People v. Navarro (Cal. Ct. App. - March 30, 2006)

When a lawyer unethically rats out her own client and provides the police with confidential information, can the government use such evidence at trial? Justice Rubin says "Yes".

I previously commented on this case -- both on this blog and in the press -- when it first came out in August of 2005. I disagreed with its conclusion then, and continue to disagree. Particularly on the facts of this case, in which the police debriefed the lawyer in 10-40 separate telephone conversations, all of which were designed to further the lawyer's unethical delivery of confidential information.

Justice Rubin subsequently granted a rehearing, and somewhat changed the analysis contained in his opnion. But he nonetheless comes out the same way in the end. It's okay. The government can use the evidence.

Justice Rubin actually writes a well-crafted opinion here. It's very well-written, and it does an excellent job of advancing his position. Nonetheless, on the merits, I still think it's wrong.

The Navarros will have a pretty good federal habeas petition (assuming that the California Supreme Court doesn't take the case, which I doubt they will). Indeed, before AEDPA, they might even have won. Nowadays, however, with the mandatory federal deference towards (even silly) state factual factfinding, the prospects for winning such a petition are much lower. Plus, of course, they'll be in prison the whole time.

Sorry about that. Blame your lawyer. "Not our fault".

U.S. v. Mix (9th Cir. - March 30, 2006)

I'm actually somewhat glad that I couldn't find the briefs on this one. Defendant commits a series of violent sexual and physical assaults against his live-in companion between 1998 and 2000. As far as I can tell, the defendant has no prior criminal record. But he's nonetheless sentenced to life in prison.

What justifies such a sentence? Even though the heart of the appeal is defendant's claim that his life sentence is unreasonable and excessive, Judge Alarcon's opinion doesn't contain virtually any concrete deatails about the nature of defendant's offenses. And, as I said, the briefs apparently aren't yet online, so I haven't been able to ascertain what precisely justified the life sentence.

That said, Judge Alarcon's opinion contains two sentences that are both telling and compelling. At least to me. Judge Alarcon notes: "[The victim's] physical injuries . . . were so severe that her examining physician testified that she had never seen so much trauma to a sexual assault victim who had survived. The physician was so distressed by the severity of the victim’s injuries that she had to leave the room to cry and compose herself before she could administer medical treatment." Further, during sentencing, the district court said "that Mr. Mix’s violent acts against women were 'perhaps one of the most brutal, if not the most brutal, set of circumstances that the [district] Court has had the misfortune to preside over.'”

How depressing. Given those sentences, I'm really not sure I even want to learn more. Affirmed.

Yee v. Duncan (9th Cir. - March 28, 2006)

A criminal habeas case. In which the petitioner is a pro se prisoner. Raising a constitutional argument in an attempt to reverse his conviction. Under AEDPA, which requires that the state court's refusal to grant relief was an unreasonable application of federal law. The panel: Kozinski, Trott and Bea.

Given these predicate contours, when you see from the caption that the decision is unanimous, you'll be justly excused if you initially conclude -- as I did -- that the panel will reject the petition. But they don't. The panel ends up granting the petition and reversing the conviction, which is probably not the usual result that would arise in habeas cases resolved by such a panel.

Admittedly, the case is a bit unusual. The prosecutor here (in a sexual assault case) had struck a ton of men from the venire, and when defendant raised a Batson challenge, the prosecutor was honest and admitted that she couldn't remember any reason why she struck one of the male jurors. Such forthrightness is, sadly, all too rare, in my view, and is assuredly a huge reason why the result comes out the way it does . In addition, there's a substantial body of precedent, both in the Supreme Court and the Ninth Circuit (as well as elsewhere), that holds that absent such an explanation by the prosecutor, the defendant is entitled to relief. Finally, the panel is confronted by a district court decision that grants the petition, and it is a fair bit easier in habeas cases to affirm rather than reverse.

So don't expect this sort of thing to happen every day. But, still, the panel -- rightly, in my view -- affirms the grant of the petition. Do I think that the prosecutor deliberately struck men based upon their gender? Well, I'm not really sure, but from what little I know, probably not. Still, if there's a prima facie case, I think that the prosecutor at least has to proffer a reason, and when she can't, we need to reverse. At a minimum, it seems to me that this is what precedent -- including Batson -- fairly clearly holds.

So a rare Bea/Kozinski/Trott grant of a habeas petition. About as rare as a heavy rain in San Diego. Which in fact occurred on the same day the opinion was rendered. Coincidence? You be the judge.

Sherman v. SEC (9th Cir. - March 23, 2006)

I'm always amazed by the number of California attorneys who are themselves parties to major lawsuits. For example, here. Especially when, as is often the case, their participation arises in situations in which they do not -- and most definitely do not -- come out smelling like a rose.

Like here. This is a case involving the bankruptcy of Los Angeles attorney Richard G. Sherman and his wife, as well as the SEC's underlying lawsuit against Sherman and his attempt to discharge in bankruptcy the stipulated $636,293.43 judgment that was entered against Sherman. Admittedly, if the SEC had a $636,000+ judgment against me, I'd probably do pretty much anything I could to try to get out of it. But I also wouldn't like the fact that my appeal would publicize to pretty much everyone that (1) I went bankrupt, (2) the SEC obtained a huge judgment against me, (3) that I was allegedly so sleazy in my bankruptcy proceeding that the district court dismissed my bankruptcy petition for cause, (4) that, in a separate matter, I violated a court order, solicited additional funds from investors in an alleged Ponzi scheme, and was found in contempt and ordered to refund the $55,000 that I impermissibly took from my client's trust account, and (5) was forced to file bankruptcy, and was sued by the SEC, because I obtained over $881,000 in advances from a Receiver even though I was only entitled to $300,000 in fees, and couldn't -- and didn't -- repay the money I took.

All of which allegedly happens here. Not exactly great press for Richard Sherman, or something that I'd want out there in a published Ninth Circuit opinion. (For some other interesting cases involving Mr. Sherman, this time as a lawyer rather than party, look here and here. Not really the kind of cases I'd want to prosecute.)

Consumer Defense Group v. Rental Housing Industry (Cal. Ct. App. - March 24, 2006)

For an incredibly harsh, unrelenting, sarcastic, and utterly damning indictment of both Graham & Martin as well as Proposition 65 litigation -- at least as performed by some attorneys -- you've got to read this opinion by Justice Sills.

Rarely have I read something as unceasingly bitter and visceral as this. Not that it's necessarily wrong; indeed, there's much in here that I agree with. But man, oh man, is Justice Sills ruthlessly mean. He's got a definite take on this type of litigation, and he isn't at all shy about letting the reader know what it is.

See if you agree with him. It's an opinion that simply must be read.

U.S. v. Aukai (9th Cir. - March 17, 2006)

Here's a good example of how you can -- ostensibly legitimately -- refuse to follow a plethora of prior Ninth Circuit cases that don't go your way. At least when you have the right panel.

When you can "distinguish" cases and hold their various conclusions to be "dicta", you can decide the case the way you want. That way the onus is on the other side to see whether they -- rather than you -- can get enough votes to take the case en banc.

A classic move. This time by Judge Bea.

U.S. v. Rodriguez-Rodriguez (9th Cir. - March 22, 2006)

Ah, now I get it. It was confusing before. But now it's all so clear. How absurd of me to think otherwise.

Rodriguez-Rodriguez was convicted of illegal reentry after being deported, and is sentenced to over 6 years in (a U.S.) prison as a result. Plus three years of supervised release. One of his release conditions says that, after he is released -- at which point he'll be deported to Mexico -- he is required to present himself to the probation officer within 72 hours of any reentry into the United States.

To which Rodriguez-Rodriguez says: "Hey, this violates my right against self-incrimination. My release terms say you'll throw me back in prison if I come back into the U.S. and don't immediately go to my P.O. But if I do go to my P.O., once I show up, you'll know I'm back in the U.S., at which you'll throw me back into prison for illegal reentry! You're making me incriminate myself by showing up!"

But Judge Beezer's opinion quickly explains why Rodriguez-Rodriguez is totally mistaken. Judge Beezer says that there's a special provision -- 8 U.S.C. § 1326(a)(2)(A) -- that lets even people like Rodriguez-Rodriguez come back into the U.S. as long as they've gotten advance consent from the Attorney General. (Which I'm just sure that R-R is going to get!) So you see, Judge Beezer says, your showing up won't incriminate yourself, because it doesn't necessarily mean that you're there illegally. After all, maybe you got consent. So it's a totally cool condition.

Ah, yes. That makes total sense. Similarly, it wouldn't violate your right against self-incrimination for a court to impose the following condtion either: "Anytime you shoot, stab, or kill anyone, you are required to report immediately to the Probation Office." Because, after all, sometimes it's okay to shoot, stab, or kill people; for example, in self-defense. So ordering someone to show up once they've done so totally doesn't violate their Fifth Amendment rights, since maybe they've done so legally. That order doesn't require them to incriminate themselves -- by their mere (potentially blood-covered) presence -- at all.

I was so confused before. Now I understand. Thanks for the doctrinal explication. Makes total, total sense.

Nadarajah v. Gonzales (9th Cir. - March 17, 2006)

I've got to be fair.

In the past, I've insulted various Ninth Circuit judges -- even ones I respect -- for taking too much time to issue an opinion, and for not acting expeditiously in light of the nature of the case. So if I do that, I am both happy and obliged to compliment someone when they deliberately decide a case quickly given the underlying circumstances presented by the appeal.

Which is precisely what Judge Thomas -- without fanfare or self-laudatory comments -- does here. When he was 17, Ahilan Nadarajah was repeatedly tortured in Sri Lanka. He promptly fled to the United States, and was detained upon his arrival here in October 2001. He moved for asylum, and tried to obtain his release from detention, but the government repeatedly opposed his requests and continuously attempted to deport him.

Nadarajah's case comes to the Ninth Circuit on a petition for habeas corpus. Judge Thomas cogently -- and entirely accurately -- explains the basic underlying facts of Nadarajah's case as follows: "Twice, the government’s arguments against the grant of immigration relief have been rejected and Nadarajah has been awarded relief by an immigration judge. This decision was affirmed by the Board of Immigration Appeals. Yet, the government continues to detain Nadarajah, who has now been imprisoned for almost five years despite having prevailed at every administrative level of review and who has never been charged with any crime."

Needless to say, Judge Thomas not only grants the habeas petition, but also orders Nadarajah's immediate release. Less obviously, Judge Thomas also not only issues his opinion a mere 10 days after oral argument, but also orders its immediate issuance by the Clerk -- which is why the opinion is in the funky format rather than the more polished font in which Ninth Circuit slips are generally published.

Good job, Judge Thomas. Your opinion makes me proud of the Ninth Circuit (and you) today.

Pietrobon v. Libarle (Cal. Ct. App. - March 21, 2006)

Oops. I've accidentally opened a can of worms. But open the can remains. So I shall eat the contents, even if, in retrospect, I somewhat wish that I had lost my can opener -- or at least had skipped this particular can.

What I was going to say about this case is: "Boy, I am never, ever going to hire Marc Libarle as my lawyer." Why not, you might ask? Well, for one thing, he's been repeatedly suspended for failure to pay his Bar dues, and the ability to overlook such a facile task doesn't bode well. For another, he's also been disciplined by the Bar -- a private reproval, with public disclosure, in 1998.

Finally, there's this opinion. Which concerns a lawsuit filed against Mr. Libarle by a former client of his, Renzo Pietrobon. Which Libarle settled, in open court, and on the record, for $55,000, which Libarle agreed to pay in installment over two years. Subsequently, plaintiff's lawyer prepared a written agreement, which plaintiff signed, but Libarle -- who didn't dispute the agreement -- nonetheless refused to sign. Thereafter, Libarle fails to make the payments required by the agreement. Plaintiff tries to enforce the agreement pursuant to Section 664.6, but Libarle (successfully) opposes such enforcement. Then plaintiff files a separate breach of contract suit to enforce the agreement, but Libarle files general and special demurrers to the complaint, and, after he's forced to answer, resists the lawsuit on various hypertechnical -- and erroneous -- grounds. Finally, once the trial court grants a judgment against Libarle for over $46,000 -- which includes over $13,000 in interest and costs -- Libarle appeals.

So, basically, we have a lawyer who (allegedly) commits malpractice, who then (allegedly) refuses to sign a written agreement that confirms his oral commitments, who (allegedly) refuses to make the payments that he's promised to a former client, and then who (allegedly) resists his contractual obligations to that party with all his heart. Not exactly a guy I want to hire for my next representation.

Fortunately, and correctly, Justice Lambden affirms. And awards costs (yet again) against Libarle. So the result is something with which I'm eminently comfortable.

Here's the only tough part. In addition to being Legal Counsel for the Sacred Dying Foundation (and a $2000 contributor to John Kerry's presidential campaign), Marc Libarle is also apparently a Professor, and teaches at NYU. Now, I don't particularly care about the Sacred Dying or Kerry things, but the latter was somewhat of a surprise. Moreover, not only was it surprising, but I also hate to slam an academic colleague. Admittedly, Libarle doesn't teach at NYU Law -- instead, he's merely an adjunct assistant professor of communications at the Tisch School of the Arts. Still, I feel a tiny little bit bad about slapping him down.

Nonetheless, I hereby slam thee, Marc. I don't like the way you acted here. It wasn't right. Don't do it again. And, based upon what I've read, you're not a person whom I'd like to hire. And wouldn't recommend you to my friends.

Kuperman v. Assessment Appeals Bd. (Cal. Ct. App. - March 20, 2006)

Ah, the value of a J.D. from the University of Chicago Law School. The injustices that you can help to correct. The plights that you can attempt to alleviate. The benefits you can grant to the world.

Oh, wait a minute. That's not what it should be used for. Instead, maybe the recipient should just hang out at his home in Fallbrook and consistently challenge -- in every possible forum -- the assessed valuation of a 50-acre parcel that you purchased. That's what it's for.

Or at least that's apparently the theory of Lawrence C. Kuperman, a member of the local Bar down here. Larry buys a 50 acre parcel in De Luz in 1996 for $185,000. Not bad. Not bad at all. Especially since a mere three years earlier, in 1993, the very same parcel sold for $300,000.

The San Diego Assessor's Office thinks, hey, this alleged purchase price looks a bit low. Maybe there are some shenanigans going on here. But, in the end, after an appraisal, the Assessor's Office decides that it's fine with a $185,000 valuation. So Kuperman obtains an assessment at the lower value. Again: Not bad.

But then, six years later, Kuperman decides: Hey, why not demand an even lower valuation? His reason? Oh, I just discovered that SDG&E has an easement over the land. A recorded easement. Oh, did I mention? I'm an attorney. A U. Chicago graduate, no less. Someone who's very, very capable of suing my title company in the event they miss a recorded easement. (Parenthetically, I looked up various lawsuits in San Diego both by and against Lawrence Kuperman. Let's just say that there's more than one.)

Anyway, Kuperman demands that the Assessor's Office lower the base valuation of his parcel to a mere $38,242. For fifty acres. In San Diego.

The Assessor's Office -- shockingly -- refuses, and denies his application. (Did I mention that it was beyond the four-year limitations period for such claims? It was.)

So Kuperman appeals to the Board. And loses. So he files a writ of mandamus in the Superior Court. And loses. And he then appeals to the Court of Appeal. And loses. In this opinion by Justice McConnell.

Admittedly, there's a concurrence by Justice Aaron, who also agrees that Kuperman should lose, but for somewhat different reasons. In any event, Kuperman loses again. With a resulting cost award.

I do feel a tiny bit bad for Kuperman, since his title company doesn't sound that great. But that's why we let you sue them. You don't file a time-barred claim against the Assessor. Either in addition or instead.

Plus, one more thing. You know what this is all about, right? Something that's not mentioned in Justice McConnell's opinion, but perhaps should be. Remember that Kuperman's not challenging the current assessed valuation of his property. You can do that any time. If the property (given the easement) is really only worth $38,000 -- rather than $185,000 -- at this point, you can easily get that changed. But that's not what Kuperman wants. (Which is not surprising, given the increase in property values since 1996). Rather, he wants the base assessment to be $38,000, and hence any increases limited to 1% of that figure. So even if the property is in fact worth $150,000 now, he wants it assessed at $40,000.

Not exactly the kind of "justice" that really gets your juices flowing. Writ denied. Affirmed. End of story.

Clark v. Brown (9th Cir. - March 17, 2006)

Panel draws matter. Anyone who doubts that fact should take a look at this case, which grants a habeas petition and reverses the death sentence of William Clark. The panel here is (Dorothy) Nelson, (Willie) Fletcher, and Fisher.

I'm quite confident that the outcome would have been different if the panel had been, say, O'Scannlain, Rymer, and Callahan. Quite.

Buckley v. Terhune (9th Cir. - March 17, 2006)

This one wasn't especially surprising. A written plea agreement, drafted by the prosecution, states that the defendant's sentence will be 15 years. But defendant is thereafter sentenced to 15 years to life.

Defendant files a state habeas petition, which the California courts (routinely) deny. (This system really made an effort: the Court of Appeal rejected the petition with a one-sentence summary denial, as did the California Supreme Court. Impressive.) Defendant then files a federal habeas petition, and the federal magistrate -- after an evidentiary hearing -- recommends granting it. Judge Letts agrees, and grants the petition, and the state promptly appeals. (Parenthetically, this case is a good example of why the availability of federal habeas relief is important, as well as demonstrating the sharp contrast between the attention given to habeas petitions in the state versus the federal system.)

As I mentioned over a year ago, the panel opinion's treatment of the appeal was interesting. Judges Trott and Rawlinson agree with the state, and vote to reverse. While Judge Bea -- who's assuredly no liberal -- dissents, and votes to bind the state to the terms of its unambiguous written agreement.

Given this lineup, as well as the result, it's not surprising that the court decides to take the case en banc. And when it does, it's also not surprising how it comes out. It's a 9-2 decision in favor of the defendant, and binds the state to its agreement. Judges Callahan and Tallman are the only dissenters. Even conservatives such as Bybee and Kozinski are in the majority.

When someone like Judge Bea dissents in a habeas case and would find in favor of the defendant, there's a fair chance the case might well go en banc and the panel decision reversed.

Readylink Healthcare v. Lynch (9th Cir. - Mar. 14, 2006)

There's a part of me that always views positively a decision by the Ninth Circuit to certify a state law question to the California Supreme Court. I view it as an act of modesty -- a recognition that the state court might have more insight into state law than federal judges. And that rather than guessing at what the California Supreme Court might do, it makes some sense to simply ask them. Plus, I also generally view certification as reflecting a willingness to go along with a potentially adverse decision, one that might be different than the one that the Ninth Circuit would render if forced to "guess" at what the California Supreme Court would do. So, in general, I like certification. (Assuming, of course, that certification doesn't take years and years, as it sometimes does. But that's an issue for a different post; and, in any event, my temporal concerns apply less in civil cases, such as this one, and that don't involve persistent torts.)

That said, I wouldn't have certified this question. The issue is an important one: Can non-media defendants be held liable for invasion of privacy for publishing true information -- here, over the internet -- under California law? Surprisingly, this is a somewhat important, and personal, issue for me, at least since I've been publishing this blog. After all, on occasion, I do precisely what's at issue in this case, and "publish" personal information about attorneys or parties or the like -- generally through hyperlinks -- that I find interesting. And, since I'd be a "non-media" defendant in any resulting suit for invasion of privacy, I have somewhat of a personal stake in the outcome. Plus, even if I didn't, I do have a reasonably strong feeling about the correct result. I'll leave it to you as to what that feeling might entail. (Hint: I care about the First Amendment, particularly as applied to free speech that happens to be entirely true.)

The reason that the "non-media" thing is so important is because the United States Supreme Court, in cases like Cox Broadcasting v. Cohn, has invalidated state laws -- including California's -- that attempt to impose liability upon the press for public disclosure of accurate (but allegedly "unnewsworthy") information. So it's clear that states can't permit an invasion of privacy suit against the media. But what about others? What about, as here, a commercial entity, engaged in commercial speech? What about bloggers? What about people who allegedly might publish the information with malice? Does California state law, which used to (before it was shown to be unconstitutional) impose liability on media defendants, nonetheless attempt to impose liability in such other situations? That's the question that Judge Betty Fletcher certifies to the California Supreme Court.

Here's why I think that certification in this case -- even though totally good-natured, and arising from the very best place in Judge Fletcher's heart -- is wrong. Whether California state law attempts to recognize such a tort revolves, in truth, entirely around the contours of federal law. The only reason that the California Supreme Court overruled its prior "invasion of privacy" precedents is because it thought that they were invalid under the Supreme Court's recent First Amendment jurisprudence. Ditto here. The only reason that the California Supreme Court would likely conclude that there's no invasion of privacy tort would be its conclusion that any such liability would violate the First Amendment; or, by contrast, it would uphold such a tort if it concluded that the First Amendment did not bar such liability. So the entire case really revolves around federal -- not state -- law. And we don't certify questions on such topics, if only because the Ninth Circuit is just as (if not more) capable of adjudicating federal law issues as the California Supreme Court.

There are additional reasons not to certify here as well that I won't discuss at any length; for example, the fact that the California Supreme Court might well come back -- after a potentially lengthy delay -- with an answer like "We do impose liability because we don't believe it would violate the First Amendment" (or, equally, "We would impose liability if we thought it wouldn't violate the First Amendment), which would then permit the Ninth Circuit to say "Well, we do think it would violate the First Amendment, so there!" Other results can also be spun out that are equally untoward; e.g., the California Supreme Court says, "We wouldn't recognize such a tort because we think it'd violate the First Amendment," and the Ninth Circuit responds "But we hold that it doesn't violate the First Amendment, so would you really not like to recognize the tort?", the California Supreme Court then responds Y, etc. etc. But, like many of the things I've written this week, this post is already getting too long, so I'll simply hint as these other things and move on.

My basic point is that I think that the certified question centrally revolves around the contours of federal law, and hence that while it's a doctrinally proper question to certify, certification is not the wise choice. Indeed, I will go so far to say -- and I really don't think you'll ever hear me say this again, since generally I'm pretty pro-certification -- that the California Supreme Court should promptly refuse to answer this certified question, and respond that this is a primarily a question of federal law best left for adjudication by the federal courts.

In short, in my view, the California Supreme Court should be as modest and deferential on this issue as the Ninth Circuit has been. Which, if it happens, would be pretty remarkable. And would also make me smile.

We'll see what actually transpires.

U.S. v. Perlaza (9th Cir. - March 14, 2006)

You can't do this. I'm sorry, but it's just not right.

I'll say the good thing first. This is a fine opinion by Judge Pregerson. It reads really well; indeed, it's almost like a novel, and -- especially the factual discussion -- definitely keeps you flipping pages. If you ever want to read an interesting story about federal drug interdiction on the high seas, as well as how cocaine gets from Columbia to central Mexico, this is clearly the opinion for you. I'm being totally sincere when I say that I know a lot, lot more about the use of go-fast boats, logistical support vessels ("LSVs"), and the Navy and Coast Guard's efforts in Eastern Pacific after reading this opinion than I did beforehand.

Plus, as an added bonus, the opinion reads like a drama, and takes you step-by-step into the fascinating story of the Columbian "fishing vessel" Gran Tauro, the Navy frigate USS De Wert, and a variety of other associated actors in this saga. The first eight to ten pages of the opinion really are interesting. Finally, on the merits, the opinion reads like a good law review article: scholarly, expansive, analytical, and seemingly right. Sure, like most law review articles, it's also probably too long: the majority opinion alone tops out at almost 60 single-spaced pages. But that's because Judge Pregerson is being very comprehensive, and that's not always a bad thing. What I'm trying to say is this: There's a lot here to recommend the opinion.

Here's the thing. You cannot -- cannot -- take over two years to issue an opinion in a criminal case. That's simply unacceptable. Especially when, as here, you're reversing a conviction, and particularly when -- again, as here -- the case involves a dozen different defendants, all of whom have been in prison during the period in which you've been pondering at length) what to do with them.

These dozen defendants were convicted in 2001. They filed their appeals in 2002. They've been in prison now for a long, long time.

The case was argued and submitted in February 23, 2004. The opinion was issued over two years later, on March 14, 2006. You simply can't do this. And the fact that it's a long opinion is no excuse. This didn't have to be a scholarly, 60-page law review article. The case could have been resolved much, much more cleanly. And even if a 60-page law review article is required, that shouldn't take over two years. Even actual articles don't take that long, and they don't have big factual fillers, briefs that point out which way to go, and involve merely straightforward legal doctrine. You've got to -- got to -- get out the opinion earlier. There's simply no excuse.

One more bad thing. This time about Judge Brunetti -- who dissents -- rather than Judge Pregerson. (Now, I know, we're in truth talking about the relevant clerks, not the judges. But, still, as well all know, the principal is responsible for its agents, and the judge accordingly gets all the blame as well as the credit.)

Please do not simply minimally revise your bench memorandum to create a dissent. When you do so, it reads poorly, and looks bad. Judge Brunetti's dissent is a classic example of this error, and -- even after a 60-page majority opinion -- includes lengthy sections like "Proceedings Below" that are both utterly unnecessary and entirely duplicative of the undisputed background already articulated by the majority. Indeed, some of the sentences in the dissent are virtually verbatim from the majority opinion; presumably, since both came from the bench memo. Yes, I'm sure it's easier just to minimally rework the memo. And yes, maybe at this point, you don't care all that much. But put in the effort. It's not that hard. And not doing so looks bad.

Definitely some things to like here. But a lot of things that not to like as well.

TIG Ins. Co v. Homestore, Inc. (Cal. Ct. App. - March 13, 2006)

Here's another reason never to become a director or officer of a public company. Justice Perluss holds that TIG can rescind the D&O policy that covers Homestore because Homestore's CFO, who signed the policy application, attached Homestore's latest 10-Q, which contained financial data that the CFO knew was false.

In other words, because the CFO engaged in fraud, and because that fraud was part of a document submitted (as most insurers require) as part of the application, none of the directors and officers have D&O coverage. So these individuals -- even if they had utterly no knowledge of any fraud -- are personally on the hook for both their defense costs in the resulting (huge) securities class actions, as well as potentially tens or hundreds of millions of dollars in damages.

Judge Mayeda grants summary judgment to TIG, and Justice Perluss affirms. Both of these judges are smart and deliberate. I can find no fault in their legal reasoning, and hence I must agree with the result they reach. But I do so reluctantly. The law should be different. Insurers shouldn't be permitted to rescind a D&O policy, and thereby cause massive harm to innocent D&O's, merely because a different corporate officer committed financial fraud and attached a 10-Q to the application. The whole purpose of D&O coverage is to encourage people to agree to accept positions as D&Os. Holdings like this one only serve to discourage responsible and ethical individuals from agreeing to take on such positions.

D&Os who are innocent, and who didn't know about or participate in any fraud, should be entitled to coverage, and should not be forced to shoulder themselves the massive costs of defending securities class actions. And they should be able to accept such positions without fear that the insurer will be allowed to rescind the policy based upon the financial misconduct of someone else.

The law, and policy provisions, to the contrary should be changed.

Frederick v. Morse (9th Cir. - March 10, 2006)

This one takes me back to my youth. Ah, those heady days.

My story first, and then the case that reminded me of it. I went to public high school in Virginia the early 1980s -- the early Reagan years, for those too young (or old) to remember them. There were quite a few problems in my school that deserved considered attention, but during my junior year, the administration of the high school decided that what really needed to be solved was the critical problem of tee-shirts that dared to mention drugs or alcohol. Now, I had never actually seen such a tee-shirt, and perhaps neither had they. But they nonetheless decided that the possibility of such attire was a problem. So they passed a rule that said that they'd suspend anyone who wore any clothing that mentioned drugs or alcohol.

Even as a young high school student, my reaction to being informed of this new policy was similar to that of Chevy Chase in Fletch: "I'm no lawyer, but I believe that'd violate my civil rights." And since I was young and headstrong, my immediate reaction was to find a friend who had such attire -- in particular, a shirt with a huge Moosehead decal -- and borrow it. Which I promptly wore the day after the policy was announced. And, lest my (oh-so-significant) "rebellion" be unnoticed by the Powers that Be, I also made sure to wear this shirt the next week as well, when my picture was taken (and displayed) on the front page of the student newspaper for being a National Merit Semifinalist (or some other silly thing like that). Take that, The Man! Oh, yeah. You're getting it stuck to you now! How's it feel!

The thing is, the prinicipal of my high school was no fool. I'm quite sure that he knew what I was doing, but there's no way he was going to apply the policy against -- and suspend -- me. I was a young kid looking for a fight -- in this case, a legal fight -- and he (wisely) refused to be provoked. The policy continued to exist, and remain unchallenged, during my tenure at that august institution; and, for as far as I know, continues to exist to this day. (Anyone from Lake Braddock High School in Burke, Virginia care to comment?)

The lessons I learned from that "dispute" were fairly significant: the nature of power, deterrence, and (even unenforced) rules, as well as the value of carefully choosing when (and who) you fight.

These are the lessons Deborah Morse -- the principal of Juneau-Douglas High School in Juneau, Alaska -- really should have learned as well. Ms. Morse was no Mr. Alwood, my high school prinicpal. Far from it.

Deborah's decisions were simply silly, and made a federal case (literally) out of an utterly childish prank. To set the stage: the torch of the Winter Olympics is going through Juneau, and so Coca-Cola and other private sponsors arrange a "Winter Olympics Torch Relay" in which they give out free stuff and the like to those along the route. Lest our public high school students miss out on such munificent corporate largess, rather than provide those students with, oh, say, a continued education, the Powers That Be decided that watching the parade was more important, and so let students out of class for the day.

A parade?! Potential television cameras?! What high school student could resist? So Joseph Frederick, an 18-year old senior at the high school, decides that he'll have some fun with it. The parade is passing in front of the school, on a public street. So Joseph and some of his friends, all of whom are eager to get on television, and who apparently aren't really very creative -- decide that their best shot in this regard is to create a banner that says "Bong Hits 4 Jesus" and hold it up on the sidewalk as the parade passes. So that's what they do.

Oh, my. How hilarious. I'm rolling over with laughter. "Bong Hits 4 Jesus". HA-HA-HA. You kill me!! What utterly awesome social commentary. Way to stick it to The Man!!

In any rational universe, this would be the reaction of any observer of such a childish stunt. (Okay, I admit, it's a tiny, tiny bit funny, but you get my point.) But, of course, this ain't such a universe. The principal of the high school, Ms. Morse, decides that such a display of -- well, how should I put it; oh yeah: "free speech" -- is simply unacceptable. So she crosses the street, grabs the banner, and destroys it. Nice.

Oh, wait. She's not done. She then decides to suspend Joseph for five days for engaging in such revolutionary conduct, and tells him so. To which Joseph says something like: "Hey, I thought I had a constitutional right to free speech? You know: Thomas Jefferson, stuff like that?" A comment that prompts Ms. Morse to respond -- and here's the part that I absolutely love -- "Oh, did I say five days suspension? Make it ten."

Needless to say, Joseph sues. And totally wins. Sure, the district court judge -- Judge Sedwick -- inexplicably grants summary judgment to the defendants (Ms. Morse and the Juneau School Board). But the Ninth Circuit, in an opinion by Judge Kleinfeld -- it's a case from Alaska; who else would you expect to write the opinion?! --unanimously reverses. And finds not only that Joseph's speech was constitutionally protected, but also that the constitutional invalidity of defendant's conduct was so crystal clear that they're not entitled to immunity for monetary damages.

You couldn't have just left the banner alone, could you? No, you just had to rip it down, and then try to punish the student who had the audacity to challenge your Authoritah. So instead of watching a silly "Bong Hits 4 Jesus" banner for an extra 10 seconds, you end up having to (1) pay lawyers to defend a Section 1983 case, (2) lose, (3) pay the other side's costs and attorney's fees under Section 1988, and (4) potentially pay monetary damages as well.

Impressive. Great decision. Take a lesson from my high school principal: Sometimes it's better to let things go. Especially when they involve someone saying things with which you might disagree. We have a word for that. It's called Democracy. You teach it in your high school civics class. Just a reminder.

A Tale of Two En Banc Panels (9th Cir. - March 8-9, 2006)

Lest one think that one's draw doesn't matter at all, compare these two en banc cases, which came out within a day of each other. (Plus, I have a question about one of these panels, and for the life of me can't figure out the answer.)

The first is Landrigan v. Schriro, a decision that came out on March 8th. This is a habeas death penalty case in which the petitioner raises a claim of ineffective assistance of counsel. The en banc panel randomly drawn for this one includes all three remaining active Carter appointees (Schroeder, of course, as well as Pregerson and Reinhardt), the less results-oriented -- and more idiosyncratic -- of the two Reagan appointees (i.e., Kozinski rather than O'Scannlain), and four Clinton appointees (Hawkins, Wardlaw, Fletcher, and Berzon). All of whom vote in favor of the petitioner. Indeed, these 8 are even joined by a Bush appointee, Clifton. But the other two Bush appointees, Callahan and Bea, dissent.

By contrast, there's United States v. Gourde, a decision that came out the next day. This is another criminal en banc case, but both the context (e.g., the underlying criminal offense) and who's on the panel is quite a bit different. This is a child pornography case, and the issue is whether there was probable cause to believe that the defendant had actually downloaded any illegal pornography sufficient to uphold a warrant to search his computer. This panel has the same two Bush appointees who dissented in Landrigan -- Callahan and Bea -- as well as two GHW Bush appointees (Rymer and Kleinfeld), two Reagan appointees (O'Scannlain and Brunetti), three (fairly moderate, especially in criminal cases) Clinton appointees (Gould, McKeown, and Thomas), and two Carter appointees (Schroeder and Reinhardt). And they uphold the search on a 9-2 vote. The two judges who dissent here are the ones you might well imagine, at least if you follow these things: Reinhardt (not a big shocker) and Kleinfeld (who, like Kozinski, will occasionally vote with the left on a critical issue of privacy or other substantially important constitutional liberty). The death penalty is one thing. Kiddie porn is another. For all the alleged liberals on the Ninth Circuit, this is a court that has a lot of moderate to conservative votes on criminal matters. Tangentially, on the merits, this is a great set of opinions to read. Both the majority and the dissents make some darn good points. All of these opinions are definitely worth the time.

Okay, so here's my question. One which I've now spent four minutes trying to figure out, without success. So I'll publicly shame myself by revealing my stupidity, and then someone can e-mail me and tell me the simple answer that is totally obvious to everyone but me. Here it is: Why is Melvin Brunetti on this en banc panel? Circuit Rule 35-3 provides that the en banc court shall consist of 11 (now, 15) active judges. Judge Brunetti went senior back in 1999. Why's he on the panel? I honestly can't figure it out.

Again, sorry if I'm being stupid here. I'm sure it's not the first time. Nor -- by any means -- the last.

P.S. - Many thanks to those who e-mailed me and reminded me that senior judges who sit on the panel are eligible to sit on the en banc court. Which is why Judge Brunetti is where he is. Oh, yeah. I remember now. Thanks! (Interestingly, I had looked up these rules prior to the post, but there's a pretty substantial textual problem with the Ninth Circuit rule that allows senior panel judges to sit on the en banc court, which I read -- credibly, I think -- to allow them on the en banc court only if they go senior after the panel opinions issues. I'm sufficiently interested in the subject to maybe write some more on this topic later, but I shan't bother anyone with it now. Anyway, thanks again!)

People v. McDonald (Cal. Ct. App. - March 8, 2006)

You got me, Justice Kline. I can't resist. Obviously I have to talk about any case that begins with the opening line: "This case presents the question whether it is a crime under California state law to urinate in public."

You need say no more. To slightly modify Renee Zellweger's line to Tom Cruise in Jerry McGuire: "You had me at 'urinate'."

I shan't keep you in suspense. The answer is "Yes". Yes, as in: "Yes, it's a criminal offense. No, you can't piss in public. Yes, please stop doing it on my lawn."

The thing is, though, I'm not really sure that's the right answer. And I say that even though Justice Kline's opinion is pretty darn good, and I agree with a lot of it.

Let me start out, however, with a fairly simple predicate. You'd think that if the Legislature wanted to ban public urination, they could do so pretty easily. How about this proposed statute: "Anyone who goes wee-wee in public is guilty of a crime." Now, I'm sure that our esteemed Legislature, filled as it is with lawyers and consultants and staffers and lobbyists, could do better. My point is simply that if they wanted to ban public urination, it wouldn't be that hard to say so, now would it?

Here's another thing. It know it ain't that hard because the Legislature in fact passed a statute that prohibits public urination. At least in particular places. Section 640(b)(8) of the Penal (no pun intended) Code expressly bans "urinating or defecating" in public. But only in public busses and the like. So apparently the Legislature knows how to pass a law that bans peeing if it wants to. But, significantly, there's no actual law against doing so in your routine, not-in-a-public-bus sort of setting.

This obviously ain't gonna stop the People of the State of California, however. Who busted David McDonald for public urination, and definitely want to convict him. Not, by the way, because we care very much about his pee. We don't, quite frankly. But during his arrest, we found some crack on him. And we definitely care about his crack. But if public urination isn't a crime, then there's no probable cause for the search. Hence, pretty much by definition, we care about the pee.

Lacking an actual statute that prohibits public urination, the Attorney General's Office puts its best people on this pisser of a case (yeah, I know: lame), and they come up with a plethora of statutes that arguably prohibit the act. (As an aside, the two Deputy AG's responsible for writing the brief -- Amy Haddix and Ann Wathen -- are both Berkeley undergrads. I bet that's exactly what they both hoped to be doing after they graduated and went to law school. "We're going to be pee lawyers!!") Justice Kline -- entirely rightly -- slaps down most of their arguments. For example, public urination isn't "littering" under Section 374 of the Penal Code, and the statutory definition that the trial court used to hold to the contrary doesn't apply. Similarly, Justice Kline holds that public urination also doesn't violate Section 375 -- which prohibits, inter alia, the possession or dissemination in public of "nauseous, sickening, irritating, or offensive" liquids -- either. (Although I do think that his arguments with respect to this statute are a bit weaker than his arguments with respect to Section 374; in part because they slightly conflict with some of the things he says vis-a-vis his ultimate conclusion).

But, in the end, Justice Klein holds that peeing in public is illegal because it constitutes a "public nuisance" and hence violates Section 370 and 372. Now, as you might expect, Justice Klein doesn't say that such conduct always constitutes a nuisance, and he expressly "doesn't reach" the question whether a hiker who has to go really, really bad and hence pisses on a trail has done anything illegal. But, he says, the parking lot here was not a trail in the wilderness, so convicted ye shall be.

A lot of this analysis is persuasive. But let me make two arguments to the contrary -- ones that apparently weren't raised in the case, but that may well suggest that Justice Kline's conclusion is perhaps erroneous.

First, due process. I'm really troubled by a statute that prohibits (largely-undefined) public nuisances, and especially as applied to public urination. Does such a criminal prohibition really give adequate notice of the acts governed by this statute sufficient to comply with the Due Process Clause? Particularly as applied to an act that the Legislature could easily prohibit with express language, this seems to me a tough question. Plus, the "hiker" hypothetical that Justice Kline fails to reach only deepens the constitutional problem. If -- and I think this is right -- peeing in the woods wouldn't constitute a public nuisance, then why does peeing in a dark and empty parking lot (in front of a closed restaurant) violate the statute? More significantly, what's the clear dividing line between the two, and how does the statute give adequate notice of this distinction? I think that there's a strong argument that it doesn't, and that the statue, as applied by Justice Kline, might well be constitutionally deficient. (Plus, never forget: The Legislature could easily prohibit this stuff. Why stretch a statute, and potentially stretch the Due Process Clause, merely because the Legislature elects not to get off its butt and prohibit the practice anywhere except on public busses?!)

Second, intent. There's a strong, strong argument, in my view, that the Legislature would not have intended Sections 370 and 372 to apply to public urination. Take a gander again at Section 640, which was the statute that the Legislature in fact passed regarding peeing in public. That statute makes it an infraction -- not a true criminal offense -- to pee on a bus. Which, in my mind, is a lot more offensive than peeing in an empty parking lot. Do we really think that the Legislature wanted a bigger penalty for peeing in a parking lot as opposed to peeing on a crowded bus?

More significantly, in my mind, when it passed Section 640, the Legislature expressly added a caveat, and stated that it's not a crime to pee in public -- even on a bus -- as a result of the person's "disability, age, or medical condition." By contrast, Sections 370 and 372 contain no such exceptions. Which means that a person could presumably be convicted under those statutes even if they totally couldn't hold it. I don't think that's what the Legislature intended when they passed those statutes. And if that's the case, it provides some evidence that the Legislature didn't intend Section 370 and 372 to cover public urination.

Sure, you can make counterarguments: That prosecutors would never charge someone really old who had to pee in public, or that common law doctrines (like the necessity defense, duress, mens rea, etc.) might avoid or invalidate convictions in such settings anyway. But I nonetheless think that the statutory difference between what the Legislature actually did in Section 640 and what exists in Sections 370 and 372 is pretty meaningful. And casts substantial doubt that we should interpret the latter statutes in the way Justice Kline advances in his opinion, especially in light of the lingering constitutional difficulties.

When the Legislature could easily -- and does -- speak in clear language, I think that says something. For this reason, I'm not at all confident that Justice Kline gets this one right. It's a good opinion. But it still might not reach the correct result.

That's my take, anyway.

P.S. - I'm not even going to tell you the mistake that I made when I initially published this post earlier today, a mistake that was identified by a bright -- and esteemed -- reader. I'll say only this: I promise, promise, promise that if they're ever standing side by side, I'll never, ever mistake Justice Kline for Justice Klein!

Oden v. Northern Marianas College (9th Cir. - March 6, 2006)

What is it about music class that apparently makes college students and/or their professors totally (and unacceptably) randy?
This is the second Ninth Circuit case in I've read in the last couple of months with basically the exact same fact pattern. Female college student takes music class from male professor. Male music professor thereafter allegedly sexually harasses female student. Here are the claims in this case: "After Plaintiff began taking classes from Dalla Pozza, however, his behavior became increasingly inappropriate and disturbing to Plaintiff. He rubbed Plaintiff’s back and then moved his hands downward to touch her buttocks. On a number of occasions he kissed her on the lips and forced his tongue into her mouth. During one session he touched her breasts and rubbed his body against hers. Dalla Pozza also talked with Plaintiff about sexual topics and commented about her body." Yuk! Not exactly what the student signed up for when enrolled in music class.

Astute observers will recall a post regarding a quite similar fact pattern a couple months ago -- this time that involved a music teacher at CSU Sacramento -- in connection with another Ninth Circuit case, Stanley v. Trustees of the California State University. Both there, as here, the music teacher allegedly harassed the student. And both there, as here, the lawsuit was dismissed (and the dismissal affirmed) on essentially procedural grounds; i.e., even if the harassment occurred, no relief was available.

Makes me even more glad I kept out of the music department during college.

People v. Hofsheier (Cal. Supreme Ct. - March 6, 2006)

You're going to have to pardon some of the language in this post (or skip it), but it's necessary given the nature of the case. Which is a tough one, in my view.

It's all about rational basis review. Here's the deal. Vincent Hofsheier is a 22-year old man. He pleads guilty to engaging in consensual oral copulation with a 16-year old girl. Which is a crime. Indeed, it's a felony. Not a good thing to do.

I know what you might be thinking. As we used to say, "16 will get you 20". But that's not actually true, or at least not here in California. He actually gets probation, plus 120 days in county jail. But, critically, he's also required -- under the statute -- to mandatory registration as a sex offender for life. Which, as you might imagine, is very much not a fun time.

Here's the rub -- and it's a tough one. Had Hofsheier actually had sex with the minor, he wouldn't be subject to mandatory registration as a a sex offender. Due to a (longstanding) quirk in California's laws relating to sexual conduct with minors, because he's 22 and she's 16, only oral copulation subjects you to mandatory statutory registration. In other words, a blowjob gets you registered for life, but actual statutory rape doesn't.

So Hofsheier claims -- and the trial court agrees -- that this statute makes uttery no sense, and that in subjecting oral copulation but not intercourse to mandatory registration, the statute unconstitutionally deprives him of equal protection of the laws. Which is a pretty good argument, because the state is wholly unable to come up with a persuasive argument for why the law is written that way. Sex with minors is worse than oral sex with minors. It's that simple.

Which is, ultimately, what the California Supreme Court holds, in a 6-1 opinion by Justice Kennard. Justice Baxter dissents, but his arguments aren't particularly persuasive. His best argument (amongst several weak ones) is that it makes more sense (or, more accurately, it might hypothetically make sense, in some parallel universe) to publish oral sex more severely than regular sex because the Legislature might conclude that oral sex is more common, and hence needs more deterrence, because at least some minors are unwilling to (to use his words) "go all the way". And, given the contours of rational basis review, even such a fairly lame argument might be enough to uphold the statute. But the majority disagrees, and I can somewhat see why.

But my take, honestly, is a little different. I don't see why the State can't argue -- though I don't see them actually making this argument anywhere -- why the statutory distinction can't be supported merely on the basis of a moral judgment. Namely, that blowjobs are morally worse than actual sex. I have no doubt that this was, in fact, actually why the (messed-up) statutory regime actually arose; after all, back when California first enacted the statute, all oral copulation offenses were prosecuted (along with bestiality) as "the infamous crime against nature". Why can't the Legislature simply -- and constitutionally -- say that "We punish oral sex more than straight sex because we like oral sex less."?

Okay, I admit, maybe they don't actually like it less, but they might at least find is more immoral -- at least when other people do it -- and hence more worthy of punishment. Why isn't that a permissible basis for the statute? For example, imagine the Legislature distinguishes -- as most states do -- between regular rape (or statutory rape) and rape (or statutory rape) with a foreign object. Presumably, the Legislature can properly and constitutionally punish the latter more than the former, even absent any evidence of greater "harm" from the latter, merely on the basis of a moral judgment about the difference between these offenses. Ditto for anal intercourse versus regular intercourse. Why can't the Legislature simply say: "In the area of sexual offenses, we find certain conduct -- conduct (like statutory rape) that is constitutionally unprotected -- to be more perverse and hence worthy of punishment?" After all, we do that all the time.

So, in the end, I think that, particularly in the area of constitutionally unprotected sexual conduct -- which is surely what we're talking about here, since it's a minor -- there's a strong argument that the Legislature has a great deal of leeway to make moral decisions. Sure, you still can't discriminate against classes (homosexuals) or speech or on other unconstitutional grounds. But I'm not sure that the equal protection clause really stops the Legislature from making judgments about the relative immorality of various crimes and sexual offenses. Sure, we may disagree with those judgments, and conclude -- as virtually everyone would -- that oral sex with a minor isn't worse than regular sex. But if the Legislature comes out the other way -- and, in 1921, I'm fairly confident that they would have, and at least hypothetically might do so today -- does that really violate equal protection?

Obviously, it's a stupid statute, and one that needs changing. So a large part of me is happy that the California Supreme Court struck it down. But does rational basis review really allow such a result. For me, that's the doctrinally tough part about this case, and on that issue, I'm not sure that I'm yet entirely convinced.

In Re Ralph Thomas (Cal. Supreme Ct. - March 6, 2006)

So sad. The Grateful Dead was formed way back in 1965 (anyone remember "Mother McCree's Uptown Jug Champions"?) and performed for three full decades, until Jerry's death in 1995. During the entirety of those thirty years, notwithstanding their great fame and popularity in our Great State of California, the only time the California Supreme Court mentioned either the Dead or their deadicated (!) fans was in a 1995 opinion in which the defendant was convicted of possessing LSD (People v. Palaschak). And the California Supreme Court reversed the conviction; and did so unanimously, at that. Probably something that the Grateful Dead (and their fans) would appreciate. In any event, it was a passing reference, and merely referred to the place where the defendant (allegedly) scored his acid, at a house "occupied by ostensible fans of the Grateful Dead rock group." (emphasis added)

But then Jerry dies. And now, in this case, the California Supreme Court makes its only direct reference to the band, does so in the very first sentence of the opinion, and -- for the first time ever in reported jurisprudence in a California appellate tribunal -- refers to "Deadheads".

Sadly, the reference is in connection with a case of first-degree murder, and in which the defendant was (and is) sentenced to death. Here are the first several sentences of the opinion: "Mary Gioia and Greg Kniffin were “Deadheads,” followers of the band the Grateful Dead, who in 1985 traveled with other Deadheads to Berkeley, California, to see one of the band’s shows. When they arrived, they stayed in Rainbow Village, a permanent encampment of homeless people on the shores of San Francisco Bay. Sometime during the night of August 15-16, 1985, they were both shot and killed. Petitioner Ralph International Thomas, a resident of Rainbow Village, was convicted of second degree murder and first degree murder with special circumstances and sentenced to death for the killings of Gioia and Kniffin."

So an express reference to the band and to Deadheads. But a sad one. And includes a set of facts that don't exactly make being a Deadhead sound like a uniformly positive experience, at least for a certain category of fans.

It's a death penalty case. In the California Supreme Court. So you can guess how it probably comes out. Let's just say the defendant doesn't exactly get relief.

Sure, it's not unanimous, which is pretty unusual; here, Justice Kennard would grant the habeas petition. But everyone else disagrees.

P.S. - Don't get me wrong. Sometimes the California Supreme Court reverses a death sentence. For example, in this case -- People v. Strum -- which was also (like Thomas) issued earlier today. But you should definitely read the opinion in Strum to see what it takes to obtain a reversal. The trial judge in that case -- Judge Donald McCartin of Orange County -- was pretty much out of control; belittling defense counsel, telling the jury (on multiple occasions) that the case was a "gimmie", and being utterly partisan. Wow. Not impressive.

Lesson for the day (listen up, Judge McCartin): Especially when you're trying a death penalty case, please try to be neutral. Oh, yeah, also. Don't try to be funny, either. It's not a laughing matter. And your jokes weren't funny anyway.

Hoskins v. Hogstad (Redux) (Cal. Ct. App. - March 1, 2006)

Hey. No fair.

Justice Robie writes an opinion about the timing of anti-SLAPP motions that highlights the importance of doing things right, even if it means doing them yourself (rather than delegating). A lesson sufficiently worth repetition that I discuss it at some length.

But then, around a week later, Justice Robie decides to depublish the opinion. Apparently, Justice Robie didn't realize that the anti-SLAPP statute had recently been amended, in a manner that somewhat diminishes the doctrinal importance of the opinion (since the 30-day hearing deadline is, since October 2005, no longer jurisdictional).

Sure, that's a bit embarrassing for you, Ronald. But still. It was a good opinion. It taught lawyers a lesson. Maybe the eventual edits also teach jurists a lesson as well. It's a shame to see it depublished.

Gober v. Ralphs Grocery (Cal. Ct. App. - March 1, 2006)

The saga of Gober v. Ralphs Grocery continues. But at least there's now light at the end of the tunnel. Though, at least to a degree, for Ralphs, that light is merely yet another train, about to run them over in yet another potential multimillion dollar award.

I'm particularly tied to this case in two ways. First, I once (long ago) represented a witness in the lawsuit, who was subpoenaed by the plaintiffs but which I successfully quashed. Second, my wife and I used to shop at one of the relevant stores; in particular, the Sports Arena Ralphs here in San Diego.

I won't bore you with the entire saga, which I recounted (in part) back in April 2005. You can read that post here if you'd like. Essentially, this is a story of a very, very bad boy, Roger Misiolek, who harassed a variety of women; a set of big, hulking punitive damages awards against Ralphs; some really poor strategic decisions by Ralphs' counsel (and some outright bad lawyering), and then an even bigger award against Ralphs on retrial. We're talking about Ralphs losing many, many millions of dollars as a result.

Well, Ralphs does a tiny bit better in this latest appellate round. Though they're still out millions. But at least they're not out tens of millions. In the end, Justice McIntyre says: I'm sick and tired of all these retrials on the punitive damages phase. Let's just give the plaintiffs the maximum constitutionally permissible amount. Which turns out to be, in his view, six times the various compensatory damage awards.

So, for example, Finton, who was awarded $62,500 in compensatories in the first trial, and $350,000 in punitives -- at which point Ralphs demands (and receives) a new trial on the punitives phase, only to see the second jury award Finton $5,000,000 instead (subsequently reduced to $937,500 by the trial court) -- in the end has to pay Finton $375,000 in punitives. So $25,000 more that if Ralphs had just paid the punitives awarded in the first trial. Plus, don't forget, that Finton is entitled to his attorney's fees for all these rounds of trials and appellate proceedings. Which Ralphs is going to have to pay as well. Ouch.

The rest of the Finton plaintiffs end up basically the same way. (2) Lang's innitial award is $62,500 in compensatories and $325,000 in punitives, and after all this work, Ralphs has to pay $50,000 more in puntitives. (3) Noland gets $150,000 in punitives, but ends up getting double that; i.e., $300,000. (4) Paprio is initially awarded $500,00 in punitives, but, thankfully, this is the only one in which Ralphs makes some headway; Papiro eventually ends up only with $450,000. But, trust me, the extra fees that Ralphs is going to have to pay to counsel for Papiro -- not to mention the amount paid to Ralphs' own lawyers -- is going to utterly swamp this $50,000 in "savings".

There are, by the way, two other plaintiffs: Gober and Swann. They accepted the court's initial remittitur, and Ralphs elected not to appeal their awards. But if they had, Gober would have ended up with $100,000 less in punitives ($1.2 million vs. $1.3 million) and ditto for Swann ($600,000 vs. $700,000). Plus, because Ralphs did not appeal, these two end up getting additional postjudgment interest as well.

Look, in the end, the appellate attorneys for Ralphs at least prevent some of the harm that the initial bad, bad decisions created. A 6-1 punitive damages ratio is actually -- in my mind -- a really, really, really good result for Ralphs, and is both probably better than Ralphs expected as well as, potentially, too lax as a matter of law. But I guess that's an issue for the next appellate tribunal, in the (unlikely) event that the California Supreme Court wants to keep this thing going.

What a clusterfart. At least it's just about over. But wait 'til you see the fee application that plaintiffs' counsel will file. Oh, boy. It ain't gonna be small. At all.

Ritschel v. City of Fountain Valley (Cal. Ct. App. - Feb. 28, 2006)

This is why you spend the money (or give up a portion of your contingency) and hire an appellate specialist. Because, at a bare minimum, they won't totally mess up the appendix, and leave out important -- and potentially case-dispositive -- portions of the record. Plus, they'll probably write a better brief.

As a bonus, the Court of Appeal also won't slightly insult your appellate attorney. Which is what Justice Rylaarsdam somewhat does to counsel for Ritschel, Daniel R. Shapiro, here.

Affirmed. Sorry for the slams, Mr. Shapiro. Sorry for the loss, Mr. Ritschel. Stuff happens.

People v. Gayton (Cal. Ct. App. - Feb. 28, 2006)

Wow.

Rarely have I read an opinion by the Court of Appeal that is so intelligent, passionate, and so concerned with justice as this one, by Justice Bedsworth.

You've really got to read this one. It's quite good. And fairly short.

As an aside, I've been pretty impressed with Justice Bedsworth over time. He writes pretty well, and with a passion. Interesting that Justice Bedsworth actually had to run for an open seat to get on the Superior Court; not what I'd expect from someone with his background. Plus, he's a goal line judge for every Mighty Ducks game. Why doesn't someone give ME that kind of job?! I'm outraged. And totally jealous.