Firm gets sued for malicious prosecution, and responds by filing (of course) an anti-SLAPP motion. Counsel for plaintiff doesn't elect to file an opposition to the motion, and after some procedural wrangling, the court grants the motion and awards costs and attorneys' fees to the defendants. Plaintiff appeals, but Justice Hastings affirms, thereby likely resulting in yet an additional fee award against the plaintiff. All in all, unlike Beal Bank, a darn good result for the defendant law firm. By the way, appellate counsel for plaintiff was Drago Campa, a Southwestern graduate and -- you don't see this often here in sunny Southern California -- a graduate of Simon Fraser University in Canada.

Law firms: 1-1 for the day.

Tuesday, January 10, 2006

People v. Bhakta (Cal. Ct. App. - Jan. 9, 2006)

The dribble continues. No opinions from the Ninth Circuit. And -- frustrating my daily schedule -- the California Court of Appeal didn't issue its opinions on Monday until way late in the day. Stinkers.

Still, there is at least a marginally interesting one in there. This opinion concerns the fate of a particular hotel in Los Angeles. Justice Flier doesn't tell you which hotel we're talking about -- other than that it's on South Figueroa -- but a little research reveals that it's the Boulevard Motel at 6919 South Figueroa Boulevard. The number of the motel is particularly appropriate, since this is apparently a motel often frequented by ladies of the evening and their guests. Which is why the L.A. City Attorney brought this nuisance action to shut it down. (Interestingly, Justice Flier has some experience in this area, since she was a long-time member of the Los Angeles City Attorney's Office; indeed, was the first female L.A. assistant city attorney. I'm sure this is not the first time she's reviewed decisions made by her former office -- or the last -- but, still, it's something worth at least brief mention.)

Anyway, there have been a lot of prostitution arrests at the ol' Boulevard Motel, and -- although Justice Flier doesn't mention it -- the police have also arrested various managers at the Boulevard for keeping a disorderly house and failing to properly maintain a hotel register. So now the City Attorney wants to close it down for good, and brings an abatement action against the owners. The City Attorney brings a motion to preliminarily enjoin the defendants from encouraging prostitution or providing a place where prostitution can occur. The trial court grants the motion, and since this won't be good for business (!), defendants appeal.

But Justice Flier properly affirms. The arguments that defendants make are fairly lame ones, including a crazy argument that the state court didn't have jurisdiction even after the case was remanded back to the state court (after defendant's improper removal to federal court). Suffice it to say that I wasn't particularly impressed by the contentions asserted by the defendants' attorney, Frank Weiser, a Southwestern graduate. Moreover, the only thing these arguments do is to increase both the defendants' own fees as well as the -- recoverable -- fees of the City Attorney, since they are recoverable in a nuisance action.

So there you have it. One less house of prostitution -- at least temporarily -- within sight of the 110 freeway.

Friday, January 06, 2006

Ramona Unified School District v. Tsiknas (Cal. Ct. App. - Jan. 6, 2006)

Another day of slim pickings: two meaningless orders from the Ninth Circuit -- one a one-paragraph remand on a case back from the Supreme Court and the other a one-paragraph amendment to an earlier opinion -- and only one opinion from the California Court of Appeal.

Fortunately, the latter is somewhat interesting, and worthy of comment. It's a case where the Ramona Unified School District (RUSD) down here in San Diego wanted to build a new school and -- as usual -- various people who lived around the proposed site wanted to block it. Traffic, disrupting their otherwise rural environment, etc. -- the usual NIMBY reasons. So they filed various writ petitions to try to delay or force abandonment of the project. (That's my take, anyway.) All of which they lost.

Now, in a world that makes sense, that'd be the end of it. But the RUSD is upset. So it files an abuse of process suit against the organization and lead principals who tried to delay the project. Leading -- shockingly, I know -- these defendants to file an anti-SLAPP motion. Which they totally -- and rightly -- win, both below and in the Court of Appeal.

Justice McDonald is correct that this is a classic SLAPP suit and that the RUSD can't show an actionable abuse of process. And that's the case even though I agree with the RUSD's allegations that the defendants' conduct may well have been in bad faith. It's still not a tort, and Justice McDonald cogently explains why.

So, in the end, rather than just moving forward and building the school, the RUSD now has to pay the costs and attorneys' fees of the defendants. Resulting in money in the defendants' pockets as well as higher taxes for the citizens of Ramona. Great job, RUSD. Impressive. That's what you get for holding a grudge and filing a classic SLAPP suit. Next time, just let it go.

P.S. - Time for a San Diego Mickey Mouse roll call. One of the two lead players against the project (and hence one of the defendants in the RUSD's suit) was Greg Tsiknas, who describes himself as having an "obsession with horses" -- hopefully in the platonic sense -- and who lives at 1400 Royal Vista Drive and is the CTO of Mil-Pac Technology. The other lead player (and defendant) was Charles Apgar -- no, not that Charles Apgar -- lives around the corner from Greg, at 2445 Boundary Avenue. The third defendant was Julie Hamilton, who was the attorney for the defendants below and who the RUSD personally sued in their SLAPP suit. Julie's a 1998 graduate of USD Law School, and get's her own time paid for by the RUSD as a result of the suit against her. Great job, Julie. And the final San Diego player worth mention is James Moneer, who's a SLAPP specialist retained by the defendants (on a partial contingency fee) to litigate the anti-SLAPP motion. James is also a USD Law graduate. An impressive performance by the USD crowd. By contrast, appellate counsel for the RUSD include Daniel Shinoff (Western State), Jeff Morris (Pepperdine), William Pate (Cal Western), and David Estes (Thomas Jefferson), all of Stutz Artiano Shinoff & Holtz. Draw your own conclusions.

Thursday, January 05, 2006

Anderson, McPharlin & Connors v. Yee (Cal. Ct. App. - Dec. 23, 2005)

As you might imagine, the Court of Appeal and Ninth Circuit haven't been cranking out massive numbers of opinions during and immediately after the holidays. And those that have been issued, quite frankly, haven't been all that interesting. Apart from those I've already discussed, of course. Those were fascinating. By definition.

Today's opinions continued the trend of "slim and boring" holiday missives, so I thought I'd comment on this opinion, which as rendered over the holidays. Which is worthy of comment if only because it (1) involves an issue that's important to lots of attorneys, (2) is marginally intellectually interesting, and (3) made me feel a little bad about the "gift" that Justice Vogel decided to give to attorney Steven R. Yee exactly two days before Christmas: an adverse judgment of over $130,000. Ouch. Note to Chuck: Next time, just wait a week, until after the holidays are over. No one likes to be spanked for $130,000+ right before the holidays. Sort of ruins the mood.

Anyway, the long and short of the opinion is this. Yee joins Anderson, McPharlin & Connors as a partner in 2001. Apparently, Yee's not too psyched about the practice there, since he leaves the partnership in a year. Or maybe Yee's just not a guy into committment, since he promptly joins Wolfe & Wyman -- warning: skip the intro on their home page, lest you subject yourself to an assault of musical techno-legal funk -- which he then also leaves after (you guessed it) a year, this time to start his own firm.

The problem -- for Yee -- is that the partnership agreement that he signed with AMC says that if he takes any open cases with him after he leaves AMC, he's required to pay the firm 25% of any billings that he receives on those cases during the next 24 months. And since that turns out to be over $500,000, Yee owes AMC over $130,000. Which Yee doesn't feel like paying, so AMC sues him. Yee, however, claims this is prohibited fee-splitting under California Rule of Professional Conduct 2-100(A), since he's no longer a partner at AMC and since the relevant clients haven't consented to the split (and, after all, why should they?).

But Yee loses in the trial court. And Justice Vogel affirms. Justice Vogel's reasoning is a bit superficial, but he reaches the right result. Rule 2-100 doesn't prohibit entry into contractual arrangements like these between existing partners to a law firm. Which means, by the way, that if you run your own law firm, and are even a bit worried about departing partners, they're not such a bad thing to have in your partnership agreement. Free money in return for the cases they take. Think about it.

So that's Yee's Christmas 2005. A hit for $130,000. Memorable, at least. And a little bit of publicity too. Not the good kind, mind you; indeed, a stark contrast to the December 2002 issue of the California Lawyer, which prominently displayed Yee on the cover. Instead, the Court of Appeal is rejecting Yee's interpretation of Rule 2-100. Not an awesome endorsement of Yee, whose speciality is apparently legal malpractice and legal ethics issues.

Sorry, Steve. Signing the partnership agreement and reading the rule wrong cost you $130K. On the upside, I'm sure Christmas 2006 will be better than Christmas 2005. Happy holidays!

Wednesday, January 04, 2006

People v. Phillips (Cal. Ct. App. - Jan. 3, 2006)

I'm not a huge fan of people -- including judges -- who unnecessarily use big words I don't understand just to prove they're smarter than me. I mean, how big of a challenge is that, anyway? There are tons of words I've never heard of before; indeed, whole languages I don't know. So stop picking on me.

That said, I'm just fine with Justice Hull using the word "caliginous" in this opinion. Did I have to look that word up? Yep. Sure did. But, after I found out what it meant, did the use of that term seem to make sense, given the context. Yes. And since he didn't use a ton of other fancy-pants words throughout his opinion, I was totally fine with having to do the extra work. My fault, not his.

I have only one critical -- admittedly marginal -- comment. When Justice Hull was running to be retained, he listed as his "Top Priority if Elected" -- right after "'[to] follow the law" -- to be penning "[a]ppellate opinions [that are] . . . understandable and timely." Well, I gotta say, if your objective is to write opinions that the common man can understand, it's probably not the greatest idea to rely on words like "caliginous". Rather than help clarify things, ten-cent words like that often instead make the opinion -- dare I say it -- a bit more caliginous.

P.S. - On a lark, I looked up every other American judicial opinion in which the term "caliginous" is used. There are ten of them. Guess who wrote a full 40% of these opinions? Conscientious readers of this blog will probably be able to guess the answer. Right. Judge Fernandez.

Tuesday, January 03, 2006

U.S. v. Adams (9th Cir. - Jan. 3, 2006)

Okay, some advice to everyone out there as we ring in 2006.

Let's say that you have assets of over $7.4 million and your net worth is, say, $7.1 million. Your lifestyle includes hitting the occasional bong. Okay, let's say, more than occasional. You live in Wolf Creek, Montana, after all. Big Sky. Big High. That's how you like to spend some of your time.

Those are the predicate assumptions. Which of the following is your best approach to effectuate your chosen lifestyle:

(A) Score some pot, at your leisure, from any of the legions of dudes in Montana willing so sell you some. Or
(B) Plant hundreds of marijuana plants on your own property, which will subsequently be discovered when the DEA conducts its inevitable helicopter flyover, resulting in both the seizure of your property as well as a mandatory fine of $400,000, which -- unlike virtually every other bud-smoking guy in the universe -- you will actually have the assets (and hence be forced) to pay.

A toughie, eh? Remember the choices again: (A) Spending an occasional $500/ounce, or (B) Spending $400,000 plus losing your property. Hmmm. Which should I choose?

Needless to say, Ronald Adams chooses (B). Hence this appeal.

In the end, you'll be happy to know that Adams gets his sentence vacated. Because Adams struck a plea deal with the government which said that, in return for his plea, the government would recommend that no fine be imposed. But the $400,000 fine was mandatory under the guidelines, and no one (including the judge) never told Bruce that before he pled guilty. So the panel -- over Judge Kleinfeld's dissent -- lets Bruce withdraw his plea.

The lesson for today: Multimillionaires should not grow their own. Let us rejoice in the additional knowledge we have acquired in 2006.